diff --git a/.devcontainer/devcontainer.json b/.devcontainer/devcontainer.json new file mode 100644 index 0000000..9d3e5f0 --- /dev/null +++ b/.devcontainer/devcontainer.json @@ -0,0 +1,57 @@ +// For format details, see https://aka.ms/devcontainer.json. For config options, see the README at: +// https://github.com/microsoft/vscode-dev-containers/tree/v0.245.0/containers/python-3 +{ + "name": "legal-research-copilot-postgresql", + "dockerComposeFile": "../docker-compose.yaml", + "service": "app", + "workspaceFolder": "/workspace", + "forwardPorts": [5432], + "portsAttributes": { + "5432": {"label": "PostgreSQL port", "onAutoForward": "silent"}, + "8000": {"label": "Backend port", "onAutoForward": "openBrowser"}, + "5173": {"label": "Frontend port", "onAutoForward": "openBrowser"} + }, + "features": { + "ghcr.io/devcontainers/features/node:1": { + "version": "18", + "nodeGypDependencies": false + }, + "ghcr.io/azure/azure-dev/azd:latest": { + "version": "1.10.1" + }, + "ghcr.io/devcontainers/features/azure-cli": {} + }, + // Configure tool-specific properties. + "customizations": { + // Configure properties specific to VS Code. + "vscode": { + // Add the IDs of extensions you want installed when the container is created. + "extensions": [ + "ms-python.python", + "ms-python.vscode-pylance", + "charliermarsh.ruff", + "mtxr.sqltools", + "mtxr.sqltools-driver-pg", + "ms-vscode.vscode-node-azure-pack", + "esbenp.prettier-vscode" + ], + // Set *default* container specific settings.json values on container create. + "settings": { + "python.defaultInterpreterPath": "/usr/local/bin/python", + "python.testing.unittestEnabled": false, + "python.testing.pytestEnabled": false, + "[python]": { + "editor.formatOnSave": true, + "editor.codeActionsOnSave": { + "source.fixAll": "explicit" + }, + "editor.defaultFormatter": "charliermarsh.ruff" + } + } + } + }, + // Use 'postCreateCommand' to run commands after the container is created. + "postCreateCommand": "pip install -r requirements-dev.txt && pip install -e src/backend", + // Comment out to connect as root instead. More info: https://aka.ms/vscode-remote/containers/non-root. + "remoteUser": "vscode" +} diff --git a/.env.sample b/.env.sample new file mode 100644 index 0000000..6eb56bc --- /dev/null +++ b/.env.sample @@ -0,0 +1,40 @@ +# Database Configuration +POSTGRES_HOST=localhost +POSTGRES_USERNAME=postgres +POSTGRES_PASSWORD=postgres +POSTGRES_DATABASE=postgres +POSTGRES_SSL=disable + +# Workspace Path +WORKSPACE=/workspace + +# PostgreSQL User Configuration +POSTGRES_USER_ID=1000 +POSTGRES_USER_NAME=postgres +POSTGRES_USER_SHELL=/bin/bash + +# PostgreSQL and pgenv Versions +PGENV_VERSION=1.3.7 +PG_VERSION=16.4 + +# OpenAI Configuration +OPENAI_CHAT_HOST=azure +OPENAI_EMBED_HOST=azure + +# Azure OpenAI Configuration +AZURE_OPENAI_ENDPOINT=https://serdar-azure-open-ai.openai.azure.com +AZURE_OPENAI_VERSION=2024-08-01-preview +AZURE_OPENAI_CHAT_DEPLOYMENT=gpt-4o +AZURE_OPENAI_CHAT_MODEL=gpt-4o +AZURE_OPENAI_EMBED_DEPLOYMENT=text-embedding-3-small +AZURE_OPENAI_EMBED_MODEL=text-embedding-3-small +AZURE_OPENAI_EMBED_DIMENSIONS=1536 +AZURE_OPENAI_EMBEDDING_COLUMN=description_vector +AZURE_OPENAI_EVAL_DEPLOYMENT=gpt-4 +AZURE_OPENAI_EVAL_MODEL=gpt-4 +AZURE_TENANT_ID= +AZURE_OPENAI_KEY=YOUR-AZURE-OPENAI-API-KEY + +# Azure ML Configuration +AZURE_ML_SCORING_ENDPOINT=https://mlukrerankeraml-bgev2m3.southcentralus.inference.ml.azure.com/score +AZURE_ML_ENDPOINT_KEY=YOUR-AZURE-ML-ENDPOINT-KEY diff --git a/.gitignore b/.gitignore index 8e202a0..1777eaa 100644 --- a/.gitignore +++ b/.gitignore @@ -6,3 +6,8 @@ Data_ingestion/.env Data_ingestion/.ipynb_checkpoints /src/frontend/node_modules/ */package-lock.json +.azure +__pycache__/ +*.js.map +*.pyc +src/backend/static/assets/* \ No newline at end of file diff --git a/.gitmodules b/.gitmodules new file mode 100644 index 0000000..5177a16 --- /dev/null +++ b/.gitmodules @@ -0,0 +1,3 @@ +[submodule "vendor/age"] + path = vendor/age + url = https://github.com/apache/age.git diff --git a/Data_ingestion/backend.ipynb b/Data_ingestion/backend.ipynb new file mode 100644 index 0000000..caeff9a --- /dev/null +++ b/Data_ingestion/backend.ipynb @@ -0,0 +1,647 @@ +{ + "cells": [ + { + "cell_type": "code", + "execution_count": 3, + "metadata": {}, + "outputs": [], + "source": [ + "import logging\n", + "import os\n", + "import sys\n", + "\n", + "import psycopg2\n", + "from dotenv import load_dotenv\n", + "from psycopg2.extras import Json\n", + "\n", + "# Load environment variables\n", + "load_dotenv()\n", + "\n", + "# Configure logging\n", + "logging.basicConfig(level=logging.INFO)\n", + "logger = logging.getLogger(\"graph_db_ingestion\")\n", + "\n", + "# Define database connection parameters\n", + "conn_params = {\n", + " \"dbname\": os.getenv(\"POSTGRES_DATABASE\", \"postgres\"),\n", + " \"user\": os.getenv(\"POSTGRES_USERNAME\", \"postgres\"),\n", + " \"password\": os.getenv(\"POSTGRES_PASSWORD\", \"postgres\"),\n", + " \"host\": os.getenv(\"POSTGRES_HOST\", \"localhost\"),\n", + " \"port\": os.getenv(\"POSTGRES_PORT\", \"5432\"),\n", + "}" + ] + }, + { + "cell_type": "code", + "execution_count": 8, + "metadata": {}, + "outputs": [ + { + "name": "stdout", + "output_type": "stream", + "text": [ + "{'score': Decimal('0.01639344262295081967'), 'pagerank_rank': 1, 'relevance': 0.0, 'id': '615468', 'vector_rank': 1, 'abbr': 'Le Vette v. Hardman Estate', 'pagerank': Decimal('0.8718440727625433'), 'data': {'id': 615468, 'name': 'Mabel Le Vette, Appellant, v. Hardman Estate et al., Respondents', 'court': {'id': 9029, 'name': 'Washington Supreme Court', 'name_abbreviation': 'Wash.'}, 'analysis': {'sha256': '4361853e35bf3c3ccc332cec2f938ceae6f3b96b8e3b83e31725116a3a7d6386', 'simhash': '1:ad47d891b7f6505d', 'pagerank': {'raw': 3.3003634237380244e-07, 'percentile': 0.8718440727625433}, 'char_count': 10485, 'word_count': 1835, 'cardinality': 527, 'ocr_confidence': 0.537}, 'casebody': {'judges': [], 'parties': ['Mabel Le Vette, Appellant, v. Hardman Estate et al., Respondents.'], 'opinions': [{'text': \"Morris, J.\\nAppeal from an order of nonsuit and dismissal, in an action brought by a tenant to recover damages for injuries to her goods, caused by leakage of water from an upper story. The facts, so far as they are pertinent to our inquiry, are about these: The Hardman Estate is the owner of a building on Yesler Way, in Seattle, the lower portion of which is divided into storerooms, and the upper is used as a hotel. Appellant, who was engaged in the millinery business, occupied one of the storerooms under a written lease. Some time in August, 1911, the lessee of the hotel portion, although his lease had not expired, vacated the upper stories, and they continued vacant until after the damage complained of. This lessee not having paid his water rent, the city turned off the water from the hotel portion of the building some time in September. This water service so turned off, it appears, did not affect the storeroom occupied by appellant. There was, however, a dwelling on the rear of the lot which was supplied with the same service pipe as the hotel, and which had been vacated for some time. This vacant dwelling in the rear was rented on November 15, and orders given the city to turn on the water, which was done on November 16. Soon after the water was turned on, it began to o flow through the ceiling and into the room occupied by appellant, causing the damage complained of. An examination of the premises disclosed the fact that, in one of the rooms over the storeroom occupied by appellant, a washstand had been torn from the wall and the water pipes broken,' making quite a hole through which the water was escaping. It was also discovered that a large rear window opening on the alley had been broken, making an opening large enough for a person to enter the building. It was also shown that, on three other occasions during the vacancy of the hotel portion, the windows on the alley had been broken, supposedly by boys getting into the building. The lease contained the following clause:\\n“That the said lessee shall hold harmless the said lessor and the said lessor’s agents- from all damages of every kind or nature whatsoever that may occur by reason of any accident on said premises, -and from any damage done or occasioned by or from plumbing, gas, water, steam, or other pipes or sewerage ; or the bursting, leaking or running of any cistern, tank, wash-stand, or waste-pipe in, .above, upon or about said building or premises; and from any damage occasioned by water, snow, or ice being upon or coming through the roof, skylight, wall, trapdoor, or otherwise, and from damages arising from acts of neglect of co-tenants or other occupants of the same building, or of any owners or occupants of the adjacent or contiguous property.”\\nThis stipulation, in the judgment of the lower court, exempted the respondents from any responsibility in the matter, and was the basis of the ruling complained of. Stipulations of this character cannot be enlarged upon to include any damage not expressly waived, and it is generally held that such a stipulation will not excuse an injury occasioned by the negligence of the landlord in the management and use of any part of the premises remaining under his control. Levin v. Habicht, 45 Misc. 381, 90 N. Y. Supp. 349; 1 Thompson, Negligence, § 1143. It has also been held that such stipulations cover only ordinary wear and tear, or sudden action of the elements which could not be guarded against, or negligent acts of other tenants. Randolph v. Feist, 23 Misc. 650, 52 N. Y. Supp. 109; Worthington v. Parker, 11 Daly (N. Y.) 545.\\nIt is clear from the facts that the damage to appellant was not caused by any breaking of water pipes on the premises leased to her, nor was it due to any negligence of cotenants, nor of owners or occupants of adjacent property, but was due to the bursting or breaking of water pipes on premises not covered by the lease but within the building, and fall within that clause of the waiver exempting damage occasioned by bursting or leaking of washstands in, above, upon, or about the building, or by water coming through the walls. We think it is also clear that the cause of the damage was not an ordinary leak due to defective plumbing or usual wear, such as might be anticipated in any building and thus be within the contemplation of the parties when entering into a stipulation of this character, but was an unusual and unexpected happening, due to other than natural and anticipated defects or lack of repair in any fixture forming part of the water system of the building.\\nThere was no evidence that the proximate cause of this damage was any act of the landlord; and if appellant’s cause must rest upon some positive act of the landlord, it must fail. Negligence, however, may be predicated upon the failure to act where the law imposes a duty; and as between the appellant and the landlord, the occupancy and possession of the upper stories, with all the duties .flowing from such a relation, were with the landlord. The landlord could not excuse itself from this duty to appellant because of -the fact that, as between it and the lessee of the upper stories, the possession and occupancy was that of the latter. And this, we think, is so notwithstanding the tenant of the upper story had vacated within the term covered by the lease and the legal right of possession still remained in him. This might be and doubtless was true, as between the landlord and the upper tenant; and as between them, the upper tenant was still bound under his lease. But, whatever may have been the legal fiction, the facts were the upper tenant had vacated the premises and thus occasioned an actual, if not a legal, vacancy. Possession and control must rest somewhere, and as between the landlord and appellant, who was no party to the lease held by the upper tenant and not bound by any contract between this tenant and the landlord, this possession and control was, we think, with the landlord. It, therefore, seems to us, conceding the rule to be that the landlord is under no legal obligation to repair the demised premises, that it was the duty of the landlord to so control and preserve the upper stories as to keep them in a condition of reasonable safety, in so far as such a condition affected the tenant of the lower story; that, if it negligently suffered the upper story to be out of repair to such an extent as to damage the tenant of the lower story, it must respond in damages, and that the ordinary rule we have just referred to does not cover such condition as the facts here present. Priest v. Nichols, 116 Mass. 401.\\nSo far as we can gather from the facts, the injury was .caused by evilly disposed persons breaking into the building through the windows in the alley and outside of the premises covered by the lease to appellant. But the duty to guard the premises, so that such persons could not break into the building and injure the fixtures in the upper story, rested with the landlord and not with the appellant; and as it also appeared that these rear windows had been broken on three previous occasions, thus affording entrance to the upper stories, the landlord is chargeable with knowledge of the fact, and having knowledge it was its duty to guard against any recurrence and the natural consequences of such a trespass, by either protecting the premises from such a breaking, or investigating as to any harm that might have been occasioned thereby. The landlord also knew that the hotel section and the house in the rear were connected with the same water service pipe, and before the water was turned on, should have made an investigation of the upper floors to ascertain whether or not such an act could be done with safety to the premises occupied by appellant. Such failure to properly exercise superintendence over the upper story might, it seems to us, within the facts of this case, be’held negligence. Rosenfield v. Newman, 59 Minn. 156, 60 N. W. 1085. At least, we are not so clear it was not negligence as to say the question should not have been submitted to the jury. This disposes of the dismissal as to The Hardman Estate.\\nJohn Davis & Company was only the rental agent of the owner. Appellant, having dealt with a known owner and having sought to enforce her cause of action against the principal, cannot hold the agent, and. as to this respondent the dismissal is sustained.\\nThe judgment is affirmed as to John Davis & Company, and reversed as to The Hardman Estate.\\nCrow, C. J., Parker, Fullerton, and Mount, JJ., concur.\", 'type': 'majority', 'author': 'Morris, J.'}], 'attorneys': ['McCafferty, Robmson & Godfrey, for appellant.', 'Reed & Hardman, for respondent Hardman Estate.', 'Robert F. Booth, for respondent John Davis & Company.'], 'corrections': '', 'head_matter': '[No. 11332.\\nDepartment Two.\\nJanuary 8, 1914.]\\nMabel Le Vette, Appellant, v. Hardman Estate et al., Respondents.\\nLandlord and Tenant — Lease—Conditions—Exemption of Damages — Negligence of Lessor — Liability. A provision in a lease of a storeroom that the lessee shall hold the lessor harmless from all damages by reason of accidents on the premises or the bursting of pipes, above, upon, or about the building or any damage occasioned by water, or the acts or neglect of cotenants, only includes the damages expressly waived, and does not excuse an injury occasioned by the negligence of the landlord.\\nSame — Defective Premises — Damages to Tenant — Negligence of Landlord — Evidence—Question for Jury. The negligence of the lessor of a storeroom on the ground floor of a hotel building, in failing to control and keep the upper stories in a condition of reasonable safety, is for the jury, where it appears that the upper tenant moved out, and the upper part of the building was broken into several times and a washstand torn out, leaving a water pipe broken, the water having been turned off; and, upon renting a vacant house in the rear connected with the same water service pipe, the lessor had the water turned on without making an investigation of the upper stories, whereby the water escaped and damaged the lessee’s goods in the storeroom.\\nPrincipal and Agent — Liability of Agent. A tenant who dealt with a known owner and sought to hold the owner liable for injury to goods, cannot hold the owner’s rental agent.\\nAppeal from a judgment of the superior court for King county, Tallman, J., entered December 13, 1912, dismissing an action by a tenant for injury to goods, on granting a non-suit.\\nAffirmed as to one defendant; reversed as to the other.\\nMcCafferty, Robmson & Godfrey, for appellant.\\nReed & Hardman, for respondent Hardman Estate.\\nRobert F. Booth, for respondent John Davis & Company.\\nReported in 137 Pac. 454.'}, 'cites_to': [{'cite': '137 Pac. 454', 'category': 'reporters:state_regional', 'reporter': 'P.', 'opinion_index': -1}, {'cite': '60 N. W. 1085', 'category': 'reporters:state_regional', 'reporter': 'N.W.', 'opinion_index': 0}, {'cite': '59 Minn. 156', 'case_ids': [1645922], 'category': 'reporters:state', 'reporter': 'Minn.', 'case_paths': ['/minn/59/0156-01'], 'opinion_index': 0}, {'cite': '116 Mass. 401', 'case_ids': [719836], 'category': 'reporters:state', 'reporter': 'Mass.', 'case_paths': ['/mass/116/0401-01'], 'opinion_index': 0}, {'cite': '52 N. Y. Supp. 109', 'case_ids': [3406830], 'category': 'reporters:state', 'reporter': 'N.Y.S.', 'case_paths': ['/nys/52/0109-01'], 'opinion_index': 0}, {'cite': '23 Misc. 650', 'case_ids': [1608221], 'category': 'reporters:state', 'reporter': 'Misc.', 'case_paths': ['/misc/23/0650-01'], 'opinion_index': 0}, {'cite': '90 N. Y. Supp. 349', 'case_ids': [7667138], 'category': 'reporters:state', 'reporter': 'N.Y.S.', 'case_paths': ['/nys/90/0349-01'], 'opinion_index': 0}, {'cite': '45 Misc. 381', 'case_ids': [7667138, 1826630], 'category': 'reporters:state', 'reporter': 'Misc.', 'case_paths': ['/nys/90/0349-01', '/misc/45/0381-01'], 'opinion_index': 0}], 'citations': [{'cite': '77 Wash. 320', 'type': 'official'}], 'file_name': '0320-01', 'last_page': '325', 'first_page': '320', 'provenance': {'batch': '2018', 'source': 'Harvard', 'date_added': '2019-08-29'}, 'jurisdiction': {'id': 38, 'name': 'Wash.', 'name_long': 'Washington'}, 'last_updated': '2024-02-27T16:40:13.389306+00:00', 'decision_date': '1914-01-08', 'docket_number': 'No. 11332', 'last_page_order': 361, 'first_page_order': 356, 'name_abbreviation': 'Le Vette v. Hardman Estate'}}\n", + "{'score': Decimal('0.01612903225806451613'), 'pagerank_rank': 2, 'relevance': 0.0, 'id': '4938756', 'vector_rank': 5, 'abbr': 'Stevens v. King County', 'pagerank': Decimal('0.6500680155483969'), 'data': {'id': 4938756, 'name': 'Sydney A. Stevens et al., Respondents, v. King County, Defendant, The City of Seattle, Appellant', 'court': {'id': 9029, 'name': 'Washington Supreme Court', 'name_abbreviation': 'Wash.'}, 'analysis': {'sha256': '2a18e83c0ebf64b849347253503c5280421dc4e653d41540c41ef0f486385383', 'simhash': '1:dc11c8e0b92183e5', 'pagerank': {'raw': 1.426614956521268e-07, 'percentile': 0.6500680155483969}, 'char_count': 20908, 'word_count': 3532, 'cardinality': 937, 'ocr_confidence': 0.628}, 'casebody': {'judges': [], 'parties': ['Sydney A. Stevens et al., Respondents, v. King County, Defendant, The City of Seattle, Appellant.'], 'opinions': [{'text': \"Donworth, J.\\nRespondents, as plaintiffs, brought this action against both the city of Seattle and Kang county to recover damages to real property caused by the invasion of surface waters. At the conclusion of the plaintiffs’ evidence, the trial court, sitting without a jury, sustained a challenge to the sufficiency of the evidence interposed by the county and dismissed the case as to that defendant. The trial then proceeded with the city as sole defendant, and at the conclusion thereof the trial court rendered an oral decision in favor of the plaintiffs. The city’s motion for a judgment notwithstanding the oral decision having been denied, the court entered findings of fact and judgment for the plaintiffs against the city of Seattle, from which the latter has appealed.\\nRespondents were represented in the trial court and in the perfecting of their appeal by counsel other than those who appeared for them at the time of the argument in this court.\\nRespondents, husband and wife, are owners of a tract of land in King county, located a few blocks north of the city limits of Seattle at the northwest corner of North 102nd street and Aurora avenue. The property is bounded on the east by Aurora avenue, on the south by North 102nd street, and on the west by an alley which runs north and south parallel to Aurora avenue. About twenty feet north of respondents’ property, this alley is intersected by another alley running west to Linden avenue parallel to North 102nd street. Linden avenue, which runs northerly and southerly, is the next street to the west of Aurora avenue and intersects North 102nd street approximately one hundred yards west of respondents’ property. With the exception of Aurora avenue, which is a primary state..highway, all of these streets and alleys are unpaved county roads.\\nRespondents’ land is improved by a store building located on the southern portion of the property, fronting on Aurora avenue, on the rear or west end of which two separate additions have been built which are used for living quarters and garage and storage purposes. The original store building has a concrete foundation wall, but the two additions rest on concrete blocks. Respondents became tenants of this property in 1942, purchased it in 1944 for five thousand dollars, and began to use the additions as their home on May 9,1946.\\nIn order to understand the legal problems presented by this case, it is necessary to describe the topography of this area. North 102nd street is a graveled road which has been oiled and compacted. Immediately west of Aurora avenue, this street was graded by filling the traveled portion with gravel to an elevation somewhat higher than that of respondents’ property. For a distance of one hundred fifty feet west of Aurora avenue, the street surface is almost flat, having a very slight crown. The street then begins to rise in its westerly course so that, at its intersection with Linden avenue, its elevation is about twenty-five to thirty feet higher than its elevation adjacent to respondents’ property. West of Linden avenue, North 102nd street continues to rise for a considerable distance. The alley, abutting on respondents’ property on the west, slopes from north to south. The general slope of the ground and the natural drainage in this vicinity is from the northwest to the southeast in the direction of respondents’ property, which forms a sump or pothole.\\nThe greater quantity of surface water arising on the hill to the west of respondents’ property travels south on Linden avenue to North 102nd street and east down that street to Aurora avenue. Some surface water flows east down the alley between North 102nd and North 103rd streets, turns into the alley to the west of respondents’ property, and runs south toward North 102nd. Except for Aurora avenue, there are no curbs, gutters, or sewers in this area for the purpose of carrying off the surface water.\\nAccording to the testimony of respondent Sydney Stevens (who will be referred to as the respondent unless the context indicates otherwise), the surface wateri,had formed a small drainage ditch on the north side of North 102nd street to within one hundred feet of respondents’ property, where it then leveled out. Prior to January, 1948, according to his testimony, the surface water, with one exception, had always flowed past his property without entering thereon. The single exception was in 1945, when surface water settled in a puddle on North 102nd street near the front of the store building, but the water disappeared after the county deposited gravel in that spot. In respondents’ complaint, it was alleged that there had been repeated floodings of their premises since'May 9,1946, but at the trial respondent testified that this allegation was incorrect.\\nOn January 20, 1948, the appellant, under a franchise from King county, commenced to lay water mains on North 102nd street connecting with an existing water main on Aurora avenue and running westward. This work was done by a contractor (to whom appellant had awarded this job) with the knowledge and under the supervision of the county engineer.\\nA trench, approximately two feet wide and forty-four inches deep, was dug by appellant’s contractor ten feet north of, and parallel to, the center line of the street and twenty feet from the south edge of respondents’ property. The dirt was piled three or four feet high on the south side of the trench. The pipe was laid in eighteen-foot sections, and that portion of the trench was backfilled with earth and water on the same day. Two or three days later, the surface of the street was smoothed off with the blade of a “scoopmobile” (bulldozer with rubber tires). The surface dirt was removed by the contractor and dumped in a place remote from respondents’ property.\\nThe alley to the west of respondents’ property was not disturbed in any manner, since no lateral pipes were laid. The job was completed in five days on January 24, 1948. Respondent testified that, after the appellant finished its installation, a barrier of dirt about one foot high was left, which remained several days, but the street was leveled before the rain came in February, 1948.\\nThe evidence shows that the job was rather carefully inspected at every stage by both the appellant and King county to make certain that the street was left in the same condition that it was when the job was started. However, no measurements were taken to determine the precise level of the street either before or after the construction. Respondent testified that prior to the time appellant installed the water main the street was not in very good condition and had been neglected by the county. After flooding involved in this action, the county constructed a ditch on the north side of North 102nd street which has since conducted' surface water past respondents’ property to the sewer in Aurora avenue.\\nDuring the actual laying of the water main, very little rain fell, but between the 13th and 18th of February, 1948, two and thirty-five hundredths inches of rain fell in this area.\\nOn February 24, 1948, respondents filed their claim for damages with the appellant city of Seattle, as well as with the county. This claim not having been acted upon within sixty days from the filing thereof, this action was thereafter commenced. Paragraphs VII, VIII and IX of this claim stated as follows:\\n“VII\\n“On February 16, 1948, and prior and subsequent thereto, there was a substantial rainfall, and the surface waters and seepage flowing on said streets and alleys entered upon the claimants’ property in great volume.\\n“VIII\\n“As a result of the repeated flooding of claimants’ premises since May 9, 1946, the soil has been gradually washed away from under the foundation walls of claimants’ house and store building, causing the walls thereof to sag, causing distortions and displacements in the structure of said building. Many of the wooden timbers thereof which have been subjected to repeated water damage have become rotten, and a wooden stairway into the basement of the premises at 10207 Aurora has completely rotted out. The ground under the board walk leading from the sidewalk on North 102nd Street to claimants’ front door has been washed away, causing the walk to sink. The aforesaid flooding has also damaged claimants’ lawn and shrubbery.\\n“IX\\n“The aforesaid damage has been gradual and cumulative, increasing with the flooding of claimants’ property which has occurred after each rainfall.”\\nThe contention of respondents is that the damage complained of was caused by appellant’s changing the street contours while making a public improvement which resulted in the surface water flowing down the street being diverted onto their property. They maintain that the judgment can be supported either upon the constitutional provision against damaging private property for a public use (Art. I, § 16) or upon the theory of appellant’s negligence. The trial court in its oral decision indicated that respondents’ recovery in this action was based on the city’s negligence.\\nOn the other hand, appellant contends that there is absolutely no proof that surface water was collected by it and discharged upon respondents’ property in a concentrated form, and that there is no proof that the laying of the water main in North 102nd street resulted in any changing of the street contours so as to cause the flooding. Furthermore, it is argued that respondent did nothing to mitigate his damages, although he was aware of the flooding and could have protected his property at nominal expense.\\nAppellant assigns as error the making of finding off fact No. VII, the failure to sustain appellant’s challenge to the sufficiency of respondents’ evidence, and the entry of judgment against the city for the sum of five hundred dollars.\\nFinding No. VII reads as follows:\\n“At the time defendant City performed such work on North 102nd Street, there was no substantial rainfall. Approximately in the middle of February, 1948, there was a heavy rainfall, with the result that large amounts of surface waters collected on the high ground west of plaintiffs’ property, and by virtue of the crown of North 102nd Street were prevented from flowing in their natural southeasterly course, but were conducted by open ditches on Linden Avenue and North 102nd Street to the intersection of said streets and thence east down North 102nd to the flat area immediately adjacent to plaintiffs’ property. By reason of the fact that defendant City had altered the contours of said street, the said surface waters thence flowed upon plaintiffs’ property in large volume, causing the foundations of their said buildings to settle, with resulting damage as hereinafter described. But for the construction work done by the defendant City as aforesaid, the said waters would have continued to flow in said street until reaching Aurora Avenue, whence they would have been conducted away by adequate drainage facilities, all without damage to plaintiff, as had been formerly the case.”\\nWe have italicized the portion of this finding which is particularly to be .noted in connection with our discussion of the evidence in this case. Primarily, only questions of fact are here involved. North 102nd street, being outside of the city limits of Seattle, was entirely under the jurisdiction and control of King county. Therefore our decision in Kuhr v. Seattle, 15 Wn. (2d) 501, 131 P. (2d) 168 (cited by respondent), is not applicable.\\nRespondent calls our attention to the well-established rule that findings of the trial court made upon conflicting evidence will not be disturbed by this court unless we can say that such findings are clearly not supported by the weight of the evidence, citing Michigan Millers Mutual Fire Ins. Co. v. Oregon-Washington R. & N. Co., 32 Wn. (2d) 256, 201 P. (2d) 207.\\nFrom an examination of the entire record in this case, we are constrained to hold that the weight of the evidence does preponderate against the above-quoted finding. We will briefly state our reasons for so holding.\\n1. Respondent’s claim against the city and county as well as the complaint (both were admitted in evidence) alleged that there had been repeated floodings of the premises since May, 1946, and that the damage had been gradual and cumulative. At the trial, he testified that these statements were erroneous, but his own witness Meroney, a former neighbor, testified in his deposition that there had been repeated floodings since 1946.\\n2. This finding was made in spite of the trial court’s appraisal of respondent’s testimony as unsatisfactory. In its oral decision, the trial court commented upon respondent’s credibility as follows:\\n“But I must concede to counsel that the re-reading of this plaintiff’s testimony does not convince me that I would be permitted to found my conclusions upon his sometimes rather disturbing testimony. He was quite an opinionated man and at times was almost flippant, not only towards his own counsel, but towards the Court and everybody else; and it was difficult to get from him just exactly what the facts were. He was bound to argue his case, and that made his own counsel’s problem somewhat difficult, as it did the rest of us.\\n“But, apparently, he does not contend and does not claim to the Court that there was any dam left, a dam of loose earth left there at this point, ten feet north of the center of 102d Street at the time when the flood of -which he complains actually occurred.”\\nSince respondent’s testimony was not considered by the trial court as adequate to support its findings, there was no credible testimony as to the essential facts to support the judgment other than that contained in the deposition of Mr. Meroney (whom the trial court did not see or hear testify). The court characterized Mr. Meroney’s testimony as “not always clear and in some cases it is somewhat conflicting.” The latter’s testimony was outweighed by that produced by appellant.\\n3. In opposition to these two witnesses, five witnesses were called by appellant, to wit, the King county district foreman, an engineer employed by the county engineer’s office, the city’s contractor who performed the work, the engineer in charge of the work for the city, and the district engineer for the city. All of them testified that the surface of North 102nd street in the vicinity of respondent’s property was in substantially the same condition after the water main was laid as before this work was done. Thus, the weight of the evidence is to the effect that the city did not change the contours of the street.\\n4. In testifying in rebuttal, respondent admitted that the ridge of earth which he claimed appellant had left in the street after this work was completed was leveled off before the heavy rain came in February, 1948. Respondent’s only remaining cause of the flooding was that the city had changed the contours of the street. This is discussed in the preceding paragraph.\\n5. The preponderance of the evidence does not support the above-quoted finding because respondent did not sustain the burden of proving that the laying of the water main by the city was the proximate cause of the flooding. Disregarding for the moment respondent’s allegations that there had been repeated flooding since 1946, his evidence merely showed that the flooding here involved occurred during the first heavy rain subsequent to the completion of the work, whereas no flooding took place just prior to doing the work at a time when there was also considerable rainfall.\\nRespondent in his brief argues that the photographs taken by him, at the time the flooding occurred, show conclusively that most of the water which damaged his premises came from North 102nd street and not from the alley which forms the westerly boundary of his property. Four of these pictures have been enlarged, and we have given all of them careful consideration. The trial court’s comment regarding these pictures in its oral decision was as follows:\\n“But this water, he [respondent] claims, came, in part, down the alley to the west of his property, and partly from the west. I think he suggested he thinks about five times the quantity from the west and probably one quarter from a point to the west, meeting up with one coming from this property.\\n“Col. Nelson [appellant’s witness] seemed to think that more water had come down the west alley, east-and-west alley. I mean to a point west of the premises, and the area around east and west, probably than any other direction. But I do not think so, and I won’t stop to refer to it. I think one of the pho'tographs taken so indicates. You can almost see the heavy burden of water that came down’ along the north side of 102d Street.. The water in there, those pictures show the presence of water there, and convince me further of the actual presence of an unusual quantity of water; and that is confirmed as well by the testimony of both the plaintiff and his neighbor across the way. The neighbor’s testimony is not always clear and in some cases it is somewhat conflicting.\\n“But the conclusive and elemental fact is that there was an excess of water which was not in accordance with the prior experience of the neighborhood within recent years, or at least that is the testimony. And he is also confronted with the fact that it should fall in exact coincidence with the preliminary construction of the water-pipe line and a rather heavy fall of rain, which followed in the succeeding month.”\\nWhile the direction of the flow of the water is not as clearly discernible from the pictures as might be desired, nevertheless, if we assume respondent’s conclusion that the water nearly all flowed onto respondent’s property from North 102nd street to be correct, there would still not be sufficient evidence to support finding No. VII as to the cause of the flooding. The burden was upon respondent to prove that the city changed the contours of North 102nd street and that this change caused the flooding. The most favorable view of the evidence from respondent’s standpoint amounts to no more than a mere possibility that the flooding might have been caused in this manner. This is insufficient to support the trial court’s finding.\\nIn Home Ins. Co. v. Northern Pacific R. Co., 18 Wn. (2d) 798, 140 P. (2d) 507, we had occasion to consider a rule of law which is applicable to the present case. We there said:\\n“The rule is well established that the existence of a fact or facts cannot rest in guess, speculation, or conjecture. It is also the rule that the one having the affirmative of an issue does not have to make proof to an absolute certainty. It is sufficient if his evidence affords room for men of reasonable minds to conclude that there is a greater probability that the thing in question, such as the occurrence of a fire, happened in such a way as to fix liability upon the person charged therewith than it is that it happened in a way for which a person charged would not be liable. In applying the circumstantial evidence submitted to prove a fact, the trier of fact must recognize the distinction between that which is mere conjecture and what is a reasonable inference.”\\nMore recently, in Gardner v. Seymour, 27 Wn. (2d) 802, 180 P. (2d) 564, the same principle was stated briefly as follows:\\n“We have frequently said that, if there is nothing more tangible to proceed upon than two or more conjectural theories under one or more of which a defendant would be liable and under one or more of which a plaintiff would not be entitled to recover, a jury will not be permitted to conjecture how the accident occurred.”\\nThis rule is equally applicable whether the trier of fact be a jury or a court sitting without a jury.\\nSince w¿ find from the record that there is not sufficient evidence to sustain the trial court’s finding that the city changed the contour of North 102nd street in such a manner as to be the proximate cause of the flooding, the respondents are not entitled to any recovery as against the appellant upon either the theory of negligence or upon the theory of the city’s damaging of their property for a public use. To recover upon the latter theory, there must be a showing that the acts of appellant resulted in the damaging of respondents’ property for such purpose. The evidence applicable to this theory is insufficient to bring this case within the scope of our decision in Whiteside v. Benton County, 114 Wash. 463, 195 Pac. 519, and other similar cases cited by respondent.\\nThe judgment is reversed, with directions to dismiss the action.\\nSchwellenbach, Hill, Grady, and Hamley, JJ., concur.\", 'type': 'majority', 'author': 'Donworth, J.'}], 'attorneys': ['A. C. Van Soelen and C. C. McCullough, for appellant.', 'W. Harold Hutchinson and James D. Rolfe, for respondents.'], 'corrections': '', 'head_matter': '[No. 31201.\\nDepartment One.\\nJuly 6, 1950.]\\nSydney A. Stevens et al., Respondents, v. King County, Defendant, The City of Seattle, Appellant.\\nA. C. Van Soelen and C. C. McCullough, for appellant.\\nW. Harold Hutchinson and James D. Rolfe, for respondents.\\nReported in 220 P. (2d) 318.'}, 'cites_to': [{'cite': '220 P. (2d) 318', 'category': 'reporters:state_regional', 'reporter': 'P.2d', 'opinion_index': -1}, {'cite': '195 Pac. 519', 'category': 'reporters:state_regional', 'reporter': 'P.', 'opinion_index': 0}, {'cite': '114 Wash. 463', 'case_ids': [701978], 'category': 'reporters:state', 'reporter': 'Wash.', 'case_paths': ['/wash/114/0463-01'], 'opinion_index': 0}, {'cite': '180 P. (2d) 564', 'category': 'reporters:state_regional', 'reporter': 'P.2d', 'opinion_index': 0}, {'cite': '27 Wn. (2d) 802', 'case_ids': [2520169], 'category': 'reporters:state', 'reporter': 'Wash. 2d', 'case_paths': ['/wash-2d/27/0802-01'], 'opinion_index': 0}, {'cite': '140 P. (2d) 507', 'category': 'reporters:state_regional', 'reporter': 'P.2d', 'opinion_index': 0}, {'cite': '18 Wn. (2d) 798', 'case_ids': [2587085], 'category': 'reporters:state', 'reporter': 'Wash. 2d', 'case_paths': ['/wash-2d/18/0798-01'], 'opinion_index': 0}, {'cite': '201 P. (2d) 207', 'category': 'reporters:state_regional', 'reporter': 'P.2d', 'opinion_index': 0}, {'cite': '32 Wn. (2d) 256', 'case_ids': [5304788], 'category': 'reporters:state', 'reporter': 'Wash. 2d', 'case_paths': ['/wash-2d/32/0256-01'], 'opinion_index': 0}, {'cite': '131 P. (2d) 168', 'category': 'reporters:state_regional', 'reporter': 'P.2d', 'opinion_index': 0}, {'cite': '15 Wn. (2d) 501', 'case_ids': [2572531], 'category': 'reporters:state', 'reporter': 'Wash. 2d', 'case_paths': ['/wash-2d/15/0501-01'], 'opinion_index': 0}], 'citations': [{'cite': '36 Wash. 2d 738', 'type': 'official'}], 'file_name': '0738-01', 'last_page': '748', 'first_page': '738', 'provenance': {'batch': '2018', 'source': 'Harvard', 'date_added': '2019-08-29'}, 'jurisdiction': {'id': 38, 'name': 'Wash.', 'name_long': 'Washington'}, 'last_updated': '2024-02-28T00:06:38.847976+00:00', 'decision_date': '1950-07-06', 'docket_number': 'No. 31201', 'last_page_order': 784, 'first_page_order': 774, 'name_abbreviation': 'Stevens v. King County'}}\n", + "{'score': Decimal('0.01587301587301587302'), 'pagerank_rank': 3, 'relevance': 0.0, 'id': '5041745', 'vector_rank': 6, 'abbr': 'Frisken v. Art Strand Floor Coverings, Inc.', 'pagerank': Decimal('0.6395550474178224'), 'data': {'id': 5041745, 'name': 'Florence Frisken, Respondent, v. Art Strand Floor Coverings, Inc., Appellant', 'court': {'id': 9029, 'name': 'Washington Supreme Court', 'name_abbreviation': 'Wash.'}, 'analysis': {'sha256': '041810cbce06e0f966fc45da931dfc538c2136899100c2e6aa73a385c964555f', 'simhash': '1:25eae28e2a08c6dc', 'pagerank': {'raw': 1.3764726080248453e-07, 'percentile': 0.6395550474178224}, 'char_count': 10072, 'word_count': 1697, 'cardinality': 566, 'ocr_confidence': 0.67}, 'casebody': {'judges': [], 'parties': ['Florence Frisken, Respondent, v. Art Strand Floor Coverings, Inc., Appellant.'], 'opinions': [{'text': 'Rosellini, J.\\nThe respondent, Florence Frisken, is the owner of a building in Shelton, Washington, occupied by her tenant, Mell Chevrolet Company. On November 20, 1952, she entered into an agreement with the appellant, a corporation engaged in the business of selling and laying floor coverings, whereby the latter contracted to furnish and install grease-proof asphalt-tile flooring in the showroom and office of the respondent’s building.\\nPrior to the submission of the appellant’s bid, its president, Arthur E. Strand, examined the floors of the showroom and office, which were of concrete covered with magnesite, and recommended a tile which would meet the respondent’s needs. The appellant’s bid was accepted, and by December 3, 1952, the installation was completed.\\nWithin a week or ten days after the flooring was laid, it was observed that a dark sticky substance was oozing up between the tiles. On the strength of the appellant’s assurance that the condition was temporary and would disappear in a few weeks, the respondent paid for the flooring.\\nWhen the oozing or sloughing continued after six weeks had elapsed, complaint was made again, but it appears that nothing was done to correct the condition. Eventually the magnesite beneath the tile grew spongy and caused the floor to rise in spots, resulting in an uneven surface and cracks in the tile. Agents of the appellant inspected the floor and reported that the magnesite was crumbling and falling apart. Still nothing was done to repair or remedy the condition, and after it had continued for more than a year, this action was commenced to recover upon an alleged breach of an implied warranty of fitness.\\nAt the conclusion of the trial, the court entered findings of fact, conclusions of law, and a judgment in favor of the respondent.\\nWhile the appellant admits that the flooring is not satisfactory for the purpose for which it was intended, it contends that (1) the defects were caused by factors beyond its control, and that the implied warranty of fitness does not cover such defects, or (2) if there was a breach of warranty, the defect was waived when the respondent paid for the installation.\\nThe defense of waiver was not pleaded, and the appellant did not request a finding that the respondent had waived the defect. As we have often said, this court will not consider a theory which was not passed upon by the trial court and is presented for the first time on appeal. Muck v. Snohomish County Public Utility Dist., 41 Wn. (2d) 81, 247 P. (2d) 233 (1952); Smith v. King County, 28 Wn. (2d) 917, 184P. (2d) 562 (1947).\\nThe facts as found by the trial court do not establish a waiver, since payment was made after the appellant had given its assurance that the sloughing would disappear, a fact which negatives any implication of an intent to waive the defect. Furthermore, the full extent of the damage did not appear until several months after payment was made. The fact that the respondent had paid for the flooring would not deprive her of her right to recover for a breach of which she neither knew nor had reason to know at the time. See Eliason v. Walker, 42 Wn. (2d) 473, 256 P. (2d) 298 (1953), a case in which the plaintiffs, purchasers of a heating system, elected to rescind the contract after the equipment had been paid for and had been in operation for three months. We held that the delay did not constitute a waiver of their right to rescind for breach of warranty, since the inadequacy of the heating system was not established until it had been in operation for some time.\\nWe turn now to the appellant’s contention that the trial court erred in finding a breach of warranty. According to the findings, the respondent advised the appellant that an attractive floor was needed because the room was to be used for display purposes; she relied upon the skill and judgment of the appellant’s agent, who represented to her that the appellant could and would install a floor which would satisfy her needs. The floor, the trial court found, was entirely unsatisfactory. It concluded that there had been a breach of the implied warranty of fitness imposed under Rem. Rev. Stat., § 5836-15 [cf. RCW 63.04.160], which provides in part as follows:\\n“ (1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.”\\nThe appellant argues that there was no competent evidence that the unsatisfactory condition was caused by faulty installation, and it is the custom of contractors not to warrant that magnesite flooring will not deteriorate and damage tile which is laid over it; therefore, there could be no implied warranty of fitness. In regard to the latter contention, there was scant evidence of such a general custom; the trial court made no finding that a custom existed, and none was requested. This facet of the argument is consequently without merit.\\nThe respondent’s expert witness, to whose qualifications the appellant made no objection, testified that the sloughing and unevenness was caused by moisture coming up through the magnesite, and that the “sweating” could have been avoided by the use of a sealer. The appellant’s expert witnesses testified that there is no sealer which can prevent this sweating, and that it occurs where no barrier has been erected beneath the magnesite or concrete; that there is nothing which can be done to prevent the occurrence once the magnesite and concrete have been improperly laid. The record contains no finding on this precise point, and apparently the trial court did not consider it controlling. Assuming that the fact was established, this in itself does not relieve the appellant of liability.\\nWhile the appellant’s president testified that he did not and could not have anticipated the condition which developed, he stated that the magnesite was tested for moisture before the tile was laid. The inescapable inference is that he knew of the possibility that moisture would rise through the magnesite and damage the tile. Furthermore, another of appellant’s witnesses, also a flooring contractor, testified that, unless a water barrier is installed, magnesite has a tendency to sweat and cause discoloration of the tile, and that it is customary to warn the purchaser of this possibility. In this instance, no inquiry was made to ascertain whether a water barrier had been installed, and the respondent was not advised of the risk involved.\\nNo error is assigned to the court’s finding that the appellant was familiar with climatic conditions in the area and knew the location of the floor with reference to the ground level as well as the nature and composition of the subflooring. Knowing or being charged with knowledge that there was a risk involved, of which respondent was obviously ignorant, and having failed to warn her of this risk before she made her investment, the appellant must be held to have warranted that the floor would be fit for the intended use regardless of the structure of the underflooring. It is the respondent’s ignorance of the nature and characteristics of floorings which establishes her reliance on the appellant’s skill and judgment. Had the deterioration of the tile resulted from some latent defect in the underflooring which the appellant could not have anticipated, or which the respondent as well as the appellant might have anticipated, a different question would be presented.\\nThe view we take is in accord with our holding in Columbia Concrete Pipe Co. v. Knowles, 36 Wn. (2d) 602, 219 P. (2d) 557 (1950). The defendant in that case, a farmer in eastern Washington, had contracted with the plaintiff for the purchase and installation of a pipe line which would irrigate certain designated portions of his farm. It was agreed that the defendant would dig the ditch for the pipe line, which he proceeded to do. The plaintiff’s agents, knowing that the ditch was probably too shallow, nevertheless laid the pipe, which soon sprang a number of leaks and proved to be unsatisfactory. Had the pipe been laid at the proper depth, it appeared that the leaks would not have occurred. We held that subdivision (1) of Rem. Rev. Stat., § 5836-15, was applicable, and that the defendant, having made known to the plaintiff the purpose for which the pipe line was to be used and having relied upon the plaintiff’s skill and judgment, was entitled to recover on his cross-complaint for a breach of an implied warranty of fitness.\\nAs we said in Lundquist v. Coca Cola Bottling, Inc., 42 Wn. (2d) 170, 254 P. (2d) 488 (1953), it is not necessary to prove negligence in order to recover for a breach of an implied warranty. The plaintiff must allege and prove: first, that he made known to the seller, either expressly or by implication, the particular purpose for which the article was required, and second, that it appeared that he relied upon the seller’s skill and judgment when he purchased the article. Under the rule of Columbia Concrete Pipe Co. v. Knowles, supra, if the seller undertakes to install the purchased item, he impliedly warrants that, after installation, it will be fit for the use intended. Of course, the seller may disclaim such a warranty, or the circumstances may negative reliance; but there is no evidence of a disclaimer here, and there is no question but that the respondent relied upon the appellant’s superior skill and judgment, and that the appellant was made aware of this fact.\\nAs we have construed the statute, the facts of this case fall within its provisions.\\nThe judgment is affirmed.\\nHamley, C. J., Mallery, Hill, and Weaver, JJ., concur.', 'type': 'majority', 'author': 'Rosellini, J.'}], 'attorneys': ['Oliver R. Ingersoll, for appellant.', 'Robert L. Snyder and B. Franklin Heuston, for respondent.'], 'corrections': '', 'head_matter': '[No. 33389.\\nDepartment Two.\\nOctober 13, 1955.]\\nFlorence Frisken, Respondent, v. Art Strand Floor Coverings, Inc., Appellant.\\nOliver R. Ingersoll, for appellant.\\nRobert L. Snyder and B. Franklin Heuston, for respondent.\\nReported in 288 P. (2d) 1087.'}, 'cites_to': [{'cite': '288 P. (2d) 1087', 'category': 'reporters:state_regional', 'reporter': 'P.2d', 'opinion_index': -1}, {'cite': '254 P. (2d) 488', 'year': 1953, 'category': 'reporters:state_regional', 'reporter': 'P.2d', 'opinion_index': 0}, {'cite': '42 Wn. (2d) 170', 'case_ids': [5001206], 'category': 'reporters:state', 'reporter': 'Wash. 2d', 'case_paths': ['/wash-2d/42/0170-01'], 'opinion_index': 0}, {'cite': '219 P. (2d) 557', 'year': 1950, 'category': 'reporters:state_regional', 'reporter': 'P.2d', 'opinion_index': 0}, {'cite': '36 Wn. (2d) 602', 'case_ids': [4939454], 'category': 'reporters:state', 'reporter': 'Wash. 2d', 'case_paths': ['/wash-2d/36/0602-01'], 'opinion_index': 0}, {'cite': '256 P. (2d) 298', 'year': 1953, 'category': 'reporters:state_regional', 'reporter': 'P.2d', 'opinion_index': 0}, {'cite': '42 Wn. (2d) 473', 'case_ids': [5001415], 'category': 'reporters:state', 'reporter': 'Wash. 2d', 'case_paths': ['/wash-2d/42/0473-01'], 'opinion_index': 0}, {'cite': '28 Wn. (2d) 917', 'case_ids': [2513679], 'category': 'reporters:state', 'reporter': 'Wash. 2d', 'case_paths': ['/wash-2d/28/0917-01'], 'opinion_index': 0}, {'cite': '247 P. (2d) 233', 'year': 1952, 'category': 'reporters:state_regional', 'reporter': 'P.2d', 'opinion_index': 0}, {'cite': '41 Wn. (2d) 81', 'case_ids': [4985077], 'category': 'reporters:state', 'reporter': 'Wash. 2d', 'case_paths': ['/wash-2d/41/0081-01'], 'opinion_index': 0}], 'citations': [{'cite': '47 Wash. 2d 587', 'type': 'official'}], 'file_name': '0587-01', 'last_page': '593', 'first_page': '587', 'provenance': {'batch': '2018', 'source': 'Harvard', 'date_added': '2019-08-29'}, 'jurisdiction': {'id': 38, 'name': 'Wash.', 'name_long': 'Washington'}, 'last_updated': '2024-02-27T22:07:33.301371+00:00', 'decision_date': '1955-10-13', 'docket_number': 'No. 33389', 'last_page_order': 631, 'first_page_order': 625, 'name_abbreviation': 'Frisken v. Art Strand Floor Coverings, Inc.'}}\n", + "{'score': Decimal('0.01562500000000000000'), 'pagerank_rank': 4, 'relevance': 0.0, 'id': '1346648', 'vector_rank': 8, 'abbr': 'Tombari v. City of Spokane', 'pagerank': Decimal('0.635261167736034'), 'data': {'id': 1346648, 'name': 'Vito Tombari, Respondent, v. The City of Spokane, Appellant', 'court': {'id': 9029, 'name': 'Washington Supreme Court', 'name_abbreviation': 'Wash.'}, 'analysis': {'sha256': 'f7a4c1800003eb3e2e75d5bbb3cb5dd6747c1a6af0c9364d5c7912f9b20f4b0e', 'simhash': '1:93fe7c5e072307e4', 'pagerank': {'raw': 1.3598115753644245e-07, 'percentile': 0.635261167736034}, 'char_count': 13116, 'word_count': 2206, 'cardinality': 602, 'ocr_confidence': 0.648}, 'casebody': {'judges': [], 'parties': ['Vito Tombari, Respondent, v. The City of Spokane, Appellant.'], 'opinions': [{'text': \"Millard, J.\\nThis action was brought to recover for damages alleged to have been sustained as a result of the depositing of sewage and water into plaintiff’s basement from a public sewer. The cause was tried to the court, which found that, pursuant to ordinance and regulations of defendant, plaintiff connected his property to appellant’s sewer; that the sewer installation required and approved by defendant was improper; that the sewer was of insufficient capacity to carry off the sewage and water conducted into it; and that, as the proximate result of defendant’s negligence, plaintiff sustained damage in the amount of two hundred and ten dollars, including the expense of fifty-five dollars incurred in the construction of a manhole subsequent to the flooding of the basement. Judgment was entered accordingly. Defendant appealed.\\nIt is the position of appellant that an extraordinary storm condition deposited an unusual amount of water in the vicinity of respondent’s property, thereby overtaxing the sewer system, which was reasonably adequate to care for sewage and water reasonably expected to accumulate under ordinary circumstances; and that the contributory negligence of respondent in failing to properly install a back water trap, or check valve, was the proximate cause of the damage and precludes a recovery by respondent.\\nThe facts are as follows:\\nRespondent owns a building, which was constructed in 1936, located at the northeast corner of Ninth avenue and Perry street, in the city of Spokane. In 1908, appellant installed the Perry street sewer, which is twenty inches in diameter from Seventh avenue to Ninth avenue. A sewer under Ninth avenue empties into the Perry street sewer, the diameter of which at this point is twenty-four inches.\\nIt is the duty, under an ordinance of the city of Spokane, of appellant’s health officer, where there is a public sewer in any street, to compel every owner within one hundred and fifty feet of the sewer to install a sufficient drain pipe, which shall connect his property to the nearest sewer. The health officer is also authorized to issue a permit for a cesspool or septic tank on premises in a sewer district, to drain plumbing fixtures or floors too low to be drained into the public sewer; but all other fixtures or floors on the premises are required to be drained through the sewer. The basement of respondent’s property was too low to properly drain to the sewer.\\nRespondent called in July, 1936, at the office of appellant’s sewer inspector and superintendent and requested permission to install a cesspool on his premises at Ninth avenue and Perry street. After inspection of respondent’s property, one of the officers of appellant’s sewer department informed the respondent that he would be required to connect with the Perry street sewer and that he would not be permitted to install a cesspool; that is, the city sewer superintendent and the city sewer inspector knew that respondent’s basement was too low to properly drain to the sewer, yet they required him to make the sewer connection, which they later inspected and approved.\\nThe basement drains and fixtures of respondent’s property were, pursuant to the foregoing instructions, connected in July, 1936, to the sewer in Perry street. Neither the superintendent of sewers nor the inspector, who required respondent to use iron pipe instead of clay pipe he contemplated installing, informed respondent that a back water trap was necessary or would be required; nor does the city ordinance require the installation of a back water trap. The sewer connection was installed by a man who had constructed sewers for more than twenty-five years. Doubtless, the installation of the connection was in the usual, customary, and workmanlike manner, as it was approved in all respects by appellant’s sewer inspector.\\nSince the construction of the Perry street sewer in 1908, the city’s population has greatly increased and many additional house connections — eight hundred and ninety-one in 1933 — have been made to the sewer. Many of the streets sloping toward Perry street have been paved within the past few years, so that the surface waters feed into the catch basins, and the remainder of the surface water that does not run into the catch basins accumulates at the comer of Ninth avenue and Perry street, in front of respondent’s property, where the street levels off and a pocket is formed at that intersection. Whenever it rains and the sewer becomes overloaded in that intersection, and often when it accumulates in the street, respondent’s basement receives some of the water.\\nDuring the heavy rains in the early part of June,' 1937, respondent complained to one of appellant’s commissioners concerning the flowing of water — not in great quantities — into his basement. The commissioner suggested to respondent that he install a “back water trap.” Respondent employed a plumber to install such a trap or check valve inside the basement. Whether the plumber did or did not advise respondent that the trap should be installed outside of the building, is not material. The plumber did advise respondent that a back water trap installed in the basement would protect the plumbing therein. There is some evidence that a back water trap installed outside the basement would not wholly prevent the backing up of sewage and water. It is clear, however, that respondent had no further serious difficulty subsequent to installation of a trap following the damage of which he now complains.\\nOn June 18, 1937, during a severe rain storm, respondent’s basement was flooded by reason of the backing up of the water and sewage from the Perry street sewer. Great damage was inflicted to property three miles from respondent’s property, it was testified, by the heavy rains. While there is evidence that the rainfall for the entire month of June was Very heavy, there is evidence from which it is reasonably inferable that the total rainfall for the month of June would not have overtaxed the sewer if it had functioned properly.\\nDuring the twenty-four hour period of June 18, 1937, forty-seven hundredths of an inch of rain fell. The weather bureau records disclosed that this rainfall was not unusual or excessive; that it had been exceeded many times during other twenty-four hour periods. On June 17, 1937, the day before the rainfall which it is claimed caused the flooding of respondent’s basement, five hundredths of an inch of rain fell. The testimony of one of the weather bureau officials was that, so far as the rainfall on June 18th and 19th, 1937, was concerned, “we have had rainfall that was greater than that on numerous occasions in the city of Spokane.” On cross-examination, he testified that the rainfall on those two days was unusually heavy; “. . . it was unusual as compared to the normal.”\\nThat is, the rainfall was such as had occasionally occurred in the past and which the city should reasonably have expected to occur again. Under such circumstances, if the sewers are so inadequate that they can not take care of the water, the municipality is not relieved from responsibility because the rainfall was extraordinary.\\n“Whatever the rule may be as to ordinary surface water or rainfalls, it is settled that a municipal corporation is not liable for damages caused by an overflow of its sewers occasioned by extraordinary rains or floods. However, although the rain doing the damage be of an extraordinary character, yet if the negligence of the city in failing to keep the sewers open concurred and contributed to the damage, then the city has been held liable. And if drains are so inadequate that they cannot take care of the water in case of an ordinary storm, the municipality is not relieved from responsibility because the rainfall was extraordinary.” 6 McQuillin Mun. Corp., Revised (2d ed.), 1226, § 2868.\\n“In order to give a stream or body of water the character of an extraordinary flow it is not necessary that it should be the greatest flow within memory, but its character in this respect is to be tested by comparison with the usual volume of floods ordinarily occurring. The mere fact, however, that a rainfall was unusual for the particular season in which it occurs does not relieve the municipality from liability. A municipality, as a general rule, is required to guard against such floods or heavy rains as have occasionally occurred, and which may reasonably be expected to occur again, although their occurrence may be at irregular and wide intervals of time.” 43 C. J. 1137, § 1895.\\nThe respondent was compelled by ordinance to connect his property to the sewer. The sewer connection was made in the manner approved by the appellant city. While the overflow of the sewer was caused by unusual rainfall, the rainfall was such as had occasionally occurred in the past and which the appellant should reasonably have expected to occur again. The appellant failed in its duty to guard against such heavy rainfall as that which overtaxed the Perry street sewer, which, though' adequate when constructed, had become of insufficient capacity in 1937 to carry off the water.\\nThe case at bar is controlled by Boyer v. Tacoma, 156 Wash. 280, 286 Pac. 659, 70 A. L. R. 1342, in which we held that a city is hable for the flooding of property required to be connected with a sewer which, though sufficient when constructed, had become of insufficient capacity to carry off the sewage conducted into it. We there said:\\n“It is true that in other cases from this court statements have been made by way of argument which indicate that the contrary rule might be followed. See Vittucci Importing Co. v. Seattle, 72 Wash. 192, 130 Pac. 109. But the statements therein contained are not necessary to a decision of the case. The theory of all of the cases which we have examined, which hold the city liable under circumstances such as we have outlined above, seems to be that the property owner is required to connect with the sewer; that he is not permitted to dispose of his sewage in any other way than the one way provided by the city; that he has no power or authority to remove the cause, or to in any way remedy the defect from which his injury arises; that the city alone has the power and the means to remedy the defective sewer or to replace an inadequate sewer, and that no person should be required to suffer an injury caused by an agency over which he has no control and over which the city has absolute control, and that if an injury is inflicted by such an agency he should be properly compensated therefor. We think this is the better rule and is well supported by both reason and authority.”\\nWoolworth Co. v. Seattle, 104 Wash. 629, 177 Pac. 664, is cited by appellant in support of its theory that there can be no recovery for damages from flooding where the loss was due to the concurrent negligence of the city in the maintenance of sewers of insufficient capacity to carry off an average rainfall and the contributory negligence of the owner in failing to keep clean and in proper repair a back water valve required by ordinance in all cellar and basement drains.\\nIn the case cited, a city ordinance required the installation of back water valves; while, in the case at bar, there was an absence of such requirement. There is no ordinance, nor is there any regulation of any department, of appellant which required the respondent to install a back water trap to protect his basement. The sewer connection was approved by appellant in all respects. The back water trap was voluntarily installed by respondent inside of his building to protect the plumbing in the basement upon the suggestion of one of appellant’s commissioners when respondent complained of water coming into his basement. In spite of that precaution, he sustained damages; and even if he had installed a back water trap outside of his building, it is not improbable, under the circumstances, that he would have sustained damages.\\nError is next assigned on the allowance of the cost of fifty-five dollars for the installation of a back water trap. If appellant had required respondent to install, as it now insists he should have done, the back water trap at the time of the connection of his property to the sewer, that installation would have entailed very little expense. As appellant did not require that installation, which appellant insists would have prevented the damáge, respondent should not be compelled to pay that which he would not have been required to expend if it had not been for appellant’s failure to perform its duty in the first place. Respondent acted in good faith and endeavored to comply with all the requirements exacted by appellant. The court correctly awarded to him the amount he expended in the installation of the back water trap.\\nThe judgment is affirmed.\\nSteinert, C. J., Beals, Geraghty, and Simpson, JJ., concur.\", 'type': 'majority', 'author': 'Millard, J.'}], 'attorneys': ['G. M. Ferris, Louis A. Conyard, and B. A. Farley, for appellant.', 'Clarke & Eklow, for respondent.'], 'corrections': '', 'head_matter': '[No. 27256.\\nDepartment Two.\\nDecember 2, 1938.]\\nVito Tombari, Respondent, v. The City of Spokane, Appellant.\\nG. M. Ferris, Louis A. Conyard, and B. A. Farley, for appellant.\\nClarke & Eklow, for respondent.\\nReported in 84 P. (2d) 678.'}, 'cites_to': [{'cite': '84 P. (2d) 678', 'category': 'reporters:state_regional', 'reporter': 'P.2d', 'opinion_index': -1}, {'cite': '177 Pac. 664', 'category': 'reporters:state_regional', 'reporter': 'P.', 'opinion_index': 0}, {'cite': '104 Wash. 629', 'case_ids': [674990], 'category': 'reporters:state', 'reporter': 'Wash.', 'case_paths': ['/wash/104/0629-01'], 'opinion_index': 0}, {'cite': '130 Pac. 109', 'category': 'reporters:state_regional', 'reporter': 'P.', 'opinion_index': 0}, {'cite': '72 Wash. 192', 'case_ids': [591457], 'category': 'reporters:state', 'reporter': 'Wash.', 'case_paths': ['/wash/72/0192-01'], 'opinion_index': 0}, {'cite': '70 A. L. R. 1342', 'category': 'reporters:specialty', 'reporter': 'A.L.R.', 'opinion_index': 0}, {'cite': '286 Pac. 659', 'category': 'reporters:state_regional', 'reporter': 'P.', 'opinion_index': 0}, {'cite': '156 Wash. 280', 'case_ids': [828223], 'category': 'reporters:state', 'reporter': 'Wash.', 'case_paths': ['/wash/156/0280-01'], 'opinion_index': 0}], 'citations': [{'cite': '197 Wash. 207', 'type': 'official'}], 'file_name': '0207-01', 'last_page': '214', 'first_page': '207', 'provenance': {'batch': '2018', 'source': 'Harvard', 'date_added': '2019-08-29'}, 'jurisdiction': {'id': 38, 'name': 'Wash.', 'name_long': 'Washington'}, 'last_updated': '2024-02-27T21:36:59.591031+00:00', 'decision_date': '1938-12-02', 'docket_number': 'No. 27256', 'last_page_order': 246, 'first_page_order': 239, 'name_abbreviation': 'Tombari v. City of Spokane'}}\n", + "{'score': Decimal('0.01538461538461538462'), 'pagerank_rank': 5, 'relevance': 0.0, 'id': '674990', 'vector_rank': 4, 'abbr': 'Woolworth Co. v. City of Seattle', 'pagerank': Decimal('0.6175425671535291'), 'data': {'id': 674990, 'name': 'Woolworth Company, Appellant, v. The City of Seattle, Respondent', 'court': {'id': 9029, 'name': 'Washington Supreme Court', 'name_abbreviation': 'Wash.'}, 'analysis': {'sha256': '02cb83cbc2640ee10525d5126d83064fe7c0b9515c4cd7c7adaa6483d164536a', 'simhash': '1:88ce042b78e8f14e', 'pagerank': {'raw': 1.2810719060154183e-07, 'percentile': 0.6175425671535291}, 'char_count': 8188, 'word_count': 1367, 'cardinality': 493, 'ocr_confidence': 0.492}, 'casebody': {'judges': ['Main, C. J., Mackintosh, and Tolman, JJ., concur.'], 'parties': ['Woolworth Company, Appellant, v. The City of Seattle, Respondent.'], 'opinions': [{'text': 'Mitchell, J.\\nAppellant, plaintiff below, was engaged in the mercantile business in the Arcade Building, in Seattle. In addition to its salesroom, it occupied the basement underneath for the storage, receiving, checking and shipping of its merchandise. It was a tenant of the premises, the basement of which abuts upon University street. The city maintained a sewer in University street. Radiating from this sewer there was a lateral sewer from and accommodating the premises used by appellant. On March 5, 1917, there was an average heavy rainfall, when the basement became flooded, causing damage to appellant’s goods and merchandise which, together with the cost of removing and cleaning the same, amounted to the alleged sum of $448.56. Charging the city with negligence in maintaining a main sewer on University street inadequate to meet the burden imposed upon it, resulting in the damage referred to, appellant presented to the city its duly verified claim for damages, the rejection of which occasioned this action. The city, by its answer, denied liability, and affirmatively answered, alleging contributory negligence. The case was tried without a jury. At the close of plaintiff’s case, the court granted defendant’s motion for a non-suit. Upon the request of defendant, findings of fact were made, upon which a judgment of dismissal was entered. Plaintiff appeals from the judgment.\\nOn the date mentioned, and for some years prior thereto, there was in force an ordinance of the city which, inter alia, provides:\\n“All cellar and basement drains must, when connected to sewer, ... be protected from backwater by backwater valves; said backwater valves must be provided with an air-tight clean-out cover placed immediately above valve, either screwed or bolted in place, capable of being removed for examination or repairs.” Ordinance No. 22,839, § 32.\\nIn the basement there was installed an iron manhole or receiving water tank, some two feet deep and about the same in diameter, narrower at the top, on which was placed, flush with the floor, a latticed circular iron cover having a mesh about two inches square. Within the manhole the intake of the drain pipe formed an elbow, the end of which, turned down and submerged in water when in place, was below the bottom of the stem of the drain pipe, thus forming a trap to prevent odors escaping from the sewer. On the stem of the pipe near the elbow and within the manhole there was constructed a backwater valve and cover as provided by the ordinance of the city. The drain pipe ran into a larger one from the building and thence into the University street main sewer. The water that flooded the basement poured back boiling out of the manhole.\\nIt is the contention of appellant that the incapacity of the main sewer alone caused the flooding, while the respondent claims the backwater valve had been allowed to become unclean and clogged by the fault-of appellant, thus causing the flooding and damage. The trial court found the main sewer inadequate, to which the city took no exception, and also found the appellant negligent in not keeping the backwater valve clean and in proper repair, to which appellant excepted. There is no testimony to show the backwater valve was structurally insufficient or out of repair.\\nThere was ample testimony by the head janitor, superintendent, and assistant superintendent of the building, and by E. M. Barstow, manager of appellant’s mercantile business in Seattle, all of whom witnessed the flooding, to justify the finding that all the water which caused the damage backed up from the street sewer through the drain pipe and manhole into the basement.\\nOn the other hand, O. A. Davis, appellant’s witness, a plumber and member of the firm that put in the plumbing, testified in detail as to its construction and operation, using a backwater valve to illustrate and explain its proper purpose and functions. It appears the backwater valve consisted of a solid door which hung vertically inside the drain pipe from a hinge, and when undisturbed rested against the surface of a circular collar or shoulder. Water escaping from the basement through the manhole and drain pipe would have no trouble in causing the door of the backwater valve to yield, while wafer backing up the drain pipe would force the door of the backwater valve against the shoulder and thus prevent the further passage of water, assuming always there is no debris or trash to clog the proper operation of the door of the backwater valve. The plumber stated that, if the door to the valve were free, backwater from the sewer could not pass — the harder the pressure from that direction all the better, if possible, to prevent the backwater from passing. Appellant attempted to meet the force of this testimony by showing the basement floor was cleaned at-the end of each day’s work; but considering the manner in which the backwater valve was constructed, and the further fact that there was no fine screen over either the manhole or the intake of the drain pipe, nor other device to prevent debris from getting into the valve, the flooding backward from the sewer is explainable on no reasonable theory other than that the door to the valve had been rendered useless by reason of carelessness in permitting waste matter to get into and clog the door of the backwater .valve.\\nCounsel for appellant also contends that a part of the flood water or sewage came back into the basement through the toilet. We do not so understand the proof. The rear of the basement was fifteen inches higher than that where the flood occurred. The toilet was situated in the rear basement, but all the witnesses who testified on this point said the damage was done by water pouring back through the manhole in the lower basement. The evidence does not show how the plumbing was constructed from the toilet into the sewer. One witness only, E. C. Barstow, testified there was backwater through the toilet, but the record shows that, later in the trial, when another witness was being examined with reference to this, Mr. Bar-stow, to clear np some apparent confusion, stated to the court: “Water came from the toilet but did no damage in the basement. This damage all came through the manhole.” Counsel for appellant argues that Mr. Barstow was not testifying when the statement was made. Appellant is bound by the statement, however, as an admission during trial, for Mr. Barstow was general manager for appellant in the conduct of the business which had suffered the loss, and was such manager and agent at the time of the trial.\\nThe finding of negligence against the respondent is unchallenged. The evidence preponderates in support of the finding of contributory negligence on the part of the appellant. The two acts of negligence concurring and co-operating constituted the proximate cause or occasion of the damage complained of, thus precluding a recovery. Franklin v. Engel, 34 Wash. 480, 76 Pac. 84; 20 R. C. L., Negligence, §§ 88, 89.\\nJudgment affirmed.\\nMain, C. J., Mackintosh, and Tolman, JJ., concur.', 'type': 'majority', 'author': 'Mitchell, J.'}], 'attorneys': ['Leola May Blinn, for appellant.', 'Hugh M. Caldwell and James A. Doug an, for respondent.'], 'corrections': '', 'head_matter': '[No. 14902.\\nDepartment One.\\nJanuary 6, 1919.]\\nWoolworth Company, Appellant, v. The City of Seattle, Respondent.\\nMunicipal Corporations (473, 479) — Defective Sewers — Actions for Injuries — Contributory Negligence. There can he no recovery for damages from flooding and injury to goods, where the loss was due to the concurrent negligence of the city in the maintenance of sewers of insufficient capacity to carry off an average rainfall, and the contributory negligence of the owner in failing to keep clean and in proper repair a back water valve required by ordinance in all cellar and basement drains.\\nEvidence (92) — Trial (16) — Admissions by Agent. An admission stated to the court by plaintiff’s general manager, made during the trial to clear up some confusion in his testimony, is binding upon the plaintiff.\\nAppeal from a judgment of the superior court for King county, Ronald, J., entered March 22, 1918, upon findings in favor of the defendant, upon granting a nonsuit, in an action in tort.\\nAffirmed.\\nLeola May Blinn, for appellant.\\nHugh M. Caldwell and James A. Doug an, for respondent.\\nReported in 177 Pac. 664.'}, 'cites_to': [{'cite': '177 Pac. 664', 'category': 'reporters:state_regional', 'reporter': 'P.', 'opinion_index': -1}, {'cite': '76 Pac. 84', 'category': 'reporters:state_regional', 'reporter': 'P.', 'opinion_index': 0}, {'cite': '34 Wash. 480', 'case_ids': [5212342], 'category': 'reporters:state', 'reporter': 'Wash.', 'case_paths': ['/wash/34/0480-01'], 'opinion_index': 0}], 'citations': [{'cite': '104 Wash. 629', 'type': 'official'}], 'file_name': '0629-01', 'last_page': '633', 'first_page': '629', 'provenance': {'batch': '2018', 'source': 'Harvard', 'date_added': '2019-08-29'}, 'jurisdiction': {'id': 38, 'name': 'Wash.', 'name_long': 'Washington'}, 'last_updated': '2024-02-27T19:14:33.671678+00:00', 'decision_date': '1919-01-06', 'docket_number': 'No. 14902', 'last_page_order': 661, 'first_page_order': 657, 'name_abbreviation': 'Woolworth Co. v. City of Seattle'}}\n" + ] + } + ], + "source": [ + "import openai\n", + "import numpy as np\n", + "import psycopg2\n", + "from psycopg2.extensions import register_adapter, AsIs\n", + "from psycopg2.extras import Json\n", + "import os\n", + "from dotenv import load_dotenv\n", + "\n", + "# Load environment variables and specify the file path if needed\n", + "\n", + "load_dotenv()\n", + "\n", + "def addapt_vector(nparray):\n", + " \"\"\"Adapt a numpy array to the PostgreSQL VECTOR type.\"\"\"\n", + " # Convert numpy array to string with square brackets for PostgreSQL VECTOR type\n", + " vector_str = ','.join(map(str, nparray))\n", + " return AsIs(f\"'[{vector_str}]'::VECTOR\")\n", + "\n", + "register_adapter(np.ndarray, addapt_vector)\n", + "\n", + "\n", + "deployment_id = os.getenv(\"AZURE_OPENAI_EMBED_DEPLOYMENT\")\n", + "openai.api_type = \"azure\"\n", + "openai.api_base = os.getenv(\"AZURE_OPENAI_ENDPOINT\")\n", + "openai.api_key = os.getenv(\"AZURE_OPENAI_KEY\")\n", + "openai.api_version = '2023-05-15'\n", + "\n", + "def create_embeddings(query, deployment=None):\n", + " if deployment is None:\n", + " deployment = deployment_id # Use the deployment ID as the default identifier\n", + " \n", + " try:\n", + " # New API structure for embedding creation\n", + " response = openai.embeddings.create(\n", + " input=query,\n", + " model=deployment\n", + " )\n", + " # embedding = response['data'][0]['embedding']\n", + " embedding = response.data[0].embedding\n", + " return np.array(embedding)\n", + " except Exception as e:\n", + " print(f\"Error generating embeddings: {e}\")\n", + " return None\n", + "\n", + "\n", + " \n", + "def execute_rerank_function(embedding, query, top_n, consider_n):\n", + " conn_params = {\n", + " \"dbname\": os.getenv(\"POSTGRES_DATABASE\"),\n", + " \"user\": os.getenv(\"POSTGRES_USERNAME\"),\n", + " \"password\": os.getenv(\"POSTGRES_PASSWORD\"),\n", + " \"host\": os.getenv(\"POSTGRES_HOST\"),\n", + " \"port\": os.getenv(\"POSTGRES_PORT\"),\n", + " }\n", + " \n", + " try:\n", + " with psycopg2.connect(**conn_params) as conn:\n", + " with conn.cursor() as cursor:\n", + " cursor.execute(\"\"\"\n", + " SELECT * FROM get_vector_rerank_pagerank_rrf2_cases(%s, %s, %s, %s);\n", + " \"\"\", (embedding, query, top_n, consider_n))\n", + " \n", + " # Fetch the results\n", + " results = cursor.fetchall()\n", + " colnames = [desc[0] for desc in cursor.description]\n", + " return [dict(zip(colnames, row)) for row in results]\n", + " except psycopg2.Error as e:\n", + " print(f\"Error executing SQL function: {e}\")\n", + " return None\n", + "\n", + "\n", + "query = \"Water leaking into the apartment from the floor above.\"\n", + "top_n = 5\n", + "consider_n = 10\n", + "\n", + "# Step 1: Create the embedding in Python\n", + "embedding = create_embeddings(query)\n", + "\n", + "if embedding is not None:\n", + " # Step 2: Execute the PostgreSQL function with the embedding as a parameter\n", + " results = execute_rerank_function(embedding, query, top_n, consider_n)\n", + "\n", + " # Output the results\n", + " for result in results:\n", + " print(result)\n", + "else:\n", + " print(\"Failed to generate embedding.\")\n" + ] + }, + { + "cell_type": "code", + "execution_count": null, + "metadata": {}, + "outputs": [], + "source": [ + "from openai import AzureOpenAI\n", + "\n", + "# Initialize Azure OpenAI client with key-based authentication\n", + "client = AzureOpenAI(\n", + " azure_endpoint = config(\"AZURE_OPENAI_ENDPOINT\"),\n", + " api_key = config(\"AZURE_OPENAI_KEY\"),\n", + " api_version = \"2024-05-01-preview\",\n", + ")\n", + "\n", + "def generate3(question, context):\n", + " completion = client.chat.completions.create(\n", + " model='gpt-4o',\n", + " messages= [\n", + " {\n", + " \"role\": \"system\",\n", + " \"content\":\n", + " \"\"\"You are an Leagal Research AI Assistant that helps people understand relevant legal cases. Answer the user's QUESTION below using provided cases in the CONTEXT section. Keep your answer grounded in the cases in the CONTEXT section. If the CONTEXT section doesn’t contain the facts to answer the QUESTION, return NONE. Identify top 2 legal principles used in the cases provided, explain them and group prominent cases by those principles.\n", + " \"\"\"\n", + " },\n", + " {\n", + " \"role\": \"user\",\n", + " \"content\": f\"\"\"\n", + " QUESTION: {question}\n", + " CONTEXT: {str(context)}\n", + " \"\"\"\n", + " }\n", + " ],\n", + " max_tokens=800,\n", + " temperature=0.3,\n", + " frequency_penalty=0,\n", + " presence_penalty=0,\n", + " stop=None,\n", + " stream=False\n", + " )\n", + " return completion.choices[0].message.content\n", + "\n", + "generate3(\n", + " 'Water leaking into the apartment from the floor above. What are the prominent legal precedents in Washington on this problem?',\n", + " df.iloc[1:21]['data'].to_json()\n", + ")" + ] + }, + { + "cell_type": "code", + "execution_count": 4, + "metadata": {}, + "outputs": [], + "source": [ + "import pandas as pd\n", + "import json\n", + "\n", + "def exec(conn, query, params=()):\n", + " with conn.cursor() as cur:\n", + " cur.execute(query, params)\n", + " results = cur.fetchall()\n", + " results_df = pd.DataFrame(results, columns=[desc[0] for desc in cur.description])\n", + " return results_df" + ] + }, + { + "cell_type": "code", + "execution_count": 5, + "metadata": {}, + "outputs": [ + { + "ename": "UndefinedFunction", + "evalue": "function get_vector_rerank_pagerank_rrf2_cases(unknown, integer, integer) does not exist\nLINE 1: SELECT * FROM get_vector_rerank_pagerank_rrf2_cases('Water l...\n ^\nHINT: No function matches the given name and argument types. You might need to add explicit type casts.\n", + "output_type": "error", + "traceback": [ + "\u001b[0;31m---------------------------------------------------------------------------\u001b[0m", + "\u001b[0;31mUndefinedFunction\u001b[0m Traceback (most recent call last)", + "Cell \u001b[0;32mIn[5], line 2\u001b[0m\n\u001b[1;32m 1\u001b[0m \u001b[38;5;28;01mwith\u001b[39;00m psycopg2\u001b[38;5;241m.\u001b[39mconnect(\u001b[38;5;241m*\u001b[39m\u001b[38;5;241m*\u001b[39mconn_params) \u001b[38;5;28;01mas\u001b[39;00m conn:\n\u001b[0;32m----> 2\u001b[0m df \u001b[38;5;241m=\u001b[39m \u001b[43mexec\u001b[49m\u001b[43m(\u001b[49m\u001b[43mconn\u001b[49m\u001b[43m,\u001b[49m\u001b[43m \u001b[49m\u001b[38;5;124;43m\"\"\"\u001b[39;49m\u001b[38;5;124;43mSELECT * FROM get_vector_rerank_pagerank_rrf2_cases(\u001b[39;49m\u001b[38;5;124;43m'\u001b[39;49m\u001b[38;5;124;43mWater leaking into the apartment from the floor above.\u001b[39;49m\u001b[38;5;124;43m'\u001b[39;49m\u001b[38;5;124;43m, \u001b[39;49m\n\u001b[1;32m 3\u001b[0m \u001b[38;5;124;43m 50, 52);\u001b[39;49m\u001b[38;5;124;43m\"\"\"\u001b[39;49m\u001b[43m)\u001b[49m\n\u001b[1;32m 4\u001b[0m df_graph \u001b[38;5;241m=\u001b[39m df\n\u001b[1;32m 5\u001b[0m df\n", + "Cell \u001b[0;32mIn[4], line 6\u001b[0m, in \u001b[0;36mexec\u001b[0;34m(conn, query, params)\u001b[0m\n\u001b[1;32m 4\u001b[0m \u001b[38;5;28;01mdef\u001b[39;00m \u001b[38;5;21mexec\u001b[39m(conn, query, params\u001b[38;5;241m=\u001b[39m()):\n\u001b[1;32m 5\u001b[0m \u001b[38;5;28;01mwith\u001b[39;00m conn\u001b[38;5;241m.\u001b[39mcursor() \u001b[38;5;28;01mas\u001b[39;00m cur:\n\u001b[0;32m----> 6\u001b[0m \u001b[43mcur\u001b[49m\u001b[38;5;241;43m.\u001b[39;49m\u001b[43mexecute\u001b[49m\u001b[43m(\u001b[49m\u001b[43mquery\u001b[49m\u001b[43m,\u001b[49m\u001b[43m \u001b[49m\u001b[43mparams\u001b[49m\u001b[43m)\u001b[49m\n\u001b[1;32m 7\u001b[0m results \u001b[38;5;241m=\u001b[39m cur\u001b[38;5;241m.\u001b[39mfetchall()\n\u001b[1;32m 8\u001b[0m results_df \u001b[38;5;241m=\u001b[39m pd\u001b[38;5;241m.\u001b[39mDataFrame(results, columns\u001b[38;5;241m=\u001b[39m[desc[\u001b[38;5;241m0\u001b[39m] \u001b[38;5;28;01mfor\u001b[39;00m desc \u001b[38;5;129;01min\u001b[39;00m cur\u001b[38;5;241m.\u001b[39mdescription])\n", + "\u001b[0;31mUndefinedFunction\u001b[0m: function get_vector_rerank_pagerank_rrf2_cases(unknown, integer, integer) does not exist\nLINE 1: SELECT * FROM get_vector_rerank_pagerank_rrf2_cases('Water l...\n ^\nHINT: No function matches the given name and argument types. You might need to add explicit type casts.\n" + ] + } + ], + "source": [ + "with psycopg2.connect(**conn_params) as conn:\n", + " df = exec(conn, \"\"\"SELECT * FROM get_vector_rerank_pagerank_rrf2_cases('Water leaking into the apartment from the floor above.', \n", + " 50, 52);\"\"\")\n", + " df_graph = df\n", + " df" + ] + }, + { + "cell_type": "code", + "execution_count": 9, + "metadata": {}, + "outputs": [ + { + "name": "stdout", + "output_type": "stream", + "text": [ + "The prominent legal precedents in Washington on water leakage issues are primarily grounded in two legal principles: negligence and implied warranty of fitness. Here are the top two legal principles and how they are applied in the cases provided:\n", + "\n", + "### 1. Negligence\n", + "Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. In the context of water leakage, this principle often involves the responsibility of landlords or municipalities to maintain premises or infrastructure to prevent foreseeable damage.\n", + "\n", + "#### Cases:\n", + "- **Le Vette v. Hardman Estate**: The Washington Supreme Court held that the landlord could be liable for damages caused by water leakage from the upper stories of a building. The court emphasized that the landlord had a duty to control and preserve the upper stories to keep them in a condition of reasonable safety, especially since the landlord knew about previous break-ins and potential water damage risks.\n", + "- **Tombari v. City of Spokane**: The court found the city liable for damages caused by flooding due to an inadequate sewer system. The court ruled that the city should have anticipated heavy rainfall and maintained the sewer system accordingly. The city's failure to do so constituted negligence.\n", + "- **Stevens v. King County**: The court reversed a judgment against the City of Seattle, finding insufficient evidence that the city's actions in laying a water main caused the flooding. However, the case illustrates the principle that municipalities can be held liable if their negligence in maintaining infrastructure leads to property damage.\n", + "\n", + "### 2. Implied Warranty of Fitness\n", + "An implied warranty of fitness arises when a seller knows the particular purpose for which goods are required and the buyer relies on the seller's skill or judgment to select suitable goods. This principle extends to services, such as the installation of flooring or other fixtures.\n", + "\n", + "#### Cases:\n", + "- **Frisken v. Art Strand Floor Coverings, Inc.**: The court held that the flooring contractor breached an implied warranty of fitness by installing flooring that was not suitable for the intended use. The contractor knew the conditions and the purpose of the flooring but failed to warn the buyer of potential issues with the underlying magnesite floor.\n", + "\n", + "### Grouping Prominent Cases by Principles:\n", + "#### Negligence:\n", + "1. **Le Vette v. Hardman Estate**\n", + "2. **Tombari v. City of Spokane**\n", + "3. **Stevens v. King County**\n", + "\n", + "#### Implied Warranty of Fitness:\n", + "1. **Frisken v. Art Strand Floor Coverings, Inc.**\n", + "\n", + "These cases illustrate how Washington courts address water leakage issues through the lenses of negligence and implied warranty of fitness, holding parties accountable for failing to prevent foreseeable damage or for providing goods and services that are not fit for their intended purpose.\n" + ] + } + ], + "source": [ + "import pandas as pd\n", + "import json\n", + "import openai\n", + "import numpy as np\n", + "import psycopg2\n", + "from psycopg2.extensions import register_adapter, AsIs\n", + "from psycopg2.extras import Json\n", + "import os\n", + "from dotenv import load_dotenv\n", + "\n", + "# Load environment variables and specify the file path if needed\n", + "load_dotenv()\n", + "\n", + "# Database setup\n", + "def addapt_vector(nparray):\n", + " \"\"\"Adapt a numpy array to the PostgreSQL VECTOR type.\"\"\"\n", + " vector_str = ','.join(map(str, nparray))\n", + " return AsIs(f\"'[{vector_str}]'::VECTOR\")\n", + "\n", + "register_adapter(np.ndarray, addapt_vector)\n", + "\n", + "conn_params = {\n", + " \"dbname\": os.getenv(\"POSTGRES_DATABASE\"),\n", + " \"user\": os.getenv(\"POSTGRES_USERNAME\"),\n", + " \"password\": os.getenv(\"POSTGRES_PASSWORD\"),\n", + " \"host\": os.getenv(\"POSTGRES_HOST\"),\n", + " \"port\": os.getenv(\"POSTGRES_PORT\"),\n", + "}\n", + "\n", + "# OpenAI setup\n", + "deployment_id = os.getenv(\"AZURE_OPENAI_EMBED_DEPLOYMENT\")\n", + "openai.api_type = \"azure\"\n", + "openai.api_base = os.getenv(\"AZURE_OPENAI_ENDPOINT\")\n", + "openai.api_key = os.getenv(\"AZURE_OPENAI_KEY\")\n", + "openai.api_version = '2023-05-15'\n", + "\n", + "# Function to generate embeddings using OpenAI\n", + "def create_embeddings(query, deployment=None):\n", + " if deployment is None:\n", + " deployment = deployment_id\n", + " try:\n", + " response = openai.embeddings.create(input=query, model=deployment)\n", + " embedding = response.data[0].embedding\n", + " return np.array(embedding)\n", + " except Exception as e:\n", + " print(f\"Error generating embeddings: {e}\")\n", + " return None\n", + "\n", + "# Function to execute SQL function and return a DataFrame\n", + "def execute_rerank_function(embedding, query, top_n, consider_n):\n", + " try:\n", + " with psycopg2.connect(**conn_params) as conn:\n", + " with conn.cursor() as cursor:\n", + " cursor.execute(\"\"\"\n", + " SELECT * FROM get_vector_rerank_pagerank_rrf2_cases(%s, %s, %s, %s);\n", + " \"\"\", (embedding, query, top_n, consider_n))\n", + " \n", + " results = cursor.fetchall()\n", + " colnames = [desc[0] for desc in cursor.description]\n", + " return pd.DataFrame(results, columns=colnames)\n", + " except psycopg2.Error as e:\n", + " print(f\"Error executing SQL function: {e}\")\n", + " return None\n", + "\n", + "# Azure OpenAI setup for generating legal insights\n", + "from openai import AzureOpenAI\n", + "\n", + "# Initialize Azure OpenAI client\n", + "client = AzureOpenAI(\n", + " azure_endpoint=os.getenv(\"AZURE_OPENAI_ENDPOINT\"),\n", + " api_key=os.getenv(\"AZURE_OPENAI_KEY\"),\n", + " api_version=os.getenv(\"AZURE_OPENAI_VERSION\")\n", + ")\n", + "\n", + "def generate_legal_response(question, context):\n", + " completion = client.chat.completions.create(\n", + " model='gpt-4o',\n", + " messages=[\n", + " {\n", + " \"role\": \"system\",\n", + " \"content\": \"\"\"You are a Legal Research AI Assistant that helps people understand relevant legal cases. Answer the user's QUESTION below using provided cases in the CONTEXT section. Keep your answer grounded in the cases in the CONTEXT section. If the CONTEXT section doesn’t contain the facts to answer the QUESTION, return NONE. Identify top 2 legal principles used in the cases provided, explain them and group prominent cases by those principles.\"\"\"\n", + " },\n", + " {\n", + " \"role\": \"user\",\n", + " \"content\": f\"QUESTION: {question}\\nCONTEXT: {context}\"\n", + " }\n", + " ],\n", + " max_tokens=800,\n", + " temperature=0.3,\n", + " frequency_penalty=0,\n", + " presence_penalty=0,\n", + " stop=None,\n", + " stream=False\n", + " )\n", + " return completion.choices[0].message.content\n", + "\n", + "# Main function to combine all steps\n", + "def run_legal_query(question, top_n=5, consider_n=10):\n", + " query_text = \"Water leaking into the apartment from the floor above.\"\n", + " \n", + " # Step 1: Generate embeddings for the query\n", + " embedding = create_embeddings(query_text)\n", + " \n", + " if embedding is not None:\n", + " # Step 2: Execute the SQL function with the embedding\n", + " results_df = execute_rerank_function(embedding, query_text, top_n, consider_n)\n", + " \n", + " if not results_df.empty:\n", + " # Step 3: Generate a legal AI response using the results as context\n", + " context = results_df.to_json(orient='records')\n", + " response = generate_legal_response(question, context)\n", + " return response\n", + " else:\n", + " return \"No relevant cases found.\"\n", + " else:\n", + " return \"Failed to generate embedding.\"\n", + "\n", + "# Example execution\n", + "result = run_legal_query(\n", + " question=\"What are the prominent legal precedents in Washington on water leakage issues?\"\n", + ")\n", + "print(result)\n" + ] + }, + { + "cell_type": "code", + "execution_count": 9, + "metadata": {}, + "outputs": [ + { + "name": "stdout", + "output_type": "stream", + "text": [ + "water leaking vector: [-0.06114653 0.02530787 0.02496817 ... -0.02478618 0.01163483\n", + " -0.0014445 ]\n", + "Top 100 case IDs: ['615468', '3322332', '768356', '8848167', '674990', '3335075', '3329625', '4938756', '3335809', '4273930', '524654', '3852931', '5041745', '3335022', '1017660', '1346648', '630224', '3320973', '591938', '594079', '3862445', '782330', '838633', '798646', '685636', '520681', '859403', '522109', '558730', '842483', '900794', '869848', '498084', '1043159', '3841816', '566840', '849973', '881896', '473788', '812042']\n", + "Number of top 100 cases: 40\n", + "Cited case IDs: [3868672, 1798164, 2596886, 1325078, 317466, 1884186, 622621, 622625, 806951, 2824240, 3878962, 782396, 3831871, 3838016, 622661, 4458569, 641097, 565324, 620620, 3831887, 3852379, 499805, 956510, 5173355, 61554, 3905656, 5273726, 11282571, 866444, 850061, 1157262, 1302676, 594079, 475315, 3825845, 5212342, 2551989, 770236, 5001415, 938184, 837842, 3895508, 4028628, 4915413, 1071321, 938206, 28897, 332012, 2480365, 1151217, 2572531, 4985077, 3459322, 1966333, 5245190, 932111, 1796371, 301335, 788763, 7790889, 938282, 938288, 500021, 3842358, 932153, 334138, 938300, 858433, 4976967, 3957067, 3506531, 823654, 932205, 862577, 1167731, 471416, 3826047, 493957, 2417036, 510348, 309645, 813459, 766357, 1137046, 770456, 510374, 3506598, 510379, 1120691, 8829366, 604599, 1065413, 762309, 2587085, 3844559, 498129, 5304788, 1157596, 3850716, 2007520, 7666148, 2144742, 41448, 4813295, 506360, 498171, 498177, 3865089, 324105, 3836433, 1774100, 670233, 1608221, 2214434, 670242, 3873319, 295466, 295490, 3820111, 670290, 821843, 1946200, 6242912, 713316, 287340, 8741485, 1008240, 5200499, 936572, 1348228, 287373, 488082, 527000, 3263132, 1002142, 1036961, 1864359, 1903272, 330421, 1202870, 479937, 330456, 1020659, 475908, 754440, 2513679, 654112, 846624, 3453729, 488233, 3433265, 2261811, 3539763, 17212, 828223, 3871555, 5108550, 369481, 7293784, 1196934, 58251, 320403, 557975, 813982, 1223588, 883623, 48040, 320423, 3109834, 244696, 719836, 289758, 3406830, 3832820, 816156, 8842279, 7664680, 846891, 615468, 46127, 820275, 918583, 5753912, 3836988, 357438, 615496, 3284048, 615520, 484450, 2520169, 674926, 291960, 8692863, 8504476, 3816605, 2432157, 6141088, 1301670, 674990, 292019, 3398838, 2634941, 10382526, 3964097, 1111233, 490706, 3081435, 888035, 3638519, 3833123, 2133284, 5223719, 4396328, 1295665, 1250615, 869693, 54591, 46399, 8871235, 808269, 3872083, 1645922, 574823, 8844659, 871808, 3255683, 701843, 1973651, 2117028, 478637, 3851696, 6725040, 495032, 490939, 544191, 7667138, 867800, 3845600, 26080, 2215395, 337383, 759274, 2520563, 2526709, 2287102, 867842, 1195531, 7818763, 5072397, 5113363, 71189, 48665, 701978, 337434, 566840, 591417, 71226, 2094654, 3839558, 2498126, 833115, 5604960, 591457, 226929, 1803895, 759415, 620163, 294532, 558728, 8875666, 2131602, 759462, 552615, 5879462, 3667625, 2461370, 624314, 925372, 4939454, 1803977, 607946, 304846, 3839694, 5674724, 483045, 8863463, 1316592, 6164227, 24335, 782119, 4933418, 649015, 683836, 1826630, 3856198, 2461519, 1017694, 810846, 636775, 819052, 5201787, 3788675, 552848, 704413, 776102, 1028024, 3846075, 5195712, 810951, 5230546, 10514388, 2379740, 1175525, 784369, 3844082, 999413, 5001206, 782330, 88059, 561149]\n", + "Number of cited cases: 320\n", + "Cases citing any of the top 100 vector search results: ['814243', '763901', '784414', '784369', '802278', '815999', '823665', '821843', '823677', '908797', '12451909', '4030171', '43846', '5007905', '5289469', '5277489', '2601920', '5008635', '2514977', '1017660', '1064021', '793960', '823695', '823829', '1076409', '1080065', '2580941', '2580977', '1099461', '1111226', '918582', '3865593', '1134151', '1157596', '5624379', '3696307', '3342548', '999377', '3657238', '734976', '343550', '1157308', '3685620', '916721', '912958', '1011250', '4974916', '300520', '1008408', '1095193', '1048287', '1048245', '1040156', '4912975', '1039885', '4975399', '3857316', '2504228', '1379085', '2561330', '4912415', '4975119', '482541', '480490', '482607', '819042', '3890598', '820824', '3817576', '898109', '1178212', '3665547', '117626', '484572', '820843', '908803', '906533', '906621', '3865208', '518419', '518380', '518428', '520500', '1346648', '805411', '778244', '748375', '615496', '369544', '4014011', '265811', '566346', '3268058', '3777457', '3844451', '121878', '385175', '3906503', '1831428', '3870209', '3869980', '3865965', '3887509', '3886185', '3892388', '3885261', '3885466', '3891217', '1764319', '3901078', '3901113', '3900693', '3898058', '3902632', '1836119', '1729245', '1776383', '4144558', '1843503', '4275805', '4275295', '4275590', '4308199', '44126', '47236', '48025', '48040', '478705', '482606', '482588', '514042', '993860', '768356', '1712225', '520522', '1276658', '900725', '880042', '880019', '874693', '890247', '868425', '859403', '849912', '842483', '906571', '894352', '894243', '894327', '5876422', '309786', '3878311', '3896141', '3882189', '3878683', '3879130', '3879199', '3882436', '524593', '591417', '594079', '1157399', '12453192', '1290647', '1353648', '1429037', '142838', '1770937', '1833711', '1833910', '1849665', '274567', '274590', '274501', '274524', '274577', '285280', '302744', '314573', '317524']\n", + "Number of citing cases: 180\n", + "Demo table created with top 100 vector search results and cited references.\n" + ] + } + ], + "source": [ + "import pandas as pd\n", + "import json\n", + "import openai\n", + "import numpy as np\n", + "import psycopg2\n", + "from psycopg2.extensions import register_adapter, AsIs\n", + "from psycopg2.extras import Json\n", + "import os\n", + "from dotenv import load_dotenv\n", + "\n", + "# Load environment variables and specify the file path if needed\n", + "load_dotenv()\n", + "\n", + "# Database setup\n", + "def addapt_vector(nparray):\n", + " \"\"\"Adapt a numpy array to the PostgreSQL VECTOR type.\"\"\"\n", + " vector_str = ','.join(map(str, nparray))\n", + " return AsIs(f\"'[{vector_str}]'::VECTOR\")\n", + "\n", + "register_adapter(np.ndarray, addapt_vector)\n", + "\n", + "conn_params = {\n", + " \"dbname\": os.getenv(\"POSTGRES_DATABASE\"),\n", + " \"user\": os.getenv(\"POSTGRES_USERNAME\"),\n", + " \"password\": os.getenv(\"POSTGRES_PASSWORD\"),\n", + " \"host\": os.getenv(\"POSTGRES_HOST\"),\n", + " \"port\": os.getenv(\"POSTGRES_PORT\"),\n", + "}\n", + "\n", + "# OpenAI setup for Azure\n", + "deployment_id = os.getenv(\"AZURE_OPENAI_EMBED_DEPLOYMENT\")\n", + "openai.api_type = \"azure\"\n", + "openai.api_base = os.getenv(\"AZURE_OPENAI_ENDPOINT\")\n", + "openai.api_key = os.getenv(\"AZURE_OPENAI_KEY\")\n", + "openai.api_version = '2023-05-15'\n", + "\n", + "# Function to generate embeddings using Azure OpenAI\n", + "def create_embeddings(query, deployment=None):\n", + " if deployment is None:\n", + " deployment = deployment_id\n", + " try:\n", + " response = openai.Embedding.create(input=query, deployment_id=deployment)\n", + " embedding = response['data'][0]['embedding']\n", + " return np.array(embedding)\n", + " except Exception as e:\n", + " print(f\"Error generating embeddings: {e}\")\n", + " return None\n", + "\n", + "# Generate the embedding for the query \"water leaking\"\n", + "water_leaking_vector = create_embeddings(\"Water leaking into the apartment from the floor above.\")\n", + "\n", + "print(\"water leaking vector:\",water_leaking_vector)\n", + "\n", + "if water_leaking_vector is not None:\n", + " with psycopg2.connect(**conn_params) as conn:\n", + " with conn.cursor() as cursor:\n", + " # Step 1: Create the new table for the demo\n", + " cursor.execute(\"CREATE TABLE IF NOT EXISTS demo_cases_updated AS TABLE cases WITH NO DATA;\")\n", + " conn.commit()\n", + "\n", + " cursor.execute(\"ALTER TABLE demo_cases_updated ADD CONSTRAINT unique_id UNIQUE (id);\")\n", + " conn.commit()\n", + "\n", + " # Step 2: Get top 100 vector search results for 'water leaking'\n", + " top_100_query = \"\"\"\n", + " SELECT id, data\n", + " FROM cases\n", + " ORDER BY description_vector <=> %s\n", + " LIMIT 100;\n", + " \"\"\"\n", + " cursor.execute(top_100_query, (water_leaking_vector,))\n", + " top_100_cases = cursor.fetchall()\n", + " top_100_ids = [row[0] for row in top_100_cases]\n", + " print(\"Top 100 case IDs:\", top_100_ids)\n", + " print(\"Number of top 100 cases:\", len(top_100_ids))\n", + "\n", + " # Step 3: Insert the top 100 cases into the demo table\n", + " insert_query = \"\"\"\n", + " INSERT INTO demo_cases_updated\n", + " SELECT * FROM cases\n", + " WHERE id = ANY(%s)\n", + " ON CONFLICT (id) DO NOTHING;\n", + " \"\"\"\n", + " cursor.execute(insert_query, (top_100_ids,))\n", + " conn.commit()\n", + "\n", + " # Step 4: Extract cited case IDs and add them to demo_cases\n", + " cited_case_ids = set() # Use a set to avoid duplicate entries\n", + "\n", + " for case_id, data in top_100_cases:\n", + " cites_to = data.get(\"cites_to\", [])\n", + " \n", + " for citation in cites_to:\n", + " case_ids = citation.get(\"case_ids\", [])\n", + " cited_case_ids.update(case_ids) \n", + "\n", + " # Remove any cited case IDs already in top_100_ids\n", + " cited_case_ids.difference_update(top_100_ids)\n", + " cited_case_ids = list(cited_case_ids) # Convert back to list for SQL query\n", + " print(\"Cited case IDs:\", cited_case_ids)\n", + " print(\"Number of cited cases:\", len(cited_case_ids))\n", + "\n", + " # Step 5: Insert the cited cases into the demo table\n", + " if cited_case_ids:\n", + " insert_cited_query = \"\"\"\n", + " INSERT INTO demo_cases_updated\n", + " SELECT * FROM cases\n", + " WHERE id = ANY(%s::text[])\n", + " ON CONFLICT (id) DO NOTHING;\n", + " \"\"\"\n", + " cursor.execute(insert_cited_query, (cited_case_ids,))\n", + " conn.commit()\n", + "\n", + " # Step 6: Insert cases that cite any of the top 100 vector search results\n", + " if top_100_ids:\n", + " citing_cases_query = \"\"\"\n", + " SELECT id\n", + " FROM cases\n", + " WHERE EXISTS (\n", + " SELECT 1\n", + " FROM jsonb_array_elements(data -> 'cites_to') AS cites\n", + " WHERE EXISTS (\n", + " SELECT 1\n", + " FROM jsonb_array_elements_text(cites->'case_ids') AS case_id\n", + " WHERE case_id = ANY(%s::text[])\n", + " )\n", + " );\n", + " \"\"\"\n", + " cursor.execute(citing_cases_query, (top_100_ids,))\n", + " citing_case_ids = [row[0] for row in cursor.fetchall()]\n", + " print(\"Cases citing any of the top 100 vector search results:\", citing_case_ids)\n", + " print(\"Number of citing cases:\", len(citing_case_ids))\n", + " \n", + " if citing_case_ids:\n", + " insert_citing_query = \"\"\"\n", + " INSERT INTO demo_cases_updated\n", + " SELECT * FROM cases\n", + " WHERE id = ANY(%s::text[])\n", + " ON CONFLICT (id) DO NOTHING;\n", + " \"\"\"\n", + " cursor.execute(insert_citing_query, (citing_case_ids,))\n", + " conn.commit()\n", + "\n", + "\n", + "\n", + " print(\"Demo table created with top 100 vector search results and cited references.\")\n", + "else:\n", + " print(\"Failed to generate embedding for 'water leaking'. Check Azure OpenAI setup.\")\n" + ] + }, + { + "cell_type": "code", + "execution_count": 18, + "metadata": {}, + "outputs": [ + { + "name": "stdout", + "output_type": "stream", + "text": [ + "New cited case IDs: ['3868672', '1798164', '2596886', '1325078', '317466', '1884186', '622621', '622625', '806951', '2824240', '3878962', '782396', '3831871', '3838016', '622661', '4458569', '641097', '565324', '620620', '3831887', '3852379', '499805', '956510', '5173355', '61554', '3905656', '5273726', '11282571', '866444', '850061', '1157262', '1302676', '594079', '475315', '3825845', '5212342', '2551989', '770236', '5001415', '938184', '837842', '3895508', '4028628', '4915413', '1071321', '938206', '28897', '332012', '2480365', '1151217', '2572531', '4985077', '3459322', '1966333', '5245190', '932111', '1796371', '301335', '788763', '7790889', '938282', '938288', '500021', '3842358', '932153', '334138', '938300', '858433', '4976967', '3957067', '3506531', '823654', '932205', '862577', '1167731', '471416', '3826047', '493957', '2417036', '510348', '309645', '813459', '766357', '1137046', '770456', '510374', '3506598', '510379', '1120691', '8829366', '604599', '1065413', '762309', '2587085', '3844559', '498129', '5304788', '1157596', '3850716', '2007520', '7666148', '2144742', '41448', '4813295', '506360', '498171', '498177', '3865089', '324105', '3836433', '1774100', '670233', '1608221', '2214434', '670242', '3873319', '295466', '295490', '3820111', '670290', '821843', '1946200', '6242912', '713316', '287340', '8741485', '1008240', '5200499', '936572', '1348228', '287373', '488082', '527000', '3263132', '1002142', '1036961', '1864359', '1903272', '330421', '1202870', '479937', '330456', '1020659', '475908', '754440', '2513679', '654112', '846624', '3453729', '488233', '3433265', '2261811', '3539763', '17212', '828223', '3871555', '5108550', '369481', '7293784', '1196934', '58251', '320403', '557975', '813982', '1223588', '883623', '48040', '320423', '3109834', '244696', '719836', '289758', '3406830', '3832820', '816156', '8842279', '7664680', '846891', '615468', '46127', '820275', '918583', '5753912', '3836988', '357438', '615496', '3284048', '615520', '484450', '2520169', '674926', '291960', '8692863', '8504476', '3816605', '2432157', '6141088', '1301670', '674990', '292019', '3398838', '2634941', '10382526', '3964097', '1111233', '490706', '3081435', '888035', '3638519', '3833123', '2133284', '5223719', '4396328', '1295665', '1250615', '869693', '54591', '46399', '8871235', '808269', '3872083', '1645922', '574823', '8844659', '871808', '3255683', '701843', '1973651', '2117028', '478637', '3851696', '6725040', '495032', '490939', '544191', '7667138', '867800', '3845600', '26080', '2215395', '337383', '759274', '2520563', '2526709', '2287102', '867842', '1195531', '7818763', '5072397', '5113363', '71189', '48665', '701978', '337434', '566840', '591417', '71226', '2094654', '3839558', '2498126', '833115', '5604960', '591457', '226929', '1803895', '759415', '620163', '294532', '558728', '8875666', '2131602', '759462', '552615', '5879462', '3667625', '2461370', '624314', '925372', '4939454', '1803977', '607946', '304846', '3839694', '5674724', '483045', '8863463', '1316592', '6164227', '24335', '782119', '4933418', '649015', '683836', '1826630', '3856198', '2461519', '1017694', '810846', '636775', '819052', '5201787', '3788675', '552848', '704413', '776102', '1028024', '3846075', '5195712', '810951', '5230546', '10514388', '2379740', '1175525', '784369', '3844082', '999413', '5001206', '782330', '88059', '561149']\n", + "Unique top 100 case IDs: 40\n", + "Unique cited case IDs: 320\n", + "Unique citing cases: 180\n", + "Overlap between top 100 and cited cases: 5\n", + "Overlap between top 100 and citing cases: 6\n", + "Overlap between cited and citing cases: 7\n", + "Total unique items across all lists: 523\n" + ] + } + ], + "source": [ + "# Define the three lists\n", + "top_100_case_ids = ['615468', '3322332', '768356', '8848167', '674990', '3335075', '3329625', '4938756', '3335809', '4273930', '524654', '3852931', '5041745', '3335022', '1017660', '1346648', '630224', '3320973', '591938', '594079', '3862445', '782330', '838633', '798646', '685636', '520681', '859403', '522109', '558730', '842483', '900794', '869848', '498084', '1043159', '3841816', '566840', '849973', '881896', '473788', '812042']\n", + "\n", + "cited_case_ids = [3868672, 1798164, 2596886, 1325078, 317466, 1884186, 622621, 622625, 806951, 2824240, 3878962, 782396, 3831871, 3838016, 622661, 4458569, 641097, 565324, 620620, 3831887, 3852379, 499805, 956510, 5173355, 61554, 3905656, 5273726, 11282571, 866444, 850061, 1157262, 1302676, 594079, 475315, 3825845, 5212342, 2551989, 770236, 5001415, 938184, 837842, 3895508, 4028628, 4915413, 1071321, 938206, 28897, 332012, 2480365, 1151217, 2572531, 4985077, 3459322, 1966333, 5245190, 932111, 1796371, 301335, 788763, 7790889, 938282, 938288, 500021, 3842358, 932153, 334138, 938300, 858433, 4976967, 3957067, 3506531, 823654, 932205, 862577, 1167731, 471416, 3826047, 493957, 2417036, 510348, 309645, 813459, 766357, 1137046, 770456, 510374, 3506598, 510379, 1120691, 8829366, 604599, 1065413, 762309, 2587085, 3844559, 498129, 5304788, 1157596, 3850716, 2007520, 7666148, 2144742, 41448, 4813295, 506360, 498171, 498177, 3865089, 324105, 3836433, 1774100, 670233, 1608221, 2214434, 670242, 3873319, 295466, 295490, 3820111, 670290, 821843, 1946200, 6242912, 713316, 287340, 8741485, 1008240, 5200499, 936572, 1348228, 287373, 488082, 527000, 3263132, 1002142, 1036961, 1864359, 1903272, 330421, 1202870, 479937, 330456, 1020659, 475908, 754440, 2513679, 654112, 846624, 3453729, 488233, 3433265, 2261811, 3539763, 17212, 828223, 3871555, 5108550, 369481, 7293784, 1196934, 58251, 320403, 557975, 813982, 1223588, 883623, 48040, 320423, 3109834, 244696, 719836, 289758, 3406830, 3832820, 816156, 8842279, 7664680, 846891, 615468, 46127, 820275, 918583, 5753912, 3836988, 357438, 615496, 3284048, 615520, 484450, 2520169, 674926, 291960, 8692863, 8504476, 3816605, 2432157, 6141088, 1301670, 674990, 292019, 3398838, 2634941, 10382526, 3964097, 1111233, 490706, 3081435, 888035, 3638519, 3833123, 2133284, 5223719, 4396328, 1295665, 1250615, 869693, 54591, 46399, 8871235, 808269, 3872083, 1645922, 574823, 8844659, 871808, 3255683, 701843, 1973651, 2117028, 478637, 3851696, 6725040, 495032, 490939, 544191, 7667138, 867800, 3845600, 26080, 2215395, 337383, 759274, 2520563, 2526709, 2287102, 867842, 1195531, 7818763, 5072397, 5113363, 71189, 48665, 701978, 337434, 566840, 591417, 71226, 2094654, 3839558, 2498126, 833115, 5604960, 591457, 226929, 1803895, 759415, 620163, 294532, 558728, 8875666, 2131602, 759462, 552615, 5879462, 3667625, 2461370, 624314, 925372, 4939454, 1803977, 607946, 304846, 3839694, 5674724, 483045, 8863463, 1316592, 6164227, 24335, 782119, 4933418, 649015, 683836, 1826630, 3856198, 2461519, 1017694, 810846, 636775, 819052, 5201787, 3788675, 552848, 704413, 776102, 1028024, 3846075, 5195712, 810951, 5230546, 10514388, 2379740, 1175525, 784369, 3844082, 999413, 5001206, 782330, 88059, 561149]\n", + "\n", + "new_cited_case_ids = [str(item) for item in cited_case_ids]\n", + "\n", + "print(\"New cited case IDs:\", new_cited_case_ids)\n", + "\n", + "citing_cases = ['814243', '763901', '784414', '784369', '802278', '815999', '823665', '821843', '823677', '908797', '12451909', '4030171', '43846', '5007905', '5289469', '5277489', '2601920', '5008635', '2514977', '1017660', '1064021', '793960', '823695', '823829', '1076409', '1080065', '2580941', '2580977', '1099461', '1111226', '918582', '3865593', '1134151', '1157596', '5624379', '3696307', '3342548', '999377', '3657238', '734976', '343550', '1157308', '3685620', '916721', '912958', '1011250', '4974916', '300520', '1008408', '1095193', '1048287', '1048245', '1040156', '4912975', '1039885', '4975399', '3857316', '2504228', '1379085', '2561330', '4912415', '4975119', '482541', '480490', '482607', '819042', '3890598', '820824', '3817576', '898109', '1178212', '3665547', '117626', '484572', '820843', '908803', '906533', '906621', '3865208', '518419', '518380', '518428', '520500', '1346648', '805411', '778244', '748375', '615496', '369544', '4014011', '265811', '566346', '3268058', '3777457', '3844451', '121878', '385175', '3906503', '1831428', '3870209', '3869980', '3865965', '3887509', '3886185', '3892388', '3885261', '3885466', '3891217', '1764319', '3901078', '3901113', '3900693', '3898058', '3902632', '1836119', '1729245', '1776383', '4144558', '1843503', '4275805', '4275295', '4275590', '4308199', '44126', '47236', '48025', '48040', '478705', '482606', '482588', '514042', '993860', '768356', '1712225', '520522', '1276658', '900725', '880042', '880019', '874693', '890247', '868425', '859403', '849912', '842483', '906571', '894352', '894243', '894327', '5876422', '309786', '3878311', '3896141', '3882189', '3878683', '3879130', '3879199', '3882436', '524593', '591417', '594079', '1157399', '12453192', '1290647', '1353648', '1429037', '142838', '1770937', '1833711', '1833910', '1849665', '274567', '274590', '274501', '274524', '274577', '285280', '302744', '314573', '317524']\n", + "\n", + "# Calculate unique items in individual lists\n", + "unique_top_100_case_ids = set(top_100_case_ids)\n", + "unique_cited_case_ids = set(new_cited_case_ids)\n", + "unique_citing_cases = set(citing_cases)\n", + "\n", + "# Print counts of unique items in each list\n", + "print(\"Unique top 100 case IDs:\", len(unique_top_100_case_ids))\n", + "print(\"Unique cited case IDs:\", len(unique_cited_case_ids))\n", + "print(\"Unique citing cases:\", len(unique_citing_cases))\n", + "\n", + "# Find overlaps between lists\n", + "overlap_top_cited = unique_top_100_case_ids & unique_cited_case_ids\n", + "overlap_top_citing = unique_top_100_case_ids & unique_citing_cases\n", + "overlap_cited_citing = unique_cited_case_ids & unique_citing_cases\n", + "\n", + "# Print overlaps\n", + "print(\"Overlap between top 100 and cited cases:\", len(overlap_top_cited))\n", + "print(\"Overlap between top 100 and citing cases:\", len(overlap_top_citing))\n", + "print(\"Overlap between cited and citing cases:\", len(overlap_cited_citing))\n", + "\n", + "# Combine all lists and calculate unique IDs\n", + "all_cases_combined = unique_top_100_case_ids | unique_cited_case_ids | unique_citing_cases\n", + "print(\"Total unique items across all lists:\", len(all_cases_combined))\n", + "\n" + ] + } + ], + "metadata": { + "kernelspec": { + "display_name": "Poetry Data Ingestion", + "language": "python", + "name": "data-ingestion-env" + }, + "language_info": { + "codemirror_mode": { + "name": "ipython", + "version": 3 + }, + "file_extension": ".py", + "mimetype": "text/x-python", + "name": "python", + "nbconvert_exporter": "python", + "pygments_lexer": "ipython3", + "version": "3.12.7" + } + }, + "nbformat": 4, + "nbformat_minor": 2 +} diff --git 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" + ] + }, + "execution_count": 14, + "metadata": {}, + "output_type": "execute_result" + } + ], + "source": [ + "import pandas as pd\n", + "\n", + "# Specify the path to your CSV file\n", + "csv_file_path = '../data/cases_summary.csv' # Replace with the actual path\n", + "\n", + "# Read only the first 5 rows of the CSV file into a DataFrame\n", + "df = pd.read_csv(csv_file_path, nrows=215)\n", + "\n", + "# Display the DataFrame\n", + "print(df)\n", + "\n", + "# Display the first few rows\n", + "df.head() # By default, this shows the first 5 rows\n" + ] + }, + { + "cell_type": "code", + "execution_count": 11, + "metadata": {}, + "outputs": [], + "source": [ + "import json\n", + "import subprocess\n", + "from sqlalchemy.ext.asyncio import AsyncEngine, create_async_engine\n", + "from sqlalchemy import event\n", + "import logging\n", + "\n", + "logger = logging.getLogger(\"legalcaseapp\")\n", + "from azure.identity import DefaultAzureCredential\n", + "\n", + "def get_password_from_azure_credential():\n", + " \"\"\"Retrieve an Azure AD access token using DefaultAzureCredential.\"\"\"\n", + " credential = DefaultAzureCredential()\n", + " token = credential.get_token(\"https://ossrdbms-aad.database.windows.net/.default\")\n", + " return token.token\n", + "\n", + "\n", + "async def create_postgres_engine(*, host, username, database, sslmode, azure_credential=None) -> AsyncEngine:\n", + "\n", + " token_based_password = False\n", + " # Check if host is an Azure Database for PostgreSQL instance\n", + " if host.endswith(\".database.azure.com\"):\n", + " token_based_password = True\n", + " logger.info(\"Authenticating to Azure Database for PostgreSQL using Azure Identity...\")\n", + " password = get_password_from_azure_credential() # Get token as password\n", + " else:\n", + " raise ValueError(\"Azure credential must be provided for Azure Database for PostgreSQL\")\n", + "\n", + " # Construct the DATABASE_URI\n", + " DATABASE_URI = f\"postgresql+asyncpg://{username}:{password}@{host}/{database}\"\n", + " if sslmode:\n", + " DATABASE_URI += f\"?sslmode={sslmode}\"\n", + "\n", + " engine = create_async_engine(DATABASE_URI, echo=False)\n", + "\n", + " # Update the token if required before each connection\n", + " @event.listens_for(engine.sync_engine, \"do_connect\")\n", + " def update_password_token(dialect, conn_rec, cargs, cparams):\n", + " if token_based_password:\n", + " logger.info(\"Refreshing access token for Azure Database for PostgreSQL\")\n", + " cparams[\"password\"] = get_password_from_azure_credential()\n", + "\n", + " return engine\n" + ] + }, + { + "cell_type": "code", + "execution_count": 12, + "metadata": {}, + "outputs": [ + { + "name": "stderr", + "output_type": "stream", + "text": [ + "DefaultAzureCredential failed to retrieve a token from the included credentials.\n", + "Attempted credentials:\n", + "\tEnvironmentCredential: EnvironmentCredential authentication unavailable. Environment variables are not fully configured.\n", + "Visit https://aka.ms/azsdk/python/identity/environmentcredential/troubleshoot to troubleshoot this issue.\n", + "\tManagedIdentityCredential: ManagedIdentityCredential authentication unavailable, no response from the IMDS endpoint.\n", + "\tSharedTokenCacheCredential: SharedTokenCacheCredential authentication unavailable. No accounts were found in the cache.\n", + "\tAzureCliCredential: Please run 'az login' to set up an account\n", + "\tAzurePowerShellCredential: PowerShell is not installed\n", + "\tAzureDeveloperCliCredential: Please run 'azd auth login' from a command prompt to authenticate before using this credential.\n", + "To mitigate this issue, please refer to the troubleshooting guidelines here at https://aka.ms/azsdk/python/identity/defaultazurecredential/troubleshoot.\n" + ] + }, + { + "ename": "ClientAuthenticationError", + "evalue": "DefaultAzureCredential failed to retrieve a token from the included credentials.\nAttempted credentials:\n\tEnvironmentCredential: EnvironmentCredential authentication unavailable. Environment variables are not fully configured.\nVisit https://aka.ms/azsdk/python/identity/environmentcredential/troubleshoot to troubleshoot this issue.\n\tManagedIdentityCredential: ManagedIdentityCredential authentication unavailable, no response from the IMDS endpoint.\n\tSharedTokenCacheCredential: SharedTokenCacheCredential authentication unavailable. No accounts were found in the cache.\n\tAzureCliCredential: Please run 'az login' to set up an account\n\tAzurePowerShellCredential: PowerShell is not installed\n\tAzureDeveloperCliCredential: Please run 'azd auth login' from a command prompt to authenticate before using this credential.\nTo mitigate this issue, please refer to the troubleshooting guidelines here at https://aka.ms/azsdk/python/identity/defaultazurecredential/troubleshoot.", + "output_type": "error", + "traceback": [ + "\u001b[0;31m---------------------------------------------------------------------------\u001b[0m", + "\u001b[0;31mClientAuthenticationError\u001b[0m Traceback (most recent call last)", + "Cell \u001b[0;32mIn[12], line 14\u001b[0m\n\u001b[1;32m 11\u001b[0m sslmode \u001b[38;5;241m=\u001b[39m \u001b[38;5;124m\"\u001b[39m\u001b[38;5;124mrequire\u001b[39m\u001b[38;5;124m\"\u001b[39m\n\u001b[1;32m 13\u001b[0m \u001b[38;5;66;03m# Assuming create_postgres_engine is the function you provided\u001b[39;00m\n\u001b[0;32m---> 14\u001b[0m engine \u001b[38;5;241m=\u001b[39m \u001b[38;5;28;01mawait\u001b[39;00m create_postgres_engine(\n\u001b[1;32m 15\u001b[0m host\u001b[38;5;241m=\u001b[39mhost,\n\u001b[1;32m 16\u001b[0m username\u001b[38;5;241m=\u001b[39musername,\n\u001b[1;32m 17\u001b[0m database\u001b[38;5;241m=\u001b[39mdatabase,\n\u001b[1;32m 18\u001b[0m sslmode\u001b[38;5;241m=\u001b[39msslmode\n\u001b[1;32m 19\u001b[0m )\n", + "Cell \u001b[0;32mIn[11], line 24\u001b[0m, in \u001b[0;36mcreate_postgres_engine\u001b[0;34m(host, username, database, sslmode, azure_credential)\u001b[0m\n\u001b[1;32m 22\u001b[0m token_based_password \u001b[38;5;241m=\u001b[39m \u001b[38;5;28;01mTrue\u001b[39;00m\n\u001b[1;32m 23\u001b[0m logger\u001b[38;5;241m.\u001b[39minfo(\u001b[38;5;124m\"\u001b[39m\u001b[38;5;124mAuthenticating to Azure Database for PostgreSQL using Azure Identity...\u001b[39m\u001b[38;5;124m\"\u001b[39m)\n\u001b[0;32m---> 24\u001b[0m password \u001b[38;5;241m=\u001b[39m \u001b[43mget_password_from_azure_credential\u001b[49m\u001b[43m(\u001b[49m\u001b[43m)\u001b[49m \u001b[38;5;66;03m# Get token as password\u001b[39;00m\n\u001b[1;32m 25\u001b[0m \u001b[38;5;28;01melse\u001b[39;00m:\n\u001b[1;32m 26\u001b[0m \u001b[38;5;28;01mraise\u001b[39;00m \u001b[38;5;167;01mValueError\u001b[39;00m(\u001b[38;5;124m\"\u001b[39m\u001b[38;5;124mAzure credential must be provided for Azure Database for PostgreSQL\u001b[39m\u001b[38;5;124m\"\u001b[39m)\n", + "Cell \u001b[0;32mIn[11], line 13\u001b[0m, in \u001b[0;36mget_password_from_azure_credential\u001b[0;34m()\u001b[0m\n\u001b[1;32m 11\u001b[0m \u001b[38;5;250m\u001b[39m\u001b[38;5;124;03m\"\"\"Retrieve an Azure AD access token using DefaultAzureCredential.\"\"\"\u001b[39;00m\n\u001b[1;32m 12\u001b[0m credential \u001b[38;5;241m=\u001b[39m DefaultAzureCredential()\n\u001b[0;32m---> 13\u001b[0m token \u001b[38;5;241m=\u001b[39m \u001b[43mcredential\u001b[49m\u001b[38;5;241;43m.\u001b[39;49m\u001b[43mget_token\u001b[49m\u001b[43m(\u001b[49m\u001b[38;5;124;43m\"\u001b[39;49m\u001b[38;5;124;43mhttps://ossrdbms-aad.database.windows.net/.default\u001b[39;49m\u001b[38;5;124;43m\"\u001b[39;49m\u001b[43m)\u001b[49m\n\u001b[1;32m 14\u001b[0m \u001b[38;5;28;01mreturn\u001b[39;00m token\u001b[38;5;241m.\u001b[39mtoken\n", + "File \u001b[0;32m/workspace/Data_ingestion/.venv/lib/python3.11/site-packages/azure/identity/_credentials/default.py:226\u001b[0m, in \u001b[0;36mDefaultAzureCredential.get_token\u001b[0;34m(self, claims, tenant_id, *scopes, **kwargs)\u001b[0m\n\u001b[1;32m 224\u001b[0m \u001b[38;5;28;01mreturn\u001b[39;00m token\n\u001b[1;32m 225\u001b[0m within_dac\u001b[38;5;241m.\u001b[39mset(\u001b[38;5;28;01mTrue\u001b[39;00m)\n\u001b[0;32m--> 226\u001b[0m token \u001b[38;5;241m=\u001b[39m \u001b[38;5;28;43msuper\u001b[39;49m\u001b[43m(\u001b[49m\u001b[43m)\u001b[49m\u001b[38;5;241;43m.\u001b[39;49m\u001b[43mget_token\u001b[49m\u001b[43m(\u001b[49m\u001b[38;5;241;43m*\u001b[39;49m\u001b[43mscopes\u001b[49m\u001b[43m,\u001b[49m\u001b[43m \u001b[49m\u001b[43mclaims\u001b[49m\u001b[38;5;241;43m=\u001b[39;49m\u001b[43mclaims\u001b[49m\u001b[43m,\u001b[49m\u001b[43m \u001b[49m\u001b[43mtenant_id\u001b[49m\u001b[38;5;241;43m=\u001b[39;49m\u001b[43mtenant_id\u001b[49m\u001b[43m,\u001b[49m\u001b[43m \u001b[49m\u001b[38;5;241;43m*\u001b[39;49m\u001b[38;5;241;43m*\u001b[39;49m\u001b[43mkwargs\u001b[49m\u001b[43m)\u001b[49m\n\u001b[1;32m 227\u001b[0m within_dac\u001b[38;5;241m.\u001b[39mset(\u001b[38;5;28;01mFalse\u001b[39;00m)\n\u001b[1;32m 228\u001b[0m \u001b[38;5;28;01mreturn\u001b[39;00m token\n", + "File \u001b[0;32m/workspace/Data_ingestion/.venv/lib/python3.11/site-packages/azure/identity/_credentials/chained.py:153\u001b[0m, in \u001b[0;36mChainedTokenCredential.get_token\u001b[0;34m(self, claims, tenant_id, enable_cae, *scopes, **kwargs)\u001b[0m\n\u001b[1;32m 145\u001b[0m message \u001b[38;5;241m=\u001b[39m (\n\u001b[1;32m 146\u001b[0m \u001b[38;5;28mself\u001b[39m\u001b[38;5;241m.\u001b[39m\u001b[38;5;18m__class__\u001b[39m\u001b[38;5;241m.\u001b[39m\u001b[38;5;18m__name__\u001b[39m\n\u001b[1;32m 147\u001b[0m \u001b[38;5;241m+\u001b[39m \u001b[38;5;124m\"\u001b[39m\u001b[38;5;124m failed to retrieve a token from the included credentials.\u001b[39m\u001b[38;5;124m\"\u001b[39m\n\u001b[0;32m (...)\u001b[0m\n\u001b[1;32m 150\u001b[0m \u001b[38;5;124m\"\u001b[39m\u001b[38;5;124mhttps://aka.ms/azsdk/python/identity/defaultazurecredential/troubleshoot.\u001b[39m\u001b[38;5;124m\"\u001b[39m\n\u001b[1;32m 151\u001b[0m )\n\u001b[1;32m 152\u001b[0m _LOGGER\u001b[38;5;241m.\u001b[39mwarning(message)\n\u001b[0;32m--> 153\u001b[0m \u001b[38;5;28;01mraise\u001b[39;00m ClientAuthenticationError(message\u001b[38;5;241m=\u001b[39mmessage)\n", + "\u001b[0;31mClientAuthenticationError\u001b[0m: DefaultAzureCredential failed to retrieve a token from the included credentials.\nAttempted credentials:\n\tEnvironmentCredential: EnvironmentCredential authentication unavailable. Environment variables are not fully configured.\nVisit https://aka.ms/azsdk/python/identity/environmentcredential/troubleshoot to troubleshoot this issue.\n\tManagedIdentityCredential: ManagedIdentityCredential authentication unavailable, no response from the IMDS endpoint.\n\tSharedTokenCacheCredential: SharedTokenCacheCredential authentication unavailable. No accounts were found in the cache.\n\tAzureCliCredential: Please run 'az login' to set up an account\n\tAzurePowerShellCredential: PowerShell is not installed\n\tAzureDeveloperCliCredential: Please run 'azd auth login' from a command prompt to authenticate before using this credential.\nTo mitigate this issue, please refer to the troubleshooting guidelines here at https://aka.ms/azsdk/python/identity/defaultazurecredential/troubleshoot." + ] + } + ], + "source": [ + "from azure.identity import DefaultAzureCredential\n", + "from sqlalchemy.ext.asyncio import AsyncEngine\n", + "\n", + "# Use DefaultAzureCredential to automatically find the right credentials\n", + "azure_credential = DefaultAzureCredential()\n", + "\n", + "# Define your connection parameters\n", + "host = \"legalcase-demo-3cxtrqd7sbayk-postgresql.postgres.database.azure.com\"\n", + "username = \"legalcase-demo-3cxtrqd7sbayk-id-web\"\n", + "database = \"postgres\"\n", + "sslmode = \"require\"\n", + "\n", + "# Assuming create_postgres_engine is the function you provided\n", + "engine = await create_postgres_engine(\n", + " host=host,\n", + " username=username,\n", + " database=database,\n", + " sslmode=sslmode\n", + ")" + ] + }, + { + "cell_type": "code", + "execution_count": 61, + "metadata": {}, + "outputs": [], + "source": [ + "import logging\n", + "import os\n", + "import sys\n", + "\n", + "import psycopg2\n", + "from dotenv import load_dotenv\n", + "from psycopg2.extras import Json\n", + "\n", + "# Load environment variables\n", + "load_dotenv()\n", + "\n", + "# Configure logging\n", + "logging.basicConfig(level=logging.INFO)\n", + "logger = logging.getLogger(\"graph_db_ingestion\")\n", + "\n", + "# Define database connection parameters\n", + "conn_params = {\n", + " \"dbname\": os.getenv(\"POSTGRES_DATABASE\", \"postgres\"),\n", + " \"user\": os.getenv(\"POSTGRES_USERNAME\", \"postgres\"),\n", + " \"password\": os.getenv(\"POSTGRES_PASSWORD\", \"Passwd34!\"),\n", + " \"host\": os.getenv(\"POSTGRES_HOST\", \"localhost\"),\n", + " \"port\": os.getenv(\"POSTGRES_PORT\", \"5432\"),\n", + "}" + ] + }, + { + "cell_type": "code", + "execution_count": 62, + "metadata": {}, + "outputs": [], + "source": [ + "def drop_age_graph(conn, graph_name):\n", + " with conn.cursor() as cur:\n", + " # Drop the graph using ag_catalog.drop_graph with cascade\n", + " cur.execute(f\"SELECT * FROM ag_catalog.drop_graph('{graph_name}', true);\")\n", + " conn.commit()\n", + " logger.info(f\"Graph '{graph_name}' dropped successfully.\")" + ] + }, + { + "cell_type": "code", + "execution_count": 59, + "metadata": {}, + "outputs": [], + "source": [ + "\n", + "\n", + "def create_edges_from_citations(conn):\n", + " \"\"\"\n", + " Creates edges in the `case_graph` graph based on citation relationships\n", + " in the `cases_summary` table.\n", + " \"\"\"\n", + " with conn.cursor() as cur:\n", + " try:\n", + " cur.execute(\"LOAD 'age';\")\n", + " cur.execute(\"SET search_path = ag_catalog, public;\")\n", + "\n", + " # Step 1: Define edges based on citations in cases_summary\n", + " define_edges_query = \"\"\"\n", + " WITH edges AS (\n", + " SELECT DISTINCT c1.id AS id_from, c2.id AS id_to\n", + " FROM cases_summary c1\n", + " LEFT JOIN LATERAL jsonb_array_elements(c1.data -> 'cites_to') AS cites_to_element ON true\n", + " LEFT JOIN LATERAL jsonb_array_elements(cites_to_element -> 'case_ids') AS case_ids ON true\n", + " JOIN cases_summary c2 ON case_ids::text = c2.id\n", + " )\n", + " SELECT id_from, id_to FROM edges;\n", + " \"\"\"\n", + "\n", + " # Step 2: Execute the query to fetch edge pairs\n", + " cur.execute(define_edges_query)\n", + " edges = cur.fetchall()\n", + " \n", + " # Step 3: Insert edges into the graph one by one\n", + " for id_from, id_to in edges:\n", + " cypher_query = f\"\"\"\n", + " SELECT * FROM ag_catalog.cypher('case_graph', $$\n", + " MATCH (a:Case), (b:Case)\n", + " WHERE a.id = '{id_from}' AND b.id = '{id_to}'\n", + " CREATE (a)-[:CITES]->(b)\n", + " RETURN a, b\n", + " $$) AS (a ag_catalog.agtype, b ag_catalog.agtype);\n", + " \"\"\"\n", + " cur.execute(cypher_query)\n", + " \n", + " # Commit after inserting edges\n", + " conn.commit()\n", + " logger.info(\"Edges created successfully in the `case_graph` based on citation relationships.\")\n", + "\n", + " except psycopg2.Error as e:\n", + " # Roll back if there is an error and log it\n", + " conn.rollback()\n", + " logger.error(f\"Failed to create edges: {e}\")\n", + "\n" + ] + }, + { + "cell_type": "code", + "execution_count": 60, + "metadata": {}, + "outputs": [ + { + "name": "stderr", + "output_type": "stream", + "text": [ + "INFO:graph_db_ingestion:Edges created successfully in the `case_graph` based on citation relationships.\n" + ] + } + ], + "source": [ + "with psycopg2.connect(**conn_params) as conn:\n", + " # Step 1: Setup the AGE graph\n", + " create_edges_from_citations(conn)\n" + ] + }, + { + "cell_type": "code", + "execution_count": 76, + "metadata": {}, + "outputs": [ + { + "name": "stderr", + "output_type": "stream", + "text": [ + "INFO:graph_db_ingestion:Graph 'case_graph' already exists. Dropping it.\n", + "INFO:graph_db_ingestion:Graph 'case_graph' dropped successfully.\n" + ] + } + ], + "source": [ + "def drop_graph(conn):\n", + " graph_name = \"case_graph\"\n", + " with conn.cursor() as cur:\n", + " # Check if the graph already exists\n", + " cur.execute(f\"SELECT * FROM ag_catalog.ag_graph WHERE name = '{graph_name}';\")\n", + " graph_exists = cur.fetchone()\n", + "\n", + " if graph_exists:\n", + " # If the graph exists, drop it\n", + " logger.info(f\"Graph '{graph_name}' already exists. Dropping it.\")\n", + " drop_age_graph(conn, graph_name)\n", + "\n", + "with psycopg2.connect(**conn_params) as conn:\n", + " # Step 1: Setup the AGE graph\n", + " drop_graph(conn)\n" + ] + }, + { + "cell_type": "code", + "execution_count": 2, + "metadata": {}, + "outputs": [], + "source": [ + "def setup_age_graph(conn):\n", + " graph_name = \"case_graph\"\n", + " with conn.cursor() as cur:\n", + " # Ensure the AGE extension is enabled and loaded\n", + " cur.execute(\"CREATE EXTENSION IF NOT EXISTS age;\")\n", + " cur.execute(\"LOAD 'age';\")\n", + "\n", + " # Set the search_path to include the Apache AGE catalog\n", + " cur.execute('SET search_path = ag_catalog, \"$user\", public;')\n", + "\n", + " conn.commit()\n", + "\n", + " # Create the new graph\n", + " cur.execute(f\"SELECT create_graph('{graph_name}');\")\n", + "\n", + " conn.commit()\n", + "\n", + " logger.info(f\"Graph '{graph_name}' created successfully in Apache AGE.\")" + ] + }, + { + "cell_type": "code", + "execution_count": 3, + "metadata": {}, + "outputs": [ + { + "name": "stderr", + "output_type": "stream", + "text": [ + "INFO:graph_db_ingestion:Graph 'case_graph' created successfully in Apache AGE.\n" + ] + } + ], + "source": [ + "with psycopg2.connect(**conn_params) as conn:\n", + " # Step 1: Setup the AGE graph\n", + " setup_age_graph(conn)\n" + ] + }, + { + "cell_type": "code", + "execution_count": 1, + "metadata": {}, + "outputs": [ + { + "name": "stdout", + "output_type": "stream", + "text": [ + "OpenAI endpoint: https://serdar-azure-open-ai.openai.azure.com\n", + "OpenAI version: 2024-08-01-preview\n", + "OpenAI deployment ID: gpt-4o\n", + "Summary for case 1017660 added.\n", + "Rate limit hit. Retrying in 58 seconds...\n", + "Summary for case 1043159 added.\n", + "Summary for case 1346648 added.\n", + "Rate limit hit. Retrying in 56 seconds...\n", + "Summary for case 3320973 added.\n", + "Summary for case 3322332 added.\n", + "Summary for case 3329625 added.\n", + "Summary for case 3335022 added.\n", + "Rate limit hit. Retrying in 52 seconds...\n", + "Summary for case 3335075 added.\n", + "Summary for case 3335809 added.\n", + "Summary for case 3841816 added.\n", + "Summary for case 3852931 added.\n", + "Summary for case 3862445 added.\n", + "Rate limit hit. Retrying in 50 seconds...\n", + "Summary for case 4273930 added.\n", + "Rate limit hit. Retrying in 1 seconds...\n", + "Summary for case 473788 added.\n", + "Rate limit hit. Retrying in 55 seconds...\n", + "Summary for case 4938756 added.\n", + "Summary for case 498084 added.\n", + "Summary for case 5041745 added.\n", + "Rate limit hit. Retrying in 54 seconds...\n", + "Summary for case 520681 added.\n", + "Summary for case 522109 added.\n", + "Summary for case 524654 added.\n", + "Summary for case 558730 added.\n", + "Rate limit hit. Retrying in 53 seconds...\n", + "Summary for case 566840 added.\n", + "Summary for case 591938 added.\n", + "Rate limit hit. Retrying in 1 seconds...\n", + "Summary for case 594079 added.\n", + "Rate limit hit. Retrying in 53 seconds...\n", + "Summary for case 615468 added.\n", + "Summary for case 630224 added.\n", + "Summary for case 674990 added.\n", + "Summary for case 685636 added.\n", + "Rate limit hit. Retrying in 53 seconds...\n", + "Summary for case 768356 added.\n", + "Rate limit hit. Retrying in 58 seconds...\n", + "Summary for case 782330 added.\n", + "Rate limit hit. Retrying in 58 seconds...\n", + "Summary for case 798646 added.\n", + "Summary for case 812042 added.\n", + "Summary for case 838633 added.\n", + "Rate limit hit. Retrying in 56 seconds...\n", + "Summary for case 842483 added.\n", + "Summary for case 849973 added.\n", + "Rate limit hit. Retrying in 56 seconds...\n", + "Summary for case 859403 added.\n", + "Summary for case 869848 added.\n", + "Summary for case 881896 added.\n", + "Rate limit hit. Retrying in 57 seconds...\n", + "Summary for case 8848167 added.\n", + "Rate limit hit. Retrying in 86400 seconds...\n" + ] + }, + { + "ename": "KeyboardInterrupt", + "evalue": "", + "output_type": "error", + "traceback": [ + "\u001b[0;31m---------------------------------------------------------------------------\u001b[0m", + "\u001b[0;31mRateLimitError\u001b[0m Traceback (most recent call last)", + "Cell \u001b[0;32mIn[1], line 40\u001b[0m, in \u001b[0;36mgenerate_summary_with_retry\u001b[0;34m(text, deployment, max_retries)\u001b[0m\n\u001b[1;32m 39\u001b[0m \u001b[38;5;28;01mtry\u001b[39;00m:\n\u001b[0;32m---> 40\u001b[0m response \u001b[38;5;241m=\u001b[39m \u001b[43mopenai\u001b[49m\u001b[38;5;241;43m.\u001b[39;49m\u001b[43mChatCompletion\u001b[49m\u001b[38;5;241;43m.\u001b[39;49m\u001b[43mcreate\u001b[49m\u001b[43m(\u001b[49m\n\u001b[1;32m 41\u001b[0m \u001b[43m \u001b[49m\u001b[43mengine\u001b[49m\u001b[38;5;241;43m=\u001b[39;49m\u001b[43mdeployment\u001b[49m\u001b[43m,\u001b[49m\n\u001b[1;32m 42\u001b[0m \u001b[43m \u001b[49m\u001b[43mmessages\u001b[49m\u001b[38;5;241;43m=\u001b[39;49m\u001b[43m[\u001b[49m\n\u001b[1;32m 43\u001b[0m \u001b[43m \u001b[49m\u001b[43m{\u001b[49m\u001b[38;5;124;43m\"\u001b[39;49m\u001b[38;5;124;43mrole\u001b[39;49m\u001b[38;5;124;43m\"\u001b[39;49m\u001b[43m:\u001b[49m\u001b[43m \u001b[49m\u001b[38;5;124;43m\"\u001b[39;49m\u001b[38;5;124;43msystem\u001b[39;49m\u001b[38;5;124;43m\"\u001b[39;49m\u001b[43m,\u001b[49m\u001b[43m \u001b[49m\u001b[38;5;124;43m\"\u001b[39;49m\u001b[38;5;124;43mcontent\u001b[39;49m\u001b[38;5;124;43m\"\u001b[39;49m\u001b[43m:\u001b[49m\u001b[43m \u001b[49m\u001b[38;5;124;43m\"\u001b[39;49m\u001b[38;5;124;43mYou are a helpful assistant trained to summarize legal texts.\u001b[39;49m\u001b[38;5;124;43m\"\u001b[39;49m\u001b[43m}\u001b[49m\u001b[43m,\u001b[49m\n\u001b[1;32m 44\u001b[0m \u001b[43m \u001b[49m\u001b[43m{\u001b[49m\u001b[38;5;124;43m\"\u001b[39;49m\u001b[38;5;124;43mrole\u001b[39;49m\u001b[38;5;124;43m\"\u001b[39;49m\u001b[43m:\u001b[49m\u001b[43m \u001b[49m\u001b[38;5;124;43m\"\u001b[39;49m\u001b[38;5;124;43muser\u001b[39;49m\u001b[38;5;124;43m\"\u001b[39;49m\u001b[43m,\u001b[49m\u001b[43m \u001b[49m\u001b[38;5;124;43m\"\u001b[39;49m\u001b[38;5;124;43mcontent\u001b[39;49m\u001b[38;5;124;43m\"\u001b[39;49m\u001b[43m:\u001b[49m\u001b[43m \u001b[49m\u001b[38;5;124;43mf\u001b[39;49m\u001b[38;5;124;43m\"\u001b[39;49m\u001b[38;5;124;43mSummarize the following legal text:\u001b[39;49m\u001b[38;5;130;43;01m\\n\u001b[39;49;00m\u001b[38;5;130;43;01m\\n\u001b[39;49;00m\u001b[38;5;132;43;01m{\u001b[39;49;00m\u001b[43mtext\u001b[49m\u001b[38;5;132;43;01m}\u001b[39;49;00m\u001b[38;5;124;43m\"\u001b[39;49m\u001b[43m}\u001b[49m\n\u001b[1;32m 45\u001b[0m \u001b[43m \u001b[49m\u001b[43m]\u001b[49m\u001b[43m,\u001b[49m\n\u001b[1;32m 46\u001b[0m \u001b[43m \u001b[49m\u001b[43mmax_tokens\u001b[49m\u001b[38;5;241;43m=\u001b[39;49m\u001b[38;5;241;43m150\u001b[39;49m\u001b[43m,\u001b[49m\n\u001b[1;32m 47\u001b[0m \u001b[43m \u001b[49m\u001b[43mtemperature\u001b[49m\u001b[38;5;241;43m=\u001b[39;49m\u001b[38;5;241;43m0.3\u001b[39;49m\u001b[43m,\u001b[49m\n\u001b[1;32m 48\u001b[0m \u001b[43m \u001b[49m\u001b[43m)\u001b[49m\n\u001b[1;32m 49\u001b[0m \u001b[38;5;66;03m# If successful, return the summary\u001b[39;00m\n", + "File \u001b[0;32m/workspace/Data_ingestion/.venv/lib/python3.12/site-packages/openai/api_resources/chat_completion.py:25\u001b[0m, in \u001b[0;36mChatCompletion.create\u001b[0;34m(cls, *args, **kwargs)\u001b[0m\n\u001b[1;32m 24\u001b[0m \u001b[38;5;28;01mtry\u001b[39;00m:\n\u001b[0;32m---> 25\u001b[0m \u001b[38;5;28;01mreturn\u001b[39;00m \u001b[38;5;28;43msuper\u001b[39;49m\u001b[43m(\u001b[49m\u001b[43m)\u001b[49m\u001b[38;5;241;43m.\u001b[39;49m\u001b[43mcreate\u001b[49m\u001b[43m(\u001b[49m\u001b[38;5;241;43m*\u001b[39;49m\u001b[43margs\u001b[49m\u001b[43m,\u001b[49m\u001b[43m \u001b[49m\u001b[38;5;241;43m*\u001b[39;49m\u001b[38;5;241;43m*\u001b[39;49m\u001b[43mkwargs\u001b[49m\u001b[43m)\u001b[49m\n\u001b[1;32m 26\u001b[0m \u001b[38;5;28;01mexcept\u001b[39;00m TryAgain \u001b[38;5;28;01mas\u001b[39;00m e:\n", + "File \u001b[0;32m/workspace/Data_ingestion/.venv/lib/python3.12/site-packages/openai/api_resources/abstract/engine_api_resource.py:153\u001b[0m, in \u001b[0;36mEngineAPIResource.create\u001b[0;34m(cls, api_key, api_base, api_type, request_id, api_version, organization, **params)\u001b[0m\n\u001b[1;32m 138\u001b[0m (\n\u001b[1;32m 139\u001b[0m deployment_id,\n\u001b[1;32m 140\u001b[0m engine,\n\u001b[0;32m (...)\u001b[0m\n\u001b[1;32m 150\u001b[0m api_key, api_base, api_type, api_version, organization, \u001b[38;5;241m*\u001b[39m\u001b[38;5;241m*\u001b[39mparams\n\u001b[1;32m 151\u001b[0m )\n\u001b[0;32m--> 153\u001b[0m response, _, api_key \u001b[38;5;241m=\u001b[39m \u001b[43mrequestor\u001b[49m\u001b[38;5;241;43m.\u001b[39;49m\u001b[43mrequest\u001b[49m\u001b[43m(\u001b[49m\n\u001b[1;32m 154\u001b[0m \u001b[43m \u001b[49m\u001b[38;5;124;43m\"\u001b[39;49m\u001b[38;5;124;43mpost\u001b[39;49m\u001b[38;5;124;43m\"\u001b[39;49m\u001b[43m,\u001b[49m\n\u001b[1;32m 155\u001b[0m \u001b[43m \u001b[49m\u001b[43murl\u001b[49m\u001b[43m,\u001b[49m\n\u001b[1;32m 156\u001b[0m \u001b[43m \u001b[49m\u001b[43mparams\u001b[49m\u001b[38;5;241;43m=\u001b[39;49m\u001b[43mparams\u001b[49m\u001b[43m,\u001b[49m\n\u001b[1;32m 157\u001b[0m \u001b[43m \u001b[49m\u001b[43mheaders\u001b[49m\u001b[38;5;241;43m=\u001b[39;49m\u001b[43mheaders\u001b[49m\u001b[43m,\u001b[49m\n\u001b[1;32m 158\u001b[0m \u001b[43m \u001b[49m\u001b[43mstream\u001b[49m\u001b[38;5;241;43m=\u001b[39;49m\u001b[43mstream\u001b[49m\u001b[43m,\u001b[49m\n\u001b[1;32m 159\u001b[0m \u001b[43m \u001b[49m\u001b[43mrequest_id\u001b[49m\u001b[38;5;241;43m=\u001b[39;49m\u001b[43mrequest_id\u001b[49m\u001b[43m,\u001b[49m\n\u001b[1;32m 160\u001b[0m \u001b[43m \u001b[49m\u001b[43mrequest_timeout\u001b[49m\u001b[38;5;241;43m=\u001b[39;49m\u001b[43mrequest_timeout\u001b[49m\u001b[43m,\u001b[49m\n\u001b[1;32m 161\u001b[0m \u001b[43m\u001b[49m\u001b[43m)\u001b[49m\n\u001b[1;32m 163\u001b[0m \u001b[38;5;28;01mif\u001b[39;00m stream:\n\u001b[1;32m 164\u001b[0m \u001b[38;5;66;03m# must be an iterator\u001b[39;00m\n", + "File \u001b[0;32m/workspace/Data_ingestion/.venv/lib/python3.12/site-packages/openai/api_requestor.py:298\u001b[0m, in \u001b[0;36mAPIRequestor.request\u001b[0;34m(self, method, url, params, headers, files, stream, request_id, request_timeout)\u001b[0m\n\u001b[1;32m 288\u001b[0m result \u001b[38;5;241m=\u001b[39m \u001b[38;5;28mself\u001b[39m\u001b[38;5;241m.\u001b[39mrequest_raw(\n\u001b[1;32m 289\u001b[0m method\u001b[38;5;241m.\u001b[39mlower(),\n\u001b[1;32m 290\u001b[0m url,\n\u001b[0;32m (...)\u001b[0m\n\u001b[1;32m 296\u001b[0m request_timeout\u001b[38;5;241m=\u001b[39mrequest_timeout,\n\u001b[1;32m 297\u001b[0m )\n\u001b[0;32m--> 298\u001b[0m resp, got_stream \u001b[38;5;241m=\u001b[39m \u001b[38;5;28;43mself\u001b[39;49m\u001b[38;5;241;43m.\u001b[39;49m\u001b[43m_interpret_response\u001b[49m\u001b[43m(\u001b[49m\u001b[43mresult\u001b[49m\u001b[43m,\u001b[49m\u001b[43m \u001b[49m\u001b[43mstream\u001b[49m\u001b[43m)\u001b[49m\n\u001b[1;32m 299\u001b[0m \u001b[38;5;28;01mreturn\u001b[39;00m resp, got_stream, \u001b[38;5;28mself\u001b[39m\u001b[38;5;241m.\u001b[39mapi_key\n", + "File \u001b[0;32m/workspace/Data_ingestion/.venv/lib/python3.12/site-packages/openai/api_requestor.py:700\u001b[0m, in \u001b[0;36mAPIRequestor._interpret_response\u001b[0;34m(self, result, stream)\u001b[0m\n\u001b[1;32m 698\u001b[0m \u001b[38;5;28;01melse\u001b[39;00m:\n\u001b[1;32m 699\u001b[0m \u001b[38;5;28;01mreturn\u001b[39;00m (\n\u001b[0;32m--> 700\u001b[0m \u001b[38;5;28;43mself\u001b[39;49m\u001b[38;5;241;43m.\u001b[39;49m\u001b[43m_interpret_response_line\u001b[49m\u001b[43m(\u001b[49m\n\u001b[1;32m 701\u001b[0m \u001b[43m \u001b[49m\u001b[43mresult\u001b[49m\u001b[38;5;241;43m.\u001b[39;49m\u001b[43mcontent\u001b[49m\u001b[38;5;241;43m.\u001b[39;49m\u001b[43mdecode\u001b[49m\u001b[43m(\u001b[49m\u001b[38;5;124;43m\"\u001b[39;49m\u001b[38;5;124;43mutf-8\u001b[39;49m\u001b[38;5;124;43m\"\u001b[39;49m\u001b[43m)\u001b[49m\u001b[43m,\u001b[49m\n\u001b[1;32m 702\u001b[0m \u001b[43m \u001b[49m\u001b[43mresult\u001b[49m\u001b[38;5;241;43m.\u001b[39;49m\u001b[43mstatus_code\u001b[49m\u001b[43m,\u001b[49m\n\u001b[1;32m 703\u001b[0m \u001b[43m \u001b[49m\u001b[43mresult\u001b[49m\u001b[38;5;241;43m.\u001b[39;49m\u001b[43mheaders\u001b[49m\u001b[43m,\u001b[49m\n\u001b[1;32m 704\u001b[0m \u001b[43m \u001b[49m\u001b[43mstream\u001b[49m\u001b[38;5;241;43m=\u001b[39;49m\u001b[38;5;28;43;01mFalse\u001b[39;49;00m\u001b[43m,\u001b[49m\n\u001b[1;32m 705\u001b[0m \u001b[43m \u001b[49m\u001b[43m)\u001b[49m,\n\u001b[1;32m 706\u001b[0m \u001b[38;5;28;01mFalse\u001b[39;00m,\n\u001b[1;32m 707\u001b[0m )\n", + "File \u001b[0;32m/workspace/Data_ingestion/.venv/lib/python3.12/site-packages/openai/api_requestor.py:765\u001b[0m, in \u001b[0;36mAPIRequestor._interpret_response_line\u001b[0;34m(self, rbody, rcode, rheaders, stream)\u001b[0m\n\u001b[1;32m 764\u001b[0m \u001b[38;5;28;01mif\u001b[39;00m stream_error \u001b[38;5;129;01mor\u001b[39;00m \u001b[38;5;129;01mnot\u001b[39;00m \u001b[38;5;241m200\u001b[39m \u001b[38;5;241m<\u001b[39m\u001b[38;5;241m=\u001b[39m rcode \u001b[38;5;241m<\u001b[39m \u001b[38;5;241m300\u001b[39m:\n\u001b[0;32m--> 765\u001b[0m \u001b[38;5;28;01mraise\u001b[39;00m \u001b[38;5;28mself\u001b[39m\u001b[38;5;241m.\u001b[39mhandle_error_response(\n\u001b[1;32m 766\u001b[0m rbody, rcode, resp\u001b[38;5;241m.\u001b[39mdata, rheaders, stream_error\u001b[38;5;241m=\u001b[39mstream_error\n\u001b[1;32m 767\u001b[0m )\n\u001b[1;32m 768\u001b[0m \u001b[38;5;28;01mreturn\u001b[39;00m resp\n", + "\u001b[0;31mRateLimitError\u001b[0m: Requests to the ChatCompletions_Create Operation under Azure OpenAI API version 2024-08-01-preview have exceeded token rate limit of your current OpenAI S0 pricing tier. Please retry after 86400 seconds. Please go here: https://aka.ms/oai/quotaincrease if you would like to further increase the default rate limit.", + "\nDuring handling of the above exception, another exception occurred:\n", + "\u001b[0;31mKeyboardInterrupt\u001b[0m Traceback (most recent call last)", + "Cell \u001b[0;32mIn[1], line 94\u001b[0m\n\u001b[1;32m 91\u001b[0m text_to_summarize \u001b[38;5;241m=\u001b[39m \u001b[38;5;124m\"\u001b[39m\u001b[38;5;124m \u001b[39m\u001b[38;5;124m\"\u001b[39m\u001b[38;5;241m.\u001b[39mjoin(opinion[\u001b[38;5;124m'\u001b[39m\u001b[38;5;124mtext\u001b[39m\u001b[38;5;124m'\u001b[39m] \u001b[38;5;28;01mfor\u001b[39;00m opinion \u001b[38;5;129;01min\u001b[39;00m opinions \u001b[38;5;28;01mif\u001b[39;00m \u001b[38;5;124m'\u001b[39m\u001b[38;5;124mtext\u001b[39m\u001b[38;5;124m'\u001b[39m \u001b[38;5;129;01min\u001b[39;00m opinion)\n\u001b[1;32m 93\u001b[0m \u001b[38;5;66;03m# Generate summary\u001b[39;00m\n\u001b[0;32m---> 94\u001b[0m summary \u001b[38;5;241m=\u001b[39m \u001b[43mgenerate_summary_with_retry\u001b[49m\u001b[43m(\u001b[49m\u001b[43mtext_to_summarize\u001b[49m\u001b[43m)\u001b[49m\n\u001b[1;32m 96\u001b[0m \u001b[38;5;66;03m# Update table with summary\u001b[39;00m\n\u001b[1;32m 97\u001b[0m \u001b[38;5;28;01mif\u001b[39;00m summary:\n", + "Cell \u001b[0;32mIn[1], line 56\u001b[0m, in \u001b[0;36mgenerate_summary_with_retry\u001b[0;34m(text, deployment, max_retries)\u001b[0m\n\u001b[1;32m 54\u001b[0m retry_after \u001b[38;5;241m=\u001b[39m \u001b[38;5;28mint\u001b[39m(e\u001b[38;5;241m.\u001b[39mheaders\u001b[38;5;241m.\u001b[39mget(\u001b[38;5;124m\"\u001b[39m\u001b[38;5;124mRetry-After\u001b[39m\u001b[38;5;124m\"\u001b[39m, \u001b[38;5;241m10\u001b[39m)) \u001b[38;5;66;03m# Default to 10 seconds if not provided\u001b[39;00m\n\u001b[1;32m 55\u001b[0m \u001b[38;5;28mprint\u001b[39m(\u001b[38;5;124mf\u001b[39m\u001b[38;5;124m\"\u001b[39m\u001b[38;5;124mRate limit hit. Retrying in \u001b[39m\u001b[38;5;132;01m{\u001b[39;00mretry_after\u001b[38;5;132;01m}\u001b[39;00m\u001b[38;5;124m seconds...\u001b[39m\u001b[38;5;124m\"\u001b[39m)\n\u001b[0;32m---> 56\u001b[0m \u001b[43mtime\u001b[49m\u001b[38;5;241;43m.\u001b[39;49m\u001b[43msleep\u001b[49m\u001b[43m(\u001b[49m\u001b[43mretry_after\u001b[49m\u001b[43m)\u001b[49m\n\u001b[1;32m 57\u001b[0m \u001b[38;5;28;01mexcept\u001b[39;00m \u001b[38;5;167;01mException\u001b[39;00m \u001b[38;5;28;01mas\u001b[39;00m e:\n\u001b[1;32m 58\u001b[0m \u001b[38;5;28mprint\u001b[39m(\u001b[38;5;124mf\u001b[39m\u001b[38;5;124m\"\u001b[39m\u001b[38;5;124mError generating summary: \u001b[39m\u001b[38;5;132;01m{\u001b[39;00me\u001b[38;5;132;01m}\u001b[39;00m\u001b[38;5;124m\"\u001b[39m)\n", + "\u001b[0;31mKeyboardInterrupt\u001b[0m: " + ] + } + ], + "source": [ + "import pandas as pd\n", + "import json\n", + "import openai\n", + "import numpy as np\n", + "import psycopg2\n", + "from psycopg2.extras import Json\n", + "import os\n", + "from dotenv import load_dotenv\n", + "import time\n", + "\n", + "# Load environment variables\n", + "load_dotenv()\n", + "\n", + "# Database setup\n", + "conn_params = {\n", + " \"dbname\": os.getenv(\"POSTGRES_DATABASE\"),\n", + " \"user\": os.getenv(\"POSTGRES_USERNAME\"),\n", + " \"password\": os.getenv(\"POSTGRES_PASSWORD\"),\n", + " \"host\": os.getenv(\"POSTGRES_HOST\"),\n", + " \"port\": os.getenv(\"POSTGRES_PORT\"),\n", + "}\n", + "\n", + "# OpenAI setup for Azure\n", + "openai.api_type = \"azure\"\n", + "openai.api_base = os.getenv(\"AZURE_OPENAI_ENDPOINT\")\n", + "openai.api_key = os.getenv(\"AZURE_OPENAI_KEY\")\n", + "openai.api_version = os.getenv(\"AZURE_OPENAI_VERSION\")\n", + "deployment_id = os.getenv(\"AZURE_OPENAI_CHAT_DEPLOYMENT\")\n", + "\n", + "print(\"OpenAI endpoint:\", openai.api_base)\n", + "print(\"OpenAI version:\", openai.api_version)\n", + "print(\"OpenAI deployment ID:\", deployment_id)\n", + "\n", + "\n", + "def generate_summary_with_retry(text, deployment=None, max_retries=5):\n", + " if deployment is None:\n", + " deployment = deployment_id\n", + " for attempt in range(max_retries):\n", + " try:\n", + " response = openai.ChatCompletion.create(\n", + " engine=deployment,\n", + " messages=[\n", + " {\"role\": \"system\", \"content\": \"You are a helpful assistant trained to summarize legal texts.\"},\n", + " {\"role\": \"user\", \"content\": f\"Summarize the following legal text:\\n\\n{text}\"}\n", + " ],\n", + " max_tokens=150,\n", + " temperature=0.3,\n", + " )\n", + " # If successful, return the summary\n", + " summary = response.choices[0].message['content'].strip()\n", + " return summary\n", + " except openai.error.RateLimitError as e:\n", + " # Check for 'Retry-After' in response headers\n", + " retry_after = int(e.headers.get(\"Retry-After\", 10)) # Default to 10 seconds if not provided\n", + " print(f\"Rate limit hit. Retrying in {retry_after} seconds...\")\n", + " time.sleep(retry_after)\n", + " except Exception as e:\n", + " print(f\"Error generating summary: {e}\")\n", + " break # Break on other types of errors not related to rate limits\n", + "\n", + " print(\"Failed to generate summary after multiple retries.\")\n", + " return None\n", + "\n", + "\n", + "# Connect to the database\n", + "with psycopg2.connect(**conn_params) as conn:\n", + " with conn.cursor() as cursor:\n", + " # Add summary column if not exists\n", + " cursor.execute(\"\"\"\n", + " ALTER TABLE demo_cases_updated\n", + " ADD COLUMN IF NOT EXISTS summary TEXT;\n", + " \"\"\")\n", + " conn.commit()\n", + " \n", + " # Query demo_cases for entries needing a summary\n", + " select_query = \"\"\"\n", + " SELECT id, data\n", + " FROM demo_cases_updated\n", + " WHERE summary IS NULL;\n", + " \"\"\"\n", + " cursor.execute(select_query)\n", + " cases = cursor.fetchall()\n", + " \n", + " # Process each case\n", + " for case_id, data_dict in cases:\n", + " data = data_dict # Directly use `data_dict` as it is already a dictionary\n", + " opinions = data.get('casebody', {}).get('opinions', [])\n", + " \n", + " if opinions:\n", + " # Concatenate all opinion texts\n", + " text_to_summarize = \" \".join(opinion['text'] for opinion in opinions if 'text' in opinion)\n", + " \n", + " # Generate summary\n", + " summary = generate_summary_with_retry(text_to_summarize)\n", + " \n", + " # Update table with summary\n", + " if summary:\n", + " update_query = \"\"\"\n", + " UPDATE demo_cases_updated\n", + " SET summary = %s\n", + " WHERE id = %s;\n", + " \"\"\"\n", + " cursor.execute(update_query, (summary, case_id))\n", + " conn.commit()\n", + " print(f\"Summary for case {case_id} added.\")\n", + " else:\n", + " print(f\"Failed to generate summary for case {case_id}.\")\n", + " else:\n", + " print(f\"No opinion text found for case {case_id}.\")\n" + ] + }, + { + "cell_type": "code", + "execution_count": 13, + "metadata": {}, + "outputs": [ + { + "name": "stdout", + "output_type": "stream", + "text": [ + "Embedding for case 819052 added to summary_vector.\n", + "Embedding for case 1036848 added to summary_vector.\n", + "Embedding for case 522235 added to summary_vector.\n", + "Embedding for case 849980 added to summary_vector.\n", + "Embedding for case 8504476 added to summary_vector.\n", + "Embedding for case 98993 added to summary_vector.\n", + "Embedding for case 999390 added to summary_vector.\n", + "Embedding for case 3335075 added to summary_vector.\n", + "Embedding for case 3335809 added to summary_vector.\n", + "Embedding for case 3329625 added to summary_vector.\n", + "Embedding for case 3335022 added to summary_vector.\n", + "Embedding for case 512229 added to summary_vector.\n", + "Embedding for case 881896 added to summary_vector.\n", + "Embedding for case 1034630 added to summary_vector.\n", + "Embedding for case 1091298 added to summary_vector.\n", + "Embedding for case 1151217 added to summary_vector.\n", + "Embedding for case 1201345 added to summary_vector.\n", + "Embedding for case 1791675 added to summary_vector.\n", + "Embedding for case 918583 added to summary_vector.\n", + "Embedding for case 938288 added to summary_vector.\n", + "Embedding for case 820275 added to summary_vector.\n", + "Embedding for case 1829151 added to summary_vector.\n", + "Embedding for case 1829163 added to summary_vector.\n", + "Embedding for case 1829232 added to summary_vector.\n", + "Embedding for case 857503 added to summary_vector.\n", + "Embedding for case 3842559 added to summary_vector.\n", + "Embedding for case 300595 added to summary_vector.\n", + "Embedding for case 3863658 added to summary_vector.\n", + "Embedding for case 3863658 added to summary_vector.\n", + "Embedding for case 823654 added to summary_vector.\n", + "Embedding for case 828223 added to summary_vector.\n", + "Embedding for case 3862445 added to summary_vector.\n", + "Embedding for case 3867373 added to summary_vector.\n", + "Embedding for case 4273930 added to summary_vector.\n", + "Embedding for case 481657 added to summary_vector.\n", + "Embedding for case 4938756 added to summary_vector.\n", + "Embedding for case 515664 added to summary_vector.\n", + "Embedding for case 520500 added to summary_vector.\n", + "Embedding for case 5228201 added to summary_vector.\n", + "Embedding for case 5281483 added to summary_vector.\n", + "Embedding for case 5752736 added to summary_vector.\n", + "Embedding for case 591938 added to summary_vector.\n", + "Embedding for case 615468 added to summary_vector.\n", + "Embedding for case 645120 added to summary_vector.\n", + "Embedding for case 828232 added to summary_vector.\n", + "Embedding for case 838633 added to summary_vector.\n", + "Embedding for case 881757 added to summary_vector.\n", + "Embedding for case 1002142 added to summary_vector.\n", + "Embedding for case 1008406 added to summary_vector.\n", + "Embedding for case 1013556 added to summary_vector.\n", + "Embedding for case 1013576 added to summary_vector.\n", + "Embedding for case 184417 added to summary_vector.\n", + "Embedding for case 1845753 added to summary_vector.\n", + "Embedding for case 849912 added to summary_vector.\n", + "Embedding for case 2498126 added to summary_vector.\n", + "Embedding for case 3842787 added to summary_vector.\n", + "Embedding for case 46127 added to summary_vector.\n", + "Embedding for case 498159 added to summary_vector.\n", + "Embedding for case 561149 added to summary_vector.\n", + "Embedding for case 778273 added to summary_vector.\n", + "Embedding for case 1013593 added to summary_vector.\n", + "Embedding for case 1017630 added to summary_vector.\n", + "Embedding for case 1017797 added to summary_vector.\n", + "Embedding for case 1020659 added to summary_vector.\n", + "Embedding for case 1028024 added to summary_vector.\n", + "Embedding for case 1028302 added to summary_vector.\n", + "Embedding for case 1036909 added to summary_vector.\n", + "Embedding for case 1036918 added to summary_vector.\n", + "Embedding for case 1036963 added to summary_vector.\n", + "Embedding for case 1045387 added to summary_vector.\n", + "Embedding for case 1057167 added to summary_vector.\n", + "Embedding for case 1060138 added to summary_vector.\n", + "Embedding for case 1067107 added to summary_vector.\n", + "Embedding for case 1070564 added to summary_vector.\n", + "Embedding for case 1070606 added to summary_vector.\n", + "Embedding for case 1082926 added to summary_vector.\n", + "Embedding for case 1091252 added to summary_vector.\n", + "Embedding for case 1091301 added to summary_vector.\n", + "Embedding for case 1095266 added to summary_vector.\n", + "Embedding for case 1099605 added to summary_vector.\n", + "Embedding for case 1101801 added to summary_vector.\n", + "Embedding for case 1120440 added to summary_vector.\n", + "Embedding for case 514046 added to summary_vector.\n", + "Embedding for case 1130139 added to summary_vector.\n", + "Embedding for case 1145947 added to summary_vector.\n", + "Embedding for case 1151230 added to summary_vector.\n", + "Embedding for case 1157262 added to summary_vector.\n", + "Embedding for case 1161066 added to summary_vector.\n", + "Embedding for case 1164055 added to summary_vector.\n", + "Embedding for case 1164069 added to summary_vector.\n", + "Embedding for case 1167731 added to summary_vector.\n", + "Embedding for case 1169970 added to summary_vector.\n", + "Embedding for case 1172062 added to summary_vector.\n", + "Embedding for case 1192481 added to summary_vector.\n", + "Embedding for case 1199174 added to summary_vector.\n", + "Embedding for case 1279441 added to summary_vector.\n", + "Embedding for case 1283430 added to summary_vector.\n", + "Embedding for case 1283434 added to summary_vector.\n", + "Embedding for case 1370249 added to summary_vector.\n", + "Embedding for case 1702990 added to summary_vector.\n", + "Embedding for case 1774100 added to summary_vector.\n", + "Embedding for case 1784770 added to summary_vector.\n", + "Embedding for case 1785095 added to summary_vector.\n", + "Embedding for case 1789442 added to summary_vector.\n", + "Embedding for case 1796371 added to summary_vector.\n", + "Embedding for case 1796391 added to summary_vector.\n", + "Embedding for case 1798317 added to summary_vector.\n", + "Embedding for case 1803949 added to summary_vector.\n", + "Embedding for case 1803977 added to summary_vector.\n", + "Embedding for case 1817139 added to summary_vector.\n", + "Embedding for case 1817399 added to summary_vector.\n", + "Embedding for case 889328 added to summary_vector.\n", + "Embedding for case 1829128 added to summary_vector.\n", + "Embedding for case 853359 added to summary_vector.\n", + "Embedding for case 871953 added to summary_vector.\n", + "Embedding for case 875511 added to summary_vector.\n", + "Embedding for case 881725 added to summary_vector.\n", + "Embedding for case 881772 added to summary_vector.\n", + "Embedding for case 881836 added to summary_vector.\n", + "Embedding for case 889275 added to summary_vector.\n", + "Embedding for case 903051 added to summary_vector.\n", + "Embedding for case 904205 added to summary_vector.\n", + "Embedding for case 9195006 added to summary_vector.\n", + "Embedding for case 927342 added to summary_vector.\n", + "Embedding for case 932119 added to summary_vector.\n", + "Embedding for case 932153 added to summary_vector.\n", + "Embedding for case 936473 added to summary_vector.\n", + "Embedding for case 936563 added to summary_vector.\n", + "Embedding for case 938206 added to summary_vector.\n", + "Embedding for case 938237 added to summary_vector.\n", + "Embedding for case 938271 added to summary_vector.\n", + "Embedding for case 938282 added to summary_vector.\n", + "Embedding for case 938300 added to summary_vector.\n", + "Embedding for case 1031638 added to summary_vector.\n", + "Embedding for case 1127960 added to summary_vector.\n", + "Embedding for case 1127960 added to summary_vector.\n", + "Embedding for case 1346648 added to summary_vector.\n", + "Embedding for case 1706351 added to summary_vector.\n", + "Embedding for case 1781976 added to summary_vector.\n", + "Embedding for case 1784895 added to summary_vector.\n", + "Embedding for case 1789717 added to summary_vector.\n", + "Embedding for case 1789717 added to summary_vector.\n", + "Embedding for case 1804074 added to summary_vector.\n", + "Embedding for case 277671 added to summary_vector.\n", + "Embedding for case 3320973 added to summary_vector.\n", + "Embedding for case 3322332 added to summary_vector.\n", + "Embedding for case 2587085 added to summary_vector.\n", + "Embedding for case 1829313 added to summary_vector.\n", + "Embedding for case 1847600 added to summary_vector.\n", + "Embedding for case 1864359 added to summary_vector.\n", + "Embedding for case 1866994 added to summary_vector.\n", + "Embedding for case 2520169 added to summary_vector.\n", + "Embedding for case 2533171 added to summary_vector.\n", + "Embedding for case 2557753 added to summary_vector.\n", + "Embedding for case 2572531 added to summary_vector.\n", + "Embedding for case 2603879 added to summary_vector.\n", + "Embedding for case 369481 added to summary_vector.\n", + "Embedding for case 3788675 added to summary_vector.\n", + "Embedding for case 3816605 added to summary_vector.\n", + "Embedding for case 3841633 added to summary_vector.\n", + "Embedding for case 3841816 added to summary_vector.\n", + "Embedding for case 3841816 added to summary_vector.\n", + "Embedding for case 3842358 added to summary_vector.\n", + "Embedding for case 3844082 added to summary_vector.\n", + "Embedding for case 3844082 added to summary_vector.\n", + "Embedding for case 3844559 added to summary_vector.\n", + "Embedding for case 3850716 added to summary_vector.\n", + "Embedding for case 3856198 added to summary_vector.\n", + "Embedding for case 3863069 added to summary_vector.\n", + "Embedding for case 3878962 added to summary_vector.\n", + "Embedding for case 3895508 added to summary_vector.\n", + "Embedding for case 3905656 added to summary_vector.\n", + "Embedding for case 424104 added to summary_vector.\n", + "Embedding for case 436063 added to summary_vector.\n", + "Embedding for case 437062 added to summary_vector.\n", + "Embedding for case 46066 added to summary_vector.\n", + "Embedding for case 467004 added to summary_vector.\n", + "Embedding for case 475802 added to summary_vector.\n", + "Embedding for case 475908 added to summary_vector.\n", + "Embedding for case 483114 added to summary_vector.\n", + "Embedding for case 488082 added to summary_vector.\n", + "Embedding for case 488233 added to summary_vector.\n", + "Embedding for case 488995 added to summary_vector.\n", + "Embedding for case 490706 added to summary_vector.\n", + "Embedding for case 490939 added to summary_vector.\n", + "Embedding for case 4975399 added to summary_vector.\n", + "Embedding for case 499805 added to summary_vector.\n", + "Embedding for case 499937 added to summary_vector.\n", + "Embedding for case 5001508 added to summary_vector.\n", + "Embedding for case 5010074 added to summary_vector.\n", + "Embedding for case 501943 added to summary_vector.\n", + "Embedding for case 508747 added to summary_vector.\n", + "Embedding for case 508773 added to summary_vector.\n", + "Embedding for case 5289839 added to summary_vector.\n", + "Embedding for case 5300156 added to summary_vector.\n", + "Embedding for case 5304788 added to summary_vector.\n", + "Embedding for case 5604960 added to summary_vector.\n", + "Embedding for case 5629084 added to summary_vector.\n", + "Embedding for case 568326 added to summary_vector.\n", + "Embedding for case 591457 added to summary_vector.\n", + "Embedding for case 591530 added to summary_vector.\n", + "Embedding for case 598935 added to summary_vector.\n", + "Embedding for case 613137 added to summary_vector.\n", + "Embedding for case 634444 added to summary_vector.\n", + "Embedding for case 642559 added to summary_vector.\n", + "Embedding for case 670290 added to summary_vector.\n", + "Embedding for case 674990 added to summary_vector.\n", + "Embedding for case 674990 added to summary_vector.\n", + "Embedding for case 701978 added to summary_vector.\n", + "Embedding for case 782360 added to summary_vector.\n", + "Embedding for case 800991 added to summary_vector.\n", + "Embedding for case 801064 added to summary_vector.\n", + "Embedding for case 802266 added to summary_vector.\n", + "Embedding for case 809918 added to summary_vector.\n", + "Embedding for case 812814 added to summary_vector.\n" + ] + } + ], + "source": [ + "import pandas as pd\n", + "import json\n", + "import openai\n", + "import numpy as np\n", + "import psycopg2\n", + "from psycopg2.extensions import register_adapter, AsIs\n", + "import os\n", + "from dotenv import load_dotenv\n", + "\n", + "# Load environment variables\n", + "load_dotenv()\n", + "\n", + "# Database setup\n", + "def addapt_vector(nparray):\n", + " \"\"\"Adapt a numpy array to the PostgreSQL VECTOR type.\"\"\"\n", + " vector_str = ','.join(map(str, nparray))\n", + " return AsIs(f\"'[{vector_str}]'::VECTOR\")\n", + "\n", + "register_adapter(np.ndarray, addapt_vector)\n", + "\n", + "conn_params = {\n", + " \"dbname\": os.getenv(\"POSTGRES_DATABASE\"),\n", + " \"user\": os.getenv(\"POSTGRES_USERNAME\"),\n", + " \"password\": os.getenv(\"POSTGRES_PASSWORD\"),\n", + " \"host\": os.getenv(\"POSTGRES_HOST\"),\n", + " \"port\": os.getenv(\"POSTGRES_PORT\"),\n", + "}\n", + "\n", + "# OpenAI setup for Azure\n", + "embed_deployment_id = os.getenv(\"AZURE_OPENAI_EMBED_DEPLOYMENT\")\n", + "embed_model = os.getenv(\"AZURE_OPENAI_EMBED_MODEL\")\n", + "openai.api_type = \"azure\"\n", + "openai.api_base = os.getenv(\"AZURE_OPENAI_ENDPOINT\")\n", + "openai.api_key = os.getenv(\"AZURE_OPENAI_KEY\")\n", + "openai.api_version = '2023-05-15'\n", + "\n", + "# Function to generate embeddings using Azure OpenAI\n", + "def create_embeddings(text, deployment=None):\n", + " if deployment is None:\n", + " deployment = embed_deployment_id\n", + " try:\n", + " response = openai.Embedding.create(input=text, deployment_id=deployment)\n", + " embedding = response['data'][0]['embedding']\n", + " return np.array(embedding)\n", + " except Exception as e:\n", + " print(f\"Error generating embeddings: {e}\")\n", + " return None\n", + "\n", + "# Connect to the database and add embeddings to `summary_vector`\n", + "with psycopg2.connect(**conn_params) as conn:\n", + " with conn.cursor() as cursor:\n", + " # Add summary_vector column if it doesn't exist\n", + " cursor.execute(\"\"\"\n", + " ALTER TABLE demo_cases\n", + " ADD COLUMN IF NOT EXISTS summary_vector VECTOR(1536);\n", + " \"\"\")\n", + " conn.commit()\n", + "\n", + " # Query demo_cases for entries needing summary_vector embeddings\n", + " select_query = \"\"\"\n", + " SELECT id, summary\n", + " FROM demo_cases\n", + " WHERE summary IS NOT NULL AND summary_vector IS NULL;\n", + " \"\"\"\n", + " cursor.execute(select_query)\n", + " cases = cursor.fetchall()\n", + " \n", + " # Process each case to generate embeddings\n", + " for case_id, summary_text in cases:\n", + " # Generate embedding for the summary\n", + " embedding_vector = create_embeddings(summary_text)\n", + " \n", + " # Update table with the embedding vector if generation was successful\n", + " if embedding_vector is not None:\n", + " update_query = \"\"\"\n", + " UPDATE demo_cases\n", + " SET summary_vector = %s\n", + " WHERE id = %s;\n", + " \"\"\"\n", + " cursor.execute(update_query, (embedding_vector, case_id))\n", + " conn.commit()\n", + " print(f\"Embedding for case {case_id} added to summary_vector.\")\n", + " else:\n", + " print(f\"Failed to generate embedding for case {case_id}.\")\n" + ] + }, + { + "cell_type": "code", + "execution_count": 79, + "metadata": {}, + "outputs": [ + { + "name": "stdout", + "output_type": "stream", + "text": [ + "Node 1 is in community 0\n", + "Node 2 is in community 0\n", + "Node 5 is in community 0\n", + "Node 3 is in community 1\n", + "Node 4 is in community 1\n" + ] + } + ], + "source": [ + "import networkx as nx\n", + "from graspologic.partition import hierarchical_leiden\n", + "\n", + "G = nx.Graph()\n", + "\n", + "edges = [\n", + " (1, 2, 0.8),\n", + " (2, 3, 0.6),\n", + " (3, 4, 0.9),\n", + " (4, 5, 0.4),\n", + " (5, 1, 0.7),\n", + "]\n", + "\n", + "for edge in edges:\n", + " G.add_edge(edge[0], edge[1], weight=edge[2])\n", + "\n", + "\n", + "max_cluster_size = 2\n", + "resolution = 1.0\n", + "\n", + "\n", + "clusters = hierarchical_leiden(\n", + " graph=G,\n", + " max_cluster_size=max_cluster_size,\n", + " resolution=resolution,\n", + " is_weighted=True,\n", + " weight_attribute=\"weight\"\n", + ")\n", + "\n", + "for node, community in clusters.final_level_hierarchical_clustering().items():\n", + " print(f\"Node {node} is in community {community}\")\n" + ] + } + ], + "metadata": { + "kernelspec": { + "display_name": "Poetry Data Ingestion", + "language": "python", + "name": "data-ingestion-env" + }, + "language_info": { + "codemirror_mode": { + "name": "ipython", + "version": 3 + }, + "file_extension": ".py", + "mimetype": "text/x-python", + "name": "python", + "nbconvert_exporter": "python", + "pygments_lexer": "ipython3", + "version": "3.12.7" + } + }, + "nbformat": 4, + "nbformat_minor": 2 +} diff --git a/Dockerfile b/Dockerfile new file mode 100644 index 0000000..1e40ff4 --- /dev/null +++ b/Dockerfile @@ -0,0 +1,8 @@ +ARG IMAGE=bullseye +FROM mcr.microsoft.com/devcontainers/${IMAGE} + +ENV PYTHONUNBUFFERED 1 + +RUN apt-get update && export DEBIAN_FRONTEND=noninteractive \ + && apt-get -y install --no-install-recommends postgresql-client \ + && apt-get clean -y && rm -rf /var/lib/apt/lists/* \ No newline at end of file diff --git a/Dockerfile.u22 b/Dockerfile.u22 new file mode 100644 index 0000000..6135a24 --- /dev/null +++ b/Dockerfile.u22 @@ -0,0 +1,106 @@ +ARG BASE_IMAGE +ARG BASE_VERSION + +FROM ${BASE_IMAGE}:${BASE_VERSION} AS builder +SHELL [ "/bin/bash", "-euo", "pipefail", "-c" ] + +# Install build dependencies +ARG BUILD_DEPS +ARG DEVEL_DEPS +RUN apt-get update +RUN apt-get install -y ${BUILD_DEPS} ${DEVEL_DEPS} +RUN apt-get autoclean -y +RUN apt-get autoremove -y + +# Create a non-root user +ARG POSTGRES_USER_ID +ARG POSTGRES_USER_NAME +ARG POSTGRES_USER_SHELL +RUN useradd --create-home --user-group --uid ${POSTGRES_USER_ID} --shell ${POSTGRES_USER_SHELL} ${POSTGRES_USER_NAME} + +# Switch to the non-root user +USER ${POSTGRES_USER_NAME} +WORKDIR /home/${POSTGRES_USER_NAME} + +# Install pgenv +ARG PGENV_VERSION +RUN git clone --branch v${PGENV_VERSION} https://github.com/theory/pgenv.git .pgenv +ARG PATH=/home/${POSTGRES_USER_NAME}/.pgenv/bin:$PATH +RUN pgenv config init +RUN sed -E 's/(PGENV_CONFIGURE_OPTIONS)=\S+/\1=([0]="--enable-debug" [1]="--with-llvm" [2]="--with-ssl=openssl")/' -i ~/.pgenv/config/default.conf +ARG PG_VERSION +ARG LLVM_CONFIG +ARG CLANG +RUN pgenv build ${PG_VERSION} + +# Ensure .pgenv exists +RUN ls -al /home/${POSTGRES_USER_NAME}/.pgenv + +# Check PostgreSQL installation +RUN /home/${POSTGRES_USER_NAME}/.pgenv/pgsql-${PG_VERSION}/bin/pg_ctl --version || (echo "PostgreSQL installation failed" && exit 1) + +# Install Apache AGE +COPY --chown=${POSTGRES_USER_NAME}:${POSTGRES_USER_NAME} vendor/age /tmp/age-source +WORKDIR /tmp/age-source +RUN make PG_CONFIG=/home/${POSTGRES_USER_NAME}/.pgenv/pgsql-${PG_VERSION}/bin/pg_config install + +# Install pgvector +WORKDIR /home/${POSTGRES_USER_NAME} +RUN git clone https://github.com/pgvector/pgvector.git +WORKDIR /home/${POSTGRES_USER_NAME}/pgvector +RUN make PG_CONFIG=/home/${POSTGRES_USER_NAME}/.pgenv/pgsql-${PG_VERSION}/bin/pg_config +RUN make PG_CONFIG=/home/${POSTGRES_USER_NAME}/.pgenv/pgsql-${PG_VERSION}/bin/pg_config install + +WORKDIR /home/${POSTGRES_USER_NAME} + +FROM ${BASE_IMAGE}:${BASE_VERSION} AS final +SHELL [ "/bin/bash", "-euo", "pipefail", "-c" ] + +# Install runtime dependencies +ARG RUNTIME_DEPS +RUN apt-get update +RUN apt-get install -y ${RUNTIME_DEPS} +RUN apt-get autoclean -y +RUN apt-get autoremove -y + +# Set the locale +RUN sed -E 's/# (en_US\.UTF-8.+)/\1/' -i /etc/locale.gen +RUN locale-gen + +# Create a non-root user +ARG POSTGRES_USER_ID +ARG POSTGRES_USER_NAME +ARG POSTGRES_USER_SHELL +RUN useradd --create-home --user-group --uid ${POSTGRES_USER_ID} --shell ${POSTGRES_USER_SHELL} ${POSTGRES_USER_NAME} + +# Copy the initialization script into the container +COPY init-postgres.sh /usr/local/bin/init-postgres.sh +RUN chmod +x /usr/local/bin/init-postgres.sh + + +# Switch to the non-root user +USER ${POSTGRES_USER_NAME} +WORKDIR /home/${POSTGRES_USER_NAME}/ + +# Copy pgenv from the builder +COPY --from=builder --chown=${POSTGRES_USER_NAME}:${POSTGRES_USER_NAME} /home/${POSTGRES_USER_NAME}/.pgenv ./.pgenv +ARG PG_VERSION +ENV PATH=/home/${POSTGRES_USER_NAME}/.pgenv/bin:/home/${POSTGRES_USER_NAME}/.pgenv/pgsql/bin:$PATH + +#RUN pgenv switch ${PG_VERSION} + +RUN pgenv use ${PG_VERSION} + +# Set environment variable for PostgreSQL password +ARG POSTGRES_PASSWORD +ENV POSTGRES_PASSWORD=${POSTGRES_PASSWORD} + +# Update PostgreSQL configuration +RUN echo "listen_addresses = '*'" >> /home/${POSTGRES_USER_NAME}/.pgenv/pgsql/data/postgresql.conf && \ + echo "host all all 0.0.0.0/0 md5" >> /home/${POSTGRES_USER_NAME}/.pgenv/pgsql/data/pg_hba.conf + + +# Set CMD to run the init scriptp +CMD ["/usr/local/bin/init-postgres.sh"] +# CMD ["tail", "-f", "/home/postgres/.pgenv/pgsql/data/server.log"] +# CMD ["tail", "-f", "/dev/null"] \ No newline at end of file diff --git a/azure.yaml b/azure.yaml new file mode 100644 index 0000000..8d803fc --- /dev/null +++ b/azure.yaml @@ -0,0 +1,61 @@ +# yaml-language-server: $schema=https://raw.githubusercontent.com/Azure/azure-dev/main/schemas/v1.0/azure.yaml.json +name: legal-research-copilot-postgresql +metadata: + template: legal-research-copilot-postgresql@0.0.1 +requiredVersions: + azd: ">= 1.10.0" +services: + web: + project: ./src/backend + language: py + module: web + host: containerapp + docker: + remoteBuild: true + hooks: + prebuild: + windows: + shell: pwsh + run: cd ../frontend;npm install;npm run build + interactive: false + continueOnError: false + posix: + shell: sh + run: cd ../frontend;npm install;npm run build + interactive: false + continueOnError: false +hooks: + postprovision: + windows: + shell: pwsh + run: .\scripts\setup_postgres_database.ps1;.\scripts\setup_postgres_azurerole.ps1;.\scripts\setup_postgres_seeddata.ps1 + interactive: true + continueOnError: false + posix: + shell: sh + run: ./scripts/setup_postgres_database.sh;./scripts/setup_postgres_azurerole.sh;./scripts/setup_postgres_seeddata.sh + interactive: true + continueOnError: false +pipeline: + variables: + - DEPLOY_AZURE_OPENAI + - OPENAI_CHAT_HOST + - OPENAI_EMBED_HOST + - AZURE_OPENAI_ENDPOINT + - AZURE_OPENAI_VERSION + - AZURE_OPENAI_CHAT_DEPLOYMENT + - AZURE_OPENAI_CHAT_MODEL + - AZURE_OPENAI_CHAT_DEPLOYMENT_VERSION + - AZURE_OPENAI_CHAT_DEPLOYMENT_CAPACITY + - AZURE_OPENAI_EVAL_DEPLOYMENT_SKU + - AZURE_OPENAI_EMBED_DEPLOYMENT + - AZURE_OPENAI_EMBED_MODEL + - AZURE_OPENAI_EMBED_DEPLOYMENT_VERSION + - AZURE_OPENAI_EMBED_DEPLOYMENT_CAPACITY + - AZURE_OPENAI_EMBED_DEPLOYMENT_SKU + - AZURE_OPENAI_EMBED_DIMENSIONS + - AZURE_OPENAI_EMBEDDING_COLUMN + - AZURE_OPENAI_EVAL_DEPLOYMENT + - AZURE_OPENAI_EVAL_MODEL + - AZURE_ML_SCORING_ENDPOINT + - AZURE_ML_ENDPOINT_KEY diff --git a/data/cases_updated.csv b/data/cases_updated.csv new file mode 100644 index 0000000..e8c8b9e --- /dev/null +++ b/data/cases_updated.csv @@ -0,0 +1,364 @@ +id,data,description_vector +900794,"{""id"": 900794, ""name"": ""Jeanette Simon, executrix, vs. Celeste Solomon"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""ad56451ead011385ffd559929795966c81cb0fb21daa2281ab7bd0d5001a3cd9"", ""simhash"": ""1:172b55a71c3a3e82"", ""pagerank"": {""raw"": 0.00000256017819235109, ""percentile"": 0.9966795361428408}, ""char_count"": 51033, ""word_count"": 8216, ""cardinality"": 1789, ""ocr_confidence"": 0.886}, ""casebody"": {""judges"": [], ""parties"": [""Jeanette Simon, executrix, vs. Celeste Solomon.""], ""opinions"": [{""text"": ""Hennessey, C.J.\nIn this appeal, a landlord challenges a judgment entered after trial to a jury in the Housing Court Department of the Trial Court, awarding damages and attorneys’ fees to a tenant for injuries caused by unsanitary conditions in her apartment.\nGem Realty Company (Gem) managed a large number of apartment buildings in Boston. It rented many of its apartments to low income tenants under a Federal rent supplement program. From December, 1973, to November, 1977, Celeste Solomon and her two young sons lived in the basement apartment of a building managed by Gem. In December, 1976, Gem began summary process proceedings to evict Solomon for nonpayment of rent. Solomon, citing floods, trash, rats, roaches, and more, denied that she owed rent. She also filed a counterclaim in four counts, claiming that Gem had (1) broken its implied warranty of habitability; (2) violated its implied covenant of quiet enjoyment; (3) caused Solomon emotional distress through its negligent failure to maintain her apartment; and (4) intentionally inflicted emotional distress.\nSolomon’s counterclaims are based primarily on her allegations of flooding in her apartment. She testified at trial that water and sewage, flowing from an adjoining basement area, flooded her apartment approximately thirty times during her tenancy. Solomon could not recall the date of any of the floods, but was able to name the months in which floods had occurred. She testified that each flood had occurred between twelve and two o’clock in the morning; she described stepping from bed into ankle deep water and slime. Each time this happened, Solomon would spend the night in her kitchen, drinking coffee, and waiting for the morning to call Gem. According to Solomon, a Gem cleanup crew would arrive several hours after her call to pump the water from her apartment. Solomon’s testimony concerning the flooding was corroborated by photographs showing water damage, and by witnesses who had seen water or evidence of water in Solomon’s apartment.\nSolomon did not suffer bodily injury as a result of the flooding. She testified, however, that the floods caused her great emotional anguish. The recurrent water and sewage left her “withdrawn,” “depressed,” and “ashamed,” unable to work or to care for her children. She began to spend much of her time in a darkened bedroom, crying, and on two occasions she sent her children to stay with relatives, so that they might escape the conditions in her apartment. Two psychiatric experts testified that Solomon had suffered serious emotional injury as a result of her living conditions, and was in need of substantial psychiatric treatment.\nGem admits that water entered Solomon’s apartment on several occasions, but denies that thirty “floods” occurred. At trial, Gem’s employees described in detail Gem’s maintenance procedures and its answering service for tenants’ complaints, and testified that they had no memory or record of repeated reports of flooding in Solomon’s apartment. Gem also gave evidence concerning the structure of Solomon’s building and the possible cause of flooding, and argued that third persons were responsible for any floods that occurred.\nThe judge granted summary judgment for Gem on Solomon’s count for negligent maintenance, reasoning that a claim of negligence could not support recovery for purely emotional harm unaccompanied by physical injuries. The judge submitted the remaining three counts to the jury. The jury returned verdicts for Solomon on each count, awarding her $35,000 for recklessly inflicted emotional distress, $10,000 for breach of the covenant of quiet enjoyment, and $1,000 for breach of the warranty of habitability. The judge subsequently awarded Solomon counsel fees, as permitted by the “quiet enjoyment” statute, G. L. c. 186, § 14, in an amount of slightly more than $40,000. Gem has appealed the judgments entered on the verdicts and fee award. Solomon asserts that she is entitled to recover the total of the three verdicts, and the counsel fees, and has appealed the summary judgment for Gem on her count for negligently-caused emotional distress.\nWe affirm the judgments entered for Solomon on her claims for breach of the warranty of habitability, reckless infliction of emotional distress, and attorneys’ fees. We also affirm the judgment entered for Gem on Solomon’s claim of negligence. We vacate the $10,000 award for interference with quiet enjoyment.\n1. Reckless infliction of emotional distress. Our decisions in recent years have firmly established that a plaintiff may recover for emotional distress inflicted recklessly or intentionally. Agis v. Howard Johnson Co., 371 Mass. 140 (1976). George v. Jordan Marsh Co., 359 Mass. 244 (1971). See Restatement (Second) of Torts § 46 (1965). In Agis, we listed four elements necessary to a recovery on this theory. The plaintiff must show “ (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; ... (2) that the conduct was ‘extreme and outrageous’ . . . ; (3) that the actions of the defendant were the cause of the plaintiff’s distress; .... and (4) that the emotional distress sustained by the plaintiff was ‘severe’ . . . .” Agis, supra at 144-145. If each of these elements is proven, the plaintiff can recover for purely emotional suffering unaccompanied by physical injury. Id.\nGem does not seriously challenge the finding of the jury that Solomon suffered severe emotional distress as a result of the floods in her apartment. Instead, Gem stresses that Solomon did not identify a specific “defect” in the apartment building that Gem, as landlord, should have repaired. On this basis Gem argues that it did not act recklessly, did not engage in outrageous conduct, and did not cause Solomon’s floods.\nThe central thrust of Gem’s contentions appears to be that its conduct was not the proximate cause of Solomon’s injuries — that it was not legally responsible for her misfortune. As Gem points out, the source of the floods was not clear. The water appears to have entered Solomon’s apartment primarily from an adjoining basement area. Two waste stacks, admittedly very old, extended from roof to basement collecting waste from the bathrooms, and on occasion may have backed up through a drain in the basement. Gem’s plumber, however, testified that the plumbing system and stacks were in good repair and complied with State plumbing regulations. He also stated that backups in the waste stacks were probably caused by objects that other tenants had introduced through the toilets or roof vents. On the basis of this uncontroverted testimony, Gem argues that it acted reasonably in its plumbing maintenance and therefore was not responsible for the flooding.\nGem’s legal responsibility, however, depends on the duties it owed to Solomon, and Gem’s arguments concerning plumbing misstate the scope of a landlord’s duty to its tenants. We have held that every landlord that rents residential property warrants to its tenants that the premises will be delivered and maintained in a habitable condition. Boston Hous. Auth. v. Hemingway, 363 Mass, 184 (1973). At a minimum, this warranty imposes on the landlord a duty to keep the dwelling in conformity with the State Sanitary Code. Id. at 200 n.16. Crowell v. McCaffrey, 377 Mass. 443, 451 (1979). See also Hemingway, supra at 215-219 (Quirico, J., concurring in part and dissenting in part). A landlord’s breach of this duty abates the tenant’s obligation to pay rent, even when the landlord is not at fault and has no reasonable opportunity to make repairs. Berman & Sons v. Jefferson, 379 Mass. 196 (1979). Further, a landlord that fails to maintain a habitable dwelling for its tenant is liable for resulting personal injuries, at least when the landlord has failed to exercise reasonable care in maintenance. Crowell, supra at 450-451.\nThere was evidence at trial that the wall between Solomon’s apartment and the adjoining basement area was extremely porous. There was also testimony suggesting that Gem may have considered cementing the wall to prevent floods, but never carried out this plan. The jury could reasonably conclude that Gem’s failure to do so caused Solo-man’s injuries — that but for Gem’s inaction, no floods would have occurred. See Williams v. Fontes, 383 Mass. 95, 97-98 (1981); W. Prosser, Torts § 41, at 237 (4th ed. 1971). Further, a section of the State Sanitary Code (received in evidence), provides that apartments must be watertight. 105 Code Mass. Regs. § 410.000 (1978). In light of our decisions holding landlords responsible for injuries resulting from breaches of sanitary code provisions, Gem’s behavior was a sufficiently “proximate” cause to justify the imposition of liability. W. Prosser, supra at 244. Crowell, supra at 450-452.\nHaving recognized that an inference was warranted that Gem failed in its duty to prevent the flooding, we find ample evidence in the record from which the jury could conclude that the remaining elements of an action for reckless infliction of emotional distress — recklessness, outrageous conduct, and severe emotional distress — were present. See Agis v. Howard Johnson Co., 371 Mass. 140 (1976). Solomon testified that she had repeatedly complained to Gem of floods. She stated that Gem on each occasion sent a cleanup crew to pump out the water, but never took permanent action. The jury, if they believed this testimony, could find that Gem knew or should have known that unless it fixed the porous wall flooding would occur, and that floods of sewage water were very likely to cause emotional harm. See Agis, supra at 144-145; Restatement (Second) of Torts § 46, Comment i (1965) (recklessness). The jury could also find that Gem had displayed, over a long and repetitious course, such a pattern of indifference that its conduct was outrageous, “beyond all possible bounds of decency.” Agis, supra at 145 (quoting from Restatement [Second] of Torts § 46, Commend d [1965]). See Boyle v. Wenk, 378 Mass. 592, 595-596 (1979).\nIn sum, it could be found that Gem violated its duty to Solomon recklessly, by outrageous omission to act, and thereby caused Solomon severe emotional harm. Therefore, the jury were warranted in holding Gem liable for reckless infliction of emotional distress.\n2. Negligence and strict liability. Solomon has appealed the summary judgment against her on her count for negligent maintenance. As the trial judge noted in his order, we have not recognized a cause of action for negligently inflicted emotional distress unaccompanied by physical injury. Dziokonski v. Babineau, 375 Mass. 555, 560 n.6, 561 n.7 (1978). McDonough v. Whalen, 365 Mass. 506, 517-518 (1974). Cf. Spade v. Lynn & Boston R.R., 168 Mass. 285, 290 (1897) (limited on other grounds, Dziokonski, supra at 561). See Ferriter v. Daniel O’Connell’s Sons, 381 Mass. 507, 517-518 (1980). Solomon asks us to abandon the requirement of physical injury in actions brought by direct victims of negligence. See Molien v. Kaiser Foundation Hosps., 27 Cal. 3d 916, 925-932 (1980); Rodrigues v. State, 52 Haw. 156, 169-174 (1970). She also suggests that in the landlord-tenant context, proof of negligence should not be necessary. She argues that the warranty of habitability imposes strict liability on landlords for injuries to tenants caused by unsanitary apartment conditions, including emotional injuries. See Berman & Sons v. Jefferson, 379 Mass. 196, 200-203 & n.9 (1979); Crowell v. McCaffrey, 377 Mass. 443, 450-451 (1979). Compare Kaplan v. Coulston, 85 Misc. 2d 745 (N.Y. Civ. Ct. 1976), with Segal v. Justice Court Mut. Hous. Coop., 105 Misc. 2d 453 (N.Y. Civ. Ct. 1980). Cf. Back v. Wickes Corp., 375 Mass. 633 (1978).\nWe need not decide whether a tenant could recover for purely emotional harm on a theory of negligence or strict liability, or whether the Legislature intended to authorize such recovery as “consequential” damages under G. L. c. 186, § 14. We have affirmed Solomon’s sizeable recovery for reckless infliction of emotional distress, and she has not demonstrated that she would be entitled to additional compensation if permitted to recover under a lesser standard of fault. It is perhaps conceivable that the verdict for recklessly inflicted emotional distress did not cover all of Solomon’s suffering. If the jury based their findings of recklessness and outrageous conduct on the repetitious nature of Gem’s conduct, see Boyle v. Wenk, 378 Mass. 592, 595-596 (1979), they may have calculated damages from a point sometime after Solomon first began to suffer distress. Solomon, however, has not argued this point, and the possibility of a marginally enhanced recovery is too speculative to warrant our reaching beyond the arguments presented.\n3. Liability under G. L. c. 186, § 14. The judge’s award of attorneys’ fees, and parts of his instructions on damages, were based on G. L. c. 186, § 14, which imposes civil and criminal liability on a landlord that “willfully or intentionally” fails to provide essential services that it is obligated to furnish, or “directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant.” A landlord that violates § 14 is subject to a fine or imprisonment, and is liable to its tenants for “actual and consequential damages or three months’ rent, whichever is greater,” plus costs and attorneys’ fees. See Darmetko v. Boston Hous. Auth., 378 Mass. 758 (1979). Gem contends, on several grounds, that § 14 was inapplicable to this case.\nFirst, Gem argues that § 14 does not create an independent civil action — that it cannot be the basis of a civil recovery until the landlord has been convicted under its criminal provisions. We reject Gem’s interpretation. The statute states that one who “commits” any of the proscribed acts is civilly liable; it does not require “conviction.” Moreover, a requirement of prior criminal conviction would defeat the efficiency of the civil remedy as a means by which tenants can enforce the statute and obtain compensation. This is particularly true in the context of summary eviction proceedings. By the express terms of the statute a tenant may apply its claims under § 14 against a claim for rent by the landlord. If a prior criminal conviction were required, however, tenants would rarely be able to raise such counterclaims in summary eviction proceedings based on nonpayment of rent. A statute should not be read in a manner that defeats its intended utility. See, e.g., Commonwealth v. Lamb, 365 Mass. 265, 269 (1974); Hein-Werner Corp. v. Jackson Indus., Inc., 364 Mass. 523, 527 (1974). We conclude, therefore, that a tenant may bring an action for civil damages under G. L. c. 186, § 14, without first pursuing criminal charges.\nSecond, Gem contends that § 14 prohibits only intentional conduct by a landlord. As we noted earlier, the jury did not find that Gem intended to harm Solomon. It did find, however, that Gem acted recklessly. With this finding in mind, we consider the purposes, language, and context of § 14.\nSection 14 belongs to a body of statutes establishing tenants’ remedies against landlords who fail to provide safe and sanitary housing. See, e.g., G. L. c. 111, §§ 127A-127L, c. 186, §§ 14, 15E, 15F, 18, 19; c. 239, § 8A. These statutes are designed to facilitate enforcement of State housing regulations and to provide relief for tenants deprived of decent homes. See Boston Hous. Auth. v. Hemingway, 363 Mass. 184, 191-193 (1973). The objectives of these statutes go beyond deterrence of intentional wrongdoing; unsanitary conditions in an apartment cause harm to the occupants whether the landlord has acted intentionally, negligently, or innocently. See G. L. c. 239, § 8A (no requirement that landlord must have reasonable opportunity to repair before tenant may withhold rent); Berman & Sons v. Jefferson, 379 Mass. 196, 200-204 (1979).\nOf course, general statutory objectives do not necessarily justify the broadest reading possible. See Morissette v. United States, 342 U.S. 246, 259 (1952). The Legislature may have contemplated a balance between tenant protection and the legitimate interests of landlords, and therefore may have intended that some degree of fault or foreseeability should be a prerequisite to liability under § 14. Cf. G. L. c. 186, § 19 (liability for personal injuries, based on failure to make reasonable repairs after written notice from tenant). Our analysis of the language and history of § 14, however, leads us to conclude that malicious intent is not necessary, and that the statute covers, at the least, reckless conduct such as Gem’s.\nWhen § 14 was first enacted, both categories of prohibited conduct — failure to provide services and interference with quiet enjoyment — were modified by the words “willfully or intentionally.” St. 1927, c. 339, § 1. In 1973, the statute was rewritten. St. 1973, c. 778, § 2. The requirement of intentional conduct was retained for failure to provide essential services, but deleted from the quiet enjoyment clause; landlords were now liable for “directly or indirectly” interfering with tenants’ quiet enjoyment of leased premises. One natural inference from this amendment is that the Legislature meant to abrogate the requirement of specific intent to disturb quiet enjoyment.\nThe common law background of § 14 also suggests that malicious intent is not a condition of liability. The phrase “quiet enjoyment” is a familiar term in landlord-tenant law, signifying the tenant’s right to freedom from serious interferences with his tenancy — acts or omissions that “impair the character and value of the leased premises.” Winchester v. O’Brien, 266 Mass. 33, 36 (1929) (quoting from Brande v. Grace, 154 Mass. 210, 212 [1891]). See Blackett v. Olanoff, 371 Mass. 714 (1977). Every tenancy is deemed to entail an implied covenant that the landlord will not disturb this right during the tenancy. Id. Although early cases applying the covenant of quiet enjoyment required intent on the part of the landlord, e.g., Katz v. Duffy, 261 Mass. 149 (1927), more recent decisions have imposed liability whenever the “natural and probable consequence” of a landlord’s action was interruption of the tenant’s rights. Westland Hous. Corp. v. Scott, 312 Mass. 375, 381-383 (1942). Shindler v. Milden, 282 Mass. 32, 33 (1933). See also Blackett v. Olanoff, 371 Mass. 714, 716 (1977). When the Legislature chose the words “quiet enjoyment” — words that have little inherent meaning but a rich background in decisional law — it must have intended to incorporate these cases into the statute. See Pineo v. White, 320 Mass. 487, 491 (1946); Commissioners of Pub. Works v. Cities Serv. Oil Co., 308 Mass. 349, 360 (1941).\nGem argues that because criminal penalties are possible under § 14, we should read a requirement of intent into the statute despite the contrary suggestions of its language and background. We disagree. Although we have often stated that penal statutes should be strictly construed, Commonwealth v. Clinton, 374 Mass. 719, 721 (1978), this maxim is a guide for resolving ambiguity, rather than a rigid requirement that we interpret each statute in the manner most favorable to defendants. Commonwealth v. McMenimon, 295 Mass. 467, 470 (1936). Nor do we perceive any constitutional difficulty that would call for a narrow construction. Although the requirement of due process places some limits on legislative power to penalize innocent conduct, legislatures generally have broad power to define and limit the mens rea element of criminal offenses. See Lambert v. California, 355 U.S. 225, 228-230 (1957); Commonwealth v. Buckley, 354 Mass. 508, 510-512 (1968). See generally Morissette v. United States, 342 U.S. 246 (1952). In framing statutes that create special duties of care for the protection of public health and safety, legislators may impose even strict criminal liability. Morissette, supra at 252-260. United States v. Dotterweich, 320 U.S. 277, 280-281, 284 (1943). In the present case, we need not extend the scope of § 14 beyond recklessness, and penalties for reckless conduct are well within the constraints of due process. Commonwealth v. Olivo, 369 Mass. 62, 71 (1975).\nAs its third objection to Solomon’s recovery on her count for interference with quiet enjoyment, Gem asserts that it was wrongly held responsible for the actions of third parties beyond its control. Pointing to its plumber’s testimony that waste backups were caused by tenants’ using unauthorized washing machines or introducing objects into the waste stacks, and to its unsuccessful attempts to evict tenants for using washing machines in their apartments, Gem argues that it was unable to control the source of the flooding. Cf. Blackett v. Olanoff, 371 Mass. 714 (1977). This contention echoes Gem’s objections to the verdict for reckless infliction of emotional distress, and we reject it for the same reasons. The water in Solomon’s apartment was a preventable situation, and one that Gem had a duty to prevent. See 105 Code Mass. Regs. 410.500; Crowell v. McCaffrey, 377 Mass. 443 (1979); Boston Hous. Auth. v. Hemingway, 363 Mass. 184 (1973). The jury found in answer to a special question (see note 2, supra), that the water interfered with. Solomon’s quiet enjoyment of her apartment. Therefore, Gem is liable under G. L. c. 186, § 14.\nIn sum, we hold that a tenant need not seek a criminal conviction before claiming damages under G. L. c. 186, § 14. Nor must the tenant prove that the landlord intended to interfere with the tenant’s rights, at least as long as the landlord’s conduct was reckless. Finally, Gem is liable to Solomon under § 14 because it violated its underlying duty to maintain sanitary conditions in her apartment, and thereby permitted repeated flooding to occur that interfered with her quiet enjoyment of her apartment.\n4. Evidentiary rulings. Gem challenges the admission of two items of evidence. First, Gem asserts that the judge improperly allowed an expert witness to give an opinion on Solomon’s truthfulness. The witness in question was a psychiatrist who testified, on the basis of an interview with Solomon, that she had suffered serious emotional disturbance as a result of the conditions in her apartment. The judge refused to allow this witness to state directly his opinion on Solomon’s truthfulness during the psychiatric interview, but did permit the witness to testify that he ordinarily assessed patients’ truthfulness. The judge also permitted Solomon’s counsel to ask the witness what factors he had relied on in reaching his conclusion that the floods in Solomon’s apartment were the cause of her distress. Immediately after this question, the judge instructed the jury that they alone were responsible for determining the truth of the parties’ allegations, and that they should consider the witness’s comments on truthfulness only as evidence of the process by which he had formed his opinion and the facts on which he had relied. The witness then answered that he had relied in part on statements by Solomon concerning conditions in her apartment, and on the fact that she “appeared sincere and honest.”\nThe role of an expert witness is to help the jury understand issues of fact beyond their common experience. Under modern standards, expert testimony on matters within the witness’s field of expertise is admissible whenever it will aid the jury in reaching a decision, even if the expert’s opinion touches on the ultimate issues that the jury must decide. Commonwealth v. LaCorte, 373 Mass. 700, 705 (1977). Commonwealth v. Montmeny, 360 Mass. 526, 527-528 (1971). See Fed. R. Evid. 704, and Proposed Mass. R. Evid. 704 (July, 1980), which state the rule in very broad terms. An expert may not, however, offer his opinion on issues that the jury are equally competent to assess, such as credibility of witnesses. Commonwealth v. Gardner, 350 Mass. 664, 665-667 (1966). See Commonwealth v. Montmeny, supra at 528-529. On such questions, the influence of an expert’s opinion may threaten the independence of the jury’s decision. Commonwealth v. Gardner, supra at 667. See McCormick, Evidence § 12, at 27 (2d ed. 1972).\nNevertheless, the psychiatric witness’s testimony was admissible as an explanation of the basis of his opinion. An expert witness may state the grounds on which he has relied in forming his opinion, as part of the foundation for his testimony. Commonwealth v. Massachusetts Turnpike Auth., 352 Mass. 143, 151 (1967). Newton Girl Scout Council, Inc. v. Massachusetts Turnpike Auth., 335 Mass. 189, 199 (1956). Cronin v. Fitchburg & Leominster St. Ry., 181 Mass. 202, 203-204 (1902). Such an explanation may be of great use to the jury in determining what weight to accord the expert’s testimony. In the present case, for example, the jury might have discredited the witness’s testimony if they had concluded from their own observations that Solomon was not sincere. An expert’s testimony explaining the foundation for his opinion should not, of course, serve as a channel for the introduction of unnecessary and prejudicial evidence. See Hunt v. Boston, 152 Mass. 168, 171 (1890). In the present case, however, the judge’s warnings that the jury should determine for themselves the credibility of witnesses, and should consider the expert’s comments on sincerity only as explanations of the basis of his opinion, directly addressed the dangers that would have accompanied an unqualified expert opinion on credibility. See McCormick, Evidence § 12, at 27 (2d ed. 1972). We conclude that when, as here, an expert’s statements concerning matters on which he has relied are admitted for the limited purpose of laying the foundation for his opinion and are presented to the jury in a manner that avoids prejudice to the opposing party, the trial judge’s discretion should not be disturbed. See Newton Girl Scout Council, Inc. v. Massachusetts Turnpike Auth., 335 Mass. 189,199 (1956). See also Fed. R. Evid. 703; Proposed Mass. R. Evid. 703 (July, 1980).\nGem’s second argument respecting evidence is that the judge should not have admitted two tenant complaint slips taken from Gem’s telephone records. The slips were dated January 26, 1978 — several months after Solomon had moved out of her apartment. They showed that the new tenant had called Gem to complain that the ceilings were leaking and the “bedroom, living room and hall” were “flooded.” The judge admitted these complaint slips for the limited purpose of showing that Gem’s maintenance supervisor had notice of a “flood,” and thereby impeaching his testimony on cross-examination that the only subsequent tenant complaint had involved “seepage through the bedroom window.”\nGem argues that Solomon could not properly introduce extrinsic evidence to impeach testimony on “collateral” matters. The trial judge, however, might reasonably have determined that Gem’s knowledge of complaints received from the tenant who succeeded Solomon, and the maintenance supervisor’s truthfulness concerning tenant complaints, were not collateral to the issues at trial. See 3A J. Wigmore, Evidence §§ 1003-1004 (Chadbourn rev. 1970). In any event, a judge, in his discretion, may permit impeachment by extrinsic evidence even on collateral points. Commonwealth v. Clifford, 374 Mass. 293, 300 (1978). Lizotte v. Warren, 302 Mass. 217, 218 (1939). In the present case, we find no abuse of discretion; the evidence was not likely to delay the trial or confuse the jury, and there was no unfair surprise to Gem in the use of its own telephone records, other parts of which had already been introduced. Cf. McCormick, Evidence § 47, at 98 (2d ed. 1972); 3A J. Wigmore, supra §§ 1001-1002. We conclude that there was no error in the admission of the complaint slips, accompanied by the judge’s careful, limiting instruction.\n5. Damages. Gem objects to the judge’s extensive instructions on damages, arguing that the judge misstated the damages authorized by G. L. c. 186, § 14, and incorrectly permitted the jury to assess redundant damages. Gem did not press these objections after the charge was delivered and before the jury retired, and therefore cannot claim appellate relief on the basis of defects in the instructions. Mass. R. Civ. P. 51 (b), 365 Mass. 816 (1974). In this circumstance, we would not disturb the verdicts if, by any line of reasoning, the jury might have made a correct assessment of damages. Cf. Donahue v. Dal, Inc., 314 Mass. 460, 462 (1943). However, Gem did file seasonable motions for directed verdicts and for judgment notwithstanding the verdicts. Mass. R. Civ. P. 50(a) (b), 365 Mass. 814 (1974). Based upon these motions, we think that Gem is entitled to a limited review, confined to the question whether the verdicts were supportable under any view of the case as submitted to the jury. Applying this standard of decision, we have considered the evidence presented, the jury’s findings, and the judge’s instructions, and we conclude that the $10,000 verdict for interference with quiet enjoyment was, inescapably, an award of redundant damages. Therefore, we vacate the judgment on that award. We affirm the remaining awards for breach of warranty of habitability and infliction of emotional distress.\nWe observe at the outset that much of the confusion that has arisen on the question of damages is attributable to the form in which the case was submitted to the jury. The jury were asked to return separate verdicts on the three counts of Solomon’s claim, and responded by awarding $1,000 for breach of warranty, $10,000 for interference with quiet enjoyment, and $35,000 for infliction of emotional distress. Despite their tripartite form, however, these verdicts represent an assessment of the monetary consequences of a single problem — the flooding in Solomon’s apartment. In our analysis, therefore, we shall take an overview of the claims and corresponding damages, and avoid the misleading influence of the division of verdicts.\nIn his instructions to the jury, the judge outlined the damages available under each of the three theories of recovery advanced by Solomon. For interference with quiet enjoyment, he instructed the jury to award the statutory measure of damages under G. L. c. 186, § 14: actual and consequential damages, or three months’ rent, whichever is greater. Actual and consequential damages, he explained, included rent paid in excess of the apartment’s value, income lost as a result of injury, and “any damage resulting from emotional distress.” For breach of the warranty of habitability, the judge instructed the jury to calculate the difference between rent paid and the value of the apartment in its defective condition. Finally, he described the elements of damage for reckless infliction of emotional distress as lost income, medical and psychiatric expense, and past, present and future pain and suffering.\nIn light of these instructions, the verdict for interference with quiet enjoyment, if based on Solomon’s actual damages, necessarily duplicated both the lost rental value awarded for breach of warranty, and the items of damage awarded for infliction of emotional distress. Nor can the verdict be justified on the basis of the alternative measure of damages under § 14 — three months’ rent. Triple rent damages, as the judge correctly instructed the jury, are appropriate only when they exceed actual and consequential damages. G. L. c. 186, § 14. Darmetko v. Boston Hous. Auth., 378 Mass. 758, 762 (1979). The jury’s $35,000 verdict for emotional distress — an item of “actual damage” under the judge’s instructions — demonstrates that Solomon’s actual damages were greater than three times her rent.\nSolomon suggests that the jury might have arrived at the $10,000 verdict for interference with quiet enjoyment by assessing three months’ rent for each of a number of separate conditions — such as rodents, overflowing toilets, and a collapsed ceiling — that were present in months when no flooding occurred. She explains that three times her monthly rent of $313, assessed for ten violations, would yield a figure of approximately $10,000. Such an award, however, would be inconsistent with the judge’s instructions that all of Solomon’s claims were based on the flooding, see note 11, supra, and we assume, of course, that the jury complied with those instructions. See Stricker v. Scott, 283 Mass. 12, 14-15 (1933). Further, such an award would be inconsistent with the purpose we attributed to § 14’s triple rent clause in Darmetko, supra. We held in Darmetko that a tenant could not recover three months’ rent for each month during which the landlord permitted a violation to continue. We explained that the triple rent clause of § 14 is an incentive to tenants whose actual damages are slight, not intended for repeated use in calculating damages for a continuing wrong. Darmetko, supra at 762. The same reasoning applies to discrete violations asserted in a single action. When three months’ rent has been assessed for one violation, the incentive function of the triple rent provision is fulfilled. Therefore, we hold that a tenant proceeding under § 14 may collect only one such award, covering all claims that the tenant has raised or reasonably could have raised in the suit. Further, if actual damages arising from a single claim or from all claims combined exceed three months’ rent, the triple rent measure has no function, and the tenant’s remedy is limited to actual damages. See Darmetko, id.\nThe limitation does not, Solomon suggests, immunize a once recalcitrant landlord from liability for future violations. If new violations arise after the initial suit is filed, the tenant may recover triple rent in a new proceeding. Further, if the landlord persists in or repeats the original violation after a final judgment in the tenant’s favor, the tenant may repeat his suit and recover a second time.\nIn sum, taking into account the relationships among the three counts of Solomon’s claim, and the instructions that accompanied their submission to the jury, we find no acceptable basis for the verdict awarding $10,000 to Solomon for interference with quiet enjoyment. The jury could only have reached this verdict by duplicating items of damage subsumed in Solomon’s recoveries for breach of warranty and emotional injury, or by making unwarranted use of the triple rent clause of § 14. Accordingly, we vacate it.\nWhen the improper $10,000 verdict is removed, no overlap remains in Solomon’s damages. The verdict for breach of warranty reflects only lost rental, value, while the verdict for infliction of emotional distress represents only damages for personal injury. Therefore, we affirm the $35,000 and $1,000 verdicts in Solomon’s favor.\n6. Attorneys’ fees. After trial, the judge assessed attorneys’ fees of slightly more than $40,000 for Solomon, based-on the fee provision of G. L. c. 186, § 14. Gem’s primary objection to this award is that the judge improperly considered legal services related to Solomon’s claim for emotional distress.\nA statutory fee award should not cover effort expended on independent claims that happen to be joined with statutory claims in a single proceeding. See Hanner v. Classic Auto Body, Inc., 10 Mass. App. Ct. 121, 124 (1980). As we emphasized in our discussion of damages, however, the partition of Solomon’s claims was a matter of form only, and should not affect the rights of the parties. The three verdicts, although rendered separately, represent various elements of damage arising from a single chain of events — the flooding in Solomon’s apartment. We believe, for reasons stated below, that all the items of damage that the jury might have included in its verdicts — including emotional injury — are recoverable under § 14. Therefore, we reject Gem’s argument that the judge should have limited attorneys’ fees to the value of services devoted to the count labeled “quiet enjoyment.”\nSection 14 provides that tenants may recover “actual and consequential” damages from landlords who have interfered with their quiet enjoyment of leased premises. We have noted that this provision was intended to expand the damages recoverable for breach of the covenant of quiet enjoyment. Darmetko v. Boston Hous. Auth., 378 Mass. 758, 761 n.4 (1979). The meanings of “actual damages” and “consequential damages” may vary with context. Compare H.L. Oleck, Damages to Persons and Property § 12 (rev. ed. 1961), with Ryan v. Foster & Marshall, Inc., 556 F.2d 460, 464 (9th Cir. 1977). Compare G. L. c. 106, § 2-715 (2), with Boylston Hous. Corp. v. O’Toole, 321 Mass. 538, 563 (1947), and Smethurst v. Independent Congregational Church, 148 Mass. 261, 265 (1889). Generally, “actual damages” are losses flowing directly from a wrongful act. See H.L. Oleck, supra § 12. “Consequential damages” cover all losses that are reasonably foreseeable to the actor, even if they do not result inevitably from the act complained of. See John Hetherington & Sons v. William Firth Co., 210 Mass. 8, 21 (1911); Smethurst, supra at 265; H.L. Oleck, supra § 17. For example, consequential damages in an action based on contract or warranty may include personal injuries caused by the breach. G. L. c. 106, § 2-715. Sullivan v. O’Connor, 363 Mass. 579, 583-589 (1973). The combination in § 14 of both actual and consequential damages, therefore, suggests that the Legislature intended to include all reasonably foreseeable losses — personal as well as economic — within the scope of statutory recovery. In the present case, not only were Solomon’s injuries foreseeable, but the jury found specifically that Gem knew or should have known that if it permitted floods to occur, Solomon would suffer emotional harm. Therefore, Solomon’s claim for emotional distress was within the scope of § 14, and was properly considered in the determination of attorneys’ fees.\nWe also reject Gem’s contention that the fee award was excessive and unreasonable. The judge made detailed findings as to the fee award, following the guidelines we set out in Linthicum v. Archambault, 379 Mass. 381, 388-389 (1979), and Heller v. Silverbranch Constr. Corp., 376 Mass. 621, 629 (1978). He excluded duplicative and unnecessary work, and work spent on Solomon’s negligence claim, on which he had directed a verdict for Gem. Judges have broad discretion in awarding fees, and we see no reason to disturb the judge’s determination in this case. Linthicum, supra at 388. Heller, supra at 629-631.\nIn sum, we affirm the judgments for Solomon for reckless infliction of emotional distress, breach of the warranty of habitability, and attorneys’ fees. We also affirm the judgment for Gem on Solomon’s claim of negligence and strict liability. Finally, we vacate the $10,000 judgment for Solomon for interference with quiet enjoyment, and direct that judgment should be entered for Gem on that aspect of the case.\nSo ordered.\nThe company was controlled by Maurice Simon, since deceased, who was the original plaintiff in this action. For purposes of brevity, we refer to the owner-landlord as Gem. No question is raised as to Gem’s control of the premises.\nThe jury were asked to return a separate verdict on each count, and to answer ten specific questions. In the answers to these questions, the jury found that Gem had broken its implied warranty of habitability and its implied covenant of quiet enjoyment. They also found that Gem had not intended to cause Solomon emotional distress, but had engaged in outrageous conduct, and had known, or should have known, that this conduct would cause emotional distress. Finally, they found that Gem’s conduct caused Solomon’s distress, and that her distress was severe.\nGem’s arguments focus on the causal connection between its conduct and the flooding, rather than that between the flooding and Solomon’s injuries.\nThe severity of Solomon’s injury is not an issue on this appeal.\nIn relevant part, G. L. c. 186, § 14, as amended through St. 1974, c. 192, § 1, provides that:\n“Any lessor or landlord of any building or part thereof occupied for dwelling purposes, other than, a room or rooms in a hotel, but including a mobile home or land therefor, who is required by law or by the express or implied terms of any contract or lease or tenancy at will to furnish water, hot water, heat, light, power, gas, elevator service, telephone service, janitor service or refrigeration service to any occupant of such building or part thereof, who willfully or intentionally fails to furnish such water, hot water, heat, light, power, gas, elevator service, telephone service, janitor service or refrigeration service at any time when the same is necessary to the proper or customary use of such building or part thereof, or any lessor or landlord who directly or indirectly interferes with the furnishing by another of such utilities or services, or who transfers the responsibility for payment for any utility services to the occupant without his knowledge or consent, or any lessor or landlord who directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant, or who attempts to regain possession of such premises by force without benefit of judicial process, shall be punished by a fine of not less than twenty-five dollars nor more than three hundred dollars, or by imprisonment for not more than six months. Any person who commits any act in violation of this section shall also be liable for actual and consequential damages or three months’ rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee, all of which may be applied in setoff to or in recoupment against any claim for rent owed or owing.”\nsection 14 itself permits landlords to provide in lease contracts that they are not liable for conditions resulting from natural causes beyond their control. This provision suggests that liability was not intended to be absolute.\nIn Blackett, a case decided after the enactment of § 14 in its present form, we held that “the landlord’s conduct, and not his intentions” determine whether he has violated the implied covenant of quiet enjoyment. 371 Mass, at 714, 716 (1977).\nAfter Solomon’s counsel asked the witness to describe the factors on which he had relied for his conclusions, the trial judge stated that “any statements that the witness testified that he relied upon [are] only being admitted for the purpose of showing the basis of his opinion. ... In other words, it’s simply being admitted to show the information that he had when he formed his opinion. I’m not allowing it to be introduced to show the truth of those facts. The jury will have to make its decision with regard to what facts in the case are true.” In his final instructions to the jury, the judge again emphasized that “ [t]he jury is the sole judge of the credibility of the witnesses.”\nGem also objects that the witness should not have referred to flooding and other conditions in Solomon’s apartment except in response to hypothetical questions referring to specific evidence admitted in court. See Commonwealth v. Russ, 232 Mass. 58, 72-74 (1919). Gem’s counsel, however, did not raise an objection to form at the time the witness was asked for his opinion on the cause of Solomon’s injuries and for the basis of his opinion. Therefore, Gem cannot pursue the issue now. See Douglas v. Holyoke Mach. Co., 233 Mass. 573, 575 (1919); P.J. Liacos, Massachusetts Evidence, 74-75 (5th ed. 1981).\nThe judge instructed the jury that the evidence was “not being admitted for the truth of what is on those two telephone records but simply to establish that Gem Realty had notice of the complaints, and it’s being offered ... for whatever value it has to discredit the testimony of Mr. Patterson who testified concerning his recollection of complaints received.” The slips were recorded after this suit commenced, and therefore were not admissible for their truth under the “business records” exception to the hearsay rule. G. L. c. 233, § 78.\nSolomon testified to other conditions, unrelated to the flooding, that might have supported a warranty claim or a quiet enjoyment claim. It is clear, however, that each of Solomon’s counts was based primarily on the flooding; the other possible violations played no part in her closing argument, and the trial judge stated in his instructions that all three claims arose from Solomon’s allegations of floods. In any event, as the following discussion will show, we have taken into account the evidence of secondary violations in our analysis of the damages Solomon received.\nSolomon’s counterclaim also alleged that the floods had caused property damage — an item not covered by her recoveries for breach of warranty and infliction of emotional injury. The amount claimed, however, was far less than $10,000, and so it could not have been the basis of the verdict for interference with quiet enjoyment. As a result of our disposition of the case, Solomon’s property damage may go uncompensated. Nevertheless, we do not feel that a remand for calculation of this damage is warranted; Solomon, like Gem, failed to point out the problems in the judge’s instructions, and must now bear the consequences of the confusion in the damage awards.\nSolomon’s rent was paid in part by the Federal government, through a rent subsidy program. Gem asserts that the relevant figure for calculating three months’ rent is not the contract rent of $313, but the amount that Solomon paid personally: $73. We disagree. The triple rent clause is not a compensatory provision; it is an alternative to actual damages, designed to deter violations and to encourage tenants to seek relief under § 14. See Darmetko v. Boston Hous. Auth., 378 Mass. 758, 762 (1979). A rule making triple rent damages dependent on the source of rental payments would unnecessarily increase discrepancies in the amounts recovered by different tenants. Low income tenants receiving rent subsidies, who are often the victims of the most flagrant violations, would recover the least damages, and so would have little incentive to sue and to force repairs. Triple rent, therefore, should be three times the contract rent, without regard to contributions from external sources.\nIn the past, the usual measure of damages was loss of rental value, see Darmetko v. Boston Hous. Auth., supra; Charles E. Burt, Inc. v. Seven Grand Corp., 340 Mass. 124, 130 (1959), although tenants complaining of interference with quiet enjoyment were sometimes permitted to recover additional elements of damages resembling tort recovery. See Winchester v. O’Brien, 266 Mass. 33, 37-39 (1929)."", ""type"": ""majority"", ""author"": ""Hennessey, C.J.""}], ""attorneys"": [""Robert Snider for Jeanette Simon, executrix."", ""Richard W. Cole (James H. Wexler with him) for Celeste Solomon.""], ""corrections"": """", ""head_matter"": ""Jeanette Simon, executrix, vs. Celeste Solomon.\nSuffolk.\nSeptember 18, 1981.\nJanuary 18, 1982.\nPresent: Hennessey, C.J., Wilkins, Liacos, Abrams, Nolan, & Lynch, JJ.\nEmotional Distress. Landlord and Tenant, Habitability, State Sanitary Code, Quiet enjoyment. Statute, Construction. Due Process of Law, Public welfare offense. Evidence, Expert opinion, Collateral matter. Damages, For emotional distress, Breach of implied warranty of habitability, Breach of convenant of quiet enjoyment, Attorney’s fees.\nOn a claim by a tenant seeking to recover damages from her former landlord for reckless infliction of emotional distress, the evidence warranted findings that the landlord had recklessly failed to make repairs necessary to prevent repeated flooding of the tenant’s apartment, that its long and repetitious course of conduct toward the tenant was outrageous, and that the landlord’s conduct was the proximate cause of the tenant’s severe emotional distress. [97-98]\nA tenant may properly bring a civil action against a landlord to recover damages under G. L. c. 186, § 14, for interference with quiet enjoyment of residential premises without first seeking criminal charges against the landlord under that statute’s criminal provisions. [100]\nMalicious intent is not a condition of liability under G. L. c. 186, § 14, which prohibits a landlord’s interference with a tenant’s quiet enjoyment of residential premises, and a landlord’s reckless conduct was within the scope of § 14. [101-103]\nWhere a landlord, by failing to prevent repeated flooding, interfered with a tenant’s quiet enjoyment of her apartment, it was liable to the tenant under G. L. c. 186, § 14. [103]\nA statement by a psychiatrist, in the course of his testimony as to the cause of a tenant’s emotional distress, that the tenant “appeared sincere and honest,” was admissible, in the discretion of the judge, as an explanation of the basis of his opinion. [105-106]\nAt the trial of a claim by a tenant against her former landlord for injuries caused by unsanitary conditions in her apartment, no error appeared in the admission in evidence of two tenant complaint slips prepared after commencement of the action, dated several months after the tenant had moved out of her apartment and taken from the landlord’s telephone records, for the limited purpose of showing that the landlord’s maintenance supervisor had notice of a flood, and thereby impeaching his testimony on cross-examination. [107]\nAn award of damages against a landlord under G. L. c. 186, § 14, for interference with a tenant’s quiet enjoyment of residential premises could not stand where it necessarily duplicated amounts of actual damages recovered by the tenant for breach of the landlord’s implied warranty of habitability and for infliction of emotional distress. [107-109]\nA tenant proceeding under G. L. c. 186, § 14, for interference with quiet enjoyment of residential premises may recover from his landlord one award equal to three months’ rent covering all claims that the tenant raised or reasonably could have raised in the suit or, alternatively, may recover his actual damages if they exceed this amount. [109-111]\nUnder G. L. c. 186, § 14, allowing a tenant to recover actual and consequential damages from a landlord who has interfered with her quiet enjoyment of residential premises, a judge properly considered legal services related to the tenant’s claim for emotional distress in his assessment of attorneys’ fees against the landlord, where not only were the tenant’s injuries foreseeable, but also the jury found specifically that the landlord knew or should have known that if it permitted floods to occur, the tenant would suffer emotional harm. [111-113]\nAn award of attorneys’ fees under G. L. c. 186, § 14, in favor of a tenant following litigation against her former landlord was, in the circumstances, neither excessive nor unreasonable. [113]\nCivil action commenced in the Municipal Court of the Roxbury District on December 29, 1976.\nUpon transfer to the Housing Court of the City of Boston, the case was tried before King, J.\nThe Supreme Judicial Court granted a request for direct appellate review.\nRobert Snider for Jeanette Simon, executrix.\nRichard W. Cole (James H. Wexler with him) for Celeste Solomon.""}, ""cites_to"": [{""cite"": ""340 Mass. 124"", ""year"": 1959, ""case_ids"": [3851696], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""130""}], ""case_paths"": [""/mass/340/0124-01""], ""opinion_index"": 0}, {""cite"": ""233 Mass. 573"", ""year"": 1919, ""case_ids"": [3459322], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""575""}], ""case_paths"": [""/mass/233/0573-01""], ""opinion_index"": 0}, {""cite"": ""232 Mass. 58"", ""year"": 1919, ""case_ids"": [61554], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""72-74""}], ""case_paths"": [""/mass/232/0058-01""], ""opinion_index"": 0}, {""cite"": ""376 Mass. 621"", ""year"": 1978, ""weight"": 2, ""case_ids"": [332012], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""629""}, {""page"": ""629-631""}], ""case_paths"": [""/mass/376/0621-01""], ""opinion_index"": 0}, {""cite"": ""379 Mass. 381"", ""year"": 1979, ""weight"": 2, ""case_ids"": [3873319], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""388-389""}, {""page"": ""388""}], ""case_paths"": [""/mass/379/0381-01""], ""opinion_index"": 0}, {""cite"": ""363 Mass. 579"", ""year"": 1973, ""case_ids"": [287340], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""583-589""}], ""case_paths"": [""/mass/363/0579-01""], ""opinion_index"": 0}, {""cite"": ""210 Mass. 8"", ""year"": 1911, ""case_ids"": [5674724], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""21""}], ""case_paths"": [""/mass/210/0008-01""], ""opinion_index"": 0}, {""cite"": ""148 Mass. 261"", ""year"": 1889, ""weight"": 2, ""case_ids"": [776102], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""265""}, {""page"": ""265""}], ""case_paths"": [""/mass/148/0261-01""], ""opinion_index"": 0}, {""cite"": ""321 Mass. 538"", ""year"": 1947, ""case_ids"": [500021], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""563""}], ""case_paths"": [""/mass/321/0538-01""], ""opinion_index"": 0}, {""cite"": ""556 F.2d 460"", ""year"": 1977, ""case_ids"": [956510], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""464""}], ""case_paths"": [""/f2d/556/0460-01""], ""opinion_index"": 0}, {""cite"": ""10 Mass. 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+1002142,"{""id"": 1002142, ""name"": ""M. Maurice Kind et al., Respondents, v. The City of Seattle, Appellant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""d79a7ad617a71b0770a5d3e8debfcfc48954333b6dbb1761dc3e141c8ce00137"", ""simhash"": ""1:3f00fe8af46f7121"", ""pagerank"": {""raw"": 0.00000018130228097907106, ""percentile"": 0.7180847223139264}, ""char_count"": 13401, ""word_count"": 2298, ""cardinality"": 687, ""ocr_confidence"": 0.673}, ""casebody"": {""judges"": [], ""parties"": [""M. Maurice Kind et al., Respondents, v. The City of Seattle, Appellant.""], ""opinions"": [{""text"": ""Rosellini, J.\nThe plaintiffs in these actions own and operate business properties in the vicinity of First avenue south and Yesler way, in Seattle. On January 17, 1954, a twenty-inch cast iron water main owned, maintained and operated by the defendant city burst at the intersection of First avenue and Yesler way and flooded the properties of the plaintiffs. Their suits against the city were consolidated and tried to the court, which found that the negligence of the city was not proved. The cause of the break of the water main was not shown. The court concluded that the city was liable, regardless of fault, and entered judgments in favor of the plaintiffs.\nThe case is before this court on the findings of fact. According to these findings, the pipe in question was laid in the year 1890, and was designed to last one hundred years; it was manufactured according to the best known engineering methods; was installed in accordance with good engineering practices; was laid upon an adequate foundation in original ground; and was subsequently covered over with a fill to a depth of approximately 6.8 feet. Portions of the pipe were inspected whenever they were exposed for other purposes and were found to be in reasonably good condition. The water was shut off as soon as possible after - the break occurred. The pipe was strong enough to stand thé pressure exerted upon it at the time of the break and was within the standard specifications. The cause of the break was unknown.\nThe finding of fact most pertinent to this appeal reads as follows:\n“No negligent act on the part of the city has been shown. The break of the water main in question does not ordinarily occur unless some person connected with manufacture, installation or operation has been at fault. The defendant city has endeavored, insofar as reasonably possible to determine the cause of the break, and such investigation so far as it has gone has shown that the city acted with due care in the operations examined.”\nIt is the contention of the appellant that the doctrine enunciated in Rylands v. Fletcher, L. R. 1 Exch. 265, decided in 1866, and affirmed two years later in Fletcher v. Rylands, L. R. 3 H. L. 330, upon which the trial court based its decision, should not be applied to the facts of this case. The defendant in that case had caused a reservoir to be constructed on his land to provide water for his mill. The water seeped through an abandoned mine shaft into the plaintiff’s mine, causing damage. Justice Blackburn, speaking for the Court of Exchequer Chamber, said:\n“The person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and,, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff’s default; or perhaps that the escape was the consequence of vis major, or the act of God; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient. The general rule, as above stated, seems on principle just. The person whose grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water from his neighbour’s reservoir, or whose cellar is invaded by the filth of his neighbour’s privy, or whose habitation is made unhealthy by the fumes and noisome vapours of his neighbour’s alkali works, is damnified without any fault of his own; and it seems but reasonable and just that the neighbour, who has brought something on his own property which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischevious if it gets on his neighbour’s, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. But for his act in bringing it there no mischief could have accrued, and it seems but just that he should at his peril keep it there so that no mischief may accrue, or answer for the natural and anticipated consequences. And upon authority, this we think is established to be the law whether the things so brought be beasts, or water, or filth, or stenches.”\nThis court has applied the doctrine in cases where harm has befallen a plaintiff as a result of blasting operations carried on by the defendant. Foster v. Preston Mill Co., 44 Wn. (2d) 440, 268 P. (2d) 645 (strict liability limited to the risks inherent in blasting operations); Patrick v. Smith, 75 Wash. 407, 134 Pac. 1076; Schade Brewing Co. v. Chicago, Milwaukee & Puget Sound R. Co., 79 Wash. 651, 140 Pac. 897. We have found no case in this jurisdiction where liability has been .imposed upon a municipal corporation,, regardless of fault, for damage resulting from a broken water main.\nThe respondents call our attention to the case of Bridgeman-Russell Co. v. Duluth, 158 Minn. 509, 197 N. W. 971, wherein the doctrine of Rylands v. Fletcher, supra, was applied in favor of a plaintiff whose property had been damaged as a result of a bursting water main. In choosing to align itself with the courts which have approved the doctrine (admittedly a minority), the court in that case said:\n“If a break occurs in the reservoir itself, or in the principal mains, the flood may utterly ruin an individual financially. In such a case, even though the negligence be absent, natural justice would seem to demand that the enterprise, or what really is the same thing, the whole community benefited by the enterprise, should stand the loss rather than the individual. It is too heavy a burden upon one. The trend of modern legislation is to relieve the individual from the mischance of business or industry without regard to its being caused by negligence.”\nThose courts which oppose the application of the doctrine generally adopt the theory that the imposition of liability without fault discourages enterprise and the most beneficial use of property.\nWhether the doctrine of Rylands v. Fletcher, supra, should properly be applied to cases of this nature is á question which we need not decide at this time, since the decision of the trial court can be upheld on another ground, namely, that, under the findings, the defendant failed to sustain the burden of explaining the cause of the break in the main or showing its own freedom from negligence.\nIn its memorandum decision, the court indicated that it felt that the doctrine of res ipsa loquitur was applicable, but that, under the rule as applied in the courts of this state, the presumption of negligence\n“. . . merely supplied a presumption which enabled plaintiffs to get past a nonsuit, and that it could not take the place of evidence, nor be weighed against defendant’s showing that it was free from negligence.”\nIf this were not the case, the court indicated, it would have found the city liable under that doctrine. The court’s ultimate finding on the city’s negligence, or freedom from negligence, was that the city’s investigation, “so far as it has gone, has shown that the city acted with due care in the operations examined.” The city, in other words, had shown it was free of negligence in the operations examined, but it had not yet discovered the cause of the break nor had it shown that it was free of negligence in regard to that cause.\nWhere a plaintiff’s evidence establishes that an instrumentality under the exclusive control of the defendants caused an injurious occurrence, which ordinarily does not happen if those in control of the instrumentality use ordinary care, there is an inference, permissible from the occurrence itself, that it was caused by the defendant’s want of care. Nopson v. Wockner, 40 Wn. (2d) 645, 245 P. (2d) 1022. Legal control or responsibility for the proper and efficient functioning of the instrumentality which caused the injury and a superior, if not exclusive, position for knowing or obtaining knowledge of the facts which caused the injury, provide a sufficient basis for application of the doctrine. Hogland v. Klein, 49 Wn. (2d) 216, 298 P. (2) 1099. When these circumstances are shown, the plaintiff has made a prima facie case, and it devolves upon the defendant to produce evidence to meet and offset the effect of the presumption. Hogland v. Klein, supra.\nHere, the water main was under the exclusive control of the defendant city, and the court found as a fact that a break of this sort does not ordinarily occur without the presence of negligence. It further found that the defendant had failed to explain the occurrence, and although it found that the defendant had exercised due care in many respects, the findings reveal that the defendant’s evidence fell short of proving its freedom from negligence in regard to the break. It is evident, when the memorandum opinion is read in the light of the findings, that had the court had in mind the proper rule — that the inference of negligence is evidence to be weighed against the defendant’s evidence — it would have based its decision on the premise that the inference to be drawn from the fact that the break occurred, outweighed the defendant’s evidence of due care. This being the case, the judgments are affirmed.\nSchwellenbach, Donworth, Ott, and Foster, JJ., concur. ••••■■'\nMallery, J., dissents."", ""type"": ""majority"", ""author"": ""Rosellini, J.""}, {""text"": ""Finley, J.\n(concurring in the result) — The majority mention the doctrine of-the English case of Rylands v. Fletcher, L. R. 1 Exch. 265, and the doctriné of.res ipsa loquitur. It is pointed out that the basic tenet of Rylands, liability without fault, has been enunciated in this state under certain circumstances; i.e., in cases involving blasting operations. Foster v. Preston Mill Co., 44 Wn. (2d) 440, 268 P. (2d) 645. However, without clearly relying upon the Rylands doctrine, the majority affirm the trial court on the basis of an application of-the res ipsa loquitur doctrine.\nI believe the instant case is so closely analogous’ to Ry-lands as to call for a clear-cut application or rejection of the principle as annunciated therein by the English court.\n■ I would apply the principle of Rylands in the instant case. The latter is not distinguishable simply on the factual ground that the defendant is a municipal corporation engaged in -a proprietary activity. On. this basis, I concur .in the result."", ""type"": ""concurrence"", ""author"": ""Finley, J.""}, {""text"": ""Hill, C. J.\n(dissenting) — The majority have determined that the. doctrine of res ipsa loquitur applies, and with that I agree. I agree, too, that the permissible inference of negligence must be weighed against the evidence of the city, and has weight so long as reasonable men can still draw such an inference from the evidence. Nopson v. Wockner (1952), 40 Wn. (2d) 645, 647, 245 P. (2d) 1022.\nThere are two possible bases for the majority opinion:\n(1) The majority may have concluded, as a matter of law, that the inference of negligence to be drawn from the fact that the break occurred, outweighed the defendant’s evidence of due care, and that the trial court could have reached no other result. If that be the basis of the decision, I dissent, because it seems to me that reasonable minds could differ on the issue, of the city’s negligence.\nFrom the break in the pipe, one can, as the trial court suggested in the finding quoted in the majority opinion, infer negligence in the manufacture or installation (and maintenance) of the pipe, or in the operation of the water system. The city-seems to have established due care and good engineering practice with regard to installation and maintenance, and likewise to have established due care in the operation of its system. So far as manufacture is concerned, there is a serious question in my mind as to whether the city can be responsible for any latent defect that could not have been determined by any reasonable inspéction. The majority say: “The pipe was strong enough to stand the pressure exerted upon it at the time of the break and was within the standard specifications.” Under such conditions, I cannot, as a matter of law, conclude that the permissible inference of negligence outweighs the city’s evidence of due care, and that the plaintiffs must recover.\n(2) The majority may have concluded (and I believe this to be the basis of the decision) that if the trial court had correctly understood and applied the doctrine of res ipsa loquitur, it is evident “when the memorandum opinion is read in the light of the findings,” that it “would have based its decision on the premise that the inference to be drawn from the fact that the break occurred, outweighed the defendant’s evidence of due care.”\nIf that be the basis of the decision, I dissent, because I do not believe we should affirm a judgment by the trial court because of our belief as to what a trial judge would do, gathered from reading his memorandum opinion in the light of the findings. I would remand for findings and conclusions based on the application of the doctrine of res ipsa loquitur.\nSeptember 4, 1957. Petition for rehearing denied."", ""type"": ""dissent"", ""author"": ""Hill, C. J.""}], ""attorneys"": [""A. C. Van Soelen, C. C. McCullough, and George H. Holt, for appellant."", ""Solie Ringold, Hoof, Shucklin & Harris, Geo. A. Meagher, Moriarty, Olson & Campbell, Jack Steinberg, and Clarke, Clarke & Albertson, for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 33897.\nEn Banc.\nJune 27, 1957.]\nM. Maurice Kind et al., Respondents, v. The City of Seattle, Appellant.\nA. C. Van Soelen, C. C. McCullough, and George H. Holt, for appellant.\nSolie Ringold, Hoof, Shucklin & Harris, Geo. A. Meagher, Moriarty, Olson & Campbell, Jack Steinberg, and Clarke, Clarke & Albertson, for respondents.\nReported in 312 P. (2d) 811.""}, ""cites_to"": [{""cite"": ""312 P. (2d) 811"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""49 Wn. (2d) 216"", ""weight"": 2, ""case_ids"": [999413], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/49/0216-01""], ""opinion_index"": 0}, {""cite"": ""245 P. (2d) 1022"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""40 Wn. (2d) 645"", ""case_ids"": [4976967], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/40/0645-01""], ""opinion_index"": 0}, {""cite"": ""197 N. W. 971"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.W."", ""opinion_index"": 0}, {""cite"": ""158 Minn. 509"", ""case_ids"": [156588], ""category"": ""reporters:state"", ""reporter"": ""Minn."", ""case_paths"": [""/minn/158/0509-01""], ""opinion_index"": 0}, {""cite"": ""140 Pac. 897"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""79 Wash. 651"", ""case_ids"": [594069], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/79/0651-01""], ""opinion_index"": 0}, {""cite"": ""134 Pac. 1076"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""75 Wash. 407"", ""case_ids"": [622598], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/75/0407-01""], ""opinion_index"": 0}, {""cite"": ""268 P. (2d) 645"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""44 Wn. (2d) 440"", ""case_ids"": [2422028], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/44/0440-01""], ""opinion_index"": 0}, {""cite"": ""268 P. (2d) 645"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 1}, {""cite"": ""44 Wn. (2d) 440"", ""case_ids"": [2422028], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/44/0440-01""], ""opinion_index"": 1}, {""cite"": ""245 P. (2d) 1022"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 2}, {""cite"": ""40 Wn. (2d) 645"", ""case_ids"": [4976967], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""647""}], ""case_paths"": [""/wash-2d/40/0645-01""], ""opinion_index"": 2}], ""citations"": [{""cite"": ""50 Wash. 2d 485"", ""type"": ""official""}], ""file_name"": ""0485-01"", ""last_page"": ""491"", ""first_page"": ""485"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T20:36:52.699776+00:00"", ""decision_date"": ""1957-06-27"", ""docket_number"": ""No. 33897"", ""last_page_order"": 527, ""first_page_order"": 521, ""name_abbreviation"": ""Kind v. 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+1008240,"{""id"": 1008240, ""name"": ""Harry Klise et al., Respondents, v. The City of Seattle, Appellant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""abf29c9eb91d847bff9b4fa35c350ff132bc3a942b84b3319fd6039ebb9b252e"", ""simhash"": ""1:bc71a30b13c67d9e"", ""pagerank"": {""raw"": 0.00000010614279433868261, ""percentile"": 0.5571975431772277}, ""char_count"": 3786, ""word_count"": 656, ""cardinality"": 313, ""ocr_confidence"": 0.676}, ""casebody"": {""judges"": [], ""parties"": [""Harry Klise et al., Respondents, v. The City of Seattle, Appellant.""], ""opinions"": [{""text"": ""Foster, J.\nPlaintiffs, husband and wife, respondents here, sued the city of Seattle for damages caused by an earth. slide to their duplex house.' From a judgment for the respondents on the verdict of a jury, the city of Seattle appeal?. .' • ■\nTwo of the five assignments of error deal with instructions. We find the exceptions to the instructions complained of inadequate under Rulé of Pleading, Practice and Procedure IQ, 34A Wn. (2d) 75, as amended, effective October 24, 1955, which requires that the exceptions “shall be sufficiently specific to apprise the judge of the points of law-or questions of fact in dispute.” The words of the exceptions are:\n“I except to that, which reads as follows: . . .\n“I except particularly to the last paragraph which reads:\n“I except to the Court’s failure to give the requested Instruction Number 2 and that is the one that has to do — well, it is short. I will read it: . . . ”\nThese exceptions totally fail of the purpose stated in the rule to advise the court of the specific points of law or fact involved. Barnes v. Labor Hall Ass’n, 51 Wn. (2d) 421, 319 P. (2d) 554; Traverso v. Pupo, 51 Wn. (2d) 149, 316 P. (2d) 462; Lunz v. Neuman, 48 Wn. (2d) 26, 290 P. (2d) 697; Peterson v. King County, 45 Wn. (2d) 860, 278 P. (2d) 774.\nThe other assignments of error all involve the same question, that is, is the evidence sufficient to sustain the verdict. It is familiar law that the evidence will be considered in the light most favorable to the plaintiff with all reasonable inferences drawn in his favor.\nBy a special verdict, the jury found that the sewer broke because of excessive water pressure within the sewer pipe, that the removal of the toe of the slope had no part in the slide, and that the sewer broke before the slide. There is ample évidence in the record from which the jury could resolve all of those questions in favor of the plaintiffs. No useful purpose would be served by restating it. The sewer was constructed in 1911, and it was in the exclusive control of the city.\nUnder our recent decision in Kind v. Seattle, 50 Wn. (2d) 485, 312 P. (2d) 811, the rule is:\n“Where a plaintiff’s evidence establishes that an instrumentality. under the exclusive control. of the defendants caused an injurious occurrence, which ordinarily does not happen if those in control of the instrumentality use ordinary care, there is an inference, permissible from the occurrence itself, that it was caused by the defendant’s want of care. Nopson v. Wockner, 40 Wn. (2d) 645, 245 P. (2d) 1022. Legal control or responsibility for the proper and efficient functioning of the instrumentality which caused the injury and a superior, if not exclusive, position for knowing or obtaining knowledge of the facts which caused the injury, provide a sufficient basis for the application of the doctrine. Hogland v. Klein, 49 Wn. (2d) 216, 298 P. (2d) 1099. When these circumstances are shown, the plaintiff has made a prima facie case, and it devolves upon the defendant to produce evidence to meet and offset the effect of the presumption. Hogland v. Klein, supra.”\nThe city affirmatively pleaded that the slide was caused by the removal of the toe of the slope several years before. Competent civil engineers gave it as their opinion that the sewer line broke before the slide began, that the removal of the toe was not a factor, and that any slide caused by such removal would have occurred in 1955 or earlier.\nAffirmed.\nDonworth, Weaver, and Rosellini, JJ., concur.\nHill, C. J. concurs in the result."", ""type"": ""majority"", ""author"": ""Foster, J.""}], ""attorneys"": [""A. C. Van Soelen, William W. Brown, and C. C. McCullough, for appellant."", ""Edwards E. Merges, for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 34382.\nDepartment Two.\nMay 22, 1958.]\nHarry Klise et al., Respondents, v. The City of Seattle, Appellant.\nA. C. Van Soelen, William W. Brown, and C. C. McCullough, for appellant.\nEdwards E. Merges, for respondents.\nReported in 325 P. (2d) 888.""}, ""cites_to"": [{""cite"": ""325 P. (2d) 888"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""298 P. (2d) 1099"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""49 Wn. (2d) 216"", ""case_ids"": [999413], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/49/0216-01""], ""opinion_index"": 0}, {""cite"": ""245 P. (2d) 1022"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""40 Wn. (2d) 645"", ""case_ids"": [4976967], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/40/0645-01""], ""opinion_index"": 0}, {""cite"": ""312 P. (2d) 811"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""50 Wn. (2d) 485"", ""case_ids"": [1002142], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/50/0485-01""], ""opinion_index"": 0}, {""cite"": ""278 P. (2d) 774"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""45 Wn. (2d) 860"", ""case_ids"": [2428154], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/45/0860-01""], ""opinion_index"": 0}, {""cite"": ""290 P. (2d) 697"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""48 Wn. (2d) 26"", ""case_ids"": [996384], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/48/0026-01""], ""opinion_index"": 0}, {""cite"": ""316 P. (2d) 462"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""51 Wn. (2d) 149"", ""case_ids"": [1005793], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/51/0149-01""], ""opinion_index"": 0}, {""cite"": ""319 P. (2d) 554"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""51 Wn. (2d) 421"", ""case_ids"": [1005761], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/51/0421-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""52 Wash. 2d 412"", ""type"": ""official""}], ""file_name"": ""0412-01"", ""last_page"": ""414"", ""first_page"": ""412"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T18:32:29.092998+00:00"", ""decision_date"": ""1958-05-22"", ""docket_number"": ""No. 34382"", ""last_page_order"": 476, ""first_page_order"": 474, ""name_abbreviation"": ""Klise v. 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+1017694,"{""id"": 1017694, ""name"": ""Floyd E. Chase et al., Appellants, v. James P. Beard et al., Respondents"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""90ed16cf01f4992ce86d3f719f72b41da0bdbee8da0f0f68f39ba040e93f7d3d"", ""simhash"": ""1:30e9bd6f8e0b2e39"", ""pagerank"": {""raw"": 0.0000011151778856831148, ""percentile"": 0.9859067073022404}, ""char_count"": 20982, ""word_count"": 3640, ""cardinality"": 1177, ""ocr_confidence"": 0.685}, ""casebody"": {""judges"": [], ""parties"": [""Floyd E. Chase et al., Appellants, v. James P. Beard et al., Respondents.""], ""opinions"": [{""text"": ""Foster, J.\nChase and wife, plaintiffs below, appeal a judgment dismissing their action upon a verdict for respondents.\nRespondents, defendants below, Beard and wife, bought the Cottage Cove motel in March, 1957, and thereafter rented units to both transient and permanent guests. Appellant Chase rented cabin No. 7 on May 27,1957, by the week. He informed Mrs. Beard that he and his wife would stay at the motel until they bought and moved into their own home. He testified that at that time Mrs. Beard warned him that the outside porch was shaky. The cabin was furnished and supplied with linens. Maid service was provided originally when the plaintiff husband was the lone occupant, but this was discontinued on June 4, 1957, when Mrs. Chase arrived.\nMrs. Chase was not explicitly advised of the condition of the porch.\nOn June 16, 1957, Mrs. Chase was crossing the porch to empty some trash when a board gave way beneath her. She fell to the bottom of the steps and sustained injuries. Chases brought suit against Beards for negligence in maintaining the premises. The Beards denied negligence and alleged that Mrs. Chase was contributorily negligent.\nError is assigned (1) to the admission of witness Crawford’s testimony as to the inspections of the porch prior to respondents’ purchase, (2) to the instructions on the duty of care respondents owed to the Chases and the refusal of appellant’s requested instructions in that regard, (3) to the instructions on contributory negligence and the refusal to charge that appellants were not contributorily negligent, (4) to the instructions concerning the effect of failure of either party to prove its case, and (5) to the refusal to instruct on the theory of res ipsa loquitur. Other assignments are devoid of merit.\nCrawford, the real-estate broker, testified that he inspected the premises, and cabin No. 7 in particular, in November, 1956, and again in February, 1957. The latter inspection, a month before the Beards took over, was in respondents’ presence. Crawford testified to the extent of his inspection and to his observation of the condition of the porch. Objection, made and overruled, was on the grounds of irrelevancy and immateriality, particularly in point of time.\nWhether evidence is relevant is within the discretion of the trial court. There are no precise rules. Each case depends upon its own circumstances and the relation of such facts to the ultimate issue.\n“ . . . All facts are admissible in evidence which afford reasonable inferences or throw any light upon the contested matter. Relevancy means the logical relation between proposed evidence and the fact to be established. ...” Keisel v. Bredick, 192 Wash. 665, 74 P. (2d) 473.\nAll facts which support a reasonable inference on a contested matter and any circumstance whereby an alleged fact may be proved or disproved are relevant. Page v. Spokane City Lines, Inc., 51 Wn. (2d) 308, 317 P. (2d) 1076; Bloomquist v. Buffelen Mfg. Co., 47 Wn. (2d) 828, 289 P. (2d) 1041.\nCrawford’s testimony was that, on close inspection, he observed no indication of dry rot in the wood. It tended to prove the reasonableness both of respondents’ inspection of the premises and of respondents’ lack of knowledge of the defective condition of the porch board. As such, it was material to the issues in the case.\nWas it also relevant? That is, were the facts to which Crawford testified too remote to have probative value? This determination rests within the discretion of the trial court. Slaton v. Chicago, Milwaukee & St. Paul R. Co., 97 Wash. 441, 166 Pac. 644. Although the witness’ inspections of the premises were made before the acquisition by respondents, they were relevant to respondents’ inspection and were close enough in point of time to lend probability to the reasonableness of respondents’ lack of knowledge, as based upon the invisible nature of the board’s defect.\nThe court properly determined materiality and did not abuse its discretion in determining the relevancy of this testimony. It had probative value and was properly admitted.\nAppellant contends that the highest degree of care is owed by a motelkeeper to his guests, and that the court’s instruction that the standard was one of reasonable care was error. The law is otherwise.\nThe standard of care owed by a motelkeeper to a guest has been likened to that care owed by an innkeeper to a guest, and was set forth by this court in Brown v. Scharff, 42 Wn. (2d) 50, 253 P. (2d) 426, as follows:\n“Plaintiff’s . . . contention [is] that defendants failed to use reasonable care to maintain their premises in a reasonably safe condition. We will use this as the proper measure of defendants’ duty to plaintiff in this case ...”\nThis view is concurred in by a leading treatise as follows:\n“ . . . Such a one [a hotelkeeper] has the duty of reasonable care to prepare, and keep reasonably safe, the rooms let to guests, whether by the day, week, or month. „ . . The same thing is true of a boardinghouse or a motor court. . . . ” 2 Harper and James, Torts, 1506, 1515, §27.16 (3).\nThe court correctly instructed that the respondents were required to keep their premises in a reasonably safe condition for the use of their guests, and were required to make reasonable inspection thereof.\nThe community property system is an important factor in dealing with contributory negligence. Any recovery for personal injuries to the wife is community property. Hawkins v. Front Street Cable R. Co., 3 Wash. 592, 28 Pac. 1021. The husband is the manager of the community personal property. RCW 26.16.030. This is in the interest of the marital community, and the authority of the husband is complete as long as he acts on behalf of the community. Hanley v. Most, 9 Wn. (2d) 429, 115 P. (2d) 933. The statutory authority exists in the husband in his representative capacity for the community. He is in the nature of a managing agent. Thus, the husband is a community agent in the sense that his acts on the community’s behalf are binding upon it. Catlin v. Mills, 140 Wash. 1, 247 Pac. 1013, 47 A. L. R. 545; Schramm v. Steele, 97 Wash. 309, 166 Pac. 634.\nIt follows unquestionably that the husband, in acting as community agent, binds the community.\n, Mr. Chase’s act of renting the cabin was done on behalf of the marital community in his role as the community manager. The testimony in that regard is uncontested. His acts bind the community.\nIn fact, quite apart from the community property system, it may be found that Mr. Chase, in renting the cabin, was acting as his wife’s agent. Certainly she gave him authority, at least impliedly, to obtain living accommodations for both until a permanent home was acquired. This rental was well within such authority.\nNotice to an agent when acting within the scope of the agency is notice to his principal. Knowledge by the agent of facts relating to the agency is deemed knowledge by the principal. American Fidelity & Cas. Co. v. Backstrom, 47 Wn. (2d) 77, 287 P. (2d) 124; Miller v. United Pac. Cas. Ins. Co., 187 Wash. 629, 60 P. (2d) 714; Staats v. Pioneer Ins. Ass’n, 55 Wash. 51, 104 Pac. 185. Under this doctrine, an agent’s knowledge of the condition of property is imputed to his principal. Rothchild Brothers v. Northern Pac. R. Co., 68 Wash. 527, 123 Pac. 1011, 40 L. R. A. (N.S.) 773.\nThis general rule of agency applies when a husband is acting as agent for his wife. B. F. Goodrich Co. v. Naples, 121 F. Supp. 345; Young v. Neill, 190 Ore. 161, 220 P. (2d) 89; Morgan v. Bruce, 76 Ariz. 121, 259 P. (2d) 558; Palo Alto Building Co. v. Jones, 81 Cal. App. (2d) 725, 185 P. (2d) 25; 41 C. J. S. 552, § 74.\nThus, in the instant case, the court was correct in instructing that the notice to Mr. Chase concerning the condition of the porch was imputed to his wife.\nThe court was also correct in instructing on the issue of contributory negligence by Mrs. Chase. Since she was charged with the knowledge of the defect in the porch, there was a jury question as to whether she had conducted herself in a proper manner for her self-protection under the circumstances. The instructions in this regard were necessary and were correct.\nError is assigned to instruction No. 9, which is as follows:\n“If, after considering the whole case, you find the evidence to be in balance, that is to say, you are not convinced that either the plaintiffs or the defendants have made out a case by a preponderance of the evidence, then your verdict shall be for the defendants.”\nThe interpretation which was, perforce, placed upon the instruction is that, if plaintiffs have failed to prove their case, the verdict shall be for the defendants even if defendants have not proved their affirmative defense of contributory negligence. Such is a correct statement of law.\nThis instruction is to be distinguished from the one adjudged prejudicial in Dods v. Harrison, 51 Wn. (2d) 446, 319 P. (2d) 558, which told the jury if it had difficulty in determining whose negligence caused the injury, if in fact anyone was negligent, they should then find for the defendants. That invited the jury to abdicate its judgment in the face of difficulty. Here, however, the jury was instructed, albeit somewhat vaguely, that if plaintiff did not prove defendant was negligent, then plaintiff must fail even if defendant did not prove that plaintiff was contributorily negligent. Dods v. Harrison, supra, is, therefore, not controlling.\nAn instruction, although unclear, must be prejudicial to warrant reversal. There was no such prejudice here.\nError is assigned on refusal of the court to instruct on what is called the “doctrine” of res ipsa loquitur. We find no error in this respect. The “doctrine” is a misnomer for it is a mere rule of evidence (Morner v. Union Pac. R. Co., 31 Wn. (2d) 282, 196 P. (2d) 744; Penson v. Inland Empire Paper Co., 73 Wash. 338, 132 Pac. 39), and is not a rule of substantive law. Pacific Coast R. Co. v. American Mail Line, Ltd., 25 Wn. (2d) 809, 172 P. (2d) 226. The Latin phrase has been á prolific topic of discussion by scholars of the law and by thousands of reported decisions. There is only one point of agreement, which is that the literature is replete with conflict, confusion and doubt. The English criticism is summarized by a modern English scholar, Mr. T. Ellis Lewis, of Trinity Hall, Cambridge University.\nThe eminent American scholar, Dean William L. Prosser, of the School of Jurisprudence, University of California, has urged that the matter be discarded entirely.\nOne of the great modern English judges, Lord Shaw of Dunfermline, in his opinion in the House of Lords decision in Ballard v. North British R. Co. (1923), Session Cases (House of Lords) 43, 56, observed:\n“As to the law, I see little or no real difference between us, or indeed in the Courts below, beyond some variety of expression as to the meaning of what is known as res ipsa loquitur. If that phrase had not been in Latin, nobody would have called it a principle. . . . ”\nIn cases in which the so-called “doctrine” is applicable, its primary purpose is to withstand the challenge of the defendant’s motion for a nonsuit. It did so here. There was no necessity for any instruction. The supreme court of Georgia very clearly expressed this view in Palmer Brick Co. v. Chenall, 119 Ga. 837, 843, 47 S. E. 329, in the course of which the court said:\n“Under our system, where every question of negligence is left for determination by the jury, even in cases where the maxim under consideration is applicable, the judge should not charge the jury that there would be an inference of negligence from a given state of facts, but should instruct them in clear and unequivocal terms that negligence must be proved, and it is for them to consider whether the manner of the occurrence and the attendant circumstances are of such a character that they would, in their judgment and discretion, be authorized to draw an inference that the occurrence could not have taken place if due diligence on the part of the master had been exercised. And they should also be instructed, that, while they are not required by the law to draw any inference of negligence from the matter, still it is within their province to determine whether the circumstances are such that such an inference might be properly drawn. . . . ”\nThe confusion is such that the American Law Institute in its Restatement, Torts, did not undertake to discuss the subject. The so-called “doctrine” never gained root in Michigan.\nThere was no error in refusing the requested instruction because (1) as set forth above, the “doctrine” requires no instruction, (2) all of the facts were before the jury (There was no room for an instruction on an inference from those facts.), and (3) the “doctrine” of res ipsa loquitur does not apply to the claimed condition of a stairway or a floor in a building.\nHere the defective step in question was admitted in evidence. The cause of the breakage was fully disclosed. There was no room for an instruction on an inference of negligence.\nIn a discussion entitled “The Doctrine of Res Ipsa Loquitur in Washington” 13 Wash. L. Rev. 215, 223, Mr. Max Kaminoff states:\n“ . . . Once the actual cause of the injury is established beyond controversy, of course, whether by the plaintiff or by the defendant, no presumptions will be involved.\nand cites in support thereof Barnes v. J. C. Penney Co., 190 Wash. 633, 70 P. (2d) 311; Engdal v. Owl Drug Co., 183 Wash. 100, 48 P. (2d) 232; Grant v. Libby, McNeill & Libby, 160 Wash. 138, 295 Pac. 139; Topping v. Great Northern R. Co., 87 Wash. 702, 151 Pac. 775; and Kluska v. Yeomans, 54 Wash. 465, 103 Pac. 819. The cited cases fully support the statement. To that list may be added Anderson v. Harrison, 4 Wn. (2d) 265, 103 P. (2d) 320; and Anderson v. Northern Pac. R. Co., 88 Wash. 139, 152 Pac. 1001.\nThe House of Lords recently reached the same conclusion in Bolton v. Stone, 1951 App. Cas. 850, 859, in the course of which it is said:\n“. . . where, as in the present case, all the facts are known, it cannot have any application. It is known exactly how the accident happened and it is unnecessary to ask whether this accident would have happened had there been no negligence; the only question is, do the facts or omissions which are known and which led up to the injury amount to negligence.”\nIn any event, it does not apply to a defective condition in the floor of a building. In Riley v. Pacific Outfitting Co., 185 Wash. 497, 500, 55 P. (2d) 1058, Judge Main, for a unanimous court, held:\n“ . . . The doctrine of res ipsa loquitur does not apply to a claimed defective condition of a stairway or floor in a building. Chilberg v. Standard Furniture Co., 63 Wash. 414, 115 Pac. 837, 34 L. R. A. (N.S.) 1079; Engdal v. Owl Drug Co., 183 Wash. 100, 48 P. (2d) 232; Garland v. Furst Store, 93 N. J. L. 127, 107 Atl. 38, 5 A. L. R. 275.”\nThe judgment is affirmed.\nWeaver, C. J., Mallery, Finley, and Rosellini, JJ., concur.\nJanuary 13, 1960. Petition for rehearing denied.\nAccord, Bowling v. Lewis, 261 F. (2d) 311; Moore v. James, 5 Utah (2d) 91, 297 P. (2d) 221; Stowe v. Fritzie Hotels, Inc., 44 Cal. (2d) 416, 282 P. (2d) 890; Alsup v. Saratoga Hotel, Inc., 71 Idaho 229, 229 P. (2d) 985; Doherty v. Arcade Hotel, 170 Ore. 374, 134 P. (2d) 118; Crockett v. Troyk (Tex. Civ. App.), 78 S. W. (2d) 1012; Winer v. Walo, Inc. (Fla.), 105 So. (2d) 376; Walker v. Weymouth, 154 Me. 138, 145 A. (2d) 90; 43 C. J. S. 1173, 1176, § 22(b) (1).\n“. . . It was an invitation to find an easy way out of a possible dilemma. It deprived the plaintiff of the possibility of a new trial which would have been ordered if the jurors had been unable to reach an agreement. . . . ” Dods v. Harrison, 51 Wn. (2d) 446, 450, 319 P. (2d) 558.\n“The maxim has been much criticised. Lord Dunedin said: ‘Truly there is no such thing as . . . the principle of res ipsa loquitur’; Lord Shaw: ‘If that phrase had not been in Latin, nobody would have called it a principle. . . . The expression need not be magnified into a legal rule. . . . The day for canonising Latin phrases has gone past.’ It has been referred to as ‘meaningless jargon. In every casé where the phrase res ipsa loquitur has been glibly applied living witnesses have proved circumstances in which the defendant’s liability is a reasonable inference. The plaintiff is as well off without the maxim, and it appears to create a distinction of principle between types of cases where none exists’. The words are hardly a proposition of law, though they refer to one. They are a figure of speech.” 11 Cambridge L. Jour. 74, 77.\n“One type of circumstantial evidence, concerning which there has been much difference of opinion, is that which is given the name of res ipsa loquitur. The Latin phrase, which means nothing more than ‘the thing speaks for itself,’ is the offspring of a casual word of Baron Pollock during argument with counsel in a case in 1863 . . .\n[“In the year 1863 a barrel of flour rolled out of the window of an English warehouse and into the lives of all tort lawyers. It fell upon a passing pedestrian, who sued the owner of the warehouse for his injuries. At the trial a question arose as to the necessity of some affirmative proof of the defendant’s negligence; and in the course of a brief colloquy with counsel, Baron Pollock made use of a familiar and homely phrase. He said, ‘The thing speaks for itself.’ Unfortunately, since he was a classical scholar in the best tradition of English judges, he said it in Latin.\n[“From that casual utterance, dignified and magnified by the cloak of the learned tongue, there has grown by a most extraordinary process the ‘doctrine’ of res ipsa loquitur. It is a thing of fearful and wonderful complexity and ramifications, and the problems of its application and effect have filled the courts of all our states with a multitude of decisions, baffling and perplexing alike to students, attorneys and judges. . . . ” Prosser, 37 Cal. L. Rev. 183]\n“. . . In its inception the principle was nothing more than a reasonable conclusion, from the circumstances of an unusual accident, that it was probably the defendant’s fault. It soon became involved, however, in cases of injuries to passengers at the hands of a carrier, with the older rule that the carrier had the burden of proving that it was not negligent. The two problems, one of the sufficiency of circumstantial evidence, the other of the burden of proof, became confused and intermingled; and from this fusion there developed an uncertain ‘doctrine’ of res ipsa loquitur, which has been the source of so much trouble to the courts that the use of the phrase itself has become a definite obstacle to any clear thought, and it might better be discarded entirely.” Prosser on Torts, chapter 7, § 42, p. 199, 201.\nThe experience in other common-law countries is similar. For the Austrialian point of view, see 24 Australian L. Jour. 194.\nSee, also, Vogreg v. Shepard Ambulance Service, 47 Wn. (2d) 659, 662, 289 P. (2d) 350.\n“. . . and in view of the numerous determinations by the Supreme Court of Michigan that the doctrine of res ipsa loquitur is repudiated in that state, no sufficient reason appears for presenting that doctrine and its limitations to the jury. The Michigan Supreme Court has consistently and emphatically denied the existence of the rule. . . . ” Detroit Edison Co. v. Knowles, 152 F. (2d) 422.\n“The doctrine of res ipsa loquitur does not apply when the cause of the accident is known. ‘The res can only speak so as to throw the inference of fault upon the defender in some cases where the act of the defender is unexplained’. Again, ‘if the facts are sufficiently known, the question ceases to be one where the facts speak for themselves, and the solution is to be found by determining whether, on the facts as established, negligence is to be inferred or not’. For example, if a pedestrian is struck on the head by a cricket ball, driven out of the field by a batsman in the course of a cricket match, the maxim has no application because all the facts of the occurrence are known and the court must decide whether those facts constitute negligence on the part of the defendant or not.” Charlesworth on Negligence (3rd ed.), 42, 43, chapter 4, §2(78).\n“. . . First, it should be observed that when all the facts are known there is no room for the application of the maxim: in such a case the only question is whether an inference of negligence becomes practically certain or practically impossible. ...” Citing “Davis v. Bunn (1936), 56 C. L. R. 246, 269; Barkway v. South Wales Transport Co. [1950] 1 All E. R. 392, 395; Bolton v. Stone [1951] A. C. 850, 859.” Salmond on Torts (12th ed.), 430, 431, chapter 10, § 129."", ""type"": ""majority"", ""author"": ""Foster, J.""}], ""attorneys"": [""Frederick B. Cohen and John E. Bowen, for appellants."", ""Bryan & Bryan, for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 34786.\nDepartment Two.\nNovember 12, 1959.]\nFloyd E. Chase et al., Appellants, v. James P. Beard et al., Respondents.\nFrederick B. Cohen and John E. Bowen, for appellants.\nBryan & Bryan, for respondents.\nReported in 346 P. (2d) 315.""}, ""cites_to"": [{""cite"": ""346 P. (2d) 315"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""152 F. (2d) 422"", ""case_ids"": [1258424], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""case_paths"": [""/f2d/152/0422-01""], ""opinion_index"": 0}, {""cite"": ""289 P. (2d) 350"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""47 Wn. 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+1020659,"{""id"": 1020659, ""name"": ""Fred Obde et al., Respondents, v. Robert L. Schlemeyer et al., Appellants"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""1bdce0828697e326cf43960a2dd16806a3ebbc3274bb05eea9400e4a26bf6870"", ""simhash"": ""1:96fd377d26e67613"", ""pagerank"": {""raw"": 0.0000006200980499019742, ""percentile"": 0.9569536679551588}, ""char_count"": 13211, ""word_count"": 2197, ""cardinality"": 720, ""ocr_confidence"": 0.689}, ""casebody"": {""judges"": [""Weaver, C. J., Rosellini, and Foster, JJ., concur."", ""Hill, J., concurs in the result.""], ""parties"": [""Fred Obde et al., Respondents, v. Robert L. Schlemeyer et al., Appellants.""], ""opinions"": [{""text"": ""Finley, J.\n— Plaintiffs, Mr. and Mrs. Fred Obde, brought this action to recover damages for the alleged fraudulent concealment of termite infestation in an apartment house purchased by them from the defendants, Mr. and Mrs. Robert Schlemeyer. Plaintiffs assert that the building was infested at the time of the purchase; that defendants were well apprised of the termite condition, but fraudulently concealed it from the plaintiffs.\nAfter a trial on the merits, the trial court entered findings of fact and conclusions of law sustaining the plaintiffs’ claim, and awarded them a judgment for damages in the amount of $3,950. The defendants appealed. Their assignments of error may be compartmentalized, roughly, into two categories: (1) those going to the question of liability, and (2) those relating to the amount of damages to be awarded if liability is established.\nFirst, as to the question of liability: The Schlemeyers concede that, shortly after they purchased the property from a Mr. Ayars on an installment contract in April 1954, they discovered substantial termite infestation in the premises. The Schlemeyers contend, however, that they immediately took steps to eradicate the termites, and that, at the time of the sale to the Obdes in November 1954, they had no reason to believe that these steps had not completely remedied the situation. We are not convinced of the merit of this contention.\nThe record reveals that when the Schlemeyers discovered the termite condition they engaged the services of a Mr. Senske, a specialist in pest control. He effected some measures to eradicate the termites, and made some repairs in the apartment house. Thereafter, there was no easily apparent or surface evidence of termite damage. However, portions of the findings of fact entered by the trial court read as follows:\n“Senske had advised Schlemeyer that in order to obtain a complete job it would be necessary to drill the holes and pump the fluid into all parts of the basement floors as well as the basement walls. Part of the basement was used as a basement apartment. Senske informed Schlemeyer that the floors should be taken up in the apartment and the cement flooring under the wood floors should be treated in the same manner as the remainder of the basement. Schlemeyer did not care to go to the expense of tearing up the floors to do this and therefore this portion of the basement was not treated.\n“Senske also told Schlemeyer even though the job were done completely, including treating the portion of the basement which was occupied by the apartment, to be sure of success, it would be necessary to make inspections regularly for a period of a year. Until these inspections were made for this period of time the success of the process could not be determined. Considering the job was not completed as mentioned, Senske would give Schlemeyer no assurance of success and advised him that he would make no guarantee under the circumstances.”\nNo error has been assigned to the above findings of fact. Consequently, they will be considered as the established facts of the case. Lewis v. Scott (1959), 54 Wn. (2d) 851, 341 P. (2d) 488. The pattern thus established is hardly compatible with the Schlemeyers’ claim that they had no reason to believe that their efforts to remedy the termite condition were not completely successful.\nThe Schlemeyers urge that, in any event, as sellers, they had no duty to inform the Obdes of the termite condition. They emphasize that it is undisputed that the purchasers asked no questions respecting the possibility of termites. They rely on a Massachusetts case involving a substantially similar factual situation, Swinton v. Whitinsville Sav. Bank (1942), 311 Mass. 677, 42 N. E. (2d) 808, 141 A. L. R. 965. Applying the traditional doctrine of caveat emptor — namely, that, as between parties dealing at arms length (as vendor and purchaser), there is no duty to speak, in the absence of a request for information — the Massachusetts court held that a vendor of real property has no duty to disclose to a prospective purchaser the fact of a latent termite condition in the premises.\nWithout doubt, the parties in the instant case were dealing at arms length. Nevertheless, and notwithstanding the reasoning of the Massachusetts court above noted, we are convinced that the defendants had a duty to inform the plaintiffs of the termite condition. In Perkins v. Marsh (1934), 179 Wash. 362, 37 P. (2d) 689, a case involving parties dealing at arms length as landlord and tenant, we held that,\n“Where there are concealed defects in demised premises, dangerous to the property, health or life of the tenant, which defects are known to the landlord when the lease is made, but unknown to the tenant, and which a careful examination on his part would not disclose, it is the landlord’s duty to disclose them to the tenant before leasing, and his failure to do so amounts to a fraud.”\nWe deem this rule to be equally applicable to the vendor-purchaser relationship. See 15 Tex. Law Review (December 1936) 1, 14-16, Keeton: Fraud — Concealment and Non-Disclosure. In this article Professor Keeton also aptly summarized the modern judicial trend away from a strict application of caveat emptor by saying:\n“It is of course apparent that the content of the maxim ‘caveat emptor,’ used in its broader meaning of imposing risks on both parties to a transaction, has been greatly limited since its origin. When Lord Cairns stated in Peek v. Gurney that there was no duty to disclose facts, however morally censurable their non-disclosure may be, he was stating the law as shaped by an individualistic philosophy based upon freedom of contract. It was not concerned with morals. In the present stage of the law, the decisions show a drawing away from this idea, and there can be seen an attempt by many courts to reach a just result in so far as possible, but yet maintaining the degree of certainty which the law must have. The statement may often be found that if either party to a contract of sale conceals or suppresses a material fact which he is in good faith bound to disclose then his silence is fraudulent.\n“The attitude of the courts toward non-disclosure is undergoing a change and contrary to Lord Cairns’ famous remark it would seem that the object of the law in these cases should be to impose on parties to the transaction a duty to speak whenever justice, equity, and fair dealing demand it.” (page 31.)\nA termite infestation of a frame building, such as that involved in the instant case, is manifestly a serious and dangerous condition. One of the Schlemeyers’ own witnesses, Mr. Hoefer, who at the time was a building inspector for the city of Spokane, testified that “ ... if termites are not checked in their damage, they can cause a complete collapse of a building, . . . they would simply eat up the wood.” Further, at the time of the sale of the premises, the condition was clearly latent — not readily observable upon reasonable inspection. As we have noted, all superficial or surface evidence of the condition had been removed by reason of the efforts of Senske, the pest control specialist. Under the circumstances, we are satisfied that “justice, equity, and fair dealing,” to use Professor Keeton’s language, demanded that the Schlemeyers speak — that they inform prospective purchasers, such as the Obdes, of the condition, regardless of the latter’s failure to ask any questions relative to the possibility of termites.\nError has been assigned to the trial court’s finding that Mrs. Schlemeyer knew of the termite condition and participated with her husband in the sale to the Obdes. However, this assignment of error has not been argued in the appeal brief. Thus, it must be deemed to have been abandoned. Winslow v. Mell (1956), 48 Wn. (2d) 581, 295 P. (2d) 319, and cases cited therein.\nSchlemeyers’ final contentions, relating to the issue of liability, emphasize the Obdes’ conduct after they discovered the termite condition. Under the purchase agreement with the Schlemeyers, the Obdes paid $5,000 in cash, and gave their promissory note for $2,250 to the Schlemeyers. In addition, they assumed the balance due on the installment contract, under which the Schlemeyers had previously acquired the property from Ayars. This amounted to $34,750. After, they discovered the termites (some six weeks subsequent to taking possession of the premises in November 1954), the Obdes continued for a time to make payments on the Ayars contract. They then called in Senske to examine the condition — not knowing that he had previously worked on the premises at the instance of the Schlemeyers. From Senske the Obdes learned for the first time that the Schlemeyers had known of the termite infestation prior to the sale. Obdes then ceased performance of the Ayars contract, and allowed the property to revert to Ayars under a forfeiture provision in the installment contract.\nThe Schlemeyers contend that by continuing to make payments on the Ayars contract after they discovered the termites the Obdes waived any right to recovery for fraud. This argument might have some merit if the Obdes were seeking to rescind the purchase contract. Salter v. Heiser (1951), 39 Wn. (2d) 826, 239 P. (2d) 327. However, this is not an action for rescission; it is a suit for damages, and thus is not barred by conduct constituting an affirmance of the contract. Salter v. Heiser, supra.\nContrary to the Schlemeyers final argument relative to the question of liability, the Obdes’ ultimate default and forfeiture on the Ayars contract does not constitute a bar to the present action. The rule governing this issue is well stated in 24 Am. Jur. 39, Fraud and Deceit, § 212, as follows:\n“Since the action of fraud or deceit in inducing the entering into a contract or procuring its execution is not based upon the contract, but is independent thereof, although it is regarded as an affirmance of the contract, it is a general rule that a vendee is entitled to maintain an action against the vendor for fraud or deceit in the transaction even though he has not complied with all the duties imposed upon him by the contract. His default is not a bar to an action by him for fraud or deceit practiced by the vendor in regard to some matter relative to the contract. ...”\nSee, also, Annotation, 74 A. L. R. 169; cf. Conaway v. Co-Operative Homebuilders (1911), 65 Wash. 39, 117 Pac. 716.\nFor the reasons hereinbefore set forth, we hold that the trial court committed no error in determining that the respondents (Obdes) were entitled to recover damages against the appellants (Schlemeyers) upon the theory' of fraudulent concealment. However, there remains the question of the proper amount of damages to be awarded. The trial court found that,\n“ . . . because of the termite condition the value [of the premises] has been reduced to the extent of $3950.00 and the plaintiffs have been damaged to that extent, and in that amount.”\nAs hereinbefore noted, judgment was thereupon entered for the respondents in that amount.\nThe appellants concede that the measure of damages in a case of this type is the difference between the actual value of the property and what the property would have been worth had the misrepresentations been true. Salter v. Heiser, supra; and cases cited therein. However, they urge that the only evidence introduced to show the diminution in value of the premises on account of the termite condition— namely, the testimony of one Joseph P. Wieber — was incompetent; Wieber qualified as an expert witness on the basis of substantial experience as a realtor and appraiser. He examined the premises in question, and estimated that the termite condition had reduced the value of the property by some thirty per cent. Applying this estimate to an assumption (as posed in a hypothetical question propounded by respondents’ counsel) that the property had been purchased twice during the year 1954 by persons who were unaware of the termite condition for approximately $40,000, Wieber rendered an opinion that the actual value of the premises (taking into account the termite condition) was about $25,000.\nAppellants’ sole objection to Wieber’s testimony is based upon a claim that the facts (two purchases in 1954 for approximately $40,000, by persons who were unaware of the termite condition) supporting the hypothetical question were never supplied. We find no merit in this claim. The record fully discloses the two purchases in question: namely, the Obdes’ purchase from the Schlemeyers in November 1954; and the Schlemeyers’ purchase from Ayars in April 1954.\nThe judgment awarding damages of $3,950 is well within the limits of the testimony in the record relating to damages. The Obdes have not cross-appealed. The judgment of the trial court should be affirmed in all respects. It is so ordered.\nWeaver, C. J., Rosellini, and Foster, JJ., concur.\nHill, J., concurs in the result.\nOctober 19, 1960. Petition for rehearing denied."", ""type"": ""majority"", ""author"": ""Finley, J.""}], ""attorneys"": [""Geo. W. Young, for appellants."", ""Patrick H. Murphy, for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 35230.\nDepartment Two.\nJune 30, 1960.]\nFred Obde et al., Respondents, v. Robert L. Schlemeyer et al., Appellants.\nGeo. W. Young, for appellants.\nPatrick H. Murphy, for respondents.\nReported in 353 P. (2d) 672.""}, ""cites_to"": [{""cite"": ""353 P. (2d) 672"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""117 Pac. 716"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""65 Wash. 39"", ""case_ids"": [557297], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/65/0039-01""], ""opinion_index"": 0}, {""cite"": ""74 A. L. R. 169"", ""year"": 1911, ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R."", ""opinion_index"": 0}, {""cite"": ""239 P. (2d) 327"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""39 Wn. (2d) 826"", ""case_ids"": [4972823], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/39/0826-01""], ""opinion_index"": 0}, {""cite"": ""295 P. (2d) 319"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""48 Wn. (2d) 581"", ""case_ids"": [996362], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/48/0581-01""], ""opinion_index"": 0}, {""cite"": ""37 P. (2d) 689"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""179 Wash. 362"", ""case_ids"": [877793], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/179/0362-01""], ""opinion_index"": 0}, {""cite"": ""141 A. L. R. 965"", ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R."", ""opinion_index"": 0}, {""cite"": ""42 N. E. (2d) 808"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.E.2d"", ""opinion_index"": 0}, {""cite"": ""311 Mass. 677"", ""case_ids"": [889343], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/311/0677-01""], ""opinion_index"": 0}, {""cite"": ""341 P. (2d) 488"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""54 Wn. (2d) 851"", ""case_ids"": [1013608], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/54/0851-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""56 Wash. 2d 449"", ""type"": ""official""}], ""file_name"": ""0449-01"", ""last_page"": ""456"", ""first_page"": ""449"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T23:36:54.979532+00:00"", ""decision_date"": ""1960-06-30"", ""docket_number"": ""No. 35230"", ""last_page_order"": 474, ""first_page_order"": 467, ""name_abbreviation"": ""Obde v. 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+1028024,"{""id"": 1028024, ""name"": ""Louis R. DeSanctis vs. Lynn Water and Sewer Commission"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""661040894943de0feca146cc2c2f577018bc6eb69b930808154aced85dad8336"", ""simhash"": ""1:2ad366c391d4955e"", ""pagerank"": {""raw"": 0.00000033502571437944696, ""percentile"": 0.874694431991981}, ""char_count"": 21289, ""word_count"": 3453, ""cardinality"": 910, ""ocr_confidence"": 0.92}, ""casebody"": {""judges"": [], ""parties"": [""Louis R. DeSanctis vs. Lynn Water and Sewer Commission.""], ""opinions"": [{""text"": ""Abrams, J.\nThe plaintiff, Louis R. DeSanctis, appeals from the judgment of the Superior Court denying him recovery on his claims that the defendant, the Lynn water and sewer commission (LWSC), caused or permitted water to flow onto his land over an extended period of time, causing his property to become inundated with water, and altering the physical characteristics of the land permanently. The plaintiff asserted claims in trespass, nuisance, and takings, seeking both injunclive and monetary relief against the city of Lynn, the town of Saugus, Kenneth W. Sanders, and the LWSC. The takings claim was directed out by the Superior Court judge, the question of injunctive relief reserved, and the remaining counts tried before a jury which returned a verdict in the form of answers to special questions. The jurors found in favor of Saugus and Sanders on every claim. The jurors concluded that the LWSC had not intentionally or by unreasonable use caused water to flow onto the plaintiffs property but that it had negligently done so. The jurors determined that LWSC had 20% responsibility for the plaintiffs damage and that the plaintiff, through his filling work, caused or contributed to 80% of the damage. Invoking G. L. c. 231, § 85 (1994 ed.), the Commonwealth’s comparative negligence statute, the trial judge barred the plaintiff from recovery. The plaintiff appeals only that portion of the ruling that denied him recovery of damages against LWSC and, therefore, we discuss only the facts relevant to that claim. We transferred the case to this court on our own motion.\nThe plaintiff is the fee owner of 14.7 acres of land located on the easterly side of Route 1 in Saugus. He leased this land in 1954 and purchased it in 1966. Approximately 6.3 acres of this land are protected wetlands and therefore unsuitable for development. Two reservoirs, Walden Pond and Birch Pond, connect at a structure known as a wellhole immediately adjacent to the plaintiffs property on land managed by LWSC. This land also contains pipes and tunnels comprising part of the Lynn water supply system.\nThe parties are in sharp disagreement as to the age and cause of the wetland conditions on the plaintiffs property. The plaintiff said that when he purchased the property in 1966 it was not inundated with water and he was not aware it was considered a wetland. At trial, the plaintiff produced evidence that the dam at the wellhole weeped or caused small trickles of water to escape and thereby steadily flow onto his land. Further evidence showed that on at least two occasions, in 1969 and 1971 (prior to the creation of LWSC by St. 1982, c. 381), the dam at the wellhole overflowed, flooding the plaintiff’s property and neighboring Route 1. In 1985 the dam was again breached, resulting in water entering the plaintiff’s property. The plaintiff contends that these problems with the wellhole and its pipe and tunnel structure caused the damage to his property.\nThe defendants defended on the theory that their actions with regard to the collection and dispersion of surface water benefited the plaintiff by retarding the flow of water onto his land rather than causing water to flow onto the land. The LWSC argued that without the wellhole, more water would naturally flow onto the plaintiff’s property. The defendants asserted that the land has always been a wetland. They produced evidence at trial that the plaintiff’s land was at the bottom of a natural drainage basin, was depicted on maps, soil surveys, and photographs as a swamp or marshland since at least 1829, and that a soil test confirmed that the land had been a wetland for at least thirty years. The defendants counterattacked with allegations that the plaintiff’s illegal filling activity on the land blocked the natural flow of water and caused an increase in the amount and spread of the water on the plaintiff’s property. LWSC introduced evidence that additional fill and blasting ledge had been placed on the plaintiffs land prior to 1984 and again in 1989. Aerial photographs showed that the natural drainage channel was blocked by this filling activity.\nThe jurors concluded that LWSC was negligent and was 20% responsible for the damage and or adverse changes to the plaintiffs property and the plaintiff was 80% responsible for the changes and or damage. They determined that the damage was not repairable and reduced the value of the plaintiff’s property by $143,000. Following the verdict, the plaintiff moved for entry of judgment in the amount of $715,000, plus interest and costs and renewed his motion for an injunction against further spillage of water. The plaintiff argued, based on an ex parte telephone call from a juror, that the jurors intended to award the plaintiff $143,000 as 20% of the total damages. He argued that the jurors’ findings compel the legal conclusion that the LWSC has committed a nuisance and that, because nuisance Lability is not subject to comparative negligence set-off, he should recover the full amount of his damages. The plaintiff’s posttrial motion was denied and he appeals. We conclude that, because the jurors determined that LWSC did not use its land unreasonably, the plaintiff has not sustained his burden of proof under a private nuisance theory. We further conclude that G. L. c. 231, § 85, bars the plaintiffs recovery under a negligent trespass theory. We affirm the judgment.\nA. Interference with natural drainage of surface waters. The plaintiff contends that he was irreparably harmed by the flow of surface water from the defendant’s property onto his land. He alleges that LWSC’s negligent maintenance of the well-hole and its adjoining pipes and culverts created a private nuisance for which it is liable without regard to the plaintiffs comparative negligence. We conclude, on the basis of the jurors’ answers to the special questions, that LWSC’s actions did not create an actionable private nuisance and that LWSC was therefore not liable under a private nuisance theory.\nIn Massachusetts, liability for a private nuisance caused by the flow of surface waters from a landowner’s property to that of an adjoining landowner depends on whether the landowner is making a reasonable use of his land. See Tucker v. Badoian, 376 Mass. 907, 916-917 (1978) (Kaplan, J., concurring) (announcing intention to replace rigid and anarchic “common enemy” rule with reasonable use doctrine). See also yon Henneberg v. Generazio, 403 Mass. 519, 522 (1988) (recognizing that since Tucker, supra, reasonable use doctrine is law of Massachusetts with regard to claims of private nuisance resulting from the flow of surface water); Triangle Ctr., Inc. v. Department of Pub. Works, 386 Mass. 858, 863 (1982) (applying reasonable use doctrine to public landowners).\nUnder the reasonable use doctrine, “each possessor is legally privileged to make a reasonable use of his land, even though the flow of surface waters is altered thereby and causes some harm to others, but incurs liability when his harmful interference with the flow of surface waters is unreasonable.” Armstrong v. Francis Corp., 20 N.J. 320, 327 (1956). Reasonableness is a question of fact for the jurors whose decision is based on consideration of all the relevant circumstances including the amount of harm caused, the foreseeability of the harm which results, the purpose or motive with which the possessor acted, and all other relevant matter. Tucker, supra at 917-918 n.2. The jurors also must consider whether the utility of the possessor’s use of his land outweighs the gravity of the harm which results from his alteration of the flow of surface waters. Armstrong, supra at 330. See Tucker, supra.\nContrary to the plaintiffs contention, a determination by the jurors that LWSC negligently caused water to flow onto the plaintiffs land and adversely change or otherwise damage the plaintiffs land is not sufficient to support liability for a private nuisance. The cases cited by the plaintiff do not support his contention that the negligent diversion of surface water is per se a private nuisance because each, unlike this case, involved a finding that the defendant landowner was making an unreasonable use of his land. See, e.g., yon Henneberg v. Generazio, supra; Triangle Ctr., Inc. v. Department of Pub. Works, supra; Schleissner v. Provincetown, 27 Mass. App. Ct. 392 (1989). A determination of unreasonable use is essential to the successful maintenance of a private nuisance claim for diversion of surface waters. Negligence, while relevant to the reasonableness of LWSC’s use of its land, is not determinative of the existence of a private nuisance. See Butler v. Bruno, 115 R.I. 264, 273 (1975) (“The New Hampshire rule of reasonable use does not rest on negligence, nor does it focus solely on the character of the property owner’s action. Instead, it focuses on the results of the action, the consequent interference with another’s use and enjoyment of his land — much like the nuisance branch of tort law”). “Under the Tucker standard, the fact finder must view the landowner’s activity on his land with an eye toward the effect of that activity on the flow of surface waters.” yon Henneberg, supra at 523. If a landowner fails to control the flow of surface waters but on a consideration of all relevant factors his actions are reasonable, an action for private nuisance will not lie. “Regardless of the category into which the defendant’s actions fall [intentional and unreasonable or negligent, reckless, or abnormally dangerous], the reasonable use rule explicitly, as in the case of intentional acts, or implicitly, as in the case of negligent acts, requires a finding that the conduct of the defendant was unreasonable. This is the essential inquiry in any nuisance action.” Pendergrast v. Aiken, 293 N.C. 201, 217 (1977).\nHere the jurors, properly charged in fine with Tucker v. Badoian, supra, determined by their answer to a special question that the LWSC did not make an unreasonable use of its land. The jurors, when asked whether LWSC “intentionally or negligently, or by unreasonable use of its property, cause[d] water to flow onto the DeSanctis property,” concluded that LWSC negligently caused water to flow onto the DeSanctis property but did not intentionally or by unreasonable use cause water to flow onto the property. The jurors’ conclusion that LWSC did not make an unreasonable use of its land is supported by the evidence and is binding on the plaintiff. It is conclusive as to the plaintiff’s claim of private nuisance. See Schleissner v. Provincetown, 27 Mass. App. Ct. 392, 394 (1989) (“The determination whether the town has created a nuisance depends on whether it is making reasonable use of its property to control the collection and disposal of surface waters”). See also yon Henneberg v. Generazio, 403 Mass. 519, 522 (1988).\nB. Negligence. The jurors’ failure to find unreasonable use while precluding recovery under a private nuisance theory does not preclude the plaintiff’s recovery under an independent cause of action for negligent trespass. See Tarzia v. Ringham, 35 Mass. App. Ct. 506, 508-510 (1993) (distinguishing negligence and private nuisance). A plaintiff may recover under the theory of negligent trespass if the jurors determine that the defendant was negligent and that the defendant’s negligent entry onto the plaintiff’s land caused the plaintiff harm. See Restatement (Second) of Torts § 165 (1965); Cannon v. Sears, Roebuck & Co., 374 Mass. 739, 742 (1978) (“A cause of action based on negligence requires that both negligence and harm be shown, with a causal connection between these two elements”). Absent comparative negligence on the part of the plaintiff, he would be entitled, given the jurors’ findings of negligence and causation, to recovery under the theory of negligent trespass.\nThe jurors were not specifically asked whether the plaintiff was comparatively negligent. Despite this failure, we agree with the trial judge that the jurors’ answers to special questians were sufficient to bar the plaintiffs recovery under principles of comparative negligence. In answer to special questions, the jurors determined that the plaintiffs filling work caused or contributed to his damage and that the plaintiff was responsible for 80% of the total damage to his property. These conclusions were well supported by the evidence and could only have resulted if the jurors determined that the plaintiffs filling work on his land constituted negligence. LWSC offered overwhelming evidence that the plaintiff engaged in filling activity on his land, that this filling activity was in violation of a criminal statute designed to protect wetlands from alteration, and that such activity unintentionally blocked the natural drainage of surface water on the plaintiffs land and thereby caused substantial damage to the plaintiffs land. Once such evidence of the plaintiffs negligence in causing alteration to the wetlands on his property was introduced, the presumption that the plaintiff was acting with due care no longer had any effect. Morgan v. Lalumiere, 22 Mass. App. Ct. 262, 265 (1986). The plaintiffs own testimony confirmed that he illegally filled the land, that he did not intend to block the drainage channel and create wetland conditions on his land, and that he did not consider the proximity to the wetlands when he engaged in the filling activity. We conclude that the jurors’ answers to the special question that the plaintiff was responsible for 80% of his damage, in conjunction with the evidence that the plaintiff acted in violation of the criminal statute and that the plaintiffs actions either caused the creation or the exacerbation of the wetland conditions on his land, necessitates the conclusion as a matter of law that the jurors determined that the plaintiff was contributorily negligent in causing substantial damage to his own property. See Brown v. Boston & Me. R.R., 302 Mass. 90, 91-92 (1939) (motor vehicle operator guilty of contributory negligence as matter of law where all evidence indicates that he had ample opportunity to exercise proper caution and did not do so, acting in violation of statute); Joyce v. New York, N.H. & H.R.R., 301 Mass. 361, 364-365 (1938).\nBecause the jurors concluded that the plaintiff bore more than 50% of the responsibility for his damage, G. L. c. 231, § 85, the comparative negligence statute bars the plaintiff from recovering any damages from LWSC under a negligence cause of action. See Morgan v. Lalumiere, supra. The trial judge, therefore, acted properly in denying the plaintiff recovery.\nJudgment affirmed.\nhe city of Lynn was dismissed as a defendant prior to the case’s going to the jury.\nAt trial, the plaintiffs wetland specialist opined that over 50% of the plaintiff’s land was wetland and that, even if all sources of water to the wetland were removed immediately, the area would remain a wetland for thirty to sixty years. The wetland currently is static. The specialist had no knowledge that would indicate that the size of the wetland had changed appreciably between his first observation in 1985 and later observations in 1991 and 1992.\nLWSC maintains that it first became aware of a problem with flooding on the plaintiff's land in 1985 when the dam at the wellhole was breached, that is, the well did not overflow, but that there was a crack or a hole in the well through which the water flowed. The LWSC reacted promptly to the plaintiff's complaint and immediately alleviated the problem. Later that year, the LWSC prepared an internal capital improvement program to rehabilitate and improve the water system in Lynn. A further survey, conducted by. the United States Environmental Protection Agency and what is now the Massachusetts Department of Environmental Protection, recommended covering and securing the wellhole. The wellhole remains uncovered and unsecured due to resistance from the Saugus conservation commission which has expressed concern about the wellhole’s historic significance and protection of the wetlands.\nThe soil covering virtually all of the plaintiff’s land is designated by soil conservation services as “muck,” suggesting decades or centuries of soil saturation.\nIn 1984, the plaintiff authorized a contractor to fill a portion of his land with debris from a construction site in East Boston. The plaintiff was ordered, under threat of criminal sanction, to desist and to remove the fill he had already placed on his property. He was told that the Saugus conservation commission determined that his land was a red maple swamp, an epitomal wetland marsh, and that, therefore, his actions violated G. L. c. 131, § 40 (1994 ed.), which makes it a crime to fill near a wetland without a valid order of conditions. The plaintiff contends that this was the first notice he had that his land was considered a protected wetland. The criminal complaint was dismissed when the plaintiff agreed to remove the fill he had caused to be placed on the land.\nSurface waters are waters from rain, melting snow, springs, or seepage, or floods that lie or flow on the surface of the earth and naturally spread over the ground but do not form a part of a natural watercourse or lake. Restatement (Second) of Torts § 846 (1979). This court did not distinguish between surface and ground water with regard to landowners’ rights. Tucker v. Badoian, 376 Mass. 907, 912 (1978). Kennison v. Beverly, 146 Mass. 467, 469 (1888).\nAs a consequence, we need not decide whether the principles of comparative negligence apply to claims of private nuisance.\nThe plaintiff did not request that the jurors be charged that they could find a private nuisance based on LWSC’s negligence alone and did not object to the jury charge given.\nThe jurors were instructed specifically that the categories of negligence, intentional conduct, and unreasonable use were not mutually exclusive and that they should make a separate determination as to each theory.\nBecause the jury verdict was favorable to LWSC, we do not reach the argument that it was entitled to a directed verdict.\nLWSC, when informed at the eleventh hour that the judge sua sponte had decided to instruct the jury on negligence, should have objected or asked for an instruction on comparative negligence. However, given that negligence was not alleged in the complaint nor in the plaintiffs request for jury instructions, and causation and responsibility (issues relevant to comparative negligence) were hotly contested at trial, and the judge did instruct the jury that the defendants bore the burden of proof on their contention that the plaintiffs filling activity caused or contributed to the harm, we conclude that the special questions to the jury adequately conveyed the comparative negligence principles to the jury. See Carvalho v. State Band Club, Inc., 3 Mass. App. Ct. 755 (1975) (defendant entitled to adequate charge on controlling issues; failure to request instructions immaterial).\nContrary to the plaintiffs suggestion, we are not precluded from considering the violation of the criminal statute in assessing whether the plaintiff was negligent. General Laws c. 231, § 85, merely provides that “the violation of [a] statute, ordinance or regulation shall not as a matter of law and for that reason alone, serve to bar a plaintiff from recovery” (emphasis added). See LaClair v. Silberline Mfg. Co., 379 Mass. 21, 28 (1979) (violation of safety statute or like enactment, while not conclusive on issue of liability, is evidence of a violator’s negligence as to all consequences that the statute was intended to prevent). Our conclusion is in accord with the statute and caselaw as it is based on, in addition to violation of the criminal statute, the jurors’ answers and the extensive testimony as to the negligently caused effect of the plaintiff’s illegal activities on drainage on his land."", ""type"": ""majority"", ""author"": ""Abrams, J.""}], ""attorneys"": [""Charles E. Schaub, Jr. (Kim Goslant with him) for the plaintiff."", ""Hugh W. Samson for the defendant.""], ""corrections"": """", ""head_matter"": ""Louis R. DeSanctis vs. Lynn Water and Sewer Commission.\nEssex.\nMarch 7, 1996.\nJuly 1, 1996.\nPresent: I jacos, C.J., Wilkins, Abrams, Lynch, & Greaney, JJ.\nNuisance. Water. Drain. Real Property, Water, Drain, Flowage of water, Nuisance, Trespass. Negligence, Comparative.\nDiscussion of the reasonable use doctrine applicable to claims for damages on a theory of private nuisance. [115-116]\nJurors’ conclusion in a civil action that the defendant water and sewer commission did not make an unreasonable use of its land was supported by the evidence and the plaintiff could not prevail on his claim for damages on a private nuisance theory for the alleged flow of surface water from the defendant’s property onto his land. [116-118]\nAt the trial of a claim for negligent trespass arising from the alleged flow of surface waters from the defendant’s land and onto the plaintiff’s land, the jurors’ answers to special questions, which were supported by the evidence, were sufficient to bar the plaintiff’s recovery under principles of comparative negligence. [118-120]\nCivil action commenced in the Superior Court Department on March 30, 1990.\nThe case was tried before J. Harold Flannery, J.\nThe Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.\nCharles E. Schaub, Jr. (Kim Goslant with him) for the plaintiff.\nHugh W. Samson for the defendant.""}, ""cites_to"": [{""cite"": ""379 Mass. 21"", ""year"": 1979, ""case_ids"": [3873209], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""28"", ""parenthetical"": ""violation of safety statute or like enactment, while not conclusive on issue of liability, is evidence of a violator's negligence as to all consequences that the statute was intended to prevent""}], ""case_paths"": [""/mass/379/0021-01""], ""opinion_index"": 0}, {""cite"": ""3 Mass. App. Ct. 755"", ""year"": 1975, ""case_ids"": [3945968, 3945459], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""parenthetical"": ""defendant entitled to adequate charge on controlling issues; failure to request instructions immaterial""}], ""case_paths"": [""/mass-app-ct/3/0755-01"", ""/mass-app-ct/3/0755-02""], ""opinion_index"": 0}, {""cite"": ""146 Mass. 467"", ""year"": 1888, ""case_ids"": [784132], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""469""}], ""case_paths"": [""/mass/146/0467-01""], ""opinion_index"": 0}, {""cite"": ""301 Mass. 361"", ""year"": 1938, ""case_ids"": [866314], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""364-365""}], ""case_paths"": [""/mass/301/0361-01""], ""opinion_index"": 0}, {""cite"": ""302 Mass. 90"", ""year"": 1939, ""case_ids"": [867885], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""91-92"", ""parenthetical"": ""motor vehicle operator guilty of contributory negligence as matter of law where all evidence indicates that he had ample opportunity to exercise proper caution and did not do so, acting in violation of statute""}], ""case_paths"": [""/mass/302/0090-01""], ""opinion_index"": 0}, {""cite"": ""22 Mass. App. Ct. 262"", ""year"": 1986, ""weight"": 2, ""case_ids"": [3990972], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""265""}], ""case_paths"": [""/mass-app-ct/22/0262-01""], ""opinion_index"": 0}, {""cite"": ""374 Mass. 739"", ""year"": 1978, ""case_ids"": [3872008], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""742"", ""parenthetical"": ""\""A cause of action based on negligence requires that both negligence and harm be shown, with a causal connection between these two elements\""""}], ""case_paths"": [""/mass/374/0739-01""], ""opinion_index"": 0}, {""cite"": ""35 Mass. App. Ct. 506"", ""year"": 1993, ""case_ids"": [4014975], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""508-510"", ""parenthetical"": ""distinguishing negligence and private nuisance""}], ""case_paths"": [""/mass-app-ct/35/0506-01""], ""opinion_index"": 0}, {""cite"": ""293 N.C. 201"", ""year"": 1977, ""case_ids"": [8562517], ""category"": ""reporters:state"", ""reporter"": ""N.C."", ""pin_cites"": [{""page"": ""217""}], ""case_paths"": [""/nc/293/0201-01""], ""opinion_index"": 0}, {""cite"": ""115 R.I. 264"", ""year"": 1975, ""case_ids"": [3117032], ""category"": ""reporters:state"", ""reporter"": ""R.I."", ""pin_cites"": [{""page"": ""273""}], ""case_paths"": [""/ri/115/0264-01""], ""opinion_index"": 0}, {""cite"": ""27 Mass. App. Ct. 392"", ""year"": 1989, ""weight"": 2, ""case_ids"": [3998245], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""394"", ""parenthetical"": ""\""The determination whether the town has created a nuisance depends on whether it is making reasonable use of its property to control the collection and disposal of surface waters\""""}], ""case_paths"": [""/mass-app-ct/27/0392-01""], ""opinion_index"": 0}, {""cite"": ""20 N.J. 320"", ""year"": 1956, ""weight"": 2, ""case_ids"": [1346238], ""category"": ""reporters:state"", ""reporter"": ""N.J."", ""pin_cites"": [{""page"": ""327""}, {""page"": ""330""}], ""case_paths"": [""/nj/20/0320-01""], ""opinion_index"": 0}, {""cite"": ""386 Mass. 858"", ""year"": 1982, ""weight"": 2, ""case_ids"": [906538], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""863"", ""parenthetical"": ""applying reasonable use doctrine to public landowners""}], ""case_paths"": [""/mass/386/0858-01""], ""opinion_index"": 0}, {""cite"": ""403 Mass. 519"", ""year"": 1988, ""weight"": 3, ""case_ids"": [3880542], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""522"", ""parenthetical"": ""recognizing that since Tucker, supra, reasonable use doctrine is law of Massachusetts with regard to claims of private nuisance resulting from the flow of surface water""}, {""page"": ""522""}], ""case_paths"": [""/mass/403/0519-01""], ""opinion_index"": 0}, {""cite"": ""376 Mass. 907"", ""year"": 1978, ""weight"": 5, ""case_ids"": [332004], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""916-917"", ""parenthetical"": ""Kaplan, J., concurring""}, {""page"": ""912""}], ""case_paths"": [""/mass/376/0907-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""423 Mass. 112"", ""type"": ""official""}], ""file_name"": ""0112-01"", ""last_page"": ""120"", ""first_page"": ""112"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T17:31:57.027644+00:00"", ""decision_date"": ""1996-07-01"", ""docket_number"": """", ""last_page_order"": 144, ""first_page_order"": 136, ""name_abbreviation"": ""DeSanctis v. Lynn Water & Sewer 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+1036961,"{""id"": 1036961, ""name"": ""Donald Malstrom, et al., Respondents, v. Esther Kalland, Appellant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""1d26cfe6ec3472649b69498c4cedf7cc638fb2079f9becba6d0b2807aed8273c"", ""simhash"": ""1:1deb1ace58144cf9"", ""pagerank"": {""raw"": 0.00000041310963559960824, ""percentile"": 0.9108005910769316}, ""char_count"": 14265, ""word_count"": 2427, ""cardinality"": 846, ""ocr_confidence"": 0.687}, ""casebody"": {""judges"": [], ""parties"": [""Donald Malstrom, et al., Respondents, v. Esther Kalland, Appellant.""], ""opinions"": [{""text"": ""Weaver, J.\nDefendant presents two issues on this appeal —the claimed excessiveness of: (a) $3,600 special damages; and (b) $50,000 general damages.\nThe issue of liability is not before us. We need not, therefore, expand upon the occasion giving rise to plaintiff’s cause of action, except to identify that it springs from an automobile accident.\nDepending upon which theory is accepted, plaintiff, 22 years of age, with a life expectancy of 48.55 years, suffered “an injury to her right foot” or a “crushed scaphoid” resulting in a “deformed condition of plaintiff’s foot at time of trial.”\nThe trial court found, and we conclude the record supports the finding\n“. . . that [plaintiff’s] . . . right foot was traumatically shortened one-quarter inch as a result of the injury received in said collision and the subsequent surgery and substantially widened as compared to the left foot; that plaintiff . . . will, in the future, not be able to wear the same size shoe on the right foot as on the left and will be required each time she purchases shoes for the balance of her lifetime to purchase two pairs of shoes rather than one, . . . that plaintiff suffered an additional special damage for future purchases of two pairs of shoes instead of one for the balance of her life expectancy of 48.55 years of $3,600; ...”\nI\nPresent Value of Future Damages\nDefendant argues that the court erred when it did not reduce the monetary award for shoes to be purchased in the future to present value. This contention is based upon our decisions in Kellerher v. Porter, 29 Wn. (2d) 650, 189 P. (2d) 223 (1948) (tried to a jury), and Wentz v. T. E. Connolly, Inc., 45 Wn. (2d) 127, 273 P. (2d) 485 (1954) (tried to the court), wherein it was held that damages for loss of future earnings must be reduced to their present value. Counsel have cited no authority sustaining their position that the same principle applies to other items of damage occurring in the future. We assume, that after diligent search, they have found none. See DeHeer v. Seattle Post-Intelligencer, 60 Wn. (2d) 122, 126, 372 P. (2d) 193 (1962).\nWe do not reach this question, however, for we find nothing in the record before us to indicate that counsel requested the trial court to reduce the special damages for shoe allowance to present value. The question cannot be raised for the first time on appeal. Davis v. Sill, 55 Wn. (2d) 477, 481, 348 P. (2d) 215 (1960).\nII\nExcessiveness of General Damages\nAlthough plaintiff took 3 days to present her claim for damages to the court (the statement of facts contains 378 pages and refers to 36 exhibits), defendant (appellant) rested at the end of plaintiff’s case and produced no evidence, lay or medical.\nDefendant starts with the premise that the evidence before the court is undisputed. From this, she argues that\n“ . . . The usual rule that the trial court’s findings will not be disturbed on appeal unless the evidence clearly preponderates against them . . . does not apply, and this court has the duty of determining the proper conclusions to be drawn from the evidence. . . . ” (Italics ours.)\nIn support of her argument, defendant urges the following rule:\n“. . . where a cause is tried to the court without a jury, the trial court’s findings of fact will not be disturbed on appeal unless the evidence clearly preponderates against them. [Citing authorities.]\n“This latter rule is based upon the theory that there is a conflict in the testimony and that the trial court, having the witnesses before it, is in better position to arrive at the truth than is the appellate court. For this reason, the rule has no application in a case where there is no substantial dispute as to the facts and no question as to the credibility of witnesses or the weight to be given to their testimony, but where the sole question on appeal concerns the proper conclusions to be drawn from practically undisputed evidence; in such situation, this court has the duty of determining for itself the right and proper conclusions to be drawn from the evidence in the case. Westland v. Post Land Co., 115 Wash. 329, 197 Pac. 44; Doke v. United Pac. Ins. Co., 15 Wn. (2d) 536, 131 P. (2d) 436, 35 P. (2d) 71.” Shultes v. Halpin, 33 Wn. (2d) 294, 305-306, 205 P. (2d) 1201 (1949).\nSimilar statements are found in later decisions.\nIf this be an invitation for us to search the record for error, or to try the case de novo, we cannot accept it. In re Bellevue, 59 Wn. (2d) 793, 370 P. (2d) 861 (1962); Malnati v. Ramstead, 50 Wn. (2d) 105, 309 P. (2d) 754 (1957), and authorities cited.\nWe note that Shultes v. Halpin, supra, and those cases containing similar statements (see footnote 2), were decided prior to Thorndike v. Hesperian Orchards, Inc. 54 Wn. (2d) 570, 343 P. (2d) 183 (1959), which held that “ . . . the constitution does not authorize this court to substitute its findings for that of the trial court. . . . ”\nWe do not conceive that the presence or absence of conflicting testimony minimizes or enlarges the scope of appellate review. If there is competent evidence in the record (whether it be conflicting or undisputed), to support the findings of fact of the trial court, we cannot disturb them (see Thorndike v. Hesperian Orchards, Inc., supra) except as provided by RCW 4.44.060, which provides:\n“ . . . The finding of the court upon the facts shall be deemed a verdict, and may be set aside in the same manner and for the same reason as far as applicable, and a new trial granted.”\nRule of Pleading, Practice and Procedure 59.04W provides:\n“The former verdict or other decision may be vacated and a new trial granted . . . for . . .\n“5. Damages so excessive or inadequate as unmistakably to indicate that the verdict must have been the result of passion or prejudice; ...”\n“Passion and prejudice” are not an issue in the instant case. This court has, however, reduced jury verdicts for damages (or in the alternative granted a new trial) on at least nine occasions when passion and prejudice' were either not discussed by the court or were found not to exist. These cases involve damages for wrongful death.\nFixing the amount of damages is actually a conclusional finding based upon preliminary findings that certain damages were sustained. No reasons are given in a jury verdict fixing the amount of damages unless special interrogatories are propounded. The trial court, on the other hand, usually expresses its reasons, either in an oral or a written memorandum opinion. For an interpretation of the facts found and the amount of damages awarded, we may consider the opinion of the trial court to test whether it has acted upon, a wrong principle of law, has misapprehended the facts, or has made a wholly erroneous estimate of the damages suffered; otherwise, the alleged excessiveness of an award of damages by a jury (absent passion and prejudice) and by a trial judge should be tested by the same rules. When the injury is to property the test is whether the damages awarded are within the range of the testimony presented. Steele v. Queen City Broadcasting Co., 54 Wn. (2d) 402, 409, 341 P. (2d) 499 (1959); Becwar v. Bear, 41 Wn. (2d) 37, 41, 246 P. (2d) 1110 (1952). When the injury is to a person, causing pain, suffering, and permanent disability, this guideline is most indefinite.\nIt is difficult to describe plaintiff’s injury without overemphasizing (as does plaintiff), or minimizing (as does defendant), the results flowing from it.\nThe following, appearing in the findings of fact and supported by the evidence, describes her injury objectively:\n(a) “ . . . plaintiff . . . suffered . . . [an] injury to her right foot consisting of a dislocation of the bones of the right foot, fractures of several bones of the right foot, including a crushing of one of the bones of the right foot into small pieces; that as a . . . result of said injury . . . plaintiff . . . required . . . surgery involving an attempted fusion of the bones of the right foot; ...”\n(b) Plaintiff’s right foot was permanently shortened and substantially widened. For elaboration see the finding of fact quoted infra in our discussion of special damages for shoes.\n(c) The trial court found that plaintiff “ . . . suffered a permanently deformed and disfigured right foot ...”\nReference to the photographic exhibits discloses that the adjectives we have italicized paint a more gruesome picture than appears.\n(d) It is undisputed that plaintiff suffered pain from the time of her injury to date of trial; that pain will remain until there is a fusion of the bones of the right foot; that plaintiff was bedridden for 5 weeks and required to wear a cast, and use a wheelchair or crutches for a considerable period of time.\n(e) “. . . that as the result of said injury and the subsequent fusion and surgery and crushing of bones in the right foot, plaintiff has permanently lost all sideways motion of the right foot; has a substantial limitation of plantar flexion of the right foot as compared to the left caused by this injury and some limitation of dorsiflexion of the right foot as compared to the left; that plaintiff will have some permanent enlargement of the right foot.”\nThe findings of fact then state a number of probabilities: (1) Future surgery may be necessary; (2) plaintiff may have a permanent limp and some early arthritis in the un-fused joints of her right foot; (3) plaintiff may never be able to snow or water ski “. . . unless she water skis on her uninjured left foot on one ski alone. . . . ”\nWe believe the foregoing gives a fair picture of the facts which the trial court was required to evaluate and translate into a dollar value.\nThe oral opinion is of no help to us. In fact, it admits frustration to the point where it is apparent that the trial judge reached blindly and came up with an amount.\nThe conclusion reached by an appellate court in reviewing the alleged excessiveness of an award of damages by a jury or trial judge for personal injury must be the result of tipping the balance between two sets of factors.\n“On the one hand, the following must be considered: Each cause depends, to a large extent, upon its own facts and circumstances. The verdict must be compensatory of a pecuniary loss. Walters v. Spokane International R. Co., 58 Wash. 293, 108 Pac. 593 (1910). It can be substantial [citing authorities] but not out of proportion to actual damages. Halverson v. Seattle Electric Co., 35 Wash. 600, 77 Pac. 1058 (1904). The amount of the damage is within the discretion of the jury, under proper instructions. The jury is given considerable latitude in making such determination as to it seems just. Aronson v. Everett, 136 Wash. 312, 239 Pac. 1011 (1925); Ticknor v. Seattle-Renton Stage Line, 139 Wash. 354, 247 Pac. 1 (1926). The subject matter being difficult of proof, it cannot be fixed with mathematical certainty by the proof. Once the determination is made, an appellate court will give great weight to, and is reluctant to interfere with, the jury’s verdict. Kellerher v. Porter, 29 Wn. (2d) 650, 189 P. (2d) 223 (1948).\n“On the other hand, the balancing factor is the conscience of the appellate court, when there is an affirmative showing that passion and prejudice played no part in the jury’s determination. Is the amount flagrantly outrageous and extravagant? Is it unjustified in the light of the evidence? Does it disclose circumstances foreign to proper jury deliberations? If it is and does, then it can be said to shock the sense of justice and sound judgment, and the verdict of the jury is excessive.” Kramer v. Portland-Seattle Auto Freight, 43 Wn. (2d) 386, 395, 261 P. (2d) 692.\nHaving reviewed the record, considered the facts found, and applied the rules discussed, we do not find the facts sufficiently persuasive to support the $50,000 valuation placed upon the injury by the trial court.\nThat portion of the judgment awarding special damages is affirmed. It is our opinion that a reduction of $15,000 in the amount of general damages would be fair to both parties. If plaintiff does not accept judgment of $35,000 general damages within 15 days after the remittitur has gone down from this court, a new trial shall be granted, limited to a determination of general damages.\nDefendant will recover costs on this appeal.\nOtt, C. J., Donworth, and Hamilton, JJ., concur.\nOther items of special damages are not challenged on this appeal.\nKingwell v. Hart, 45 Wn. (2d) 401, 404, 275 P. (2d) 431 (1954); Reid Co. v. M-B Contracting Co., 46 Wn. (2d) 784, 793, 285 P. (2d) 121 (1955); McGuire v. United Brotherhood of Carpenters & Joiners, 50 Wn. (2d) 699, 708, 314 P. (2d) 439 (1957).\nWalker v. McNeill, 17 Wash. 582, 50 Pac. 518 (1897); Vowell v. Issaquah Coal Co., 31 Wash. 103, 71 Pac. 725 (1903); Creamer v. Moran Bros. Co., 41 Wash. 636, 84 Pac. 592 (1906); Ohrstrom v. Tacoma, 57 Wash. 121, 106 Pac. 629 (1910); Walters v. Spokane International R. Co., 58 Wash. 293, 108 Pac. 593 (1910); Delaski v. Northwestern Imp. Co., 70 Wash. 143, 126 Pac. 421 (1912); Rochester v. Seattle, Renton & Southern R. Co., 75 Wash. 559, 135 Pac. 209 (1913); Graham v. Allen & Nelson Mill Co., 78 Wash. 589, 139 Pac. 591 (1914); Thompson v. Fiorito, 167 Wash. 495, 9 P. (2d) 789, 12 P. (2d) 1119 (1932)."", ""type"": ""majority"", ""author"": ""Weaver, J.""}, {""text"": ""Finley, J.\n(dissenting)—The facts as stated by the majority depict in my mind a most severe, serious, crippling and disabling permanent physical injury to a young woman, 22 years of age, with a life expectancy of 48.55 years. It is, and again as indicated by the majority, difficult to place a dollar value on physical injuries. In my judgment the damages awarded would not be upset by this court if arrived at through a verdict of a jury. Be that as it may, the evidentiary record here provides a range sufficiently convincing and broad enough in scope to approximate support for the award of damages arrived at by the trier of the facts—in this instance, the trial court judge. I would affirm the judgment for the reasons indicated; consequently, I dissent."", ""type"": ""dissent"", ""author"": ""Finley, J.""}], ""attorneys"": [""Harold L. Hawkins and Hodge & Mann, for appellant."", ""Stubbs & Batali, by H. Frank Stubbs, for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 36412.\nDepartment Two.\nAugust 15, 1963.]\nDonald Malstrom, et al., Respondents, v. Esther Kalland, Appellant.\nHarold L. Hawkins and Hodge & Mann, for appellant.\nStubbs & Batali, by H. Frank Stubbs, for respondents.\nReported in 384 P. (2d) 613.""}, ""cites_to"": [{""cite"": ""384 P. (2d) 613"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""12 P. (2d) 1119"", ""year"": 1932, ""case_ids"": [1981479], ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""case_paths"": [""/or/140/0171-01""], ""opinion_index"": 0}, {""cite"": ""9 P. (2d) 789"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""167 Wash. 495"", ""case_ids"": [849986], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/167/0495-01""], ""opinion_index"": 0}, {""cite"": ""139 Pac. 591"", ""year"": 1914, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""78 Wash. 589"", ""year"": 1914, ""case_ids"": [596536], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/78/0589-01""], ""opinion_index"": 0}, {""cite"": ""135 Pac. 209"", ""year"": 1913, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""75 Wash. 559"", ""year"": 1913, ""case_ids"": [622727], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/75/0559-01""], ""opinion_index"": 0}, {""cite"": ""126 Pac. 421"", ""year"": 1912, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""70 Wash. 143"", ""year"": 1912, ""case_ids"": [565241], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/70/0143-01""], ""opinion_index"": 0}, {""cite"": ""106 Pac. 629"", ""year"": 1910, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""57 Wash. 121"", ""year"": 1910, ""case_ids"": [532269], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/57/0121-01""], ""opinion_index"": 0}, {""cite"": ""84 Pac. 592"", ""year"": 1906, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""41 Wash. 636"", ""year"": 1906, ""case_ids"": [5197759], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/41/0636-01""], ""opinion_index"": 0}, {""cite"": ""71 Pac. 725"", ""year"": 1903, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""31 Wash. 103"", ""year"": 1903, ""case_ids"": [2445259], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/31/0103-01""], ""opinion_index"": 0}, {""cite"": ""50 Pac. 518"", ""year"": 1897, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""17 Wash. 582"", ""year"": 1897, ""case_ids"": [5113321], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/17/0582-01""], ""opinion_index"": 0}, {""cite"": ""314 P. (2d) 439"", ""year"": 1957, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""50 Wn. (2d) 699"", ""case_ids"": [1002038], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""708""}], ""case_paths"": [""/wash-2d/50/0699-01""], ""opinion_index"": 0}, {""cite"": ""285 P. (2d) 121"", ""year"": 1955, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""46 Wn. (2d) 784"", ""case_ids"": [5032916], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""793""}], ""case_paths"": [""/wash-2d/46/0784-01""], ""opinion_index"": 0}, {""cite"": ""275 P. (2d) 431"", ""year"": 1954, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""45 Wn. (2d) 401"", ""case_ids"": [2427724], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""404""}], ""case_paths"": [""/wash-2d/45/0401-01""], ""opinion_index"": 0}, {""cite"": ""261 P. (2d) 692"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""43 Wn. (2d) 386"", ""case_ids"": [5009647], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""395""}], ""case_paths"": [""/wash-2d/43/0386-01""], ""opinion_index"": 0}, {""cite"": ""247 Pac. 1"", ""year"": 1926, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""139 Wash. 354"", ""year"": 1926, ""case_ids"": [788752], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/139/0354-01""], ""opinion_index"": 0}, {""cite"": ""239 Pac. 1011"", ""year"": 1925, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""136 Wash. 312"", ""year"": 1925, ""case_ids"": [778143], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/136/0312-01""], ""opinion_index"": 0}, {""cite"": ""77 Pac. 1058"", ""year"": 1904, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""35 Wash. 600"", ""year"": 1904, ""case_ids"": [5207473], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/35/0600-01""], ""opinion_index"": 0}, {""cite"": ""108 Pac. 593"", ""year"": 1910, ""weight"": 2, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""58 Wash. 293"", ""year"": 1910, ""weight"": 2, ""case_ids"": [526267], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/58/0293-01""], ""opinion_index"": 0}, {""cite"": ""246 P. (2d) 1110"", ""year"": 1952, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""41 Wn. (2d) 37"", ""case_ids"": [4986563], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""41""}], ""case_paths"": [""/wash-2d/41/0037-01""], ""opinion_index"": 0}, {""cite"": ""341 P. (2d) 499"", ""year"": 1959, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""54 Wn. (2d) 402"", ""case_ids"": [1013593], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""409""}], ""case_paths"": [""/wash-2d/54/0402-01""], ""opinion_index"": 0}, {""cite"": ""343 P. (2d) 183"", ""year"": 1959, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""54 Wn. (2d) 570"", ""case_ids"": [1013576], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/54/0570-01""], ""opinion_index"": 0}, {""cite"": ""309 P. (2d) 754"", ""year"": 1957, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""50 Wn. (2d) 105"", ""case_ids"": [1002131], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/50/0105-01""], ""opinion_index"": 0}, {""cite"": ""370 P. (2d) 861"", ""year"": 1962, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""59 Wn. (2d) 793"", ""case_ids"": [1028275], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/59/0793-01""], ""opinion_index"": 0}, {""cite"": ""205 P. (2d) 1201"", ""year"": 1949, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""33 Wn. (2d) 294"", ""case_ids"": [4908394], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""305-306""}], ""case_paths"": [""/wash-2d/33/0294-01""], ""opinion_index"": 0}, {""cite"": ""35 P. (2d) 71"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""131 P. (2d) 436"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""15 Wn. (2d) 536"", ""case_ids"": [2572123], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/15/0536-01""], ""opinion_index"": 0}, {""cite"": ""197 Pac. 44"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""115 Wash. 329"", ""case_ids"": [698353], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/115/0329-01""], ""opinion_index"": 0}, {""cite"": ""348 P. 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+1111233,"{""id"": 1111233, ""name"": ""Washington Association of Apartment Associations, Inc., et al, Respondents, v. Daniel J. Evans, as Governor, et al, Appellants"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""b747b207688fc7e86a7cef1561248eefa560a936641a07872e295a4612d263c5"", ""simhash"": ""1:a7a1971650475452"", ""pagerank"": {""raw"": 0.000000164939191288171, ""percentile"": 0.6924695223543921}, ""char_count"": 17231, ""word_count"": 2921, ""cardinality"": 750, ""ocr_confidence"": 0.861}, ""casebody"": {""judges"": [""Rosellini, Hamilton, Stafford, Utter, Brachtenbach, and Horowitz, JJ., and Langsdorf, J. Pro Tem., concur.""], ""parties"": [""Washington Association of Apartment Associations, Inc., et al, Respondents, v. Daniel J. Evans, as Governor, et al, Appellants.""], ""opinions"": [{""text"": ""Wright, C.J.\nThe problem presented in this litigation is the validity of the Governor's 14 attempted item and section vetoes to Engrossed Substitute Senate Bill No. 2226. This bill ultimately became Laws of 1973, 1st Ex. Sess., ch. 207 (codified in RCW 59.18), and is commonly known as the landlord-tenant act of 1973.\nThe Governor exercised his veto power by attempting to excise parts of sections 6, 7, 8, 11, 19, 23, 24, 25, and 31 and all of sections 43 and 47. At the time of these vetoes, Const, art. 3, § 12 provided in pertinent part:\nIf any bill presented to the governor contain several sections or items, he may object to one or more sections or items while approving other portions of the bill. In such case he shall append to the bill, at the time of signing it, a statement of the section, or sections; item or items to which he objects and the reasons therefor, and the section or sections, item or items so objected to, shall not take effect unless passed over the governor's objection, as hereinbefore provided.\nSince then, Amendment 62 has been passed which alters the Governor's item veto power. However, we are concerned only with the constitutional provision as it existed in 1973.\nEach veto must necessarily be considered separately. A few general principles should be stated at the outset, however.\nThe Governor when exercising the veto power is acting in a legislative rather than in an executive capacity. He is, in effect, a part of the legislature. Gottstein v. Lister, 88 Wash. 462, 153 P. 595 (1915); State ex rel. Stiner v. Yelle, 174 Wash. 402, 25 P.2d 91 (1933); Lynch v. Department of Labor & Indus., 19 Wn.2d 802, 145 P.2d 265 (1944); Shelton Hotel Co. v. Bates, 4 Wn.2d 498, 104 P.2d 478 (1940).\nIn order for a veto to be valid, it must pass two tests. Each of these tests is independent of the other, and if an attempted veto fails either test, it is invalid. First, the excised portion of a bill must constitute an item or section within the meaning of Const, art. 3, § 12. Moreover, what constitutes a valid item or section is a question of law for the court to decide, and does not depend upon the legislature's arrangement of the subject matter by arbitrary divisions of a bill into items or sections. Cascade Tel. Co. v. State Tax Comm'n, 176 Wash. 616, 30 P.2d 976 (1943). Second, the veto power may be exercised only in a negative way, and not in an affirmative way. That is to say, the Governor may use the veto power to prevent some act or part of an act of the legislature from becoming law. Likewise, the Governor may not use the veto power to reach a new or different result from what the legislature intended. Spokane Grain & Fuel Co. v. Lyttaker, 59 Wash. 76, 109 P. 316 (1910). In other words, the veto power must be exercised in a destructive and not a creative manner.\nAn examination of the vetoed portions of the act will be necessary in order to determine if each of the vetoes is in fact valid. Engrossed Substitute Senate Bill No. 2226, section 6, states:\nThe landlord will at all times during the tenancy keep the premises fit for human habitation, and shall in particular:\n(1) Maintain the premises to substantially comply with any applicable code, statute, ordinance, or regulation governing their maintenance or operation, which the legislative body enacting the applicable code, statute, ordinance or regulation could enforce as to the premises rented if such condition substantially endangers or impairs the health or safety of the tenant;\n(4) Provide a reasonable program for the control of infestation by insects, rodents, and other pests at the initiation of the tenancy and, except in the case of a single family residence, control infestation during tenancy except where such infestation is caused by the tenant;\n(Italics indicate vetoed sections.)\nWith regard to the portion of subsection (1), the attempted veto substantially altered the scope of the section. The effect of the subsection was increased to include all violations of code, statute, ordinance or regulation. As passed by the legislature the subsection applied only to violations \""if such condition substantially endangers or impairs the health or safety of the tenant\"". The attempted veto, therefore, had an affirmative effect.\nWith regard to the portion of subsection (4), the effect of the attempted veto would be to extend the act to apply to single family residences which were not included in the act as passed. That again attempted an affirmative result.\nSection 7 of the act states:\nIf at any time during the tenancy the landlord fails to carry out the duties required by section 6 of this 1973 amendatory act, the tenant may, in addition to pursuit of remedies otherwise provided him by law, deliver written notice to the person designated in subsection (11) of section 6 of this 1973 amendatory act, or to the person who collects the rent, which notice shall specify the premises involved, the name of the owner, if known, and the nature of the defective condition. For the purposes of this chapter, a reasonable time for the landlord to commence remedial action after receipt of such notice by the tenant shall be, except where circumstances are beyond the landlord's control;\n(1) Not more than twenty-four hours, where the defective condition deprives the tenant of water or heat or is imminently hazardous to life;\n(2) Not more than forty-eight hours, where the landlord fails to provide hot water or electricity;\n(3) Subject to the provisions of subsections (1) and (2) of this section, not more than seven days in the case of a repair under section 10 (3) of this 1973 amendatory act;\n(4) Not more than thirty days in all other cases.\nIn each instance the burden shall be on the landlord to see that remedial work under this section is completed with reasonable promptness.\nWhere circumstances beyond the landlord's control, including the availability of financing, prevent him from complying with the time limitations set fqrth in this section, he shall endeavor to remedy the defective condition with all reasonable speed.\n(Italics indicate vetoed section.)\nAgain, the portion attempted to be vetoed was a limitation or restriction upon the effectiveness of the act. Therefore, if that portion were vetoed the effect of the act is increased by removing an excuse for timely compliance which otherwise would be available to the landlord. That produces an affirmative result.\nSection 8 of the act states in part:\nThe tenant shall be current in the payment of rent including all utilities which the tenant has agreed in the rental agreement to pay before exercising any of the remedies accorded him under the provisions of this chapter:\n(Italics indicate vetoed section.)\nThis attempted veto extends the effect of the act. If the tenant is required to pay all utilities which he has agreed to pay before exercising certain remedies that is a restriction upon the right to use certain remedies. The attempted veto removes that restriction and, therefore, extends the effect of the act, and is affirmative in character.\nSection 11(1) of the act states in part:\nThe court or arbitrator may also authorize the tenant to make or contract to make further corrective repairs: Provided, That the court specifies a time period in which the landlord may make such repairs before the tenant may commence or contract for such repairs: Provided Further, That such repairs shall not exceed the sum expressed in dollars representing one month's rental of the tenant's unit in any one calendar year.\n(Italics indicate vetoed section.)\nThe portion which was the subject of the attempted veto in section 11(1) was a limitation upon the right of the tenant to contract for repairs at the expense of the landlord, which limited such right to not more than an amount equal to 1 month's rent in any year. The removal of that limitation was obviously an extension of the act and, therefore, affirmative.\nSection 19 reads in part:\nWhenever the landlord learns of a breach of section 13 of this 1973 amendatory act or has accepted performance by the tenant which is at variance with the terms of the rental agreement or rules enforceable after the commencement of the tenancy, he may immediately give notice to the tenant to remedy the nonconformance. Said notice shall expire after sixty days unless the landlord pursues any remedy under this act.\n(Italics indicate vetoed section.)\nThis section as passed by the legislature gives to the landlord the right to require the tenant to remedy noncon-formance with (a) section 13 of the act, or (b) the terms of the rental agreement, or (c) rules enforceable after the commencement of the tenancy. This all related to a single subject, the right of the landlord to require performance. It is not severable and is, therefore, not a proper item. The attempted veto must fail for that reason.\nSection 23(4) of the act states in part:\nThe common law right of the landlord of distress for rent is hereby abolished for property covered by this chapter. Any provision in a rental agreement creating a lien upon the personal property of the tenant or authorizing a distress for rent is null and void and of no force and effect. Any landlord who takes or detains the personal property of a tenant without the specific consent of the tenant to such incident of taking or detention, unless the property has been abandoned as described in section 31 of this 1973 amendatory act, and who, after written demand by the tenant for the return of his personal property, refuses or neglects to return the same promptly shall be liable to the tenant for the value of the property retained, and the prevailing party may recover his costs of suit and a reasonable attorney's fee.\n(Italics indicate vetoed sections.)\nBoth of the attempted vetoes extend the effect of the act. The first makes the landlord liable for taking or detaining personal property even if the tenant specifically consents to the same; a definite extension of the liability imposed by the act as it was passed by the legislature. The second attempted veto sought to remove from the tenant the duty to make a written demand for the return of his property, likewise a definite extension of the liability of the landlord. Both of the attempted vetoes are, therefore, affirmative in scope and effect.\nSection 24 states as follows:\nSo long as the tenant is in compliance with this chapter, the landlord shall not take or threaten to take reprisals or retaliatory action against the tenant because of any good faith and lawful:\n(1) Complaints or reports by the tenant to a governmental authority concerning the failure of the landlord to substantially comply with any code, statute, ordinance, or regulation governing the maintenance or operation of the premises, if such condition may endanger or impair the health or safety of the tenant;\n(2) Assertions or enforcement by the tenant of his rights and remedies under this chapter.\n\""Reprisal or retaliatory action\"" shall mean and include but not be limited to any of the following actions by the landlord when such actions are intended primarily to retaliate against a tenant because of the tenant's good faith and lawful act:\n(1) Eviction of the tenant other than giving a notice to terminate tenancy as provided in section 20 of this 1973 amendatory act;\n(2) Increasing the rent required of the tenant;\n(3) Reduction of services to the tenant;\n(4) Increasing the obligations of the tenant.\n(Italics indicate vetoed sections.)\nThe first of the attempted vetoes in section 24 is identical with the attempted veto in section 6(1) and the same reasons demonstrate that it is affirmative in character. The second attempted veto in the section expands the scope of the act in that it attempts to cause the act to apply to all evictions. However, the act as passed by the legislature applied to a more limited class, namely evictions excluding those provided in section 20 of the act. The Governor attempted to legislate affirmatively by use of the veto and that is not permissible.\nSection 25 of the act states in part:\nInitiation by the landlord of any action listed in section 24 of this 1973 amendatory act within ninety days after a good faith and lawful act by the tenant as enumerated in section 24 of this 1973 amendatory act, or within ninety days after any inspection or proceeding of a governmental agency resulting from such act, shall create a rebuttable presumption affecting the burden of proof, -that the action is a reprisal or retaliatory action against the tenant: Provided, That if the court finds that the tenant made a complaint or report to a governmental authority within ninety days after notice of a proposed increase in rent or other action in good faith by the landlord, there is a rebuttable presumption that the complaint or report was not made in good faith: Provided Further, That no presumption against the landlord shall arise under this section, with respect to an increase in rent, if the landlord, in a notice to the tenant of increase in rent, specifies reasonable grounds for said increase, which grounds may include a substantial increase in market value due to remedial action under this chapter: Provided Further, That the presumption of retaliation, with respect to an eviction, may be rebutted by evidence that it is not practical to make necessary repairs while the tenant remains in occupancy. In any action or eviction proceeding where the tenant prevails upon his claim or defense that the landlord has violated this section, the tenant shall be entitled to recover his costs of suit or arbitration, including a reasonable attorney's fee, and where the landlord prevails upon his claim he shall be entitled to recover his costs of suit or arbitration, including a reasonable attorney's fee: Provided Further, That neither party may recover attorney's fees to the extent that their legal services are provided at no cost to them.\n(Italics indicate vetoed section.)\nThe portion attempted to be vetoed relates to the burden of proof. If the attempted veto were to be valid the burden of proof upon the landlord would be increased and thus the effect would be affirmative.\nSection 31(2) states:\n(2) When the tenancy is for a term greater than month-to-month, the tenant shall be liable for the lesser of the following:\n(a) The entire rent due for the remainder of the term; or\n(b) All rent accrued during the period reasonably necessary to rerent the premises at a fair rental, plus the difference between such fair rental and the rent agreed to in the prior agreement, plus actual costs incurred by the landlord in rerenting the premises together with statutory court costs and reasonable attorney's fees.\n(Italics indicate vetoed section.)\nThe attempted veto, if effective, would change existing law, and would increase the burden upon the landlord. The attempted veto must be considered as a whole. The item of attorney’s fees, if it stood alone, might have been a proper subject of a veto, however, since the balance of the attempted veto is improper the whole must fail. It is, therefore, invalid as a veto.\nSection 43 of the act reads:\nThe provisions of this 1973 amendatory act shall not apply to any lease of a single family dwelling for a period of a year or more or to any lease of a single family dwelling containing a bona fide purchase by the tenant? Provided, That an attorney for the tenant must approve on the face of the agreement any lease exempted from the provisions of this act as provided for in this section.\n(Italics indicate this entire section vetoed.)\nThis veto of an entire section is definitely affirmative in character. It makes the act applicable to a substantial class of transactions which the legislature had intended to exempt from the act.\nSection 47 states:\nSections 1 through 37 of this 1973 amendatory act shall not apply to any lease entered into prior to the effective date of this 1973 amendatory act. All provisions of this 1973 amendatory act shall apply to any lease or periodic tenancy entered into on or subsequent to the effective date of this 1973 amendatory act.\n(Italics indicate this entire section vetoed.)\nThis attempted veto of a whole section would have had the effect of extending the act to leases entered into prior to the effective date of the act. Without the necessity of discussion of possible impairment of contract versus the police power, there can be no doubt this extends the effect of the act and is, therefore, affirmative.\nFor the reasons stated in connection with each of the attempted vetoes, the decision of the trial court is affirmed in whole and the attempted vetoes are hereby found in each instance to be invalid.\nRosellini, Hamilton, Stafford, Utter, Brachtenbach, and Horowitz, JJ., and Langsdorf, J. Pro Tem., concur."", ""type"": ""majority"", ""author"": ""Wright, C.J.""}], ""attorneys"": [""Slade Gorton, Attorney General, Malachy R. Murphy, Deputy, and Wayne L. Williams and Carol A. Smith, Assistants, for appellants."", ""Merges, Youngberg, Goucher, Allen, Larson & Brain, Edwards E. Merges, Nicolai, Sorrel, Binns & Beck, and Max R. Nicolai, for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 43879.\nEn Banc.\nMay 26, 1977.]\nWashington Association of Apartment Associations, Inc., et al, Respondents, v. Daniel J. Evans, as Governor, et al, Appellants.\nSlade Gorton, Attorney General, Malachy R. Murphy, Deputy, and Wayne L. Williams and Carol A. Smith, Assistants, for appellants.\nMerges, Youngberg, Goucher, Allen, Larson & Brain, Edwards E. Merges, Nicolai, Sorrel, Binns & Beck, and Max R. Nicolai, for respondents.""}, ""cites_to"": [{""cite"": ""109 P. 316"", ""year"": 1910, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""59 Wash. 76"", ""year"": 1910, ""case_ids"": [527842], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/59/0076-01""], ""opinion_index"": 0}, {""cite"": ""30 P.2d 976"", ""year"": 1943, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""176 Wash. 616"", ""year"": 1943, ""case_ids"": [862645], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/176/0616-01""], ""opinion_index"": 0}, {""cite"": ""104 P.2d 478"", ""year"": 1940, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""4 Wn.2d 498"", ""year"": 1940, ""case_ids"": [5280898], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/4/0498-01""], ""opinion_index"": 0}, {""cite"": ""145 P.2d 265"", ""year"": 1944, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""19 Wn.2d 802"", ""year"": 1944, ""case_ids"": [2590646], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/19/0802-01""], ""opinion_index"": 0}, {""cite"": ""25 P.2d 91"", ""year"": 1933, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""174 Wash. 402"", ""year"": 1933, ""case_ids"": [867091], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/174/0402-01""], ""opinion_index"": 0}, {""cite"": ""153 P. 595"", ""year"": 1915, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""88 Wash. 462"", ""year"": 1915, ""case_ids"": [649056], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/88/0462-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""88 Wash. 2d 563"", ""type"": ""official""}], ""file_name"": ""0563-01"", ""last_page"": ""573"", ""first_page"": ""563"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T19:07:06.505577+00:00"", ""decision_date"": ""1977-05-26"", ""docket_number"": ""No. 43879"", ""last_page_order"": 609, ""first_page_order"": 597, ""name_abbreviation"": ""Washington Ass'n of Apartment Associations v. 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+1151217,"{""id"": 1151217, ""name"": ""Bruce Wilson, et al, Petitioners, v. Glen L. Steinbach, et al, Respondents"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""f255e7d5c47e90a60989552eb6c3b9a8b8a6d817ac288ff5af49052ab436faeb"", ""simhash"": ""1:f7e771a6be031f75"", ""pagerank"": {""raw"": 0.000007827946281271999, ""percentile"": 0.9994069152294207}, ""char_count"": 16763, ""word_count"": 2767, ""cardinality"": 915, ""ocr_confidence"": 0.827}, ""casebody"": {""judges"": [], ""parties"": [""Bruce Wilson, et al, Petitioners, v. Glen L. Steinbach, et al, Respondents.""], ""opinions"": [{""text"": ""Williams, J.\nPetitioners Bruce and Carolyn Wilson, the surviving parents, and the estate of Shelly L. Wilson brought this negligence action seeking damages from respondents Glen L. and Jane Doe Steinbach under the wrongful death and survival action statutes, RCW 4.20.010 and RCW 4.20.046. The trial court granted respondents' motion for summary judgment and dismissed the claims. In an unpublished per curiam opinion, Division One of the Court of Appeals affirmed the trial court's entry of summary judgment against petitioners. Wilson v. Steinbach, 31 Wn. App. 1012 (1982). We likewise affirm.\nShelly L. Wilson, age 19, was engaged to be married to respondents' son, Gerald Steinbach. On the evening of December 23, 1978, and in the early morning hours of December 24, 1978, Ms. Wilson attended a pre-Christmas party hosted by respondents. The beverages available at the party included two bottles of liquor provided by respondents, but guests were also encouraged to bring their own beverages if they so desired. While at the home of respondents, Shelly Wilson consumed an undetermined amount of alcoholic beverages. It is unknown whether Ms. Wilson consumed alcoholic beverages before attending respondents' party. Upon leaving the party with Gerald Steinbach as her passenger, Shelly Wilson lost control of her vehicle, struck a utility pole, and was killed. Counsel for petitioners alleged that, at the time of her death, Shelly Wilson's blood alcohol content was .19 percent. The evidence before the trial court on summary judgment, however, did not substantiate this allegation.\nPetitioners commenced this lawsuit on November 9, 1979, alleging negligence on the part of respondents in permitting Shelly Wilson to become intoxicated and thereafter operate a motor vehicle. Respondents answered by denying liability and asserting, as an affirmative defense, Ms. Wilson's own negligence as the proximate cause of her death. Respondents then moved for summary judgment based on the pleadings and the affidavits of Glen L. Steinbach, Carol Steinbach, and Gerald Steinbach. Petitioners countered with an affidavit of their legal counsel which set forth no facts to contravene the factual assertions of the three Steinbach affidavits. The trial court granted respondents' motion for summary judgment and dismissed the action. The Court of Appeals, Division One, affirmed. Wilson v. Steinbach, supra. We then granted petitioners' petition for review.\nSince the trial court decided the liability issue in this case on an order of summary judgment, we must engage in the same inquiry as the trial court. Highline Sch. Dist. 401 v. Port of Seattle, 87 Wn.2d 6, 15, 548 P.2d 1085 (1976). A summary judgment motion under CR 56(c) can be granted only if the pleadings, affidavits, depositions, and admissions on file demonstrate there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Barrie v. Hosts of Am., Inc., 94 Wn.2d 640, 642, 618 P.2d 96 (1980). The court must consider all facts submitted and all reasonable inferences from the facts in the light most favorable to the nonmoving party. Yakima Fruit & Cold Storage Co. v. Central Heating & Plumbing Co., 81 Wn.2d 528, 530, 503 P.2d 108 (1972); Barber v. Bankers Life & Cas. Co., 81 Wn.2d 140, 142, 500 P.2d 88 (1972). The motion should be granted only if, from all the evidence, reasonable persons could reach but one conclusion. Morris v. McNicol, 83 Wn.2d 491, 494-95, 519 P.2d 7 (1974).\nPrior to 1955, Washington had a \""Dramshop Act\"" (formerly RCW 4.24.100) which provided a civil cause of action to those injured by an intoxicated person against any person who, by providing intoxicating liquors, caused the intoxication of such person. In 1955, the Legislature repealed that act. Laws of 1955, ch. 372, § 1, p. 1538. Since that time, the applicable law has been the following:\nIt is generally held that there can be no cause of action against one furnishing liqiuor in favor of those injured by the intoxication of the person so furnished, even though the liquor was sold or given to one in violation of a law other than under a civil damage act, so long as the person to whom the liquor was sold or given was not in such a state of helplessness or debauchery as to be deprived of his will power or responsibility for his behavior.\nHalvorson v. Birchfield Boiler, Inc., 76 Wn.2d 759, 762, 458 P.2d 897 (1969), quoting with approval from 30 Am. Jur. Intoxicating Liquors § 521 (1958). Accord, Hulse v. Driver, 11 Wn. App. 509, 512-14, 524 P.2d 255 (1974). In Halvorson, we recognized and adopted the general common law rule of nonliability for furnishing intoxicants to an able-bodied person, while simultaneously recognizing the exceptions to the rule for obviously intoxicated persons, persons in a state of helplessness, or persons in a special relationship to the furnisher of intoxicants. Halvorson, at 762-63.\nIn the instant case, the trial court considered the pleadings and affidavits of Glen L. Steinbach, Carol Steinbach, and Gerald Steinbach in determining the summary judgment motion. A careful review of these documents indicates petitioners have failed to establish that Shelly Wilson was in an obviously intoxicated or helpless condition at respondents' home that night. The uncontroverted affidavits of each of the Steinbachs indicate that none of them had any indication Shelly Wilson was intoxicated and each believed she acted in a \""responsible and ladylike\"" manner. Clerk's Papers, at 8.\nThe trial court also considered the opposing affidavit of Timothy W. Carpenter, attorney for petitioners. As we noted in Meadows v. Grant's Auto Brokers, Inc., 71 Wn.2d 874, 880, 431 P.2d 216 (1967), an attorney's affidavit is entitled to the same consideration as any other affidavit based upon personal knowledge if the affidavit is based upon the attorney's own knowledge of the facts set forth therein. Here, however, the attorney's affidavit sets out no facts based on his personal knowledge of the case. Instead, the affidavit contains legal and factual arguments used to question the credibility of each of the Steinbach affiants. There is nothing in Mr. Carpenter’s affidavit to contravene the factual assertions of the Steinbachs and thus it cannot place into issue the material fact of whether Shelly Wilson appeared to be extremely intoxicated. The settled rule in this state as to actions based on the Halvorson line of cases is that a person's sobriety must be judged by the way she appeared to those around her, not by what a blood alcohol test may subsequently reveal. Barrie v. Hosts of Am., Inc., supra at 643 n.1; Shelby v. Keck, 85 Wn.2d 911, 915, 541 P.2d 365 (1975). The affidavits clearly state the Steinbachs' belief that Ms. Wilson manifested no signs of intoxication on the night in question and appeared sober and \""ladylike\"" at the party. This is supported by the fact that respondents had no objections to their son being a passenger in Ms. Wilson's car. Under the Halvorson rule, the trial court's dismissal of petitioners' claims by summary judgment was proper.\nPetitioners attempt to avoid this result by arguing that respondents had a greater duty toward Ms. Wilson as a guest in their home than the defendant in Halvorson had to the injured third party. In other words, petitioners seek a rule which would require differing duties and render different results depending on the identity of the victim. We find this argument wholly unpersuasive. Recently, in the context of the family or household exclusion clause in automobile insurance policies, we rejected just such an attempt to justify different results based on the identity of the injured victims as violative of this state's public policy. See Mutual of Enumclaw Ins. Co. v. Wiscomb, 97 Wn.2d 203, 209, 643 P.2d 441 (1982). Our decision in Wiscomb was premised partially on the realization that exclusions based on the identity of the injured party permit such distinctions to divert attention from the real issue of the conduct of the driver—the party who is or may be negligent. Wiscomb, at 209. We discern no better reason under these circumstances to reach a different result based on the identity of the injured party, whether it be the guest herself or a third party injured by the guest. The relevant inquiry here is whether the standard of care enunciated in Halvorson was observed or breached by respondents. Without a showing that Ms. Wilson appeared obviously intoxicated, helpless, or was in some special relationship with respondents, we find no basis for a cause of action under Halvorson.\nNext, petitioners and amici on behalf of Washington State Trial Lawyers Association contend petitioners should be permitted to avoid the Halvorson rule by establishing that respondents were negligent per se. See Callan v. O'Neil, 20 Wn. App. 32, 39-40, 578 P.2d 890 (1978). Petitioners premise this theory on the standard of conduct required by RCW 26.28.080(4) and RCW 66.44.270, both of which prohibit the furnishing or selling of intoxicating liquors to persons under 21 years of age. But see RCW 66.44-.270 (unlawful for person under 21 years of age to acquire, possess, or consume liquor) and RCW 66.44.290 (unlawful for person under 21 years of age to purchase or attempt to purchase liquor).\nPetitioners did not raise the theory of negligence per se either in their pleadings or in argument to the trial court. This particular theory of recovery was first raised at the Court of Appeals. This is too late. The general rule in this state is that, except as to issues of manifest error affecting a constitutional right, we will not consider an issue or theory raised for the first time on appeal. Peoples Nat'l Bank v. Peterson, 82 Wn.2d 822, 829-30, 514 P.2d 159 (1973); Dawson v. Troxel, 17 Wn. App. 129, 131, 561 P.2d 694 (1977). Since petitioners' negligence per se theory was not raised in a timely fashion at the trial court, it falls squarely within the above rule. We therefore do not reach or decide the merits of petitioners' theory of negligence per se.\nFinally, petitioners argue that despite the Halvorson rule, this court can change the common law rule to permit actions for negligence where social hosts serve liquor to minors. In favor of this proposition, petitioners cite Wiener v. Gamma Phi Chapter of Alpha Tau Omega Fraternity, 258 Or. 632, 485 P.2d 18 (1971). In Wiener, a fraternity was found negligent for serving alcohol to a minor who subsequently injured a third party in an automobile accident. The court held that while a host is ordinarily not liable for injuries caused to third persons by intoxicated guests, there may be circumstances in which the host has a duty to deny his guests further access to alcohol.\nThe Wiener court emphasized, however, that each case must be determined on its own facts. Respondents concede that situations may arise where liability may be appropriate such as where the minor is very young and incapable of consenting to consume alcohol, where there is a great degree of social pressure on the minor to drink, or where extreme intoxication is a primary purpose in supplying liquor. Whether these or other factors would fall within the exceptions to the general rule of nonliability which we specifically set forth in Halvorson, at pages 762-63, is a question to be decided another day. In the case now before us Ms. Wilson was 19 years old, she apparently was acting and being treated as an adult, and there is no indication of pressure exerted upon her to drink to excess. Thus, under the limited facts of this case, we see no reason at this time to alter the rule of Halvorson.\nPreviously, we have stated that the proper body to change the law in this area is the Legislature.\nIt may be that the social and economic consequences of \""mixing gasoline and liquor\"" should lead to a rule of accountability by those who furnish intoxicants to one who becomes a tort-feasor by reason of intoxication, but such a policy decision should be made by the legislature after full investigation, debate and examination of the relative merits of the conflicting positions.\n(Citations omitted. Italics ours.) Halvorson v. Birchfield Boiler, Inc., 76 Wn.2d 759, 765, 458 P.2d 897 (1969). See also Hulse v. Driver, 11 Wn. App. 509, 513-14, 524 P.2d 255 (1974). It has now been 13 years since the above words were written and they are no less true today than they were then. We continue to believe that if any change is to be made as to the civil liability of those who furnish intoxicants to persons who cause injury or death by reason of intoxication, that change should be by legislative mandate.\nThe Court of Appeals is affirmed.\nBrachtenbach, C.J., Stafford, Dolliver, Dore, Dim-mick, and Pearson, JJ., and Cunningham, J. Pro Tern., concur.\nBy Laws of 1955, ch. 372, § 1, p. 1538, the Legislature repealed the \""Dram-shop Act\"", which provided: \""Every husband, wife, child, parent, guardian, employe, or other person who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action, in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving intoxicating liquors, have caused the intoxication of such person, for all damages sustained, and the same may be recovered in a civil action in any court of competent jurisdiction. On the trial of such action, the plaintiff or plaintiffs must prove that such intoxicating liquors were sold under circumstances sufficient to lead a man of ordinary intelligence to believe that such sale would probably result in intoxication.\"" Laws of 1905, ch. 62, § 1, p. 120 (formerly RCW 4.24.100)."", ""type"": ""majority"", ""author"": ""Williams, J.""}, {""text"": ""Utter, J.\n(concurring)—For reasons set forth in the majority opinion, there has been a failure of admissible proof that the minor decedent was affected by consumption of alcohol served at the Steinbach home. Had the proof been sufficient, I would reach a result different from that favored by the majority.\nIn 1966 this court in Halvorson v. Birchfield Boiler, Inc., 76 Wn.2d 759, 765, 458 P.2d 897 (1969) decided \"" [i]t may be that the social and economic consequences of 'mixing gasoline and liquor' should lead to a rule of accountability by those who furnish intoxicants to one who becomes a tort-feasor by reason of intoxication, but such a policy decision should be made by the legislature after full investigation, debate and examination of the relative merits of the conflicting positions.\""\nThe dissent in that case is more persuasive to me. The dissent noted, at page 768:\nLegislation is not required and never has been. The instant case is one peculiarly suited to the judicial process. The ever-growing carnage on our highways is notorious. So is the relation between drunken driving and accidents. Plaintiff has alleged a clear and compelling factual case for foreseeable negligent harm, and this lawsuit is in that posture where inferences drawn from the allegations must be those most favorable to the plaintiff.\nIt requires no legislative fact-finding to establish that risk-creating conduct existed on the facts alleged. Legislative inaction is not proof of inexorable social or public policy. ... If that determination is consistent with the analytic framework of the law of torts, it is legitimate and should be effectuated modernly in this appellate court.\nThe author of the dissent then proceeds to frame the issue as whether the common law right of action for negligence should be abridged by judicially created barrier to recovery, and states, at page 770:\nIt should be clear to any responsible citizen that automobile accidents of the sort upon which this suit is brought are the foreseeable result of furnishing drink to alcoholic drivers, if not perhaps the foreseeable result of furnishing excessive drink to anyone driving a high-powered modern automobile on a public thoroughfare. The majority's denial of liability is based on its own reasoning as to social policy, which I believe is unnecessarily limited.\nNeedless to say, I find this language and the rest of the dissent persuasive and, if the facts proven in this case were sufficient, I would adopt the position of the four dissenters in Halvorson and hold a common law right of recovery could and should be found to exist in this case."", ""type"": ""concurrence"", ""author"": ""Utter, J.""}], ""attorneys"": [""Timothy W. Carpenter, for petitioners."", ""Pinckney M. Rohrback and Keller, Rohrback, Waldo & Hiscock, for respondents."", ""Bryan P. Harnetiaux and Robert H. Whaley on behalf of Washington Trial Lawyers Association, amici curiae for petitioners.""], ""corrections"": """", ""head_matter"": ""[No. 48565-8.\nEn Banc.\nDecember 29, 1982.]\nBruce Wilson, et al, Petitioners, v. Glen L. Steinbach, et al, Respondents.\nTimothy W. Carpenter, for petitioners.\nPinckney M. Rohrback and Keller, Rohrback, Waldo & Hiscock, for respondents.\nBryan P. Harnetiaux and Robert H. Whaley on behalf of Washington Trial Lawyers Association, amici curiae for petitioners.""}, ""cites_to"": [{""cite"": ""258 Or. 632"", ""year"": 1971, ""weight"": 2, ""case_ids"": [2109973], ""category"": ""reporters:state"", ""reporter"": ""Or."", ""case_paths"": [""/or/258/0632-01""], ""opinion_index"": 0}, {""cite"": ""561 P.2d 694"", ""year"": 1977, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""17 Wn. App. 129"", ""year"": 1977, ""case_ids"": [1774094], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""131""}], ""case_paths"": [""/wash-app/17/0129-01""], ""opinion_index"": 0}, {""cite"": ""514 P.2d 159"", ""year"": 1973, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""82 Wn.2d 822"", ""year"": 1973, ""case_ids"": [1130141], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""829-30""}], ""case_paths"": [""/wash-2d/82/0822-01""], ""opinion_index"": 0}, {""cite"": ""578 P.2d 890"", ""year"": 1978, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""20 Wn. App. 32"", ""year"": 1978, ""case_ids"": [464800], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""39-40""}], ""case_paths"": [""/wash-app/20/0032-01""], ""opinion_index"": 0}, {""cite"": ""643 P.2d 441"", ""year"": 1982, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""97 Wn.2d 203"", ""year"": 1982, ""case_ids"": [1154940], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""209""}], ""case_paths"": [""/wash-2d/97/0203-01""], ""opinion_index"": 0}, {""cite"": ""541 P.2d 365"", ""year"": 1975, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""85 Wn.2d 911"", ""year"": 1975, ""case_ids"": [1120432], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""915""}], ""case_paths"": [""/wash-2d/85/0911-01""], ""opinion_index"": 0}, {""cite"": ""431 P.2d 216"", ""year"": 1967, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""71 Wn.2d 874"", ""year"": 1967, ""case_ids"": [1095242], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""880""}], ""case_paths"": [""/wash-2d/71/0874-01""], ""opinion_index"": 0}, {""cite"": ""524 P.2d 255"", ""year"": 1974, ""weight"": 2, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""11 Wn. App. 509"", ""year"": 1974, ""weight"": 2, ""case_ids"": [1853609], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""512-14""}, {""page"": ""513-14""}], ""case_paths"": [""/wash-app/11/0509-01""], ""opinion_index"": 0}, {""cite"": ""458 P.2d 897"", ""year"": 1969, ""weight"": 2, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""76 Wn.2d 759"", ""year"": 1969, ""weight"": 2, ""case_ids"": [1080106], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""762""}, {""page"": ""765""}], ""case_paths"": [""/wash-2d/76/0759-01""], ""opinion_index"": 0}, {""cite"": ""519 P.2d 7"", ""year"": 1974, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""83 Wn.2d 491"", ""year"": 1974, ""case_ids"": [1127858], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""494-95""}], ""case_paths"": [""/wash-2d/83/0491-01""], ""opinion_index"": 0}, {""cite"": ""500 P.2d 88"", ""year"": 1972, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""81 Wn.2d 140"", ""year"": 1972, ""case_ids"": [1064110], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""142""}], ""case_paths"": [""/wash-2d/81/0140-01""], ""opinion_index"": 0}, {""cite"": ""503 P.2d 108"", ""year"": 1972, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""81 Wn.2d 528"", ""year"": 1972, ""case_ids"": [1064057], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""530""}], ""case_paths"": [""/wash-2d/81/0528-01""], ""opinion_index"": 0}, {""cite"": ""618 P.2d 96"", ""year"": 1980, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""94 Wn.2d 640"", ""year"": 1980, ""case_ids"": [1164021], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""642""}], ""case_paths"": [""/wash-2d/94/0640-01""], ""opinion_index"": 0}, {""cite"": ""548 P.2d 1085"", ""year"": 1976, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""87 Wn.2d 6"", ""year"": 1976, ""case_ids"": [1113756], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""15""}], ""case_paths"": [""/wash-2d/87/0006-01""], ""opinion_index"": 0}, {""cite"": ""31 Wn. 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+1157262,"{""id"": 1157262, ""name"": ""Deborah Bagley vs. Monticello Insurance Company"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""899364ebd73bbfd20282107c735bf451c91d9682ca405140056b27f15ba5d487"", ""simhash"": ""1:776ec34cb70116a5"", ""pagerank"": {""raw"": 0.0000006625618348390946, ""percentile"": 0.9620002942256479}, ""char_count"": 15519, ""word_count"": 2461, ""cardinality"": 774, ""ocr_confidence"": 0.898}, ""casebody"": {""judges"": [], ""parties"": [""Deborah Bagley vs. Monticello Insurance Company.""], ""opinions"": [{""text"": ""Greaney, J.\nWe granted the plaintiff’s application for direct appellate review to decide whether exclusionary provisions contained in an insurance policy issued by the defendant, Monticello Insurance Company (Monticello), precluded coverage for a judgment the plaintiff obtained against Monticello’s insured, Trader Alan’s Fifth Wheel, Inc. (Trader Alan’s). The plaintiff recovered the judgment in the underlying action after she had been assaulted and raped while staying at Trader Alan’s motel. The plaintiff filed this action in the Superior Court against Monticello seeking to reach and apply its policy proceeds to satisfy the judgment against Trader Alan’s. The plaintiff’s motion for summary judgment was allowed as to the portion of her damages attributable to the rape, and Monticello appealed. Monticello contends that there is no coverage for the damages attributable to the rape because of the unambiguous language of the policy’s assault and battery exclusion, absolute liquor exclusion, or illegal acts exclusion. We conclude that the illegal acts exclusion bars coverage of the plaintiff’s damages for the rape, and, accordingly, we need not consider whether those damages are barred by the other two exclusions. We also need not consider Monticello’s other contentions. We, therefore, vacate the judgment.\nThe factual and procedural background of the case may be summarized as follows. On April 19, 1993, the plaintiff was a patron of Trader Alan’s, a truck stop that included a restaurant and a motel. The plaintiff drank alcoholic beverages at the bar and became visibly intoxicated. Despite the plaintiff’s visible intoxication, Trader Alan’s employees continued to serve her alcoholic beverages. Patrick M. Harper (Harper), another customer at the bar, was also served alcoholic beverages although he, too, was visibly intoxicated. Later that evening, according to the plaintiff’s complaint, “employees of [Trader Alan’s] negligently allowed Patrick Harper, who was intoxicated, to take the plaintiff, who was intoxicated, to his hotel room which was owned by and under the control of [Trader Alan’s].” While in the motel room, Harper blindfolded and tied up Bagley and brutally beat and raped her for several horns. Trader Alan’s employees were made aware of Bagley’s screams for help during this attack, but they failed to obtain help or take any steps to assist the plaintiff. The plaintiff eventually escaped the following morning.\nIn the underlying action, the plaintiff sued Trader Alan’s alleging negligent failure to provide reasonable security against assault and negligent service of liquor to an intoxicated person who subsequently injured her. The plaintiff subsequently amended the complaint to delete the claim for dram shop liability. A judge in the Superior Court granted the plaintiff’s motion for summary judgment on liability, and a hearing to assess damages followed. At the damages hearing, the plaintiff presented a psychiatrist who had expertise in posttraumatic stress disorder and rape trauma syndrome. The psychiatrist testified on the plaintiff’s physical and psychological injuries resulting from the rape and the assault and battery. The judge awarded the plaintiff two million dollars in damages, apportioning seventy-five per cent of the damages to the plaintiff’s physical injuries from the assault and battery and twenty-five per cent to her psychological injuries caused by the rape.\nThe plaintiff then filed this action against Monticello, after it refused to pay the judgment against Trader Alan’s, seeking to reach and apply the limits of the policy proceeds to recover all her damages. Monticello argued that coverage was barred under one or more of the policy’s three exclusions: assault and battery exclusion, absolute liquor exclusion, or illegal acts exclusion. A judge in the Superior Court (not the same judge who decided the underlying action) granted the plaintiff summary judgment, permitting her to recover from Monticello for the psychological damages attributable to the rape, but barring her from recovering damages for the assault and battery on the basis of the policy’s assault and battery exclusion. This appeal followed.\nWe turn directly to the effect of the illegal acts exclusion, which reads as follows:\n“All coverage is excluded hereunder for any claim which arises wholly or in part out of allegations of violation of any federal, state, or local statute, ordinance, or law. This exclusion shall specifically include but not be limited to any sexual misconduct committed or alleged to have been committed by any Insured or Additional Named Insured.”\nThe judge concluded that the plaintiff’s recovery for the damages associated with the rape was not barred by this exclusion for three reasons. First, the judge read the exclusion to apply only to illegal acts committed by Trader Alan’s or its employees, not a third party such as Harper. Second, the judge reasoned that the exclusion was not relevant because the plaintiff’s claim “sound[ed] in common law negligence, not the statutory crime of rape.” Finally, the judge concluded that the policy would be illusory if construed to exclude coverage for claims arising from illegal acts. The plaintiff argues that each of these grounds is correct. We agree with the defendant that none of the reasons precludes the application of the exclusion.\nThe language on which the judge relied as the first basis for finding the exclusion inapplicable (“by any Insured or Additional Named Insured”) is preceded by the general and nonexclusive phrase “including] but not be limited to.” The exclusion read as a whole, by its clear and unambiguous language, does not limit its application only to the acts of those who are expressly insured, but rather operates all inclusively. See Moriarty v. Stone, 41 Mass. App. Ct. 151, 157 (1996). See also Doe v. Superintendent of Schs. of Worcester, 421 Mass. 117, 128 (1995). By its terms, the exclusion cannot be read in the restrictive manner adopted by the judge.\nWe also reject the second ground relied on by the judge — that the exclusion is not relevant to the plaintiff’s claim because her action is based on negligence, not on any allegation of an illegal act. The plaintiff’s complaint should not be read so narrowly. The exclusion, by its express terms, applies to any claim which “arises wholly or in part out of” an illegal act. Words in exclusionary clauses of insurance contracts should be construed “in their usual and ordinary sense.” Liquor Liab. Joint Underwriting Ass’n of Mass. v. Hermitage Ins. Co., 419 Mass. 316, 320 (1995), quoting Barnstable County Mut. Fire Ins. Co. v. Lally, 374 Mass. 602, 605 (1978). See United Nat’l Ins. Co. v. Parish, 48 Mass. App. Ct. 67, 70 (1999), and cases cited. The phrase “arising out of” must be read expansively, incorporating a greater range of causation than that encompassed by proximate cause under tort law. See Rischitelli v. Safety Ins. Co., 423 Mass. 703, 704 (1996); United Nat’l Ins. Co. v. Parish, supra. Indeed, cases interpreting the phrase “arising out of” in insurance exclusionary provisions suggest a causation more analogous to “but for” causation, in which the court examining the exclusion inquires whether there would have been personal injuries, and a basis for the plaintiff’s suit, in the absence of the objectionable underlying conduct. Id. at 70-71. See New England Mut. Life Ins. Co. v. Liberty Mut. Ins. Co., 40 Mass. App. Ct. 722, 727 (1996) (without the underlying illegal acts there would have been no injuries, and, therefore, no basis for a lawsuit against the insureds for negligence, misrepresentation, and loss of consortium).\nA fair reading of the plaintiff’s complaint in the underlying action indicates that her claim against Trader Alan’s, and her resulting injuries, had their genesis in Harper’s illegal acts. For instance, the plaintiff alleges in her complaint that “Mr. Harper brutally and viciously raped [her] for several hours and attempted to murder her.” The plaintiff also alleges that the “duty” Trader’s Alan breached was “to protect [her] against the foreseeable criminal actions of a third party, Patrick M. Harper” (emphasis added). Furthermore, the plaintiff alleges that she “suffered severe physical and psychological injuries; underwent medical treatment and incurred expenses; sustained severe and permanent psychological damages; sustained an impairment of earning capacity and other injuries; and shall incur medical expenses in the future.” Although the plaintiff asserts that these damages were a “direct and proximate result of the defendant’s negligence,” her physical and emotional injuries are more appropriately attributable to Harper’s brutal attack than any action or inaction by Trader Alan’s. In fact, the plaintiff’s argument at the assessment of damages hearing, and much of her argument on appeal, revolve around her emotional and physical injuries as a victim of a brutal rape and assault and battery, not as the victim of negligent conduct by Trader Alan’s employees.\n“It is the source from which the plaintiff’s personal injury originates rather than the specific theories of liability alleged in the complaint which determines the insurer’s duty to defend” (emphasis added). New England Mut. Life Ins. Co. v. Liberty Mut. Ins. Co., supra at 727. This principle has been consistently applied in insurance law. See, e.g., Continental Cas. Co. v. Richmond, 763 F.2d 1076, 1081 (9th Cir. 1985) (claims of civil rights violations and wrongful death brought by three minor children all had their genesis in decedent’s injuries which were caused by an excluded act); Colorado Farm Bur. Mut. Ins. Co. v. Snowbarger, 934 P.2d 909, 912 (Colo. Ct. App. 1997) (no duty to defend where damages claimed as a result of negligence stemmed directly from a sexual assault that fell within the intentional acts exclusion of the policy); First Wyoming Bank v. Continental Ins. Co., 860 P.2d 1094, 1099 (Wyo. 1993) (insurer’s duty to defend not triggered by claim labeled “negligence” when facts demonstrated that alleged losses were caused by act for which there was no duty to defend). These, of course, are duty to defend cases. An insurer’s duty to defend is broader than its duty to indemnify. Doe v. Liberty Mut. Ins. Co., 423 Mass. 366, 368 (1996). If an insurer has no duty to defend, based on the allegations in the plaintiff’s complaint, it necessarily follows that the insurer does not have a duty to indemnify. See United Nat’l Ins. Co. v. Parish, supra at 72-73. Therefore, the reasoning behind the duty to defend cases applies with equal force to the duty to indemnify in this case. A contrary result would allow a plaintiff to circumvent a bar to coverage by carefully drafting a complaint to avoid an exclusion. See Bayudan v. Tradewind Ins. Co., 87 Haw. 379, 387 (Ct. App. 1998), and cases cited.\nFinally, we reject the third ground relied on by the judge — the contention that a strict reading of the exclusion renders Monticello’s policy illusory. “A provision in an insurance policy that negates the very coverage that the policy purports to provide in the circumstances where the person is hable is void as against public policy.” Liberty Mut. Ins. Co. v. Tabor, 407 Mass. 354, 358 (1990). However, if the policy still provides coverage for some acts, it is not illusory simply because of a potentially wide exclusion. See Smart v. Safety Ins. Co., 419 Mass. 144, 147-148 (1994).\nIn Smart, we rejected the plaintiff’s argument that underin-sured motorist coverage in an amount equal to that required by compulsory coverage in Massachusetts was illusory. Id. We concluded that, where there were other instances in which coverage would still be provided under the policy, namely, when the tortfeasor was operating an out-of-State vehicle with less liability coverage than the underinsured coverage, the policy still had value to the insured. Id. Consequently, the policy “was not illusory.” Id. at 148. This was true even though, as a practical matter, application of the provision resulted in very limited coverage. Id. at 147-148. Contrast Liberty Mut. Ins. Co. v. Tabor, supra at 358 (automobile rental agreement’s redefinition of “accident” rendered entire policy illusory because there was no coverage for the very thing [negligent conduct] for which the insured sought coverage).\nIn the present case, Monticello’s policy is a “simplified policy” which “provide[s] coverage for everything that’s not excluded.” The policy by no means contemplates extensive and exhaustive coverage for a wide array of mishaps when read in conjunction with the particular exclusions. In fact, the very first sentence of the policy’s coverage form warns: “Various provisions in this policy restrict coverage. Read the entire policy carefully to determine rights, duties and what is and is not covered.” However, short of the policy’s being void on public policy grounds, which we conclude it is not, the parties were free to negotiate and contract for whatever coverage limits they mutually desired. The clear and straightforward language of the illegal acts exclusion could not have caused Trader Alan’s to expect that it was buying insurance which covered damages resulting from illegal acts. See Leinas v. Liberty Mut. Ins. Co., 37 Mass. App. Ct. 952, 953 (1994). This is especially so with regard to criminal acts which are the most obvious illegal acts an insurer will want to exclude from coverage. The policy provides basic liability coverage, which appears to be all that was bargained for.\nThe amended judgment dated November 4, 1998, is vacated. The case is remanded to the Superior Court where a judgment is to enter for Monticello.\nSo ordered.\nThe plaintiff no longer seeks recovery for the seventy-five per cent of the underlying judgment attributable to her damages for the assault and battery. Any recovery for these damages would be barred by the assault and battery exclusion.\nBecause the terms of the exclusion are “plain and free from ambiguity ... we do not, as the [plaintiff] suggests, construe them strictly against the insurer” (citation omitted). Barnstable County Mut. Fire Ins. Co. v. Lally, 374 Mass. 602, 605 (1978).\nThis, in fact, may have been the strategy behind the plaintiff’s voluntarily dropping her claim for negligent service of alcohol that appeared in her original complaint."", ""type"": ""majority"", ""author"": ""Greaney, J.""}], ""attorneys"": [""Edward L. Kirby, Jr. (Lauren A. Boice with him) for the defendant."", ""Mark F. Itzkowitz for the plaintiff."", ""Toni G. Wolfman & Joseph P. Liu for The Women’s Bar Association of Massachusetts & another, amici curiae, submitted a brief.""], ""corrections"": """", ""head_matter"": ""Deborah Bagley vs. Monticello Insurance Company.\nEssex.\nNovember 1, 1999.\nDecember 15, 1999.\nPresent: Marshall, C.J., Abrams, Lynch, Greaney, Ireland, Spina, & Cowin, JJ.\nInsurance, Coverage, Construction of policy, Illegal acts exclusion. Contract, Insurance.\nIn an action to reach and apply the proceeds of an insurance policy, brought by a plaintiff to satisfy a judgment for emotional injuries suffered as a result of being raped on the premises of a motel, the illegal acts exclusion in the policy operated to bar coverage and, thus, recovery by the plaintiff under the policy. [456-460]\nCivil actions commenced in the Superior Court Department on February 9, 1995, and February 27, 1995, respectively.\nAfter consolidation, the cases were heard by Richard E. Welch, III, J., on motions for summary judgment.\nThe Supreme Judicial Court granted an application for direct appellate review.\nEdward L. Kirby, Jr. (Lauren A. Boice with him) for the defendant.\nMark F. Itzkowitz for the plaintiff.\nToni G. Wolfman & Joseph P. Liu for The Women’s Bar Association of Massachusetts & another, amici curiae, submitted a brief.""}, ""cites_to"": [{""cite"": ""37 Mass. App. Ct. 952"", ""year"": 1994, ""case_ids"": [4019118], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""953""}], ""case_paths"": [""/mass-app-ct/37/0952-01""], ""opinion_index"": 0}, {""cite"": ""419 Mass. 144"", ""year"": 1994, ""weight"": 5, ""case_ids"": [823648], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""147-148""}, {""page"": ""148""}, {""page"": ""147-148""}], ""case_paths"": [""/mass/419/0144-01""], ""opinion_index"": 0}, {""cite"": ""407 Mass. 354"", ""year"": 1990, ""weight"": 2, ""case_ids"": [3887129], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""358""}, {""page"": ""358"", ""parenthetical"": ""automobile rental agreement's redefinition of \""accident\"" rendered entire policy illusory because there was no coverage for the very thing [negligent conduct] for which the insured sought coverage""}], ""case_paths"": [""/mass/407/0354-01""], ""opinion_index"": 0}, {""cite"": ""87 Haw. 379"", ""year"": 1998, ""case_ids"": [12266112], ""category"": ""reporters:state"", ""reporter"": ""Haw."", ""pin_cites"": [{""page"": ""387""}], ""case_paths"": [""/haw/87/0379-01""], ""opinion_index"": 0}, {""cite"": ""423 Mass. 366"", ""year"": 1996, ""case_ids"": [1028005], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""368""}], ""case_paths"": [""/mass/423/0366-01""], ""opinion_index"": 0}, {""cite"": ""860 P.2d 1094"", ""year"": 1993, ""case_ids"": [12049831], ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""pin_cites"": [{""page"": ""1099"", ""parenthetical"": ""insurer's duty to defend not triggered by claim labeled \""negligence\"" when facts demonstrated that alleged losses were caused by act for which there was no duty to defend""}], ""case_paths"": [""/p2d/860/1094-01""], ""opinion_index"": 0}, {""cite"": ""934 P.2d 909"", ""year"": 1997, ""case_ids"": [12006826], ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""pin_cites"": [{""page"": ""912"", ""parenthetical"": ""no duty to defend where damages claimed as a result of negligence stemmed directly from a sexual assault that fell within the intentional acts exclusion of the policy""}], ""case_paths"": [""/p2d/934/0909-01""], ""opinion_index"": 0}, {""cite"": ""763 F.2d 1076"", ""year"": 1985, ""case_ids"": [373422], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""1081"", ""parenthetical"": ""claims of civil rights violations and wrongful death brought by three minor children all had their genesis in decedent's injuries which were caused by an excluded act""}], ""case_paths"": [""/f2d/763/1076-01""], ""opinion_index"": 0}, {""cite"": ""40 Mass. App. Ct. 722"", ""year"": 1996, ""case_ids"": [1035623], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""727"", ""parenthetical"": ""without the underlying illegal acts there would have been no injuries, and, therefore, no basis for a lawsuit against the insureds for negligence, misrepresentation, and loss of consortium""}], ""case_paths"": [""/mass-app-ct/40/0722-01""], ""opinion_index"": 0}, {""cite"": ""423 Mass. 703"", ""year"": 1996, ""case_ids"": [1027979], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""704""}], ""case_paths"": [""/mass/423/0703-01""], ""opinion_index"": 0}, {""cite"": ""48 Mass. App. Ct. 67"", ""year"": 1999, ""weight"": 4, ""case_ids"": [1152912], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""70""}, {""page"": ""70-71""}, {""page"": ""72-73""}], ""case_paths"": [""/mass-app-ct/48/0067-01""], ""opinion_index"": 0}, {""cite"": ""374 Mass. 602"", ""year"": 1978, ""weight"": 2, ""case_ids"": [3871692], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""605""}, {""page"": ""605""}], ""case_paths"": [""/mass/374/0602-01""], ""opinion_index"": 0}, {""cite"": ""419 Mass. 316"", ""year"": 1995, ""case_ids"": [823646], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""320""}], ""case_paths"": [""/mass/419/0316-01""], ""opinion_index"": 0}, {""cite"": ""421 Mass. 117"", ""year"": 1995, ""case_ids"": [861535], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""128""}], ""case_paths"": [""/mass/421/0117-01""], ""opinion_index"": 0}, {""cite"": ""41 Mass. App. Ct. 151"", ""year"": 1996, ""case_ids"": [1038705], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""157""}], ""case_paths"": [""/mass-app-ct/41/0151-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""430 Mass. 454"", ""type"": ""official""}], ""file_name"": ""0454-01"", ""last_page"": ""460"", ""first_page"": ""454"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T17:36:25.643073+00:00"", ""decision_date"": ""1999-12-15"", ""docket_number"": """", ""last_page_order"": 486, ""first_page_order"": 480, ""name_abbreviation"": ""Bagley v. Monticello 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+1157596,"{""id"": 1157596, ""name"": ""Washington Hydroculture, Inc., Respondent, v. Frank Payne, Petitioner"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""d9740f9de4527bf202e6a4326ea66c46c203c83774b7bfe6e91b20a234084159"", ""simhash"": ""1:aa047db8d9edd572"", ""pagerank"": {""raw"": 0.00000015735898813525338, ""percentile"": 0.6791226052175242}, ""char_count"": 12818, ""word_count"": 2196, ""cardinality"": 647, ""ocr_confidence"": 0.855}, ""casebody"": {""judges"": [], ""parties"": [""Washington Hydroculture, Inc., Respondent, v. Frank Payne, Petitioner.""], ""opinions"": [{""text"": ""Hicks, J.\nLessor, Washington Hydroculture, Inc., brought a damage action against lessee, Frank Payne, for the cost of rebuilding two leased fiberglass greenhouses destroyed by fire. Summary judgment on liability was granted against lessee based on a provision in the lease commonly called a maintenance and delivery clause. There is no issue of fault, as this is an action on the contract.\nThe Court of Appeals affirmed the trial court. Washington Hydroculture, Inc. v. Payne, 26 Wn. App. 40, 610 P.2d 967 (1980). We reverse.\nIn 1975, Frank Payne leased two hydroponic greenhouses located on lessor's property from Washington Hydroculture, Inc. These greenhouses were over 120 feet long and about 26 feet wide and appear to have been affixed to the ground by some sort of foundation. The lease contained a general, unqualified, maintenance and delivery clause as follows:\nDuring the term of this lease, lessee shall maintain said [greenhouses]; and, upon expiration of the term hereof surrender in as good a condition as it shall be when lessee takes possession thereof, except for ordinary wear and tear.\nThe lease was prepared by lessor and, according to lessee's affidavit on the motion for summary judgment, was \""not negotiated by the parties\"" nor did the parties ever discuss \""prior to execution of the lease, the risk of loss caused by fire.\""\nThe trial court did not inquire into fault and lessor admits that fault was unalleged and not at issue. The trial court denied lessee's motion for summary judgment and granted lessor's. The trial on damages resulted in an award of $23,780.72 to lessor.\nThere was no clause in the lease requiring lessee to insure the premises, however, lessee did have insurance on the contents. The insurance proceeds paid to lessee on the contents are almost the same amount as the amount awarded to lessor by the trial court.\nThe issue in this case is whether we should retain the rule requiring a tenant, regardless of fault, to rebuild leased premises destroyed by fire, where the tenant has entered into a lease containing a general maintenance and delivery clause with no exceptions other than normal wear and tear.\nPetitioner/lessee asserts that the decision of the Court of Appeals in this case conflicts with our decisional law, specifically with Anderson v. Ferguson, 17 Wn.2d 262, 135 P.2d 302 (1943) and United Mut. Sav. Bank v. Riebli, 55 Wn.2d 816, 350 P.2d 651 (1960). Respondent/lessor asserts that the decision of the trial court and the Court of Appeals in this case is in accord with the common law rule, still effective in this and some other jurisdictions. Respondent/ lessor also relies primarily on Anderson for its position. This confusion can be attributed to a harsh and outdated rule, the effects of which we have in the past attempted to avoid by reasoning around rather than changing.\nThere can be no dispute that the common law rule, and our early rule, was as stated by the Court of Appeals at page 42 in its opinion on this case:\nThus, it appears to be the settled law in this state that an unconditional or unqualified covenant on the part of the lessee to maintain and keep premises leased by him in good repair or in as good condition as that existing at the time specified in the lease, and to return the premises at the expiration or termination of the lease in such equivalent condition, obligates the lessee to rebuild in case the buildings leased are destroyed by fire or other casualty during the term.\nQuoting from Anderson v. Ferguson, supra at 270-71.\nOne of the earliest cases to apply the rule in Washington was Armstrong v. Maybee, 17 Wash. 24, 48 P. 737 (1897), where plaintiff/lessor brought action against a lessee for breach of a covenant in a lease covering a shingle mill, house, office, machinery, and office fixtures, all destroyed by fire during the course of the lease. The covenant in that lease was worded as follows:\nlessee shall maintain all of the machinery and buildings ... in as good condition and repair as the same now are in and return the same ... in as good condition as the same Eire now in, reasonable wear and tear from ordinary use alone excepted.\""\n17 Wash, at 25.\nThe use of the word \""alone\"" in the Armstrong lease favors the construction placed on it by the court, holding the lessee liable to rebuild. The Armstrong court's analysis of authorities and decisionEil law indicates that the slightest variation in wording can make the difference between the loss falling on the lessor or the lessee. The court intends to uphold the intent of the parties, as was stated in Armstrong (quoting from a Michigan opinion):\n\""In construing the covenants in a lease the cardinal rule is that the intention of the parties shall govern; and the courts will not extend or enlarge the obligation of the lessee beyond the plain meaning of the language used and the intention existing at the time it was made; and if there is not an express stipulation to the effect to restore buildings and other property leased, destroyed by casualties from fire or water, without fault or neglect on the psirt of the tenant, the loss must fall upon the landlord\n17 Wash, at 28-29.\nThe court went on to hold against lessee, stating that in the case at bar we are unable, from any fair reading of the whole lease, to find any doubtful language or anything in the circumstances of the parties which would require other than one construction of the language used.\n17 Wash, at 29.\nIn Anderson v. Ferguson, 17 Wn.2d 262, 135 P.2d 302 (1943), we approved the rule but avoided applying it, stating that the phraseology of the covenant to repair and deliver in that case, as compared to the language used in the particular lease under consideration in Armstrong, was different. The language of the covenant was as follows:\n\""The said lessee . . . agrees to quit and deliver up the premises ... at the end of the term, in as good order, condition and repair as the reasonable use and wear thereof will permit. ...\""\n17 Wn.2d at 264. The court found the above language did not require by its terms that the lessee maintain or keep the premises in any particular condition whatever during the course of the lease. Also, the premises did not have to be delivered in as good condition as they were in the beginning of the lease but only in as good condition as reasonable use and wear would permit. And the language did not designate a certain point in time for referencing the condition of the premises. \""In any event,\"" the court opined, \""the common-law rule is so harsh that it ought not to be applied unless the language of the lease clearly requires it.\"" 17 Wn.2d at 273.\nIn United Mut. Sav. Bank v. Riebli, 55 Wn.2d 816, 350 P.2d 651 (1960), the rule once again was retained, but avoided on the phraseology, and by denominating the cause of the damage a \""latent defect\"". In that case a water pipe ruptured damaging personal property of the lessee, lessor, and third persons. The latter sued both the lessee and lessor, and despite the fact that the lease contained both a maintenance and delivery clause, and a hold harmless clause, the court was able to avoid application of this harsh rule. The lease provided that the lessee had the duty to keep the premises in good repair, and to quit and surrender the premises \""in good order and condition, reasonable wear and damage by the elements excepted. ...” 55 Wn.2d at 822. The hold harmless clause was clear:\n\""... The Lessee shall keep, save and hold harmless the Lessor from any and all damages and liability for anything and everything whatsoever arising from, or out of the occupancy by, or under, the Lessee, . . . and . . . from any fault or negligence by the Lessee, or any failure on the Lessee's part ... or otherwise, or whether it be caused by, . . . the failure of the Lessee ...11\n(Italics ours.) 55 Wn.2d at 822. The court held that neither the repair and delivery clause nor the hold harmless clause made the lessee insurer for a latent defect on the premises.\nAlthough the general rule at common law was to construe a general repair and delivery clause as requiring a tenant to rebuild, the jurisdictions are split on the issue. See 51C C.J.S. Landlord and Tenant § 368(7) and § 412 (1968). It is a much criticized rule, most often on the basis that \""repair\"" or \""maintain\"" does not mean \""rebuild\"". See Stoebuck, The Law Between Landlord and Tenant in Washington, 49 Wash. L. Rev. 291, 361-63, 1090 (1974); Decker, Duties of a Tenant To Rebuild After He Has Covenanted To Repair, 6 Iowa B. Rev. 52 (1940). Other jurisdictions have altered the common law rule on this basis. See cases and text in 1 M. Friedman, Leases, \""Damage and Destruction of Leased Property,\"" § 9.1 (1974):\nSome courts refused to follow the common law rule, and held that a covenant by the tenant to repair did not require the tenant to restore after a nonnegligent fire, this on the ground that one could \""repair\"" only something in existence and that a covenant to repair could not require the creation of something new. This distinction between \""repair\"" and \""restore\"" rescued some tenants who had naively agreed to repair, with no suspicion of what the common law attributed to this covenant. However, a repair is a partial restoration and these terms do not necessarily present a clear contrast. Their difference may be of degree rather than of nature.\n(Footnotes containing citations omitted.) Friedman, Leases, supra at 313.\nThe wording in the covenant in the instant case is not as clear as the wording in Armstrong, and although it does not necessarily fall into the exceptions to the rule that were carved out in previous cases, we do not construe this provision as automatically imposing the duty to rebuild on lessee. The language seems to us to describe a duty to maintain as opposed to an obligation to rebuild. It is time that we abandon a rule imposing liability absent fault based on \""magic\"" language, the import of which laymen, or indeed lawyers themselves, may not perceive. As we said in Armstrong, what controls in a lease is the intent of the parties at the time of its execution, and the plain meaning of the language used. Where lessor drafts the lease, ambiguities must be resolved in favor of lessee. Armstrong v. Maybee, supra; Puget Inv. Co. v. Wenck, 36 Wn.2d 817, 221 P.2d 459, 20 A.L.R.2d 1320 (1950). We will not extend the obligation of lessee beyond the plain meaning of the language used, and if there is not an express stipulation requiring lessee to rebuild properties destroyed without fault, the loss will fall on the landlord.\nThe plain meaning of maintain or repair is not synonymous with rebuild. \""Repair\"" means \""to amend, not to make a new thing\"", stated the Nebraska Supreme Court when abolishing the common law rule in that state in Wattles v. South Omaha Ice & Coal Co., 50 Neb. 251, 69 N.W. 785 (1897). The Supreme Court of California made the same distinction in holding that a covenant to repair did not include the complete rebuilding after destruction by fire through no fault of lessee. Realty & Rebuilding Co. v. Rea, 184 Cal. 565, 194 P. 1024 (1920).\nLessee alleged by affidavit that lessor had advised him that the building was fireproof and that he was wasting his money to insure the contents. There is no insurance provision in the lease requiring lessee to insure the buildings; were there it would indicate an intent by both parties to place liability on lessee. Lessee's affidavit also states that the cause of the fire was defective wiring that he in no way altered during his tenancy.\nWithout inquiry into fault on the part of lessee or intent at the time of execution of the lease, and without language expressly holding lessee responsible for rebuilding premises destroyed through no fault of his own, we cannot sustain the trial court. It defies reason and logic to hold lessee to a covenant containing words of art and magic language which lessor says we should construe as an \""express covenant\"" to insure against acts of God and other casualties beyond the control of lessee. It is not express. \""Maintain\"" does not mean \""rebuild\"". One could agree to surrender premises in as good condition as when possession was taken in conjunction with a clause to maintain, and never contemplate their total destruction requiring rebuilding.\nWe hold that summary judgment is improper where, as here, intent is unclear. The case is remanded for trial in accordance with this opinion.\nBrachtenbach, C.J., and Rosellini, Utter, Dolliver, Williams, and Dimmick, JJ., concur.\nStafford and Dore, JJ., concur in the result."", ""type"": ""majority"", ""author"": ""Hicks, J.""}], ""attorneys"": [""Charles C. Countryman, for petitioner."", ""Charles F. Diesen, Velikanje, Moore & Shore, Inc., P.S., and James P. Hutton, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 47068-5.\nEn Banc.\nOctober 22, 1981.]\nWashington Hydroculture, Inc., Respondent, v. Frank Payne, Petitioner.\nCharles C. Countryman, for petitioner.\nCharles F. Diesen, Velikanje, Moore & Shore, Inc., P.S., and James P. Hutton, for respondent.""}, ""cites_to"": [{""cite"": ""194 P. 1024"", ""year"": 1920, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""184 Cal. 565"", ""year"": 1920, ""case_ids"": [2130699], ""category"": ""reporters:state"", ""reporter"": ""Cal."", ""case_paths"": [""/cal/184/0565-01""], ""opinion_index"": 0}, {""cite"": ""69 N.W. 785"", ""year"": 1897, ""category"": ""reporters:state_regional"", ""reporter"": ""N.W."", ""opinion_index"": 0}, {""cite"": ""50 Neb. 251"", ""year"": 1897, ""case_ids"": [2659604], ""category"": ""reporters:state"", ""reporter"": ""Neb."", ""case_paths"": [""/neb/50/0251-01""], ""opinion_index"": 0}, {""cite"": ""20 A.L.R.2d 1320"", ""year"": 1950, ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R. 2d"", ""opinion_index"": 0}, {""cite"": ""221 P.2d 459"", ""year"": 1950, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""36 Wn.2d 817"", ""year"": 1950, ""case_ids"": [4933418], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/36/0817-01""], ""opinion_index"": 0}, {""cite"": ""49 Wash. L. Rev. 291"", ""year"": 1974, ""category"": ""journals:journal"", ""reporter"": ""Wash. L. Rev."", ""pin_cites"": [{""page"": ""361-63, 1090""}], ""opinion_index"": 0}, {""cite"": ""48 P. 737"", ""year"": 1897, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""17 Wash. 24"", ""year"": 1897, ""case_ids"": [5113363], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/17/0024-01""], ""opinion_index"": 0}, {""cite"": ""350 P.2d 651"", ""year"": 1960, ""weight"": 2, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""55 Wn.2d 816"", ""year"": 1960, ""weight"": 2, ""case_ids"": [1017660], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/55/0816-01""], ""opinion_index"": 0}, {""cite"": ""135 P.2d 302"", ""year"": 1943, ""weight"": 2, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""17 Wn.2d 262"", ""year"": 1943, ""weight"": 2, ""case_ids"": [2580485], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/17/0262-01""], ""opinion_index"": 0}, {""cite"": ""610 P.2d 967"", ""year"": 1980, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""26 Wn. App. 40"", ""year"": 1980, ""case_ids"": [1833711], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""case_paths"": [""/wash-app/26/0040-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""96 Wash. 2d 322"", ""type"": ""official""}], ""file_name"": ""0322-01"", ""last_page"": ""329"", ""first_page"": ""322"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T19:35:31.583079+00:00"", ""decision_date"": ""1981-10-22"", ""docket_number"": ""No. 47068-5"", ""last_page_order"": 351, ""first_page_order"": 344, ""name_abbreviation"": ""Washington Hydroculture, Inc. v. 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+1167731,"{""id"": 1167731, ""name"": ""Virginia B. Liebergesell, Petitioner, v. Franklin W. Evans, et al, Respondents"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""b6c761f559997b9ae381481ce9dc90244f2ff8bc32bb19fbf086350c2e2cf1e7"", ""simhash"": ""1:f014c0b719cfb654"", ""pagerank"": {""raw"": 0.0000006725576120353736, ""percentile"": 0.9630818244615805}, ""char_count"": 26950, ""word_count"": 4438, ""cardinality"": 1219, ""ocr_confidence"": 0.86}, ""casebody"": {""judges"": [], ""parties"": [""Virginia B. Liebergesell, Petitioner, v. Franklin W. Evans, et al, Respondents.""], ""opinions"": [{""text"": ""Horowitz, J.\nPlaintiff seeks review of an appellate court decision that defendants could not be estopped from asserting the defense of usury to plaintiff's action for recovery of amounts due on notes made by defendants. We reverse the Court of Appeals, Division. Two, and remand the case to Pierce County Superior Court for trial on the merits. We take these actions because a borrower under a duty to speak who fails to disclose the illegality of a proposed rate of interest is estopped from asserting the defense of usury against his lender if she rightfully relied on the borrower's advice in making the otherwise usurious loan.\nI\nFor purposes of considering the appropriateness of summary judgment for the defendants, the facts and reasonable inferences therefrom are set forth in the light most favorable to the plaintiff, as reflected in her pleadings and affidavit. Morris v. McNicol, 83 Wn.2d 491, 519 P.2d 7 (1974). The defendants offered no evidence of the circumstances surrounding the loans on their motion for partial summary judgment. In light of the. foregoing we state the facts of the case as the trial court had the right to find them in light of the plaintiff's uncontroverted affidavit and reasonable inferences therefrom.\nMrs. Virginia Liebergesell was asked by defendant Donald Kotowski to invest moneys belonging to her. and to her children in a business operated by Kotowski and codefendant Franklin Evans. Defendants Kotowski and Evans bought, renovated, and then rented or sold old houses as a sideline. On Kotowski's request and advice, plaintiff originally loaned defendants several thousand dollars at 12 percent interest, on the understanding that she also would receive 20 percent of the profits realized on resale or rental of the homes.\nMrs. Liebergesell and Mr. Kotowski originally became acquainted through the friendship of their daughters. Plaintiff, a widowed schoolteacher with neither expertise in business nor any knowledge of the concept of usury or that interest rates higher than 12 percent were illegal, relied on Mr. Kotowski for investment advice and regarded him as a financial counselor and guide. Mr. Kotowski was aware of and encouraged that reliance. He urged Mrs. Liebergesell to invest in his business. Mr. Kotowski's fulltime job was as a field auditor for the State of Washington; the job description for all auditing positions with the State requires a thorough knowledge of accounting and a bachelor's degree with a major in that subject. Mrs. Liebergesell appreciated Mr. Kotowski's superior knowledge of financial affairs and considered his advice important in arranging her family's finances.\nSeveral months after the series of loans made by Mrs. Liebergesell to the defendants at an interest rate of 12 percent, in September 1975, Mr. Kotowski told plaintiff that bookkeeping on the notes was too complicated to compute her 20 percent profit share, and that as an alternative the notes evidencing Mrs. Liebergesell's loans to the defendants could be written with higher rates of interest. Subsequently, the defendants prepared and signed a series of notes, written on standard promissory note forms, bearing interest at rates from 36 percent, on two notes later consolidated and not sued on here, to 18 percent, on the notes which Mrs. Liebergesell seeks to enforce in this action. Some of the notes were made payable to Mrs. Liebergesell individually; some to her as custodian for her minor children. Mrs. Liebergesell accepted the notes as drawn by defendants; no negotiation with regard to payable interest or terms took place between the parties. Defendants knew the interest rates were usurious and further knew that the plaintiff was unaware of their illegal nature. However, they did not inform her of their usurious character or of the adverse consequences of usury.\nMrs. Liebergesell collected a total of $5,207.63 in interest at usurious rates on a total principal of $23,500 on these illegal notes. In early 1977, approximately one and a half years after Mr. Kotowski had first proposed usurious notes in lieu of a share of profits for Mrs. Liebergesell's investment, he proposed a second change in the parties' financial arrangements. Mr. Kotowski told Mrs. Liebergesell that until more houses were sold, he wanted to reduce the interest due on the amounts loaned by plaintiff to 12 percent. Mrs. Liebergesell, still trusting the business advice offered by Kotowski, did not object, and a note was drawn by Mr. Kotowski consolidating the amounts due and setting the interest rate at 12 percent.\nUnlike the earlier \""form\"" notes used by Mr. Kotowski, the substitute note did not provide for attorney's fees in the event of a lawsuit. The defendants did not inform the plaintiff of this omission; she discovered it herself only after reading the proposed note. In view of the adverse business outlook cited by the defendants in urging her to accept a note with a lesser return, plaintiff objected to the omission of a provision for attorney's fees and refused to accept the note.\nMrs. Liebergesell stated that Mr. Kotowski told her that defendant Evans, who works full time at the University of Washington, had threatened to \""yell usury.\"" She further stated that these threats were made to force her to agree to the consolidating note at 12 percent. Mr. Kotowski also told her that the rates were not illegal if set by the borrower, as in this case. Finally, Mrs. Liebergesell alleged in her undisputed affidavit that the defendants made it a practice to obtain funds for their business in this manner: by borrowing substantial sums from \""unmarried ladies\"" who presumably are not aware of financial arrangements or usury laws, to set illegal interest rates, and then to threaten to defend suits brought for recovery on notes evidencing the loans with charges of usury instead of paying off the notes.\nThe Court of Appeals granted discretionary review of the trial court's denial of defendants' motion for partial summary judgment. The defendants in their motion had sought to deduct $10,415.26 from the $23,500 due, relying on usury as an affirmative defense pursuant to RCW 19.52.030, which provides a penalty of double the amount paid in illegal interest. Following the rule that the burden is on the moving party to show the absence of a material issue of fact, the trial court had denied the motion because the judge believed from the showing made by the plaintiff that she might be able to prove at trial that the defendants should be estopped from asserting the usury defense. The Court of Appeals reversed, holding that the elements of the defense of usury were present, that the transaction could not be characterized as a joint venture between plaintiff and defendants, and that defendants were not estopped to raise the defense of usury. For the reasons set forth below, we now reverse and remand the case to the trial court for trial on the merits.\nII\nEstablishment of Usury Defense\nTo establish the defense of usury, a defendant must show: (1) a loan or forbearance, express or implied, of money or other negotiable tender; (2) an understanding between the parties that the principal must be repaid; (3) the exaction of a greater rate of interest than is allowed by law; and (4) an intention to violate the law. Flannery v. Bishop, 81 Wn.2d 696, 504 P.2d 778 (1972). In this case, there was a loan made by plaintiff, to be absolutely repaid by the defendants, at interest rates greater than 12 percent.\nThe Court of Appeals has held that the intent necessary to satisfy requirement (4) is the parties' intention merely to enter into the transaction. The intent thus need not be wrongful or calculated to violate the usury law. Tacoma Commercial Bank v. Elmore, 18 Wn. App. 775, 781, 573 P.2d 798 (1977). The parties have not addressed this issue and we therefore do not decide if Mrs. Liebergesell had the requisite intent to fulfill the requirements of the defense of usury. We assume, without deciding, that defendants have the right to assert the affirmative defense that the transactions were usurious if they are not otherwise estopped from doing so.\nThe plaintiff contends, however, that even though the four elements necessary to establishment of the defense may have been met, the defendants should be precluded from asserting usury because of the parties' relationship in this case.\nIll\nEstoppel From Asserting Usury Defense\nWe have never before examined the effect of the defendant borrower's role in initiating or controlling a loan transaction on his ability to later raise the defense of usury. However, in the great majority of states in which the question has been considered, the courts have estopped a borrower who initiated a transaction at an illegal rate of interest from setting up the defense of usury. Annot., 16 A.L.R.3d 510, 513-16 (1967). At the very least, the borrower has been precluded from recovering statutory penalties for usury. 16 A.L.R.3d at 516-17. We are convinced that the general doctrines of estoppel compel us to join the majority of jurisdictions in refusing to allow the defendant to assert usury in cases in which the elements of estoppel exist.\nThis court has refused in the past to estop a usury defense because of exculpatory actions, such as a disclaimer of the right to any usurious interest, taken by the borrower after the making of the illegal loan. Home Sav. & Loan Ass'n v. Sanitary Fish Co., 156 Wash. 80, 286 P. 76 (1930); Hopgood v. Miller, 107 Wash. 449, 181 P. 919 (1919). However, there is nothing to suggest that the general doctrine of estoppel, developed to prevent the assertion of other defenses in the law, should not apply to the defense of usury. As in other areas of the law, the general theory underlying estoppel of the usury defense is that an individual should not benefit from his own wrong. 16 A.L.R.3d at 513. If the usury defense were allowed in this case, the borrowers could avoid total repayment of even the principal due because of the statutory penalties for usury. This would be true even though, while under a duty to speak, the borrowers had induced the lender to enter into a transaction at the illegal rate by failing to tell her of its usurious nature. To avoid such a result, estoppel should apply as it does elsewhere in the law of this state.\nA\nEstoppel in General\nEstoppel requires: (1) an admission, statement, or act inconsistent with the claim afterwards asserted; (2) an action by the other party on the faith of such admission, statement, or act; and (3) an injury to the other party if the claimant is allowed to contradict or repudiate his earlier admission, statement, or act. Arnold v. Melani, 75 Wn.2d 143, 147, 437 P.2d 908 (1968).\nIn the instant case, the alleged acts of defendants in soliciting loans at illegal rates of interest are inconsistent with their later claims of usury. If they are allowed to make the claim, the plaintiff lender will be injured through the penalties imposed by the usury laws.\nHowever, in order for estoppel to be invoked the reliance reflected in element (2) of the requirements for estoppel must be justified. \""Not all those who rely upon another's conduct or statements may raise an estoppel. Rather it is only those who have a right to rely upon such acts or representations.\"" Leonard v. Washington Employers, Inc., 77 Wn.2d 271, 280, 461 P.2d 538 (1969). Thus, the question of whether an estoppel may be asserted depends on the plaintiff's right to rely on defendants' representations, either explicit or implied through their failure to speak, regarding the validity of the loan.\nB\nPlaintiff's Right To Rely\nGenerally, participants in a business transaction deal at arm's length; it has been said that an individual has no particular duty to disclose facts nor any particular right to rely on the statements of the party with whom he contracts at arm's length. However, the existence of a fiduciary relationship between the parties and the general duty to contract in good faith may make it possible for an individual to rightfully rely on statements made by another with whom he contracts or on the validity of a transaction based on a failure to disclose relevant information concerning the agreement entered into between them.\n1. Fiduciary Relationship. In some circumstances a fiduciary relationship which allows an individual to relax his guard and repose his trust in another may develop. Moon v. Phipps, 67 Wn.2d 948, 954, 411 P.2d 157 (1966). The Restatement of Contracts describes such a fiduciary relationship as one in which one party \""occupies such a relation to the other party as to justify the latter in expecting that his interests will be cared for ...\"" Restatement of Contracts § 472(1)(c) (1932); see also comment c (describing the circumstances under which such a \""fiduciary position\"" may arise). Such a fiduciary relationship creating justifiable reliance could be thought to have developed between plaintiff and defendant Kotowski if plaintiff's allegations regarding the source and extent of her trust in Mr. Kotowski were confirmed at trial.\nIn refusing to affirm the trial court's ruling that an estoppel might have been shown by the plaintiff had she been allowed to proceed to proof at trial, the Court of Appeals relied on the fact that most of the cases estopping the usury defense involved attorneys who borrowed from clients. The appellate court reasoned that because no legally established fiduciary relationship, such as that between attorney and client, existed between the parties, no estoppel could arise.\nA fiduciary relationship arises as a matter of law between an attorney and his client or a doctor and his patient, for example. But a fiduciary relationship can also arise in fact regardless of the relationship in law between the parties. Salter v. Heiser, 36 Wn.2d 536, 550-55, 219 P.2d 574 (1950).\nA confidential or fiduciary relationship between two persons may exist either because of the nature of the relationship between the parties historically considered fiduciary in character; e.g., trustee and beneficiary, principal and agent, partner and partner, husband and wife, physician and patient, attorney and client; or the confidential relationship between persons involved may exist in fact.\nMcCutcheon v. Brownfield, 2 Wn. App. 348, 356-57, 467 P.2d 868 (1970). See also Restatement of Contracts § 472, comment c at 898 (1932) (\""A fiduciary position . . . includes not only the position of one who is a trustee, executor, administrator, or the like, but that of agent, attorney, trusted business adviser, and indeed any person whose relation with another is such that the latter justifiably expects his welfare to be cared for by the former.\"").\nWhether such a fiduciary relationship existed in fact in this case depends on the development of factual proof. The facts alleged by the plaintiff in her affidavit in response to the defendants' motion for partial summary judgment, when considered in a light most favorable to the plaintiff, were sufficient to raise a question of fact which prevented summary judgment.\nFor instance, in Salter v. Heiser, supra, lack of business expertise on the part of one party and a friendship between the contracting parties were important in establishing the right to rely. Graff v. Geisel, 39 Wn.2d 131, 141-42, 234 P.2d 884 (1951). Superior knowledge and assumption of the role of adviser may contribute to the establishment of a fiduciary relationship. Friendship seemed a determinative element under the facts of Gray v. Reeves, 69 Wash. 374, 376-77, 125 P. 162 (1912):\nA point is made that Mr. Gray was a shrewd and successful business man and ought not to have been misled by promises that, when revealed in the courtroom, seem to be unreasonable. But in this appellants have overlooked an element which disarms caution; that is, friendship. . . . The impulse that leads men to trust those in whom they have confidence cannot be ignored by the courts. Reputation for integrity or for knowledge of a given subject would be worth nothing if its possessor could not assume that others would believe in him or accept his opinion.\nWere the plaintiff's statements as set forth in her uncontroverted affidavit to be accepted at trial, she could establish a fiduciary relationship as a matter of fact between the parties. She could thus assert a right to rely on defendant's actions and to estop the application of the usury defense.\n2. Contractual Good Faith. On remand, even if the plaintiff is unable to prove that the defendants breached a fiduciary duty to disclose that the proposed agreements were usurious, defendants may have breached their contractual duty to deal in good faith by failing to inform the plaintiff that the interest rates were illegal and unenforceable. The law cannot allow contracting parties to deceive one another when there is a duty to act in good faith.\nThe law of contracts reflects an evolving trend towards an interpretation of \""freedom of contract\"" acknowledging the parties' duty to deal in good faith with one another. Seventy years ago, this court noted that \""the tendency of the more recent cases has been to restrict rather than extend the doctrine of caveat emptor.\"" Wooddy v. Benton Water Co., 54 Wash. 124, 127, 102 P. 1054 (1909). That continuing trend is reflected in several areas of the law of contract.\nFor instance, this requirement of contractual fair dealing is found in section 1-203 of the Uniform Commercial Code, RCW 62A.1-203:\nObligation of good faith. Every contract or duty within this Title imposes an obligation of good faith in its performance or enforcement.\nThe courts of this state have used RCW 62A.1-203 in interpreting the provisions of the U.C.C. in a manner emphasizing good faith dealings in the performance of contracts. See Peter Pan Seafoods, Inc. v. Olympic Foundry Co., 17 Wn. App. 761, 770, 565 P.2d 819 (1977). The code has often been used as an analogy to situations that are not explicitly covered by its provisions. See, e.g., Nevada Nat'l Bank v. Huff, 94 Nev. 506, 582 P.2d 364 (1978); Sunco Mfg. Co. v. Hargrove, 581 P.2d 925 (Okla. App. 1978). It reflects principles of contract law which often apply to the making and performance of agreements governed by our laws. That is the case in section 1-203.\nA similar requirement of good faith in disclosing relevant facts while negotiating a contract can be seen in many vendor/purchaser cases in which buyers have recovered against sellers who failed to disclose information relevant to the subject matter of the agreement. See, e.g., Obde v. Schlemeyer, 56 Wn.2d 449, 353 P.2d 672 (1960) (liability for failure to disclose termite damage to apartment house); Ikeda v. Curtis, 43 Wn.2d 449, 261 P.2d 684 (1953) (liability for failure to disclose that hotel's income was largely derived from acts of prostitution); Sorrell v. Young, 6 Wn. App. 220, 491 P.2d 1312 (1971) (liability for failure to disclose that residential lots were fill dirt). The parties in these and other vendor/purchaser cases were strangers before the litigated transactions; no duty to disclose independent of the contractual relationship itself could have arisen to explain the court's willingness to hold the vendors responsible for failing to disclose defects in property sold by them to the purchasers. The cases considering the duty to disclose in cases such as these speak of the vendor's silence as \""fraudulent concealment\"", a species of fraud. The law has not yet acknowledged a general requirement of full disclosure of all relevant facts in all business relationships. However, it is clear from these cases that the duty to disclose relevant information to a contractual party can arise as a result of the transaction itself within the parties' general obligation to deal in good faith. See Restatement of Contracts § 472 (1932).\nIf in the exercise of good faith the defendants should have revealed to Mrs. Liebergesell the illegality of the proposed loans, they breached a contractual duty of fair dealing which would prevent them from asserting the usury defense. Having established that plaintiff might be able to prove her right to rely on defendants, the question remains whether defendants engaged in any admission, statement, or act which would justify estoppel of later inconsistent claims.\nC\nDefendant's Actions Estopping Usury Defense\nDefendant Kotowski solicited the loans made at usurious rates by Mrs. Liebergesell in this case. In doing so, he concealed from plaintiff the fact that the proposed interest rates were illegal under the law of this state. If the plaintiff had a right to rely on defendants, such failure to apprise her of the contents and applicability of the usury statutes is sufficient to estop the defendant from asserting the defense of usury now.\nThe case is similar to Boonstra v. Stevens-Norton, Inc., 64 Wn.2d 621, 393 P.2d 287 (1964), in which a broker failed to tell an investor who relied on him for financial advice that a proposed investment was of a limited and encumbered nature. In Seals v. Seals, the Court of Appeals acknowledged that no fiduciary relationship as a matter of law existed between the parties in Boonstra. Seals v. Seals, 22 Wn. App. 652, 655-56, 590 P.2d 1301 (1979). Nevertheless, the court in Boonstra stated that, although there was no \""wilful withholding\"" of documents containing information relevant to the offered investment:\n[T]here was a duty to disclose the information appellant Eossessed and of which respondent was ignorant. Here, ecause of the superior business acumen and experience of appellant as compared with respondent, because of the superior factual knowledge of the one as against the factual ignorance of the other, and because appellant's officer knew respondent was relying on his superior knowledge, experience and judgment, there existed a quasi-fiduciary relationship, if not an actual one, that brings the case within the rule that a\n\""... party to a business transaction is under a duty to excercise [sic] reasonable care to disclose to the other before the transaction is consummated . . . such matters as the other is entitled to know because of a . . . relation of trust and confidence between them, ...\"" Restatement, Torts § 551(2)(a), p. 117.\nBoonstra v. Stevens-Norton, Inc., supra at 625. See also Sigman v. Stevens-Norton, Inc., 70 Wn.2d 915, 425 P.2d 891 (1967); Hutson v. Wenatchee Fed. Sav. & Loan Ass'n, 22 Wn. App. 91, 588 P.2d 1192 (1978). The court in Boonstra rejected the broker's argument that the lender could not rely on his failure to disclose the encumbrances because they were a matter of public record because \""'wrongdoers cannot shield themselves from liability by asking the law to condemn the credulity of their victims.'\"" Boonstra v. Stevens-Norton, Inc., supra at 626, quoting Cunningham v. Studio Theatre, Inc., 38 Wn.2d 417, 425, 229 P.2d 890 (1951). See also Ikeda v. Curtis, supra. It is irrelevant that in this case the information of which Mrs. Liebergesell should have been apprised was contained in the usury statute rather than in the financial or physical facts relevant to the loans. If the defendants had a duty to disclose relevant facts to plaintiff, the existence and application of the usury laws was a relevant matter which should not have been concealed. The failure to state the contents of the applicable statutes would be actionable. See Burien Motors, Inc. v. Balch, 9 Wn. App. 573, 513 P.2d 582 (1973) (liability for failure to disclose zoning restrictions which made intended use of property illegal).\nThus, if the relationship or dealings of the parties was such that defendants had a duty to disclose, and plaintiff had a right to rely on their disclosure of relevant facts and circumstances, the defendants' failure to apprise Mrs. Liebergesell that the usury laws provided a severe penalty for the exaction of the interest rates suggested and offered by the defendants would estop them from asserting the defense at this time.\nIV\nFinally, assertion of the defense in this case does not, as noted by the Court of Appeals, fulfill the public policy of the usury laws:\n[The usury statute] is designed to protect those who by adversity and necessity of. economic life are driven to borrow money at any cost. The protection granted is based on the fact that many borrowers are powerless to resist the avarice of the money lenders.\nBaske v. Russell, 67 Wn.2d 268, 273, 407 P.2d 434 (1965). When the transaction is suggested, initiated, and controlled by the borrower, who acts as financial adviser to the lender justifiably relying on his advice, that public policy is not fulfilled by allowing the defendant to assert the defense of usury. To hold otherwise would encourage the borrower to induce the uninformed lender to charge as much interest at an illegal rate as possible, for then when the time came to collect a judgment for exaction of usurious interest, the borrower would recover not only the interest paid, but twice that amount, pursuant to the penalty provisions of RCW 19.52.030.\nThe case is reversed for further proceedings consistent with this opinion.\nUtter, C.J., and Rosellini, Stafford, Wright, Brachtenbach, Hicks, and Williams, JJ., concur.\nDolliver, J., concurs in the result.\nThis principle of good faith in contractual dealing was known by and applied at the time of the Romans. The concept of the bonae fidei contract in the Roman law governing consensual contracts required absolute good faith between the agreeing parties under appropriate circumstances:\n[I]t was bad faith not only if one party actively deceived the other on some material point, but even if he did no more than passively to acquiesce in the other's self-deception.\nB. Nicholas, An Introduction to Roman Law 176 (1962). See also W. Buckland & A. McNair, Roman Law and Common Law (1936); J. Jolowicz, Historical Introduction to the Study of Roman Law (1961).\nThis section of the Restatement sets out those circumstances in which a contracting party is required to disclose relevant facts:\n§ 472. When Lack of Disclosure Is Not Privileged.\n(1) There is no privilege of non-disclosure, by a party who\n(b) knows that the other party is acting under a mistake as to undisclosed material facts, and the mistake if mutual would render voidable a transaction caused by relying thereon, or\n(c) Occupies such a relation to the other party as to justify the latter in expecting that his interests will be cared for . . .\nThere can be no question as to the materiality of the usury statute, and defendants' knowledge of its materiality, in this case. See Bank of Ellensburg v. Palatine Ins. Co., 82 Wash. 55, 143 P. 447 (1914)."", ""type"": ""majority"", ""author"": ""Horowitz, J.""}], ""attorneys"": [""Sinnitt, Teitge & Sinnitt, by Paul Sinnitt, for petitioner."", ""Gordon, Thomas, Honeywell, Malanca, Peterson & O'Hern, by Valen H. Honeywell, for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 46450.\nEn Banc.\nJuly 10, 1980.]\nVirginia B. Liebergesell, Petitioner, v. Franklin W. Evans, et al, Respondents.\nSinnitt, Teitge & Sinnitt, by Paul Sinnitt, for petitioner.\nGordon, Thomas, Honeywell, Malanca, Peterson & O'Hern, by Valen H. Honeywell, for respondents.""}, ""cites_to"": [{""cite"": ""143 P. 447"", ""year"": 1914, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""82 Wash. 55"", ""year"": 1914, ""case_ids"": [607835], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/82/0055-01""], ""opinion_index"": 0}, {""cite"": ""407 P.2d 434"", ""year"": 1965, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""67 Wn.2d 268"", ""year"": 1965, ""case_ids"": [1048354], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""273""}], ""case_paths"": [""/wash-2d/67/0268-01""], ""opinion_index"": 0}, {""cite"": ""513 P.2d 582"", ""year"": 1973, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""pin_cites"": [{""parenthetical"": ""liability for failure to disclose zoning restrictions which made intended use of property illegal""}], ""opinion_index"": 0}, {""cite"": ""9 Wn. App. 573"", ""year"": 1973, ""case_ids"": [1859834], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""parenthetical"": ""liability for failure to disclose zoning restrictions which made intended use of property illegal""}], ""case_paths"": [""/wash-app/9/0573-01""], ""opinion_index"": 0}, {""cite"": ""229 P.2d 890"", ""year"": 1951, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""38 Wn.2d 417"", ""year"": 1951, ""case_ids"": [2419201], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""425""}], ""case_paths"": [""/wash-2d/38/0417-01""], ""opinion_index"": 0}, {""cite"": ""588 P.2d 1192"", ""year"": 1978, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""22 Wn. App. 91"", ""year"": 1978, ""case_ids"": [467195], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""case_paths"": [""/wash-app/22/0091-01""], ""opinion_index"": 0}, {""cite"": ""425 P.2d 891"", ""year"": 1967, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""70 Wn.2d 915"", ""year"": 1967, ""case_ids"": [1060190], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/70/0915-01""], ""opinion_index"": 0}, {""cite"": ""590 P.2d 1301"", ""year"": 1979, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""22 Wn. App. 652"", ""year"": 1979, ""case_ids"": [467073], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""655-56""}], ""case_paths"": [""/wash-app/22/0652-01""], ""opinion_index"": 0}, {""cite"": ""393 P.2d 287"", ""year"": 1964, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""64 Wn.2d 621"", ""year"": 1964, ""case_ids"": [1043115], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/64/0621-01""], ""opinion_index"": 0}, {""cite"": ""491 P.2d 1312"", ""year"": 1971, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""pin_cites"": [{""parenthetical"": ""liability for failure to disclose that residential lots were fill dirt""}], ""opinion_index"": 0}, {""cite"": ""6 Wn. App. 220"", ""year"": 1971, ""case_ids"": [1864359], ""category"": ""reporters:state"", ""reporter"": ""Wash. 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+1175525,"{""id"": 1175525, ""name"": ""OTR, Petitioner, v. Flakey Jake's, Inc., Defendant, Martin Selig, et al, Respondents"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""fe1bbe9c45c674512867432514a88f231e6d10b0255d37aa52eed0c9bd876334"", ""simhash"": ""1:0d27448fbc00375f"", ""pagerank"": {""raw"": 0.00000011131376169702073, ""percentile"": 0.5711807908491963}, ""char_count"": 17919, ""word_count"": 2930, ""cardinality"": 850, ""ocr_confidence"": 0.81}, ""casebody"": {""judges"": [""Callow, C.J., and Utter, Brachtenbach, Dolliver, Dore, Andersen, and Durham, JJ., concur.""], ""parties"": [""OTR, Petitioner, v. Flakey Jake's, Inc., Defendant, Martin Selig, et al, Respondents.""], ""opinions"": [{""text"": ""Pearson, J.\nThis action involves statutory unlawful detainer liability for the possession of commercial office space (the premises) owned by OTR. We are asked whether an assignee of a lease may object to the original lessor's failure to provide written consent to the assignment, and whether a subsequent subleasing of the premises back to the original lessee by the assignee/sublandlord terminates privity of estate between the assignee/sublandlord and the original lessor, and thus terminates unlawful detainer liability.\nFacts\nOn March 1, 1984, OTR's predecessor leased a portion of the premises to Flakey Jake's for a 3-year term. Through a series of subsequent amendments to that lease (OTR lease), and through other agreements to assign portions of the premises, the OTR lease ultimately concerned approximately 14,800 square feet and contained a covenant to pay rent in the sum of approximately $18,000 per month due on the first day of each calendar month.\nThe OTR lease placed restrictions on the tenant's ability to assign or sublet:\nTenant shall not assign this Lease nor sublet the whole or any part of the Premises without first obtaining Landlord's consent, which shall not be unreasonably withheld.\nIn addition, the OTR lease required that amendments or modifications to the lease were to be \""only in writing signed by both parties.\"" It further provided for the payment of reasonable attorney fees to the successful party in any action brought arising out of the lease.\nOn January 27, 1985, Flakey Jake's, as assignor, and Martin Selig, as assignee, entered into an \""Agreement to Assign\"" (Flakey Jake assignment). Pursuant to that agreement, Selig assumed \""all rights, duties, and liabilities\"" of Flakey Jake's under the OTR lease. While Selig and Flakey Jake's fully executed the Flakey Jake assignment, OTR did not provide its written consent. Nevertheless, OTR recognized Selig as the assignee of the OTR lease, accepted rental payments from Selig for the full amount due on the premises for each of the months of February through December 1985, and instructed its property manager to treat Selig as assignee of the OTR lease.\nSelig, too, engaged in conduct confirming his position as assignee of the OTR lease. On February 28, 1985, Selig entered into either a sublease or partial assignment agreement (the record does not reveal the length of the term) with FirstWest Mortgage Corporation (FirstWest) for a portion of the premises. Accordingly, from March 4, 1985, to March 1, 1986, Selig accepted rent payment under that sublease from FirstWest. Selig also informed OTR's agent that he was the assignee of the OTR lease, and Selig maintained his own signs at the premises advertising available space as recently as June 10, 1986.\nThe record reflects that in the winter of 1985, faced with serious financial difficulty, Flakey Jake's informed OTR that should Flakey Jake's be so called upon, it would be unable to make any payments pursuant to the OTR lease beginning January 1986. As a result of Flakey Jake's financial difficulty, Selig contends that on December 16, 1985, Flakey Jake's offered to restore possession of the premises in OTR as part of a settlement agreement. OTR, however, contends that no such discussion concerning possession of the premises occurred. On January 1, 1986, the first default in rent occurred.\nThe record further reveals that on January 31, 1986, Selig signed a suspension agreement that purportedly canceled all of his obligations under the Flakey Jake assignment retroactively from December 1, 1985, for a period of 12 months. An agent of Flakey Jake's signed the suspension agreement on February 18, 1986. Since the term of the OTR lease ran through February 1987, if effective, the suspension agreement between Selig and Flakey Jake's resulted in a 3-month reversion in Selig commencing December 1, 1986. OTR was not informed of the existence of the suspension agreement until after the commencement of this action and has never consented to the agreement.\nOn May 15, 1986, OTR filed this action for unlawful detainer against Flakey Jake's and Selig. OTR prayed for restitution of the premises and for judgment in the amount of rent in default for the months of January through May 1986, including double damages under RCW 59.12.170. Subsequently, the trial court ordered that a writ of restitution be issued restoring possession of the premises in OTR, and that judgment be entered against Flakey Jake's in favor of OTR. In addition, the trial court dismissed the action against Selig, holding that the Flakey Jake assignment was not effective as between Selig and OTR, and that even if it had been, Selig had made an effective reassignment back to Flakey Jake's prior to any default in rent. The trial court directed that judgment be entered against OTR in favor of Selig for costs and reasonable attorney fees in the amount of $8,488.37.\nThe Court of Appeals affirmed on alternative grounds, holding that the suspension agreement effectively terminated any possible landlord/tenant relationship between Selig and OTR at the time of the unlawful detainer action. Additionally, the court affirmed the award of attorney fees to Selig and awarded further attorney fees incurred by Selig on appeal in the amount of $10,000.\nAnalysis\nThe unlawful detainer statute provides in part:\nA tenant of real property for a term less than life is guilty of unlawful detainer . . .\n(3) When he continues in possession in person or by subtenant after a default in the payment of rent, and after notice in writing requiring in the alternative the payment of the rent or the surrender of the detained premises . . .\nRCW 59.12.030. The issue in this case is, therefore: Was Selig a tenant in possession in person or by subtenant after the default in rent occurred? As stated, the trial court held the Flakey Jake assignment to Selig was not valid to bind Selig to OTR, despite Selig's signed acceptance of \""all rights, duties, and liabilities\"" under the OTR lease, because OTR did not consent to the assignment in writing. This ruling was in error.\nWe have long recognized that an assignment of a lease occurs when the lessee/assignor transfers his or her whole interest in the lease without retaining any reversionary interest. Morrison v. Nelson, 38 Wn.2d 649, 657, 231 P.2d 335 (1951). Assuming, arguendo, that the terms of the OTR lease required OTR's written consent to any assignment, failure to obtain written consent did not void the assignment, but merely rendered the assignment voidable at the option of the lessor, OTR. Morrison v. Nelson, supra; Seguin v. Plano, 160 Wash. 421, 295 P. 179 (1931). As we have previously held, \""the invalidity of an assignment, on the ground that it has not been assented to by the lessor, can be raised only by the lessor.\"" Morrison, at 659.\nThe benefit of the restrictive covenant being for the lessor, only OTR was in a position to challenge the validity of the Flakey Jake assignment.\nThe law in Washington is in accord with other jurisdictions:\nRestrictions against assignment or subletting imposed by the terms of the lease are intended for the benefit of the lessor [OTR's predecessors] rather than the lessee, and likewise benefit the lessor's assigns [OTR]; and if neither of these objects to a breach of the restriction no one else may do so. One to whom the term has been assigned [Selig] in breach of the restriction cannot set up the breach in defense of an action brought against him by the lessor on the lease or in defense of an action brought against him by the lessee [Flakey Jake's] on obligations incident to the assignment.\n(Footnotes omitted. Italics ours.) 51C C.J.S. Landlord and Tenant § 33c (1968).\nIn fact, having accepted rent for a period of 11 months from Selig, were the situation now reversed, and were OTR attempting at this point to deny its validity and thereby void the Flakey Jake assignment, it would most likely be estopped to do so. D'Ambrosio v. Nardone, 72 Wash. 172, 129 P. 1092 (1913); Field v. Copping, Agnew & Scales, 65 Wash. 359, 118 P. 329 (1911). Upon learning of the assignment, OTR had the option to declare a forfeiture or to recognize Selig as its tenant. However, after learning of the assignment and accepting the benefits of the assignment, OTR would not have been allowed to deny its validity:\nAs soon as they accepted rent in advance from the assignees, with full knowledge of all the facts, the right to declare a forfeiture was waived as fully and completely as by the written consent provided for in the lease itself.\nBatley v. Dewalt, 56 Wash. 431, 433, 105 P. 1029 (1909).\nSelig accepted the benefits of the assignment by pocketing his sublessee's rent payments. He may not now rely upon a covenant, one that exists solely for the benefit of his landlord, to deny the validity of the assignment when the deal is no longer as profitable as he might have wished. Having accepted the benefits of the lease, he may not now cast aside his obligations. Had this become a profitable leasehold, would he so quickly seek to avoid the assignment?\nThrough the valid assignment which resulted in a conveyance, Selig came into privity of estate with OTR. Through his signed acceptance of all duties and liabilities of the OTR lease, Selig is further liable through privity of contract. What then is the effect of the suspension agreement executed by Selig and Flakey Jake's? The Court of Appeals held the suspension agreement effectively reassigned the lease and thereby terminated Selig's liability. This ruling was in error, as well.\nThe suspension agreement purported to revoke the Flakey Jake assignment for a 1-year term. If effective, the result was to create a 3-month reversion in Selig. As a result, even if effective, the suspension agreement did not effect a reassignment, but rather, merely a sublease. McDuffie v. Noonan, 176 Wash. 436, 29 P.2d 684 (1934); Sheridan v. O.E. Doherty, Inc., 106 Wash. 561, 181 P. 16 (1919). The Court of Appeals incorrectly chose to disregard the distinction between a sublease and an assignment. In this case, the character of the conveyance, in fact, determines the issue of liability. This, indeed, is as the law should be. The distinction between an assignment and a sublease is not merely form. Rather, distinct legal benefits inure, depending upon the nature of the conveyance. One example in an assignment/subsequent-sublease setting is the continued landlord/tenant relationship between the lessee/subsequent-sublandlord and the original lessor. A lessee/subsequent-assignor would maintain no such position.\nThe sublease between Selig and Flakey Jake's was similar to the Flakey Jake assignment in that it was without the written consent of OTR; but unlike the assignment, it occurred without OTR's knowledge, and thus without OTR's acquiescence. This issue, however, simply has no bearing on the resolution of the case. Nevertheless, relying on Coulos v. Desimone, 34 Wn.2d 87, 208 P.2d 105 (1949), Selig appears to argue that the sublease is a valid assignment since no consent is necessary for a reassignment back to an original lessee; and thus, he argues, he should escape liability. As will be seen in the following analysis, such an argument not only fails to distinguish between an assignment and a sublease, but it wholly misses the mark with respect to liability.\nContractually, neither the act of subletting nor assigning absolves the assignee/subsequent-assignor of his express duty to pay rent to his landlord, absent a release by the landlord. Cobb Healy Inv. Co. v. Tall, 181 Wash. 300, 42 P.2d 1107 (1935). As a result, whether the sublease back to Flakey Jake's was effective has no bearing on Selig's contractual liability. This long-standing Washington rule is in accord with the Restatement:\n(1) A transferor of an interest in leased property, who immediately before the transfer is obligated to perform an express promise contained in the lease that touches and concerns the transferred interest, continues to be obligated after the transfer if:\n(a) the obligation rests on privity of contract, and he is not relieved of the obligation by the person entitled to enforce it. . .\nRestatement (Second) of Property § 16.1(1) (a) (1977). Where there is an express covenant to pay rent in the lease, the assignee/subsequent-assignor remains liable for that rent under privity of contract theory, even where the landlord consents to the assignment. Puget Mill Co. v. Kerry, 183 Wash. 542, 49 P.2d 57, 100 A.L.R. 1220 (1935) (overruling Harvard Inv. Co. v. Smith, 66 Wash. 429, 119 P. 864 (1912)); Johnson v. Goddard, 179 Wash. 493, 38 P.2d 208 (1934); Huston v. Graham, 169 Wash. 521, 14 P.2d 44 (1932); DeLano v. Tennent, 138 Wash. 39, 244 P. 273, 45 A.L.R. 766 (1926); Johnson v. Norman, 98 Wash. 331, 167 P. 923 (1917).\nFurthermore, in addition to contractual liability, it follows from this analysis and the preceding authorities that if the successive conveyance is but a subletting, the assignee/subsequent-sublessor remains liable as tenant/ sublandlord under a privity of estate theory as well. For purposes of this unlawful detainer action, this is the liability with which we are presently concerned. See also Brickum Inu. Co. v. Vernham Corp., 46 Wn. App. 517, 731 P.2d 533 (1987). If effective, the suspension agreement still resulted in a 3-month reversion in Selig. Therefore, at no time was the landlord/tenant relationship between OTR and Selig altered by the suspension agreement. Again, if the suspension agreement was valid, and assuming there was no tender of possession, Selig was in possession by subtenant when a default in rent occurred.\nIn purely theoretical terms (probably with little practical application), but perhaps helpful toward a thorough understanding of the present analysis, were there no express covenant to pay rent in the original lease, an assignee incurs liability for rent only while in possession of the premises, and such liability is based solely upon privity of estate. Seattle Lodge 211, Loyal Order of Moose v. Par-T-Pak Beverage Co., 55 Wn.2d 587, 349 P.2d 229 (1960). In such a situation, an assignment would release the assignor from any obligation to pay rent because it would terminate all privity of estate. National Bank of Commerce v. Dunn, 194 Wash. 472, 78 P.2d 535 (1938); Restatement (Second) of Property § 16.1, comment e (1977). A subletting, on the other hand, would not, since privity of estate would still exist. Thus, had Selig not separately undertaken the obligations of the covenants in the lease, a successful reassignment, had one occurred, would have relieved him of all liability to OTR, there being no privity of estate nor privity of contract. Such, however, is not the case.\nAs a result, assuming the best case scenario from Selig's perspective, even if the suspension agreement is valid, it merely effected a valid sublet; thus, Selig remains liable through privity of estate. A factual question still exists, however, as to whether possession of the premises was ever tendered, thereby extinguishing privity of estate.\nAccordingly, the Court of Appeals is reversed. The case is remanded for a factual determination of whether a tender of possession occurred. Upon remand, the case may properly continue in line with this opinion and our opinion in Munden v. Hazelrigg, 105 Wn.2d 39, 711 P.2d 295 (1985). The award of attorney fees to Selig by the trial court and Court of Appeals is reversed. Upon remand, pursuant to RAP 18.1, the trial court is instructed to award appropriate and reasonable attorney fees to the prevailing party pursuant to RCW 4.84.330 and article 25 of the OTR lease.\nCallow, C.J., and Utter, Brachtenbach, Dolliver, Dore, Andersen, and Durham, JJ., concur.\nWe do not cite Tibbals v. Iffland, 10 Wash. 451, 39 P. 102 (1895) as support because the fact statement in that opinion is unclear. The opinion does not disclose whether the assignee/subsequent-assignor, Iffland, separately covenanted to pay rent. While Harvard Inv. Co. v. Smith, 66 Wash. 429, 119 P. 864 (1912) claims Tibbals supports its position, that is true only if Iffland actually covenanted to pay rent. If in fact Iffland did so covenant, Tibbals should have been overruled along with Harvard Inv. Co. However, other authorities have subsequently cited Tibbals for the proposition that an assignee/subsequent-assignor, such as Iffland, who does not separately covenant to pay rent, is not liable for rent following his subsequent assignment. Puget Mill Co. v. Kerry, 183 Wash. 542, 49 P.2d 57, 100 A.L.R. 1220 (1935); Stoebuck, Law Between Landlord and Tenant in Washington: Part II, 49 Wash. L. Rev. 1013, 1057 n.636 (1974). If these authorities have properly divined the facts in Tibbals, then it continues to be good law and supports our position today.\nTo further ponder the academic merits of the situation, were Selig not bound by privity of contract, and had his \""suspension agreement” resulted in a true assignment, releasing him from liability at least through privity of estate, the question would then arise whether the assignment was merely \""colorable\"". In essence, the question would be whether his actions were merely a concealed attempt to avoid the burdens of the leasehold estate, while endeavoring to retain the \""benefits derived from the use of the property.\"" National Bank of Commerce v. Dunn, 194 Wash. 472, 498, 78 P.2d 535 (1938). Due to Selig's express covenant to pay rent, however, and his failure to effect a true assignment, we need not answer these questions."", ""type"": ""majority"", ""author"": ""Pearson, J.""}], ""attorneys"": [""Bogle & Gates, Ronald T. Schaps, Robert F. Bakemeier, and Michael P. Mirande, for petitioner."", ""John W. Hempelmann (of Cairncross, Ragen & Hempelmann) and Sherrie Bennett Campiche (of Sylvester, Ruud, Petrie & Cruzen), for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 54898-6.\nEn Banc.\nApril 6, 1989.]\nOTR, Petitioner, v. Flakey Jake's, Inc., Defendant, Martin Selig, et al, Respondents.\nBogle & Gates, Ronald T. Schaps, Robert F. Bakemeier, and Michael P. Mirande, for petitioner.\nJohn W. Hempelmann (of Cairncross, Ragen & Hempelmann) and Sherrie Bennett Campiche (of Sylvester, Ruud, Petrie & Cruzen), for respondents.""}, ""cites_to"": [{""cite"": ""49 Wash. L. Rev. 1013"", ""category"": ""journals:journal"", ""reporter"": ""Wash. L. Rev."", ""opinion_index"": 0}, {""cite"": ""39 P. 102"", ""year"": 1895, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""10 Wash. 451"", ""year"": 1895, ""case_ids"": [2438441], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/10/0451-01""], ""opinion_index"": 0}, {""cite"": ""711 P.2d 295"", ""year"": 1985, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""105 Wn.2d 39"", ""year"": 1985, ""case_ids"": [1199192], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/105/0039-01""], ""opinion_index"": 0}, {""cite"": ""78 P.2d 535"", ""year"": 1938, ""weight"": 2, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""194 Wash. 472"", ""year"": 1938, ""weight"": 2, ""case_ids"": [1355181], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""pin_cites"": [{""page"": ""498""}], ""case_paths"": [""/wash/194/0472-01""], ""opinion_index"": 0}, {""cite"": ""349 P.2d 229"", ""year"": 1960, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""55 Wn.2d 587"", ""year"": 1960, ""case_ids"": [1017739], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/55/0587-01""], ""opinion_index"": 0}, {""cite"": ""731 P.2d 533"", ""year"": 1987, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""46 Wn. App. 517"", ""year"": 1987, ""case_ids"": [1811854], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""case_paths"": [""/wash-app/46/0517-01""], ""opinion_index"": 0}, {""cite"": ""167 P. 923"", ""year"": 1917, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""98 Wash. 331"", ""year"": 1917, ""case_ids"": [654051], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/98/0331-01""], ""opinion_index"": 0}, {""cite"": ""45 A.L.R. 766"", ""year"": 1926, ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R."", ""opinion_index"": 0}, {""cite"": ""244 P. 273"", ""year"": 1926, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""138 Wash. 39"", ""year"": 1926, ""case_ids"": [814272], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/138/0039-01""], ""opinion_index"": 0}, {""cite"": ""14 P.2d 44"", ""year"": 1932, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""169 Wash. 521"", ""year"": 1932, ""case_ids"": [853726], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/169/0521-01""], ""opinion_index"": 0}, {""cite"": ""38 P.2d 208"", ""year"": 1934, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""179 Wash. 493"", ""year"": 1934, ""case_ids"": [877759], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/179/0493-01""], ""opinion_index"": 0}, {""cite"": ""119 P. 864"", ""year"": 1912, ""weight"": 2, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""66 Wash. 429"", ""year"": 1912, ""weight"": 2, ""case_ids"": [561025], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/66/0429-01""], ""opinion_index"": 0}, {""cite"": ""100 A.L.R. 1220"", ""year"": 1935, ""weight"": 2, ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R."", ""pin_cites"": [{""parenthetical"": ""overruling Harvard Inv. Co. v. Smith, 66 Wash. 429, 119 P. 864 (1912)""}], ""opinion_index"": 0}, {""cite"": ""49 P.2d 57"", ""year"": 1935, ""weight"": 2, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""pin_cites"": [{""parenthetical"": ""overruling Harvard Inv. Co. v. Smith, 66 Wash. 429, 119 P. 864 (1912)""}], ""opinion_index"": 0}, {""cite"": ""183 Wash. 542"", ""year"": 1935, ""weight"": 2, ""case_ids"": [1307075], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""pin_cites"": [{""parenthetical"": ""overruling Harvard Inv. Co. v. 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+1195531,"{""id"": 1195531, ""name"": ""Fisher Properties, Inc., Respondent, v. Arden-Mayfair, Inc., Appellant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""1a93a0dbddf29ba8178885c0b84022c3fb365c738a3df0edefa3112c3f506350"", ""simhash"": ""1:9fa85232f1cc1d6e"", ""pagerank"": {""raw"": 0.0000004034568751026601, ""percentile"": 0.9071559770473104}, ""char_count"": 56257, ""word_count"": 9156, ""cardinality"": 1496, ""ocr_confidence"": 0.849}, ""casebody"": {""judges"": [], ""parties"": [""Fisher Properties, Inc., Respondent, v. Arden-Mayfair, Inc., Appellant.""], ""opinions"": [{""text"": ""Durham, J.\nThis case involves a complex dispute over a lessee's obligations to repair and restore leased premises upon the termination of a lease which lasted for over 50 years. Arden-Mayfair, Inc. (Arden), the lessee, appeals from a trial court judgment holding that it breached the lease by failing to repair and restore the premises in the condition required by the lease. Arden challenges the trial court's award of damages to Fisher Properties, Inc. (Fisher), the lessor, on a number of grounds. Arden further contends that the trial court erred in its award of attorney fees to Fisher. Fisher cross-appeals from the trial court's decision not to award treble damages for certain aspects of Arden's conduct. We affirm in part and reverse in part the trial court's award of damages. The award of attorney fees is reversed. We deny Fisher's request on its cross appeal.\nOn June 30, 1923, the predecessors of the parties in this case executed a lease of several lots in a block on the Seattle tidelands. There is no evidence as to which party drafted the lease. Fisher is the successor in interest to the lessor, and Arden is the successor to the lessee. In the lease, the lessor agreed to construct a 2-story building designed for the manufacture of ice cream on the premises at its own expense. Paragraph 27 of the lease provided that the lessee would pay for \""the cost of making any installation at the time of the construction of the building\"" for machinery or any other features pertaining to the lessee's business, and all other machinery or equipment installed in the building except for certain features in the office portion. It further stated that \""[a]s a part consideration of making this lease\"", the lessee agreed to install the above features, \""including special equipment and machinery for the manufacture of ice and ice cream in said building to cost not less than $125,000, all of the same to be installed promptly after the building is ready for same, all of said machinery and equipment to be free and clear of encumbrances ...\"" The lease permitted the lessee to use the premises for the manufacture and sale of ice cream or for any other legitimate purpose. The lease term was 25 years.\nParagraph 8 of the lease contained a repair covenant. It provided, in part:\nThe Lessee covenants that it will, throughout said term, at its own expense, make and do all repairs of all kinds, both inside and outside the demised premises, including the roof and walls thereof, and keep the same in good order and repair, damage by fire excepted; and observe and be responsible for and bear all expenses of complying with all orders, ordinances, rules, regulations, requirements and inspections of all municipal, state and federal authorities relative to the demised premises, including the rules and regulations of the Health Officer, Fire Marshal, Building Inspector or other proper officer of the City of Seattle, Washington. The Lessee agrees that it will not permit or suffer any waste, damage or injury to the said building or premises, and will at its own expense keep all drainage pipe free and open and will protect water, heating and other pipes so that they will not freeze or become clogged and will repair all leaks, and also repair all damages caused by leaks, or by reason of its failure to repair and keep free and unfrozen any of the pipes or plumbing on said premises. . . .\nParagraph 11 of the lease contained a surrender covenant. That paragraph provided:\nThe Lessee covenants that it shall and will, on the last day of the term hereby demised, or on the last day of the renewal thereof, if this lease shall be renewed, peaceably and quietly leave, surrender and yield up unto the Lessor the demised premises, including all additions and improvements added thereto by either of the parties hereto . . . in as good state and condition as reasonable use and wear and damage by fire will permit. In case Lessee shall put in or upon said premises any machinery, plumbing, coils, tanks, insulated partitions, appliances or apparatus of any kind, it . . . shall have the right to remove the same upon the termination of this lease . . . provided that any injury which may be caused to the walls, floors, ceiling or woodwork of the building by such removal shall be repaired and restored by Lessee. In case any alterations are made in said premises by Lessee, it is agreed that on the termination or expiration of this lease the said Lessee shall restore and repair the demised premises in their original condition, should the Lessor so desire; provided, however, that the Lessor may require any partitions, other than insulated ones, plumbing, other than that which is used in the manufacture of ice cream, ice or any by-product in connection with the manufacturing plant of said Lessee (this exception does not include soil or water pipes), lighting or power wiring to be left in and attached to said building at the termination of this lease.\nParagraph 13 of the lease provided:\nThe Lessee covenants and agrees that it will not make any structural alterations or improvements in the demised premises . . . without written consent of the Lessor, and all alterations, additions and improvements which shall be made shall be at the sole cost and expense of the Lessee and shall become the property of said Lessor, and shall remain in and be surrendered with the premises as part thereof at the option of the Lessor at the termination of this lease without disturbance, molestation or injury, subject to the provisions of paragraph 11. . . .\nThe building was constructed according to the lease and Arden began using it to manufacture ice and ice cream. In 1926, the parties executed an \""Addenda and Lease\"", which leased more property in the same block to the lessee. The lessor agreed to construct on the leased premises a \""warehouse-type building . . . tying it up with the present building\"". The lessee was required to pay for \""all partitions, heating pipes or equipment, water or drain pipes, plumbing, sewerage, oil tanks, and/or any other thing, fixture or equipment pertaining particularly to the ice cream or powdered milk business\"". The 1926 agreement incorporated all relevant paragraphs of the 1923 lease, including paragraphs 8, 11 and 13. The agreement also extended the 25-year term of the 1923 lease an additional 3 years so that it would expire on April 1, 1952.\nIn 1950, the parties entered into a \""Lease Extension Agreement\"", which extended the term of the two leases for 5 years. This was the first in a series of seven similar agreements, each of which extended the lease term for a period of between 2 and 5 years. All of these subsequent agreements were made subject to the covenants and conditions of the original lease, with minor modifications not relevant to the issues in this case.\nIn the 1920's, Arden built a garage on land it owned next to the factory. The garage was connected to the warehouse building. In December 1960, Fisher purchased this garage and the underlying land from Arden. Fisher then leased the garage and the land back to Arden in the parties' 1960 lease extension agreement. That agreement made the garage subject to the covenants and conditions of the original lease.\nThe last agreement between the parties, made in 1975, extended the lease term for a period of 5 years, beginning April 1, 1977. This agreement gave the lessee the option to terminate the lease upon not less than 1 year's written notice. Pursuant to this option, on June 9,1978, Arden gave Fisher a 1-year notice that it was terminating the lease. The parties later agreed that the termination of the lease would he effective on June 30, 1979.\nArden continued to conduct business activities on the premises until at least April 1979. On March 28, 1979, Fisher's president, Donald G. Graham, Jr., sent a letter to John C. Tucker, an Arden representative, in which he called Arden's attention to paragraphs 8, 11 and 13 of the lease. At about the same time, Fisher hired William Thomas of Olympic Products, Inc. to review the premises and advise Fisher of their condition. Thomas made a number of reports to Fisher. At a meeting on June 6, 1979, Graham handed Tucker the most extensive of these reports. Graham told Tucker that Fisher wanted Arden to repair and restore the premises to their original condition as required by paragraph 11 of the lease. In a letter dated July 23, 1979, Graham told Tucker that Fisher had \""no alternative but to exercise our option under Paragraph 11 of the Lease to require you to restore and repair the premises in their original condition in all cases where alterations have been made.\""\nIn a letter dated September 26, 1979, Graham informed Tucker that because Fisher had concluded it could not rent or otherwise use the building on an economically feasible basis, it had decided to tear the building down, and that demolition would begin around November 1. Graham further informed Tucker that Fisher planned to arrange for an examination of the building by experts should litigation with Arden ensue. Graham stated that Fisher was giving Arden advance notice of the demolition so Arden would have an opportunity to conduct its own inspection of the premises.\nFisher hired the Austin Company (Austin) to examine the building. Austin prepared two reports which Fisher introduced into evidence at trial. These reports itemized and estimated the cost of architectural, electrical and mechanical work which Austin considered necessary for Arden to comply with the lease. In preparing these reports, Austin personnel inspected the existing buildings and referred to drawings which had been submitted to the Seattle Building Department for building permits in the 1920's. In determining the cost of placing the premises in their original condition, Austin interpreted \""original condition\"" to mean the buildings' original configuration, not including equipment Arden had initially installed pursuant to the lease.\nThe first Austin report, however, did not contain estimates of all work necessary to place the premises in their original condition according to this interpretation. If Austin found an item that did not conform to the original configuration, but was in reasonable repair, it did not estimate the cost of removing it. However, it did estimate the cost of returning items needing extensive repair to their original configuration. The first Austin report concluded it would cost $835,700 to perform all the work identified.\nIn contrast, in its second report, Austin included all the work it considered necessary to return the premises to its concept of the original condition. This report included the estimated costs of removing all items that did not conform to Austin's idea of the original condition and the costs of rebuilding items according to that condition. The second Austin report estimated that it would cost $1,089,400 to place the building in the condition required by the lease.\nOn February 11, 1981, Fisher filed a complaint against Arden in King County Superior Court alleging that Arden had breached the lease by failing to make the repairs and restorations required under the lease. Fisher asked for damages of at least $835,700. On February 1, 1983, Fisher notified Arden that at the commencement of trial, it would expand its prayer for relief to include treble damages and attorney fees pursuant to RCW 64.12.020 for the commission of waste. The trial lasted approximately 11 weeks. Many witnesses testified and over 200 exhibits were introduced into evidence.\nThe trial court held that Arden breached paragraphs 8, 11 and 13 of the lease. It found that Arden had breached the repair covenant in paragraph 8 by failing to make repairs when prudent and reasonable management would dictate they should be made. It found Arden had permitted and committed waste, damage, and injury to the premises, contrary to the parties' intentions in paragraph 8. It also found Arden breached paragraph 8 and the first sentence of paragraph 11 by returning elements of the building at the termination of the lease in a condition of repair substandard to that which reasonable management would require. It also held Arden breached the compliance with codes clause in paragraph 8. The court held Arden breached the second sentence of paragraph 11 by failing to repair damage caused by removal of certain items from the premises. It further held that Arden breached the third sentence of paragraph 11 and paragraph 13 by failing to restore the premises to their original condition on termination of the lease as required by Fisher.\nThe court awarded Fisher damages of $1,089,400, finding that this sum represented the reasonable expenditures that would be required to repair and restore the premises to the condition required by the lease. In addition, it awarded Fisher consequential damages of $117,000 for lost rental income during the time necessary to place the premises in the condition required by the lease. The court further found that two aspects of Arden's conduct constituted commissive waste and awarded treble damages for those elements under RCW 64.12.020. Finally, the court awarded Fisher $231,713.75 in attorney fees.\nArden appeals from the trial court's awards of damages and attorney fees. Fisher cross-appeals, contending the trial court erred by not awarding Fisher treble damages under RCW 64.12.020 for certain aspects of Arden's conduct.\nI\nThe Lessee's Obligation To Restore the Premises to Their Original Condition\nThe first issue we must address is if the trial court correctly construed the lease provision concerning Arden's obligation to restore the premises in their original condition. The third sentence of paragraph 11 states, \""In case any alterations are made in said premises by Lessee, it is agreed that on the termination or expiration of this lease the said Lessee shall restore and repair the demised premises in their original condition, should the Lessor so desire . . .\"" Arden contends the trial court erred in its interpretation of this provision and its determination of Arden's obligations thereunder.\nFirst, Arden argues that the trial court erred in holding Arden liable for its failure to remove equipment which it had originally installed in the building when it was first constructed. Arden contends that, under the lease, this equipment became part of the building's \""original condition\"", and the trial court should not have construed its obligation to restore the premises to their original condition to include removal of such equipment.\nWe conclude that the lease indicates that the original condition of the building included equipment Arden installed pursuant to the lease when the building was first constructed and, therefore, Arden is not liable for failing to remove it. Under paragraph 27, Arden was required to install equipment in the building ”[a]s a part consideration of making this lease\"". Generally, where a lease requires a tenant to install articles on the premises as consideration for the lease, the tenant may not remove them. 2 M. Friedman, Leases § 24.2 (2d ed. 1983). This indicates that Arden had no right to remove the equipment it initially installed under paragraph 27 and therefore that such equipment became part of the premises. Additionally, it is reasonable to interpret \""original condition\"" to mean the condition of the premises once both parties' construction and installation obligations under paragraph 27 were completed. Finally, when paragraphs 11 and 27 are compared, it appears that the lease distinguishes between items that the lessee initially installed in the premises and subsequent installations. While paragraph 27 concerns installations which Arden was required to make at the time of the construction of the building, paragraph 11 deals with additional features which Arden could incorporate later at its discretion. The second sentence of paragraph 11 provides that \""[i]n case Lessee shall put in or upon said premises\"" certain items, it shall have the right to remove them upon the termination of the lease. This sentence appears to refer to the disposition of items which the lessee added to the premises at its discretion rather than items it was required to install initially under paragraph 27. The third sentence of paragraph 11 states, \""In case any alterations are made\"", the lessor may require the lessee to return the demised premises in their original condition. This introductory clause must refer to modifications which Arden might choose to make after it completed the required initial installations pursuant to paragraph 27. It would be odd to construe \""alterations\"" as including items which the lease required Arden to install. It is more sensible to interpret \""alterations\"" to signify changes made after the completion of the facility contemplated in paragraph 27. If \""alterations\"" are changes made after the initial installations, the \""original condition\"" must mean the premises including the initial installations.\nThus, the trial court incorrectly determined Arden's general obligations under the lease provision for restoration of the premises to their original condition. Considering the lease as a whole and the plain language of the third sentence of paragraph 11, the following construction is reasonable. Where Arden made changes in the premises after the installations it made initially under paragraph 27, Fisher could require Arden to restore those altered aspects of the premises to their original condition. The original condition is the configuration of the premises at the completion of the construction contemplated by paragraph 27; in other words, the original condition includes the installations initially made by Arden pursuant to the lease. Accordingly, Arden was only required to remove features it had added above and beyond the original installations and the trial court erred in requiring Arden to pay the cost of removing equipment and other features which it had initially installed in the premises.\nArden also contends that the trial court misconstrued the meaning of the phrase \""original condition\"" in the lease as it is applied to the garage portion of the premises. The trial court essentially concluded that Arden was required to restore the garage to its condition in the 1920's, when it was built. Arden argues, however, that since Fisher did not lease the garage to Arden until 1960, Arden should not be required to restore it to its 1920's condition.\nThe lease itself does not clearly indicate what \""original condition\"" means with respect to the garage. The 1960 agreement in which Fisher leased the garage to Arden merely states that the garage is \""added to the leased premises\"" and \""made subject to all of the covenants and conditions\"" of the original lease. Fisher argues that since this agreement provided that the garage was subject to the covenants of the original lease, and the \""original condition\"" of the premises under the original lease was the 1920's condition, Arden was required to restore the garage to its 1920's condition. However, the fact that the garage was subject to the covenants in the original lease only means that Fisher could require Arden to restore the garage to its original condition; it does not indicate if that condition is the 1920's or 1960 condition.\nThe role of the court is to determine the mutual intentions of the contracting parties according to the reasonable meaning of their words and acts. Dwelley v. Chesterfield, 88 Wn.2d 331, 560 P.2d 353 (1977). When a provision is subject to two possible constructions, one of which would make the contract unreasonable and imprudent and the other of which would make it reasonable and just, we will adopt the latter interpretation. Dickson v. United States Fid. & Guar. Co., 77 Wn.2d 785, 790, 466 P.2d 515 (1970). When the parties entered into the 1960 agreement leasing the garage, they could not reasonably have intended that when the lease terminated, Fisher could require Arden to restore the garage to its condition some 40 years before they made that agreement. It would be peculiar to require a lessee to return a facility to a condition which existed long before that facility was leased. In the absence of any language specifically indicating an intent to impose such an obligation, we will not infer it. The more reasonable construction is that the \""original condition\"" of the garage was its condition in 1960 when the lease term began. Thus, Arden was required to restore the garage to its 1960 condition, and the trial court erred in awarding Fisher damages for the cost of restoring the garage to its 1920's condition.\n'\""'It\nThe Lessee's Repair Obligations\nThe next issue concerns the trial court's assessment of Arden's repair obligations under the repair and surrender covenants of the lease. The pertinent part of the repair covenant provides that the lessee \""will, throughout said term, at its own expense, make and do all repairs of all kinds, both inside and outside the demised premises, including the roof and walls thereof, and keep the same in good order and repair, damage by fire excepted ...” The surrender covenant provides that when the lease terminates, the lessee will \""surrender and yield up unto the Lessor the demised premises, including all additions and improvements added thereto by either of the parties ... in as good state and condition as reasonable use and wear and damage by fire will permit.\"" The trial court found that these two provisions, read together, meant that \""no component or element of the building which was required to be returned at the termination of the Lease be in a state or condition beyond (substandard to) its normal maintenance cycle.\"" It concluded that Arden was to perform whatever repairs and maintenance were necessary to keep the premises in good repair throughout the lease term, and that to the extent Arden failed to keep the premises in good repair within the applicable maintenance cycle, it was required to correct those deficiencies under the surrender covenant. It held that Arden breached these obligations and awarded Fisher damages therefor.\nArden first argues that the trial court erred in finding that this lease was a long-term triple net lease and in construing Arden's repair obligations accordingly. The length of a lease is a relevant factor in determining a lessee's repair obligations. In a long-term net lease, the tenant has a virtually complete obligation to repair, whereas in a short-term lease the tenant's obligation is comparatively less. 1 M. Friedman, Leases § 10.8 (2d ed. 1983). Arden argues that since 1952, when the original lease term expired, the parties had been engaged in a series of short-term leases, rather than a single, long-term lease. We disagree with Arden's characterization of this transaction. Although each agreement executed after the original agreement covered a short period, taken together these agreements constituted a single, comprehensive transaction. Several factors indicate that the agreements subsequent to the original agreement constituted a continuation of the original lease. First, the terms and conditions of the original lease remained in effect as to succeeding agreements. The agreements subsequent to the original agreement also stated that they extended the lease term. Finally, from 1960 on, every lease extension agreement referred to the original lease, its addenda and extensions, as \""said Lease\"", indicating that the series of agreements constituted a single lease. Therefore, we conclude that the trial court reasonably construed the lease in this case as a long-term lease. Since the lease is long term, it is proper to construe broadly the lessee's repair obligations thereunder.\nArden next contends the trial court erred in interpreting the repair and surrender covenants by failing to consider the depreciation of the building resulting from Arden's reasonable use. Arden argues that when the trial court held that Arden was required to keep every element of the premises which was to be returned at the termination of the lease within its \""normal maintenance cycle\"", it failed to consider the provision for reasonable use and wear in the surrender covenant of the lease. Fisher responds, however, that the analysis used in the Austin reports and adopted by the trial court did give effect to both the repair covenant and the surrender covenant's provision for reasonable use and wear.\nThe initial question we must resolve is who has the burden of proving if repairs claimed are for damage which resulted from reasonable use and wear, and thus are not within the lessee's repair obligations under the lease. No prior case in Washington has answered this question, and other jurisdictions are split. Compare Santini v. Kocher, 38 Conn. Supp. 506, 509, 452 A.2d 318 (1982) with Stegeman v. Burger Chef Sys., Inc., 374 So. 2d 1130, 1131 (Fla. Dist. Ct. App. 1979). We hold that, while the lessee is responsible for introducing evidence that damage claimed by the lessor is due to reasonable use and wear, the lessor has the burden of proving that the damage is beyond reasonable use and wear. Because the lessor is the party claiming damages for a breach of the covenant, the lessor must bear the burden of proof.\nFisher argues that Arden produced no substantial evidence that any repair which Austin identified was for damage resulting from reasonable use and wear. Arden asserts, however, that the testimony of its expert appraiser, Stephen Olson, constituted such evidence. Olson's testimony indicates that normal use of the building for an ice cream factory caused some damage. However, Fisher also has produced substantial evidence that the condition of the premises was beyond what would result from reasonable use and wear. There is evidence in the record from Robert Grafer and Gorley Sauer that Austin took into account the building's age, use, and wear in determining the extent of necessary repairs. The estimates which Austin produced constituted substantial evidence of repairs required for damage which was beyond reasonable use and wear. Therefore, Fisher satisfied its burden of proving that the damages it sought were beyond the surrender covenant's provision for reasonable use and wear. We affirm the trial court's award of damages for Arden's failure to comply with its repair obligations under the repair and surrender covenants of the lease.\nArden also contends that the trial court's damages award and the Austin report on which it is based, contain the costs of certain repairs to utilities which were beyond the scope of Arden's repair obligations under the lease. Arden contends that the trial court erred by assessing damages for lighting repairs for which it was not responsible, for costs related to the boiler, and for testing and repairing radiators, water and sprinkler systems. In each of these matters, the record contains substantial evidence to support the trial court, and we affirm those awards.\nIll\nThe Lessee's Obligations Under the Compliance With Codes Covenant\nWe next consider if the trial court erred by concluding that Arden breached the lease by failing to pay the expenses of bringing the premises into compliance with certain codes. Paragraph 8 of the lease contains a covenant providing:\nThe Lessee covenants that it will . . . observe and be responsible for and bear all expenses of complying with all orders, ordinances, rules, regulations, requirements and inspections of all municipal, state and federal authorities relative to the demised premises . . .\nThe trial court found that Arden violated code provisions in two respects:\nFirst, Arden violated applicable code provisions with respect to service drops by having more than one service drop. Second, Arden did not comply with code provisions with respect to exit lights and unit equipment for emergency illumination.\nThe trial court concluded that Arden's failure to pay for repairs necessary to comply with these codes constituted a breach of the covenant quoted above. It awarded Fisher damages for the cost of revising the service entrance and installing lights and equipment for emergency illumination to comply with codes.\nInitially, Arden argues that the trial court erred by finding that it violated any applicable code provisions. First, with respect to service drops, Fisher alleged Arden violated the National Electrical Code, section 230-2, which provides that generally a building shall be supplied by only one electrical service entrance. National Electrical Code § 230-2 (National Fire Protection Association 1978). There is evidence in the record that the City of Seattle implemented the National Electrical Code. Moreover, the evidence shows that Arden did indeed have more than one service drop. Thus, the evidence supports the trial court's finding that Arden did violate this code provision.\nSecond, concerning exit lights, Fisher argued Arden violated WAC 296-24-56531 because the building lacked illuminated exit signs. Arden contends that this provision does not require any such illumination system. However, WAC 296-24-56531(6) does state that \""[ejvery exit sign shall be suitably illuminated by a reliable light source ...\"" Therefore, it appears that Arden did not comply with applicable codes with respect to exit lights.\nArden further contends, however, that even if it did not comply with applicable codes, the lease did not obligate it to pay for repairs to bring the premises into compliance with codes unless it was required by inspectors to make such repairs. Arden relies on Puget Inv. Co. v. Wenck, 36 Wn.2d 817, 221 P.2d 459, 20 A.L.R.2d 1320 (1950), where this court construed a covenant similar to the one at issue here. In Wenck, city officials had notified the lessee that certain conditions on the premises violated city ordinances. We reasoned, however, that the lease did not obligate the lessee to pay the lessor for the cost of repairs necessary to comply with the ordinances, where the lessee had been able to use the premises without strict compliance with the laws and the city had not ordered the lessee to cease operations until it complied. Wenck, at 830. We held that a lease covenant of this kind should not be construed as an affirmative obligation to repair, alter or improve; rather, it was intended only to make the lessee responsible for any repairs which the lessee found necessary to use the premises, to indemnify the lessor for expenses resulting directly from unlawful use, and to provide a basis for the lessor to require the lessee to cease any unlawful activity. Wenck, at 831.\nUnder the rule established in Wenck, even if Arden violated code provisions, the lease covenant did not require Arden to pay Fisher for the costs of repairs to comply with the codes if government authorities never ordered Arden to make such repairs or shut down the premises for noncompliance. There is no evidence in the record that any government authority ever required Arden to make repairs to bring the premises into compliance with codes. Therefore, the trial court erred in concluding Arden breached the lease by failing to pay the expenses of keeping the premises in compliance with codes. We reverse the trial court's award of damages for the costs of such compliance.\nIV\nThe Measure of Damages for the Lessee's Breach of the Lease\nThe trial court found that the diminution in market value of the premises caused by Arden's breach of the lease exceeded the cost of repair and restoration to the condition required by the lease. It then awarded damages based on its assessment of the cost of repair and restoration. Arden contends there is no evidence to support the trial court's finding that the diminution in value of the premises exceeded the cost of repair and restoration, and that the trial court erred in awarding damages based on the latter measure.\nBecause we have reversed portions of the trial court's assessment of the costs of repair and restoration to the condition required by the lease, the trial court will recalculate these costs on remand, and it is unnecessary for us to determine if there was evidence to support the trial court's finding. However, we shall address the questions of law which the parties have raised concerning the appropriate measure of damages for the lessee's breach of a covenant in a lease to return the premises to a prescribed condition.\nGenerally, damages for the lessee's breach of a covenant to return the premises to a prescribed condition are measured by the costs of returning the premises to that condition. However, in some cases, that measure of damages may place the lessor in a better position than if the lessee had performed. In these situations, the diminution in market value of the premises resulting from the breach of the lease is an alternative measure of damages. If the cost of returning the premises to the condition required by the lease exceeds the diminution in market value of the premises due to the lessee's breach of the lease, the lessor's recovery may be limited to the diminution in value. 2 M. Friedman, Leases § 18.1 (2d ed. 1983). See also James S. Black & Co. v. F.W. Woolworth Co., 14 Wn. App. 602, 611, 544 P.2d 112 (1975). The diminution in value is measured by the difference in value of the premises on today's market had the lessee returned them in the condition required by the lease and their value in the condition in which they were returned to the lessor. James S. Black, at 611.\nFisher and Arden disagree as to who has the burden of presenting evidence of the two alternative measures of damages. Generally, where a lessor claims damages for a lessee's breach of a covenant to return the premises in a particular condition, it is not the lessor's burden to produce evidence of both the cost of restoration and diminution in value. Rather, once the lessor has presented evidence of one measure of damages, the lessee has the burden of establishing that the other measure of damages is less. Thus, if the lessor introduces evidence of the cost of restoration, that measure of damages will be used unless the lessee produces evidence that the diminution in value of the premises is the smaller amount. 2 M. Freidman, at § 18.1. Accord, Jenkins v. Etlinger, 55 N.Y.2d 35, 39, 432 N.E.2d 589, 447 N.Y.S.2d 696 (1982); Laska v. Steinpreis, 69 Wis. 2d 307, 314, 231 N.W.2d 196 (1975).\nWe believe that the above approach is a sensible method for determining the proper measure of damages for a lessee's breach of a covenant to return the premises in a prescribed condition, and, therefore, we adopt it. The trial court is directed to use this approach in deciding the appropriate measure of damages for Arden's breach on remand.\nV\nThe Award of Damages for Lost Rental Income\nThe trial court found that it would have taken 1 year to complete the repairs necessary to place the premises in the condition required by the lease, and that the reasonable lost rental income for this period was $117,000. It awarded Fisher this sum as consequential damages.\nArden challenges the trial court's award of damages for lost rent, relying on two different theories. First, Arden contends that Fisher unreasonably delayed giving notice that it wanted the premises restored to their original condition, thereby preventing Arden from restoring the premises during the lease term. Thus, Fisher cannot recover damages for lost rent during the time that would have been required for restoration. Arden observes that, while it gave Fisher the required 1-year notice of termination of the lease, Fisher did not notify Arden that it wanted the premises restored until 24 days before the termination of the lease. Arden contends that if Fisher had notified it of its desire shortly after Arden gave notice of termination, restoration might have been accomplished by the end of the lease term. Arden argues that Fisher's delay prevented it from restoring the premises before the end of the. lease term, and Fisher cannot take advantage of this by recovering damages for lost rent during the period required for repair. Arden relies on the principle that a party to a contract who prevents another from performing an obligation cannot recover for the nonperformance. Hydraulic Supply Mfg. Co. v. Mardesich, 57 Wn.2d 104, 105, 352 P.2d 1023 (1960).\nOur review of the evidence, however, indicates that Fisher did not unreasonably delay giving notice to Arden of its desire that Arden restore the premises. The trial court found that Fisher gave Arden notice to restore the premises within a reasonable time and did not unreasonably delay enforcing any of its rights under the lease. There is substantial evidence to support these findings. The lease did not specify a particular time when Fisher had to provide notice of its desire that Arden restore the premises. Therefore, it was not unreasonable for Fisher to give Arden notice when it did. Furthermore, there is no evidence that Arden would have restored the premises had Fisher made its request earlier. In an unchallenged finding of fact, the trial court stated that \"" [t]here is no credible evidence that Arden at any time changed its position to its detriment as a result of any action or nonaction by Fisher.\""\nArden's second argument is based on a different construction of the lease. Arden contends that the lease did not even require Arden to restore the premises before the end of the lease term. It notes that the lease states, \""on the termination or expiration of this lease the said Lessee shall restore and repair the demised premises in their original condition, should the Lessor so desire\"". Arden asserts that this language contemplates that any restoration will occur after termination. Therefore, it could have complied with its obligations under the lease by beginning restoration in June 1979 when the lease term ended and finishing it in June 1980. Arden argues that, had it so performed, there would have been no breach and Fisher would have earned no rent, and by awarding Fisher rent for that year, the trial court put Fisher in a better position than it would have been in had Arden performed.\nWe disagree with Arden's argument that the language of the lease quoted above means that the restoration process must begin at the end of the lease term. We do not believe that this provision was specifically intended to establish the point in time when restoration would have to begin. Rather, it appears that this language was simply intended to establish the lessor's right to require the lessee to restore the premises once it was clear that the lease would terminate.\nOnce Fisher notified Arden that it wished it to restore the premises, Arden was obligated to do so under the lease. Arden did not, in fact, comply with this obligation. Where a lessee breaches a covenant to return the premises in a prescribed condition, it is proper to award damages for the lessor's loss of rent during the time needed to restore the premises to the condition required by the lease. 2 M. Friedman, Leases § 18.1 (2d ed. 1983); Iverson v. Spang Indus., Inc., 45 Cal. App. 3d 303, 308, 119 Cal. Rptr. 399 (1975). We, therefore, affirm the trial court's award of damages for lost rental income.\nVI\nThe Award of Treble Damages for Commissive Waste\nWe next review the trial court's holding that two aspects of Arden's conduct constituted commissive waste for which damages could be trebled. The trial court found that Arden \""voluntarily and intentionally, committed substantial injury\"" to the premises in removing its equipment \""by deliberately knocking holes in walls, removing headers, damaging floors, damaging ceilings, etc.\"", and by the manner in which it shut down refrigeration equipment. The court concluded that these actions constituted commissive waste and trebled the damages for them pursuant to RCW 64.12.020. Arden argues that the trial court erred in holding that these two aspects of Arden's conduct were commissive waste and, therefore, in awarding treble damages for them.\nCommissive waste is \""the commission of some deliberate or voluntary destructive act, such as pulling down a house, or removing things fixed to and constituting a material part of the freehold.\"" (Italics omitted.) Seattle-First Nat'l Bank v. Brommers, 89 Wn.2d 190, 202, 570 P.2d 1035 (1977) (quoting Graffell v. Honeysuckle, 30 Wn.2d 390, 398, 191 P.2d 858 (1948)). Commissive waste is distinguished from permissive waste, which \""implies negligence or omission to do that which will prevent injury, as, for instance, to suffer a house to go to decay for want of repair or to deteriorate from neglect.\"" Graffell, at 398. RCW 64.12.020 provides that if a tenant of real property \""commit waste thereon, any person injured thereby may maintain an action at law for damages\"" and \""if the plaintiff prevails, there shall be judgment for treble damages ...\"" Under RCW 64.12.020, treble damages must be awarded if the tenant commits waste and the plaintiff prevails. Brommers, at 202; Graffell, at 401-02.\nFirst, Arden contends that it did not commit commissive waste in shutting down the refrigeration equipment. The evidence shows that the shutdown caused ice to melt, damaging the floor, and caused cork lining the walls to pull away. Arden argues, however, that there is no evidence that the shutting down of the system was a deliberate or voluntary destructive act. The trial court found that Arden knew it would cause substantial injury to the premises in shutting down the refrigeration equipment in the manner in which it did. There is substantial evidence to support this finding, and we will not disturb it. Brommers, at 199. Furthermore, this finding supports the trial court's conclusion that such conduct constituted commissive waste, and thus, we affirm the trial court's award of treble damages for it.\nSecond, Arden argues it did not commit commissive waste in removing its equipment. It asserts that Fisher requested that it remove the equipment, and, therefore, any resulting damage could not have been commissive waste. However, the fact that a tenant has removed equipment in performing a duty to the landlord does not mean that the manner in which it removed it is not a deliberate or voluntary destructive act. The trial court seems to have found that the removal was a deliberate, destructive act because .of the way Arden did it. There is substantial evidence in the record that the manner in which Arden removed equipment resulted in destruction to the premises. Therefore, we affirm the trial court's judgment of treble damages for commissive waste resulting from Arden's removal of equipment from the premises.\nVII\nAttorney Fees\nThe final issue Arden raises is if the trial court's award of attorney fees was appropriate. Arden argues the trial court erred in awarding Fisher attorney fees for almost all of the services Fisher's attorneys provided in the case, because most of the judgment for damages was based on claims for which attorney fees were not authorized.\nThe lease itself contains no provision authorizing attorney fees. However, RCW 64.12.020, the statute providing for treble damages against a party who commits waste, states that \"" [t]he judgment. . . shall include as part of the costs of the prevailing party, a reasonable attorney's fee . . Fisher had asked the trial court to treble the entire amount of damages assessed against Arden, arguing that all of Arden's conduct in breach of the lease constituted com-missive waste for which damages should be trebled under RCW 64.12.020. The court, however, held that only two aspects of Arden's conduct constituted commissive waste and awarded treble damages for those, while the remainder of Arden's conduct was not commissive waste and thus warranted only single damages. It found total actual damages of $1,089,400, of which $64,382 constituted the damages for the acts of commissive waste (before trebling).\nFisher then asked the trial court to award attorney fees based on all legal services which Fisher's attorneys had provided in the case. The trial court awarded $231,713.75 in attorney fees. This sum constituted almost all of the fees Fisher had requested.\nArden argues that it was improper for the trial court to award Fisher practically all of the attorney fees it incurred in this case when only a portion of the damages awarded was for a claim for which fees were authorized. It contends that, although Fisher did achieve substantial success in its claim for actual and consequential damages, a fee award should not have been based on that fact because there was no authorization for attorney fees for that claim. Since the sole provision authorizing attorney fees in this case was the commissive waste statute, RCW 64.12.020, and only about 5.9 percent of the damages Fisher recovered ($64,382) was pursuant to this statute, Arden argues it was unjust for Fisher to be awarded virtually all of its attorney fees. Arden suggests that, instead of focusing on Fisher's general success in recovering actual and consequential damages, the trial court should have segregated the time Fisher's attorneys spent on the claim for which fees were authorized (the commissive waste claim) from time spent on the remainder of the case, and awarded attorney fees for only the former portion.\nIn Washington, attorney fees may be awarded only when authorized by a private agreement, a statute, or a recognized ground of equity. Mellor v. Chamberlin, 100 Wn.2d 643, 649, 673 P.2d 610 (1983). When a party recovers both on claims for which attorney fees are authorized and claims for which there is no such authorization, it is proper to limit the fee award to the legal services provided on the former claims. See Nuttall v. Dowell, 31 Wn. App. 98, 105, 639 P.2d 832 (1982) (affirming a fee award limited to only that portion of plaintiff's action which was cognizable under a statute authorizing attorney fees). Accord, Gray v. Don Miller & Assocs., Inc., 35 Cal. 3d 498, 509, 674 P.2d 253, 198 Cal. Rptr. 551 (1984); Kosberg v. Brown, 601 S.W.2d 414, 418 (Tex. Civ. App. 1980).\nFisher contends that its claims for commissive waste and breach of the lease were so interrelated that it would be difficult to apportion the time its attorneys spent on each. However, it would be unjust to allow Fisher to recover virtually all of its attorney fees because of complexity. Such an award would be inconsistent with the rule requiring authorization for fee awards, since most of Fisher's judgment was not based on a claim for which fees were authorized. If the only issue in this case had been Arden's liability for commissive waste, Fisher's attorneys would have spent considerably less time than they actually spent. Surely some of their efforts concerned the construction of the lease with respect to other issues. We direct the trial court to determine what portion of Fisher's attorneys' services would have been provided had only the commissive waste claim been raised, and to award only those fees attributable to those services.\nVIII\nThe Trial Court's Conclusion That Certain Aspects of the Lessee's Conduct Did Not Constitute Commissive Waste\nFinally, we reach the issue Fisher raises in its cross appeal. Fisher contends the trial court erred in concluding certain aspects of Arden's conduct did not constitute com-missive waste, and, therefore, in not trebling damages for them. The trial court found that Arden \""intentionally decided\"" \""not to make necessary repairs or perform necessary maintenance . . . with respect to some elements and components to be returned ... to Fisher\""; \""not to remove pipes, electrical equipment, and equipment foundations installed by it\""; \""not to remove certain other alterations made by it\""; and \""not to restore the leased premises to its original condition\"". The court further found that Arden knew that as a result of these decisions, the value of the premises would be substantially less, and/or that the premises would be substantially injured. The court assessed damages for the costs of repairing these items but determined the damages should not be trebled, concluding these items did not constitute commissive waste.\nRCW 64.12.020 provides:\nIf a . . . tenant ... of real property commit waste thereon, any person injured thereby may maintain an action at law for damages ... in which action, if the plaintiff prevails, there shall be judgment for treble damages . . . and the court, in addition may decree forfeiture of the estate of the party committing or permitting the waste . . .\nFisher makes two alternative arguments to support its claim for treble damages. First, Fisher argues that this court should construe RCW 64.12.020 as requiring damages to be trebled for permissive as well as commissive waste. No Washington case has directly addressed this issue. However, in Graffell v. Honeysuckle, 30 Wn.2d 390, 191 P.2d 858 (1948), this court implied that treble damages are unavailable for permissive waste. We read RCW 64.12.020 \""to provide two distinct kinds of relief for damages resulting from waste occurring on real property: (1) treble damages for waste committed by a . . . tenant . . . and (2) forfeiture of the estate of the party committing or permitting the waste ...\"" Graffell, at 401. This language suggests that this court interpreted the statute to authorize treble damages for commissive waste only, while forfeiture would be allowed for either commissive or permissive waste. Furthermore, in Graffell, this court clearly recognized a distinction between commissive and permissive waste, providing separate definitions for each type of waste. Graffell, at 398.\nWe are not persuaded that the Legislature intended to authorize the recovery of treble damages for permissive waste in enacting RCW 64.12.020. This court has long held that punitive damages are not allowed unless expressly authorized by the Legislature. Barr v. Interbay Citizens Bank, 96 Wn.2d 692, 699, 635 P.2d 441, 649 P.2d 827 (1981). While RCW 64.12.020 clearly provides for treble damages for commissive waste, it contains no language expressly authorizing such recovery for permissive waste. If anything, the language implies that commissive and permissive waste are to be treated differently. Therefore, we decline to construe RCW 64.12.020 as requiring treble damages for permissive waste.\nAlternatively, Fisher argues that even if RCW 64.12.020 only authorizes treble damages for commissive waste, that is the type of waste Arden inflicted on the premises when it intentionally decided not to perform certain acts. Fisher contends that an intentional failure to act with knowledge that injury to property will result should be considered commissive waste.\nUnder this court's prior definitions of commissive and permissive waste, it appears Arden's conduct was permissive waste. Commissive waste is the \""commission of some deliberate or voluntary destructive act\"". (Italics ours.) Brommers, at 202 (quoting Graffell v. Honeysuckle, 30 Wn.2d 390, 398, 191 P.2d 858 (1948)). Permissive waste \""implies negligence or omission to do that which will prevent injury, as, for instance, to suffer a house to go to decay for want of repair or to deteriorate from neglect.\"" (Italics ours.) Graffell, at 398. A decision not to make repairs or remove items would be permissive waste, even if it is intentional, because no act occurs.\nFisher argues, however, that in Dorsey v. Speelman, 1 Wn. App. 85, 459 P.2d 416 (1969), the court affirmed a treble damages award for commissive waste based on a tenant's conscious refusal to act to prevent injury to the premises. Fisher reads Dorsey too broadly. Dorsey did not involve mere indifference to deterioration of the premises or failure to remove items. There were affirmative acts of waste, including destroying the interior of a house, tearing out walls and ceilings, destroying cabinets, and ripping out wiring. Dorsey, at 87. There simply was no evidence as to whether the tenants themselves had perpetrated the destructive acts. Dorsey, at 88. The court upheld a finding that waste was committed either by the tenants or with their knowledge, encouragement or consent. It affirmed a treble damages award for commissive waste, holding that \"" [t]he concept of 'commissive' waste does not require proof of a solitary personal performance by the tenant ... A perpetrator of waste can act through an agent or participate as an aider and abettor.\"" Dorsey, at 89-90. Thus, Dorsey simply held that a tenant may be liable for commissive waste done by a third person, not that any intentional failure to act to prevent injury to the premises is commissive waste.\nFisher also points out that this court has held in other contexts that intentional inaction may constitute affirmative conduct. See, e.g., In re Miller, 86 Wn.2d 712, 719, 548 P.2d 542 (1976) (intentional failure of nonresident to pay child support is commission of a tortious act under Washington's long-arm statute); Adkisson v. Seattle, 42 Wn.2d 676, 687, 258 P.2d 461 (1953) (intentional failure to act in disregard of the consequences may constitute wanton misconduct). Fisher argues that, likewise, Arden's intentional decision not to act, knowing injury to the premises would result, was tantamount to a positive act and, therefore, was commissive waste.\nAlthough we have held in other situations that an intentional failure to act is essentially an act, we do not believe that reasoning should apply in the context of waste. If we held that an intentional failure to act with knowledge that injury to the property will result constitutes the commission of an affirmative act of waste, the potential for awards of treble damages under RCW 64.12.020 would be much greater. Considering the punitive nature of such damages, such an expansion should not be allowed absent an express authorization from the Legislature. See Barr, 96 Wn.2d at 699. We conclude that an intentional failure to act to prevent injury to real property is not commissive waste for which damages may be trebled.\nWe affirm the trial court's decision that Arden's intentional decisions not to perform certain acts did not constitute commissive waste, and, therefore, that damages for such conduct should not be trebled.\nConclusion\nIn summary, we affirm in part and reverse in part the trial court's judgment. We reverse the court's decision regarding Arden's obligations to restore the premises to their original condition. We hold that the trial court erred in requiring Arden to pay the cost of removing equipment and other features which it had initially installed in the premises pursuant to the lease, and the cost of restoring the garage to its 1920's condition instead of its 1960 condition. We affirm the trial court's award of damages for Arden's failure to comply with its repair obligations under the repair and surrender covenants of the lease. The court's award of damages for the costs of keeping the premises in compliance with codes is reversed. The award of damages for lost rental income is affirmed. We also affirm the trial court's judgment of treble damages for commissive waste and its holding that Arden's intentional decisions not to perform certain acts were not commissive waste and, therefore, did not warrant treble damages. Finally, we reverse the trial court's award of attorney fees.\nThis case is remanded to the trial court for a reassessment of the damages and attorney fees to be awarded to Fisher consistent with this opinion.\nDolliver, C.J., Utter, Brachtenbach, Dore, Pearson, Andersen, and Goodloe, JJ., and Winsor, J. Pro Tern., concur.\nReconsideration denied December 9, 1986.\nEventually, the building was demolished.\nProfessor Stoebuck reads Graffell in this manner, citing it for the proposition that RCW 64.12.020 allows treble damages \""in all cases of commissive, but not permissive, waste.\"" Stoebuck, The Law Between Landlord and Tenant in Washington: Part I, 49 Wash. L. Rev. 291, 336 (1974)."", ""type"": ""majority"", ""author"": ""Durham, J.""}], ""attorneys"": [""Helsell, Fetterman, Martin, Todd & Hokanson, by William A. Helsell and Bradley H. Bagshaw, for appellant."", ""Graham & Dunn, by Edward W. Pettigrew and Douglas C. Berry, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 52135-2.\nEn Banc.\nOctober 2, 1986.]\nFisher Properties, Inc., Respondent, v. Arden-Mayfair, Inc., Appellant.\nHelsell, Fetterman, Martin, Todd & Hokanson, by William A. Helsell and Bradley H. Bagshaw, for appellant.\nGraham & Dunn, by Edward W. Pettigrew and Douglas C. Berry, for respondent.""}, ""cites_to"": [{""cite"": ""49 Wash. L. Rev. 291"", ""year"": 1974, ""category"": ""journals:journal"", ""reporter"": ""Wash. L. Rev."", ""pin_cites"": [{""page"": ""336""}], ""opinion_index"": 0}, {""cite"": ""258 P.2d 461"", ""year"": 1953, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""pin_cites"": [{""parenthetical"": ""intentional failure to act in disregard of the consequences may constitute wanton misconduct""}], ""opinion_index"": 0}, {""cite"": ""42 Wn.2d 676"", ""year"": 1953, ""case_ids"": [4999229], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""687"", ""parenthetical"": ""intentional failure to act in disregard of the consequences may constitute wanton misconduct""}], ""case_paths"": [""/wash-2d/42/0676-01""], ""opinion_index"": 0}, {""cite"": ""548 P.2d 542"", ""year"": 1976, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""pin_cites"": [{""parenthetical"": ""intentional failure of nonresident to pay child support is commission of a tortious act under Washington's long-arm statute""}], ""opinion_index"": 0}, {""cite"": ""86 Wn.2d 712"", ""year"": 1976, ""case_ids"": [1117384], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""719"", ""parenthetical"": ""intentional failure of nonresident to pay child support is commission of a tortious act under Washington's long-arm statute""}], ""case_paths"": [""/wash-2d/86/0712-01""], ""opinion_index"": 0}, {""cite"": ""459 P.2d 416"", ""year"": 1969, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""1 Wn. App. 85"", ""year"": 1969, ""case_ids"": [1861726], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""case_paths"": [""/wash-app/1/0085-01""], ""opinion_index"": 0}, {""cite"": ""649 P.2d 827"", ""year"": 1981, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""635 P.2d 441"", ""year"": 1981, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""96 Wn.2d 692"", ""year"": 1981, ""case_ids"": [1157704], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""699""}], ""case_paths"": [""/wash-2d/96/0692-01""], ""opinion_index"": 0}, {""cite"": ""601 S.W.2d 414"", ""year"": 1980, ""case_ids"": [9941320], ""category"": ""reporters:state_regional"", ""reporter"": ""S.W.2d"", ""pin_cites"": [{""page"": ""418""}], ""case_paths"": [""/sw2d/601/0414-01""], ""opinion_index"": 0}, {""cite"": ""198 Cal. Rptr. 551"", ""year"": 1984, ""category"": ""reporters:state"", ""reporter"": ""Cal. Rptr."", ""opinion_index"": 0}, {""cite"": ""674 P.2d 253"", ""year"": 1984, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""35 Cal. 3d 498"", ""year"": 1984, ""case_ids"": [4471706], ""category"": ""reporters:state"", ""reporter"": ""Cal. 3d"", ""pin_cites"": [{""page"": ""509""}], ""case_paths"": [""/cal-3d/35/0498-01""], ""opinion_index"": 0}, {""cite"": ""639 P.2d 832"", ""year"": 1982, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""pin_cites"": [{""parenthetical"": ""affirming a fee award limited to only that portion of plaintiff's action which was cognizable under a statute authorizing attorney fees""}], ""opinion_index"": 0}, {""cite"": ""31 Wn. App. 98"", ""year"": 1982, ""case_ids"": [1822202], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""105"", ""parenthetical"": ""affirming a fee award limited to only that portion of plaintiff's action which was cognizable under a statute authorizing attorney fees""}], ""case_paths"": [""/wash-app/31/0098-01""], ""opinion_index"": 0}, {""cite"": ""673 P.2d 610"", ""year"": 1983, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""100 Wn.2d 643"", ""year"": 1983, ""case_ids"": [1142077], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""649""}], ""case_paths"": [""/wash-2d/100/0643-01""], ""opinion_index"": 0}, {""cite"": ""191 P.2d 858"", ""year"": 1948, ""weight"": 3, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""30 Wn.2d 390"", ""year"": 1948, ""weight"": 3, ""case_ids"": [2504102], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""398""}, {""page"": ""398""}], ""case_paths"": [""/wash-2d/30/0390-01""], ""opinion_index"": 0}, {""cite"": ""570 P.2d 1035"", ""year"": 1977, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""pin_cites"": [{""parenthetical"": ""quoting Graffell v. Honeysuckle, 30 Wn.2d 390, 398, 191 P.2d 858 (1948)""}], ""opinion_index"": 0}, {""cite"": ""89 Wn.2d 190"", ""year"": 1977, ""case_ids"": [1108659], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""202"", ""parenthetical"": ""quoting Graffell v. Honeysuckle, 30 Wn.2d 390, 398, 191 P.2d 858 (1948)""}], ""case_paths"": [""/wash-2d/89/0190-01""], ""opinion_index"": 0}, {""cite"": ""119 Cal. Rptr. 399"", ""year"": 1975, ""category"": ""reporters:state"", ""reporter"": ""Cal. Rptr."", ""opinion_index"": 0}, {""cite"": ""45 Cal. App. 3d 303"", ""year"": 1975, ""case_ids"": [6038552], ""category"": ""reporters:state"", ""reporter"": ""Cal. App. 3d"", ""pin_cites"": [{""page"": ""308""}], ""case_paths"": [""/cal-app-3d/45/0303-01""], ""opinion_index"": 0}, {""cite"": ""352 P.2d 1023"", ""year"": 1960, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""57 Wn.2d 104"", ""year"": 1960, ""case_ids"": [1023838], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""105""}], ""case_paths"": [""/wash-2d/57/0104-01""], ""opinion_index"": 0}, {""cite"": ""69 Wis. 2d 307"", ""year"": 1975, ""weight"": 2, ""case_ids"": [8672378], ""category"": ""reporters:state"", ""reporter"": ""Wis. 2d"", ""pin_cites"": [{""page"": ""314""}], ""case_paths"": [""/wis-2d/69/0307-01""], ""opinion_index"": 0}, {""cite"": ""447 N.Y.S.2d 696"", ""year"": 1982, ""category"": ""reporters:state"", ""reporter"": ""N.Y.S.2d"", ""opinion_index"": 0}, {""cite"": ""432 N.E.2d 589"", ""year"": 1982, ""category"": ""reporters:state_regional"", ""reporter"": ""N.E.2d"", ""opinion_index"": 0}, {""cite"": ""55 N.Y.2d 35"", ""year"": 1982, ""case_ids"": [4383699], ""category"": ""reporters:state"", ""reporter"": ""N.Y.2d"", ""pin_cites"": [{""page"": ""39""}], ""case_paths"": [""/ny-2d/55/0035-01""], ""opinion_index"": 0}, {""cite"": ""544 P.2d 112"", ""year"": 1975, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""14 Wn. App. 602"", ""year"": 1975, ""case_ids"": [1789532], ""category"": ""reporters:state"", ""reporter"": ""Wash. 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+1774100,"{""id"": 1774100, ""name"": ""Keith Gunnar, et al, Appellants, v. Ralph E. Brice, Jr., et al, Respondents"", ""court"": {""id"": 8985, ""name"": ""Washington Court of Appeals"", ""name_abbreviation"": ""Wash. Ct. App.""}, ""analysis"": {""sha256"": ""a5f916cf361d6d6cbc16f21c54c61a3b6fb1a6ab5c5d3a1c5f28e01137179075"", ""simhash"": ""1:7576564c8d06dbf8"", ""pagerank"": {""raw"": 0.00000012544152029609964, ""percentile"": 0.6109707554378653}, ""char_count"": 7881, ""word_count"": 1341, ""cardinality"": 504, ""ocr_confidence"": 0.824}, ""casebody"": {""judges"": [], ""parties"": [""Keith Gunnar, et al, Appellants, v. Ralph E. Brice, Jr., et al, Respondents.""], ""opinions"": [{""text"": ""Andersen, J.\nFacts of Case\nThe purchasers of a house appeal from a summary judgment dismissing their suit to rescind the transaction by which they purchased the house.\nMr. and Mrs. Gunnar (purchasers) brought this action against Mr. and Mrs. Brice (sellers), who had sold them the house, and against Mr. and Mrs. Quandt (builders), who had helped build it and who had initially owned it.\nThe builders had themselves lived in the home for some 12 years before the sellers bought it for $41,900. The sellers then resided in it for approximately 1 year before they in turn sold it to the purchasers for $47,500. The property in question is a single family residence in Issaquah, Washington.\nPrior to the purchasers contracting to purchase the home, they spent from 1 to 3 hours viewing the premises and during that time they went into every room of the house. The house had an exposed beamed ceiling with the beams and supporting members open to view. It was following their tour of the premises that the purchasers signed an earnest money receipt and agreement wherein they offered to purchase the property from the sellers \""in its present condition ...\""\nSome months after the purchasers moved into the house, they brought this rescission action against the sellers, and later sued the builders as well. As grounds for rescission, the purchasers allege that after they had moved into the house they discovered construction defects in it.\nThe sellers and builders filed motions for summary judgment. Their supporting affidavits alleged facts to the effect that they knew of no defects in the premises and that the conditions claimed by the purchasers, even if somehow considered to be defects, were not hidden or disguised but were fully open to the purchasers' view and discernible by the purchasers upon any reasonable examination of the premises.\nThe purchasers' opposing affidavits claimed that there were defects in some of the wiring and in the structural beams and siding. They also claimed that there was a septic tank and drainage problem and that the furnace was located in too enclosed an area.\nOne ultimate issue is determinative.\nIssue\nDid the trial court err in granting a summary judgment dismissing the purchasers' rescission action?\nDecision\nConclusion. A rescission action brought by purchasers of a house does not state a cause of action for constructive fraud by nondisclosure of defects in the house on the part of the sellers, where there is no showing that the value of the property was materially affected by the existence of the claimed defects. The trial court did not err in dismissing the purchasers' action in a summary judgment proceeding.\nOne of the two legal theories principally relied on by the purchasers in the trial court was breach of implied warranty of habitability. House v. Thornton, 76 Wn.2d 428, 457 P.2d 199 (1969). Subsequently, that warranty was held to apply only to sales of new homes by commercial builders, Klos v. Gockel, 87 Wn.2d 567, 554 P.2d 1349 (1976), and that theory has not been pressed on appeal. We therefore consider that theory, as well as the purchasers' theories of failure of consideration and breach of express warranty, which have not been argued on this appeal, as abandoned. Winslow v. Mell, 48 Wn.2d 581, 583, 295 P.2d 319 (1956).\nThe other theory of recovery principally relied on by the purchasers in the trial court, and vigorously pursued here, is the right of a vendee to obtain rescission where the vendor is shown to have committed constructive fraud by nondisclosure of the existence of defects in the property sold.\nIn Sorrell v. Young, 6 Wn. App. 220, 491 P.2d 1312 (1971), the seller of a lot knew that the lot had been filled because he had helped fill it. The existence of the fill was not apparent and the lot was sold to a purchaser who made no inquiry and was unaware of the existence of the fill. In that case we held that the purchaser had made a case for rescission and, in so holding, explained the elements of that cause of action:\nWe conceive the essential \""elements\"" in proof of constructive fraud by nondisclosure of the existence of a land fill to be: (1) a vendor, knowing that the land has been filled, fails to disclose that fact to a purchaser of the property, and (2) the purchaser is unaware of the existence of the fill because either he has had no opportunity to inspect the property, or the existence of the fill was not apparent or readily ascertainable, and (3) the value of the property is materially affected by the existence of the fill. When these three elements have been proved, a vendor's duty imposed by Obde's [Obde v. Schlemeyer, 56 Wn.2d 449, 353 P.2d 672 (I960)] general standard of justice, equity, and fair dealing has been violated, and a purchaser of land is entitled to rescind.\nSorrell v. Young, supra at 225-26. Accord, Goldfarb v. Dietz, 8 Wn. App. 464, 470, 506 P.2d 1322 (1973); Kaas v. Privette, 12 Wn. App. 142,149, 529 P.2d 23 (1974). See also Obde v. Schlemeyer, 56 Wn.2d 449, 353 P.2d 672 (1960); Ikeda v. Curtis, 43 Wn.2d 449, 261 P.2d 684 (1953); Perkins v. Marsh, 179 Wash. 362, 37 P.2d 689 (1934).\nMuch of the content of the purchasers' affidavits opposing the motions for summary judgment are devoted to hearsay and conclusionary statements of fact which neither the trial court nor this court is at liberty to consider in passing upon motions for summary judgment. CR 56(e); American Linen Supply Co. v. Nursing Home Bldg. Corp., 15 Wn. App. 757, 551 P.2d 1038 (1976). When such chaff has been winnowed out of the purchasers' affidavits, it is questionable whether they or reasonable inferences therefrom establish the sellers' knowledge of the claimed defects or that the conditions claimed as defects were not apparent or readily ascertainable by the purchasers, as required by the first and second elements delineated by Sorrell.\nThere is nothing in the record to establish the third element of Sorrell, that the value of the property be materially affected by the existence of the defects. When any house has been lived in for years, as had this one, it is likely that a close inspection would reveal a number of conditions which could be termed \""defects” by some, but that is not sufficient by itself to establish that the value of the property has been materially affected and to justify rescission. In the analogous contract situation, a breach of contract must be material in order to warrant rescission. Barber v. Rochester, 52 Wn.2d 691, 694, 328 P.2d 711 (1958); 17 Am. Jur. 2d Contracts § 504 (1964). So it is in this tort action also, that for vendees to make out a case of constructive fraud by nondisclosure of defects in the property sold, the vendees must establish that the defects are material. See Klos v. Gockel, supra; Goldfarb v. Dietz, supra.\nSince no genuine issue exists as to the third element of Sorrell, the trial court properly granted the sellers' motion for summary judgment. Balise v. Underwood, 62 Wn.2d 195, 381 P.2d 966 (1963); Hodgins v. State, 9 Wn. App. 486, 489, 513 P.2d 304 (1973).\nNothing in the record establishes that the purchasers had ever talked to or had any dealings whatsoever with the builders or that the builders had breached any duty to the purchasers. Accordingly, the summary judgment dismissing the builders was also proper.\nAffirmed.\nWilliams and Callow, JJ., concur.\nPetition for rehearing denied October 31, 1977.\nCounsel representing the purchasers in the Court of Appeals did not enter this case until after the trial court had decided to grant the summary judgment."", ""type"": ""majority"", ""author"": ""Andersen, J.""}], ""attorneys"": [""Thomas & Whittington and Patrick B. Anderson, for appellants."", ""Boyd, Decker, Hanson & Zwink, P.S., Inc., John M. Baker II, Lenihan, Ivers & McAteer, P.S., and James F. McAteer, for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 4729-1.\nDivision One.\nJune 20, 1977.]\nKeith Gunnar, et al, Appellants, v. Ralph E. Brice, Jr., et al, Respondents.\nThomas & Whittington and Patrick B. Anderson, for appellants.\nBoyd, Decker, Hanson & Zwink, P.S., Inc., John M. Baker II, Lenihan, Ivers & McAteer, P.S., and James F. McAteer, for respondents.""}, ""cites_to"": [{""cite"": ""513 P.2d 304"", ""year"": 1973, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""9 Wn. App. 486"", ""year"": 1973, ""case_ids"": [1859789], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""489""}], ""case_paths"": [""/wash-app/9/0486-01""], ""opinion_index"": 0}, {""cite"": ""381 P.2d 966"", ""year"": 1963, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""62 Wn.2d 195"", ""year"": 1963, ""case_ids"": [1036927], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/62/0195-01""], ""opinion_index"": 0}, {""cite"": ""328 P.2d 711"", ""year"": 1958, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""52 Wn.2d 691"", ""year"": 1958, ""case_ids"": [1008310], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""694""}], ""case_paths"": [""/wash-2d/52/0691-01""], ""opinion_index"": 0}, {""cite"": ""551 P.2d 1038"", ""year"": 1976, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""15 Wn. App. 757"", ""year"": 1976, ""case_ids"": [1776205], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""case_paths"": [""/wash-app/15/0757-01""], ""opinion_index"": 0}, {""cite"": ""37 P.2d 689"", ""year"": 1934, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""179 Wash. 362"", ""year"": 1934, ""case_ids"": [877793], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/179/0362-01""], ""opinion_index"": 0}, {""cite"": ""261 P.2d 684"", ""year"": 1953, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""43 Wn.2d 449"", ""year"": 1953, ""case_ids"": [5007809], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/43/0449-01""], ""opinion_index"": 0}, {""cite"": ""529 P.2d 23"", ""year"": 1974, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""12 Wn. App. 142"", ""year"": 1974, ""case_ids"": [1855891], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""149""}], ""case_paths"": [""/wash-app/12/0142-01""], ""opinion_index"": 0}, {""cite"": ""506 P.2d 1322"", ""year"": 1973, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""8 Wn. App. 464"", ""year"": 1973, ""case_ids"": [475908], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""470""}], ""case_paths"": [""/wash-app/8/0464-01""], ""opinion_index"": 0}, {""cite"": ""353 P.2d 672"", ""weight"": 2, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""56 Wn.2d 449"", ""weight"": 2, ""case_ids"": [1020659], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/56/0449-01""], ""opinion_index"": 0}, {""cite"": ""491 P.2d 1312"", ""year"": 1971, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""6 Wn. App. 220"", ""year"": 1971, ""case_ids"": [1864359], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""case_paths"": [""/wash-app/6/0220-01""], ""opinion_index"": 0}, {""cite"": ""295 P.2d 319"", ""year"": 1956, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""48 Wn.2d 581"", ""year"": 1956, ""case_ids"": [996362], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""583""}], ""case_paths"": [""/wash-2d/48/0581-01""], ""opinion_index"": 0}, {""cite"": ""554 P.2d 1349"", ""year"": 1976, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""87 Wn.2d 567"", ""year"": 1976, ""case_ids"": [1113793], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/87/0567-01""], ""opinion_index"": 0}, {""cite"": ""457 P.2d 199"", ""year"": 1969, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""76 Wn.2d 428"", ""year"": 1969, ""case_ids"": [1080097], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/76/0428-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""17 Wash. App. 819"", ""type"": ""official""}], ""file_name"": ""0819-01"", ""last_page"": ""824"", ""first_page"": ""819"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T18:16:53.221983+00:00"", ""decision_date"": ""1977-06-20"", ""docket_number"": ""No. 4729-1"", ""last_page_order"": 848, ""first_page_order"": 843, ""name_abbreviation"": ""Gunnar v. 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+1796371,"{""id"": 1796371, ""name"": ""John R. Mitchell, et al, Appellants, v. William J. Straith, Jr., et al, Respondents"", ""court"": {""id"": 8985, ""name"": ""Washington Court of Appeals"", ""name_abbreviation"": ""Wash. Ct. App.""}, ""analysis"": {""sha256"": ""0321aa97ec379faac1cb0834730af1c316a5fb86ccf45f9cf5057823f3632b04"", ""simhash"": ""1:8174d83e49c47033"", ""pagerank"": {""raw"": 0.00000017674747972724968, ""percentile"": 0.7109076629564117}, ""char_count"": 16111, ""word_count"": 2728, ""cardinality"": 805, ""ocr_confidence"": 0.847}, ""casebody"": {""judges"": [], ""parties"": [""John R. Mitchell, et al, Appellants, v. William J. Straith, Jr., et al, Respondents.""], ""opinions"": [{""text"": ""Scholfield, A.C.J.\nJohn R. Mitchell and Cynthia Sue VanSickle, husband and wife (hereinafter Mitchell), appeal the dismissal with prejudice of their complaint against William J. Straith, Jr., and his wife, Janice R. Straith (hereinafter Straith). Mitchell contends the trial court erred in finding Straith did not breach an express warranty and did not commit fraud or misrepresentation in selling a residential property to Mitchell. Mitchell also challenges the amount of attorney fees awarded to Straith. We affirm the dismissal of the complaint and remand for further proceedings on the issue of attorney fees.\nOn December 12, 1979, Mitchell entered into a Real Estate Purchase and Sale Contract (hereinafter Contract) with Straith to purchase Straith's real property located in Bothell, Washington, for $75,000. Section 5 of the Contract provided:\n5. Utilities. Seller warrants that the property is connected to a H public water main; □ well; □ public sewer main; H septic tank; □ none of the foregoing. (If well or septic tank are checked, the well or septic tank provisions on the reverse side hereof are part of this agreement.)\nSection 10 of the Contract provided:\n10. Default. In the event of default by Purchaser, Seller shall have the election to retain the earnest money as liquidated damages, or to institute suit to enforce any rights Seller has. In the event that either the Purchaser, Seller, or Agent, shall institute suit to enforce any rights hereunder, the successful party shall be entitled to court costs and a reasonable attorney's fees [sic].\nThe property is located in a group of 10 lots on the north side of the Sammamish River. Bordering the lots on the north side are a railroad right of way and, next to the right of way, N.E. Bothell Way. An 8-inch water main owned by King County Water District 79 runs along the north side of N.E. Bothell Way. The subject property and the other lots were connected to this water main by a 2-inch galvanized iron pipe running from a meter on the water main underneath N.E. Bothell Way and the railroad right of way to the lot on the east end of the group of lots. From this lot, one pipe ran east to a marina and a 1-inch or % -inch pipe ran west to the other lots. An easement for ingress and egress and for utilities ran along the northern edge of all of the lots.\nThe marina was billed for the water usage shown by the meter, and each of the owners served by the arrangement paid for a proportionate share of the water cost. Straith disclosed the nature of the water system and the billing system to Kevin Hanchett, the listing agent at the real estate brokerage of Theodore J. Kopp.\nOn the date he signed the Contract, Mitchell was shown the property by Theodore J. Kopp, who, with Mitchell, visited various King County administrative offices regarding the property. Inquiry was made at that time of Water District 79. In response to his inquiry, the water district advised Mitchell there were no assessments against the property. Kopp filled in the blanks in the Contract, including the boxes in section 5 regarding water service. Mitchell and Straith never met or talked to each other until after litigation commenced. Finding of fact 4. Straith had not occupied the property for approximately 1 year prior to its sale.\nMitchell moved onto the property on January 15, 1980, and the sale was closed on January 24, 1980. Approximately 1 month later, Mitchell learned that a utility local improvement district (ULID) had been formed to build a water main to service the area and that the estimated assessment for the Mitchell property was $6,000. Mitchell asked Straith to pay the assessment and, when Straith refused, filed this action. The property was ultimately assessed for $7,197.10 and Mitchell seeks recovery of that amount.\nThe trial court found that, although Straith was aware of neighborhood conversations that a ULID might be formed to improve water and sewer service, he never received notice of its proposed formation. The trial court also found that the property was benefited and its value increased, at least to the extent of the assessment amount, by the improvements consisting of a new water main, fire hydrants, individual water meters for each property, and an overall improved water system.\nExpert testimony was offered by both sides on the meaning of the provision in paragraph 5 that \""Seller warrants that the property is connected to a . . . public water main;\nBreach of Warranty\nMitchell first contends Straith breached his warranty that the property was connected to a public water main. Mitchell argues that the clear meaning of the warranty is that the property is connected directly to the public water main.\nThe trial court concluded that property served by water from a public water main through pipes connecting the property to the public water main was, in fact, connected to a public water main. Webster's Third New International Dictionary 480 (3d ed. 1969) defines \""connected\"" as \""joined or linked together\"". To add the word \""directly\"" to the language of the warranty, as urged by Mitchell, would amount to a revision significantly changing its meaning. This we are not permitted to do. Farmers Ins. Co. v. Miller, 87 Wn.2d 70, 73, 549 P.2d 9 (1976). The evidence supports the trial court's finding and the findings support the trial court's conclusion that Straith did not breach the warranty that the subject property was \""connected to a . . . public water main\"".\nDuty To Disclose\nMitchell contends the facts of this case imposed upon Straith a duty to disclose the unusual water piping arrangement to him and that his failure to do so amounts to a misrepresentation of material fact rendering Straith liable for the water assessment.\nMitchell relies upon Sorrell v. Young, 6 Wn. App. 220, 491 P.2d 1312 (1971). In Sorrell, a purchaser of a lot was entitled to rescind because the vendor failed to disclose that the lot had been built up to street level by a substantial fill. The presence of the fill required soil tests and a foundation built on piling, both of which were expensive and significantly increased the construction cost of a house if, indeed, a house could be built on the lot at all. The court found' that this fact pattern placed a duty on the seller to disclose the fact of the fill to the purchaser, whether he asked about it or not. The court relied, in part, on the principle expressed in Restatement of Contracts § 472, comment b (1932):\nA party entering into a bargain is not bound to tell everything he knows to the other party, even if he is aware that the other is ignorant of the facts; and unilateral mistake, of itself, does not make a transaction voidable (see § 503). But if a fact known by one party and not the other is so vital that if the mistake were mutual the contract would be voidable, and the party knowing the fact also knows that the other does not know it, nondisclosure is not privileged and is fraudulent.\nSorrell, at 222.\nThe elements necessary for imposition of a duty to speak in a \""land fill\"" case are stated in Sorrell, at 225:\nWe conceive the essential \""elements\"" in proof of constructive fraud by nondisclosure of the existence of a land fill to be: (1) a vendor, knowing that the land has been filled, fails to disclose that fact to a purchaser of the property, and (2) the purchaser is unaware of the existence of the fill because either he has had no opportunity to inspect the property, or the existence of the fill was not apparent or readily ascertainable, and (3) the value of the property is materially affected by the existence of the fill.\nSorrell is a case allowing rescission because the misrepresentation by silence materially affected the purpose of the transaction. The purchaser had acquired a building lot that could not be used for the purpose of constructing a house thereon without substantial unanticipated expense, if at all. Sorrell is consistent with the requirement that rescission requires a material breach of contract often defined as one that substantially defeats the purpose of the contract. 17 Am. Jur. 2d Contracts § 504, at 981 (1964).\nIn this case, Mitchell seeks only damages. Proof of a material misrepresentation should be sufficient to allow recovery of damages, whether or not it would be sufficient to support rescission. Restatement (Second) of Contracts § 164 (1981).\nRestatement (Second) of Contracts § 161 (1981) provides, in part:\nA person's non-disclosure of a fact known to him is equivalent to an assertion that the fact does not exist in the following cases only:\n(a) . . .\n(b) where he knows that disclosure of the fact would correct a mistake of the other party as to a basic assumption on which that party is making the contract and if non-disclosure of the fact amounts to a failure to act in good faith and in accordance with reasonable standards of fair dealing.\nIn Obde v. Schlemeyer, 56 Wn.2d 449, 353 P.2d 672 (1960), the Washington court refused to apply the common law doctrine of caveat emptor and imposed a duty to speak under certain limited conditions. In Obde, the vendor sold a residence infested with termites. The vendor knew about the termites, but the purchaser did not. There was evidence the termites could, in time, eat away the supporting structures of a wood building to the point of causing it to collapse. There were no outward or surface indications of the presence of termites, so the condition was not discoverable upon a reasonable inspection.\nThe vendee was awarded substantial damages. The court held that, even though not questioned about termites, the vendor had a duty to disclose the condition to the vendee, and that failure to do so was fraud. Relying on the earlier case of Perkins v. Marsh, 179 Wash. 362, 37 P.2d 689 (1934), the Obde court said at page 452:\n\""Where there are concealed defects in demised premises, dangerous to the property, health or life of the tenant, which defects are known to the landlord when the lease is made, but unknown to the tenant, and which a careful examination on his part would not disclose, it is the landlord's duty to disclose them to the tenant before leasing, and his failure to do so amounts to a fraud.\""\nWe deem this rule to be equally applicable to the vendor-purchaser relationship.\nBoth Sorrell and Obde imposed a duty to speak in cases where the undisclosed fact was a material fact to the extent that it substantially affected adversely the value of the property or operated to materially impair or defeat the purpose of the transaction. Both cases also relied upon a finding that the purchaser had no knowledge of the alleged defect and that it was a defect a reasonable inspection would not disclose.\nSimilar findings necessary for imposing a duty to speak are not present in this case. There was no evidence the value of the property was adversely affected by the water system. The absence of a finding on a material issue is presumptively a negative finding entered against the party with the burden of proof. Golberg v. Sanglier, 96 Wn.2d 874, 880, 639 P.2d 1347, 647 P.2d 489 (1982); In re Eggers, 30 Wn. App. 867, 873, 638 P.2d 1267 (1982). Because the burden of proof was on Mitchell, he thus failed to establish these necessary elements.\nThe water system, while unusual, did not render the property uninhabitable, did not significantly impair its usefulness and was remediable through construction of a new water main by the ULID. This change to a wholly public system resulted in an assessment against the property based on the cost of the improvement and payable in installments over a term of 10 years. The trial court found the benefits to the property from the ULID equaled the amount of the assessment and increased the value of the property by at least that much. Finding of fact 12.\nThe defect complained of here does not meet the implicit requirements of Sorrell and Obde of an undisclosed defect substantially affecting the value and usefulness of the property.\nThere is no evidence that Straith had any knowledge of how much Mitchell knew or did not know about the water system. When Mitchell asked Kopp about a water meter serving the property, Kopp stated he had no knowledge of that and referred Mitchell to King County Water District 79. The record reflects no knowledge by Kopp or Straith as to what inquiries Mitchell may have made thereafter or what he learned. There is no basis, therefore, on which knowledge can be attributed to Straith that Mitchell was proceeding upon or was influenced by any false knowledge with respect to the water system.\nThe trial court found that Straith did not make any misrepresentation, either negligently or intentionally. These findings are supported by substantial evidence and are, therefore, binding on this court. Thorndike v. Hes-perian Orchards, Inc., 54 Wn.2d 570, 343 P.2d 183 (1959).\nAttorney Fees\nAt the time the trial court fixed attorney fees to be paid by Mitchell to Straith pursuant to a provision in the Contract, Mitchell directed the attention of the trial judge, both in writing and orally, to the fact that this case was originally assigned for arbitration under the Superior Court Mandatory Arbitration Rules. Mitchell's complaint sought no relief other than a money judgment of less than $10,000, exclusive of attorney fees, interest and costs. The case was properly assigned for arbitration pursuant to MAR 1.2. Straith filed an amended answer, in which he stated a counterclaim for rescission. Straith's counsel then notified the director of arbitration that with the rescission claim pending, the case no longer qualified for arbitration pursuant to MAR 1.2. The case was thereafter withdrawn from arbitration and was placed on the regular trial calendar. There is no indication in the record before this court that the counterclaim for rescission was ever seriously pursued by Straith. Straith does not assert in his brief, nor was there asserted in oral argument before this court, any breach by Mitchell that could have supported rescission of the sale of his property to Mitchell. Mitchell contends on appeal, as he did in the trial court, that the counterclaim for rescission was not asserted in good faith by Straith, but was asserted for the sole purpose of frustrating Mitchell's desire to have the case heard through the mandatory arbitration program.\nThe trial court entered no finding or conclusion relating to this issue and proceeded to award to Straith attorney fees of $9,300, which included $500 for attorney fees incurred by Straith in resisting Mitchell's motion for reconsideration in the trial court.\nThe purpose of the mandatory arbitration program is to dispose of cases by arbitration where the sole relief sought is a money judgment and no party asserts a claim in excess of $10,000 exclusive of attorney fees, interest and costs. Mandatory arbitration has proven itself to be a program that disposes of cases rapidly and usually at a substantially lower cost to the litigants than when the cases are disposed of through trial on the regular trial calendar. The contention of Mitchell that the counterclaim for rescission was not a good faith pleading and, therefore, should be taken into consideration in the fixing of attorney fees to be awarded Straith in this case raises a legal issue which must be resolved by the trial court. The record before us does not indicate consideration or disposition of this issue.\nThe award of attorney fees to Straith is hereby set aside, and this case is remanded to the trial court for the purpose of conducting a hearing and then fixing reasonable attorney fees to be awarded Straith in the trial court and in the Court of Appeals. The judgment of the trial court is otherwise affirmed.\nSwanson and Ringold, JJ., concur.\nReconsideration denied May 24, 1985.\nThis was the applicable amount at the time as provided by MAR 1.2."", ""type"": ""majority"", ""author"": ""Scholfield, A.C.J.""}], ""attorneys"": [""William J. O'Brien III, for appellants."", ""Kristin Henderson and Edward T. Hilpert, Jr., for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 12287-8-I.\nDivision One.\nApril 24, 1985.]\nJohn R. Mitchell, et al, Appellants, v. William J. Straith, Jr., et al, Respondents.\nWilliam J. O'Brien III, for appellants.\nKristin Henderson and Edward T. Hilpert, Jr., for respondents.""}, ""cites_to"": [{""cite"": ""343 P.2d 183"", ""year"": 1959, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""54 Wn.2d 570"", ""year"": 1959, ""case_ids"": [1013576], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/54/0570-01""], ""opinion_index"": 0}, {""cite"": ""638 P.2d 1267"", ""year"": 1982, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""30 Wn. App. 867"", ""year"": 1982, ""case_ids"": [1826725], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""873""}], ""case_paths"": [""/wash-app/30/0867-01""], ""opinion_index"": 0}, {""cite"": ""647 P.2d 489"", ""year"": 1982, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""639 P.2d 1347"", ""year"": 1982, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""96 Wn.2d 874"", ""year"": 1982, ""case_ids"": [1157562], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""880""}], ""case_paths"": [""/wash-2d/96/0874-01""], ""opinion_index"": 0}, {""cite"": ""37 P.2d 689"", ""year"": 1934, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""179 Wash. 362"", ""year"": 1934, ""case_ids"": [877793], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/179/0362-01""], ""opinion_index"": 0}, {""cite"": ""353 P.2d 672"", ""year"": 1960, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""56 Wn.2d 449"", ""year"": 1960, ""case_ids"": [1020659], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/56/0449-01""], ""opinion_index"": 0}, {""cite"": ""491 P.2d 1312"", ""year"": 1971, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""6 Wn. App. 220"", ""year"": 1971, ""case_ids"": [1864359], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""case_paths"": [""/wash-app/6/0220-01""], ""opinion_index"": 0}, {""cite"": ""549 P.2d 9"", ""year"": 1976, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""87 Wn.2d 70"", ""year"": 1976, ""case_ids"": [1113757], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""73""}], ""case_paths"": [""/wash-2d/87/0070-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""40 Wash. App. 405"", ""type"": ""official""}], ""file_name"": ""0405-01"", ""last_page"": ""414"", ""first_page"": ""405"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T19:31:07.473497+00:00"", ""decision_date"": ""1985-04-24"", ""docket_number"": ""No. 12287-8-I"", ""last_page_order"": 440, ""first_page_order"": 431, ""name_abbreviation"": ""Mitchell v. 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+1803895,"{""id"": 1803895, ""name"": ""Seattle-First National Bank, as Trustee, Respondent, v. Westlake Park Associates, Appellant"", ""court"": {""id"": 8985, ""name"": ""Washington Court of Appeals"", ""name_abbreviation"": ""Wash. Ct. App.""}, ""analysis"": {""sha256"": ""f1c7f32d7f1869910a2a8853f6e414d56ca09bd54f33072c6274db39a5159a18"", ""simhash"": ""1:f803b74ee3a2104c"", ""pagerank"": {""raw"": 0.0000001589278937649649, ""percentile"": 0.6818136887517381}, ""char_count"": 11606, ""word_count"": 1894, ""cardinality"": 622, ""ocr_confidence"": 0.844}, ""casebody"": {""judges"": [], ""parties"": [""Seattle-First National Bank, as Trustee, Respondent, v. Westlake Park Associates, Appellant.""], ""opinions"": [{""text"": ""Ringold, J.\n—Seattle-First National Bank brought an action for declaratory judgment against Westlake Park Associates to resolve the meaning of a lease. The trial court entered summary judgment for Seattle-First National Bank (Sea-First) and Westlake appeals.\nWestlake acquired a lessee's interest in a 99-year leasehold of the property commonly known as the Mayflower Park Hotel, Seattle, Washington. Sea-First is successor to the lessor's interest in the lease. The lease was entered into on September 16, 1926, and had been amended in 1959 and 1981.\nThe specific provision of the lease that is contested provides in part:\nThirty-Second: That if . . . said leasehold estate be taken from the Lessee by process of law, proceedings in bankruptcy, insolvency, receivership or other involuntary method, then and in any such case this lease shall be void, terminated and cancelled, at the Lessor's option. . .\nThe dispute at the trial court was whether this language applied to a mortgage foreclosure or a deed of trust sale.\nThere was no parol evidence presented to the trial court concerning the intention of the parties in 1926, when the leasehold was created. A prior holder of the lessor's interest gave a written consent to mortgage foreclosure proceedings in 1973. That consent agreement did not waive or amend the provisions of the lease, and it was executed without the parties concluding whether it was necessary.\nWestlake recognized that the above lease provision might be interpreted as applicable to mortgage foreclosures and deed of trust sales, and contacted Sea-First to propose an amendment to the lease. Westlake later submitted the interpretation of the lease to arbitration. Before the requisite number of arbitrators was impaneled, Sea-First filed this lawsuit. Neither party contests the submission of this dispute to the courts.\nThis case is before us on appeal from a summary judgment; therefore, this court engages in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d 434, 656 P.2d 1030 (1982). Summary judgment is proper if there are no genuine issues as to any material fact and the moving party is entitled to prevail as a matter of law. CR 56(c); Blenheim v. Dawson & Hall, Ltd., 35 Wn. App. 435, 667 P.2d 125 (1983). There are no disputed facts in the case sub judice, and the legal effect of the lease is to be determined by this court as a matter of law. See Yeats v. Estate of Yeats, 90 Wn.2d 201, 204, 580 P.2d 617 (1978).\nEstoppel\nSea-First contends that Westlake acknowledged that the lease gave the lessor the option to terminate the lessee's interest upon a mortgage foreclosure, and that Westlake should now be estopped from taking a different position. See Arnold v. Melani, 75 Wn.2d 143, 147, 437 P.2d 908, 449 P.2d 800, 450 P.2d 815 (1968).\nIn Arnold, at 147, the Supreme Court stated the general principle \""that a man shall not be permitted to deny what he has once solemnly acknowledged\"". To apply equitable estoppel to a given case, the court required three elements be present:\n(1) An admission, statement, or act inconsistent with the claim afterwards asserted; (2) action by the other party on the faith of such admission, statement, or act; and (3) injury to such other party resulting from allowing the first party to contradict or repudiate such admission, statement, or act.\nArnold, at 147.\nNone of these elements have been satisfied in the case at bench. The letters by Westlake always stressed their belief that there was an ambiguity in the lease and that the lease agreement contemplated mortgage foreclosures without triggering the lessor's option to terminate the lessee's interest. The proposed amendment was an attempt to settle any dispute outside of court, and there is no evidence Sea-First relied on this proposal to its detriment. Equitable estoppel is inapplicable to this case. See Arnold.\nThe Lease\nWestlake contends that, when the lease agreement is read as a whole, there is an intent to exclude mortgage foreclosures from provision 32, because other provisions envision mortgage foreclosures occurring without termination of the lessee's interest. Additionally, Westlake claims that the disputed terms of provision 32 are general language and should be limited in scope to situations specifically covered, i.e., assignments for the benefit of creditors, bankruptcy proceedings, receivership and insolvency. Even if mortgage foreclosures are covered by provision 32, West-lake argues that deed of trust sales are not, because the latter are not a process of law or an involuntary taking.\n\"" [W]hat controls in a lease is the intent of the parties at the time of its execution, and the plain meaning of the language used.\"" Washington Hydroculture, Inc. v. Payne, 96 Wn.2d 322, 328, 635 P.2d 138 (1981). Leases are contracts, as well as conveyances, and as such the rules of construction that apply to contracts also apply to leases. \""The intention of parties to a written contract is normally to be ascertained largely from the language of the contract.\"" In re Estates of Wahl, 99 Wn.2d 828, 831, 664 P.2d 1250 (1983). This is especially true of the present case, because there is no parol evidence of the parties' intent at the time they executed the lease.\nReading the Lease as a Whole\n\""Determination of the intent of the contracting parties is to be accomplished by viewing the contract as a whole ...\"" Stender v. Twin City Foods, Inc., 82 Wn.2d 250, 254, 510 P.2d 221 (1973); Roberts, Jackson & Assocs. v. Pier 66 Corp., 41 Wn. App. 64, 69, 702 P.2d 137 (1985). In the present case, lease provision 6 expressly places the lessor's interest paramount to \""any mortgage which the Lessee may execute thereon. ...\"" Lease provision 18 requires the lessee to erect a building worth at least $110,000 on the leased property. The 1981 amendment to the lease provides that fire insurance may be payable to \""any mortgagee of either the Lessor's or the Lessee's interest in the premises ...\"" These provisions establish that the original parties intended that the lessee's interest be mortgageable.\nConstruing provision 32 to apply to mortgage foreclosures does not preclude a lessee from mortgaging the lessee's interest. The language permitting termination of the lessee's interest in provision 32 is optional. A lessor may permit a mortgage foreclosure to proceed uninhibited. The record discloses at least one instance in which a lessor gave an express written agreement to a mortgage foreclosure on the lessee's interest.\nLease section 32 also states that:\n[I]f at the time the Lessor elects to terminate this lease . . . there be outstanding any mortgage on the leasehold estate, the mortgagee shall have the right to retain possession of the demised premises upon paying the rent and other charges and performing the terms, conditions and covenants to be performed by the Lessee until such mortgage shall have been fully paid and satisfied, but not beyond or later than the date upon which this lease by its terms expires, and when said mortgage indebtedness shall have been fully paid, or at the expiration of the term of this lease, the said premises shall revert absolutely to the Lessor.\nThis language specifically protects a mortgagee of the lessee's interest if the lessor exercises the power of termination.\nReading the lease as a whole does not support Westlake's view that the termination power cannot apply to mortgage foreclosures. The other provisions of the lease are not inconsistent with the interpretations urged either by Sea-First or Westlake.\nGeneral and Specific Language\n\""Courts can neither disregard contract language which the parties have employed nor revise the contract under a theory of construing it.\"" Wagner v. Wagner, 95 Wn.2d 94, 101, 621 P.2d 1279 (1980). An interpretation which gives effect to all of the words in a contract provision is favored over one which renders some of the language meaningless or ineffective. Wagner, at 101.\nWestlake argues that this court should apply the rule of the Restatement of Contracts § 236(c) (1932) that when general and specific language are inconsistent, the specific language qualifies the more general. The language of the contract, however, is not in conflict. Westlake then analogizes to the doctrine of ejusdem generis, a rule of statutory construction, which states that \""when the specific enumerations of power are followed by words granting general power, the specific enumerations govern the character or nature of the subject matter to be included within the words granting general powers.\"" In re Seattle, 96 Wn.2d 616, 630, 638 P.2d 549 (1981).\nApplying this rule to the present case, the words \""process of law\"" and \""other involuntary method\"" should be construed as applying to situations similar in character to proceedings in bankruptcy, insolvency, receivership, and assignments for the benefit of creditors. Application of the rule does not mean that the right of termination is restricted to only the specific powers, because that would render the general language superfluous. See In re Seattle, at 630. The words \""process of law\"" and \""other involuntary method\"" apply to mortgage foreclosures.\nDeed of Trust Sales\nThe parties also dispute whether deed of trust sales fall within the plain meaning of \""process of law\"" or \""other involuntary method\"" as used in the lease agreement.\nThe Supreme Court has held that nonjudicial foreclosures are not subject to the due process requirements of the Fourteenth Amendment, because there is no state action. Kennebec, Inc. v. Bank of the West, 88 Wn.2d 718, 565 P.2d 812 (1977). Westlake argues that even though deed of trust sales are subject to RCW 61.24 they are not process of law because of the holding in Kennebec.\nIf there is a question whether \""process of law\"" includes deed of trust sales, it would appear they are as involuntary as mortgage foreclosures. The Supreme Court of Texas was presented with the issue of whether deed of trust sales were voluntary in Draper v. Gochman, 400 S.W.2d 545 (Tex. 1966). In Draper, a lease specified that if the lessor desired to sell or dispose of his interest, the lessee would have the right of first refusal to purchase. Thereafter, the lessor borrowed money and executed a deed of trust to secure the debt. When the lessor defaulted, his interest was sold under the deed of trust. The court held that a deed of trust sale was involuntary and the lease provision granted a right of first refusal only when the lessor had voluntarily desired to sell. Draper, at 548.\n\""A court cannot, based upon general considerations of abstract justice, make a contract for parties which they did not make for themselves.\"" Wagner, at 104. The trial court correctly held that lease provision 32 applied to mortgage foreclosures and deed of trust sales.\nWe affirm.\nGrosse and Webster, JJ., concur.\nReconsideration denied January 9, 1986.\nReview denied by Supreme Court March 21, 1986.\nRestatement (Second) of Contracts § 203(c) (1981) now states: \""(c) specific terms and exact terms are given greater weight than general language;\""\nContrary to Westlake's assertion, the Supreme Court in Kennebec, Inc. v. Bank of the West, 88 Wn.2d 718, 565 P.2d 812 (1977) did not hold that deed of trust sales were voluntary. The court held only that RCW 61.24 did not invoke the coercive power of the State."", ""type"": ""majority"", ""author"": ""Ringold, J.""}], ""attorneys"": [""Dempcy & Braley, P.S., and Birney N. Dempcy, for appellant."", ""Williams, Lanza, Kastner & Gibbs and P. Arley Harrel, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 13559-7-I.\nDivision One.\nDecember 9, 1985.]\nSeattle-First National Bank, as Trustee, Respondent, v. Westlake Park Associates, Appellant.\nDempcy & Braley, P.S., and Birney N. Dempcy, for appellant.\nWilliams, Lanza, Kastner & Gibbs and P. Arley Harrel, for respondent.""}, ""cites_to"": [{""cite"": ""400 S.W.2d 545"", ""year"": 1966, ""case_ids"": [10135109], ""category"": ""reporters:state_regional"", ""reporter"": ""S.W.2d"", ""case_paths"": [""/sw2d/400/0545-01""], ""opinion_index"": 0}, {""cite"": ""565 P.2d 812"", ""year"": 1977, ""weight"": 2, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""88 Wn.2d 718"", ""year"": 1977, ""weight"": 2, ""case_ids"": [1111272], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/88/0718-01""], ""opinion_index"": 0}, {""cite"": ""638 P.2d 549"", ""year"": 1981, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""96 Wn.2d 616"", ""year"": 1981, ""case_ids"": [1157812], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""630""}], ""case_paths"": [""/wash-2d/96/0616-01""], ""opinion_index"": 0}, {""cite"": ""621 P.2d 1279"", ""year"": 1980, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""95 Wn.2d 94"", ""year"": 1980, ""case_ids"": [1160922], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""101""}], ""case_paths"": [""/wash-2d/95/0094-01""], ""opinion_index"": 0}, {""cite"": ""702 P.2d 137"", ""year"": 1985, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""41 Wn. App. 64"", ""year"": 1985, ""case_ids"": [1798418], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""69""}], ""case_paths"": [""/wash-app/41/0064-01""], ""opinion_index"": 0}, {""cite"": ""510 P.2d 221"", ""year"": 1973, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""82 Wn.2d 250"", ""year"": 1973, ""case_ids"": [1130149], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""254""}], ""case_paths"": [""/wash-2d/82/0250-01""], ""opinion_index"": 0}, {""cite"": ""664 P.2d 1250"", ""year"": 1983, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""99 Wn.2d 828"", ""year"": 1983, ""case_ids"": [1145942], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""831""}], ""case_paths"": [""/wash-2d/99/0828-01""], ""opinion_index"": 0}, {""cite"": ""635 P.2d 138"", ""year"": 1981, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""96 Wn.2d 322"", ""year"": 1981, ""case_ids"": [1157596], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""328""}], ""case_paths"": [""/wash-2d/96/0322-01""], ""opinion_index"": 0}, {""cite"": ""450 P.2d 815"", ""year"": 1968, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""449 P.2d 800"", ""year"": 1968, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""437 P.2d 908"", ""year"": 1968, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""75 Wn.2d 143"", ""year"": 1968, ""case_ids"": [1082914], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""147""}], ""case_paths"": [""/wash-2d/75/0143-01""], ""opinion_index"": 0}, {""cite"": ""580 P.2d 617"", ""year"": 1978, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""90 Wn.2d 201"", ""year"": 1978, ""case_ids"": [1104372], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""204""}], ""case_paths"": [""/wash-2d/90/0201-01""], ""opinion_index"": 0}, {""cite"": ""667 P.2d 125"", ""year"": 1983, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""35 Wn. App. 435"", ""year"": 1983, ""case_ids"": [1779471], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""case_paths"": [""/wash-app/35/0435-01""], ""opinion_index"": 0}, {""cite"": ""656 P.2d 1030"", ""year"": 1982, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""98 Wn.2d 434"", ""year"": 1982, ""case_ids"": [1151217], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/98/0434-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""42 Wash. App. 269"", ""type"": ""official""}], ""file_name"": ""0269-01"", ""last_page"": ""276"", ""first_page"": ""269"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T21:11:58.782891+00:00"", ""decision_date"": ""1985-12-09"", ""docket_number"": ""No. 13559-7-I"", ""last_page_order"": 314, ""first_page_order"": 307, ""name_abbreviation"": ""Seattle-First National Bank v. Westlake Park 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+1803977,"{""id"": 1803977, ""name"": ""Gene C. Luxon, et al, Appellants, v. James G. Caviezel, et al, Respondents"", ""court"": {""id"": 8985, ""name"": ""Washington Court of Appeals"", ""name_abbreviation"": ""Wash. Ct. App.""}, ""analysis"": {""sha256"": ""24a38774290dfff7fa7da390b8a548de69e7cbfe8e91afc19e3f9a9bb84dcfcc"", ""simhash"": ""1:d5ea372f7086d64a"", ""pagerank"": {""raw"": 0.00000016464976223388895, ""percentile"": 0.6919355143871322}, ""char_count"": 14120, ""word_count"": 2352, ""cardinality"": 728, ""ocr_confidence"": 0.835}, ""casebody"": {""judges"": [], ""parties"": [""Gene C. Luxon, et al, Appellants, v. James G. Caviezel, et al, Respondents.""], ""opinions"": [{""text"": ""Ringold, J.\n—James and Margaret Caviezel bought a house built by Gene and Grace Luxon. In an action to foreclose a deed of trust, the Caviezels counterclaimed for breach of the implied warranty of habitability, fraud, and violation of the Consumer Protection Act, RCW 19.86. The trial court gave judgment to the Caviezels on their first two claims, but found no breach of the Consumer Protection Act (CPA). Both parties appeal.\nThe following is a summary of the trial court's findings. The Luxons, though principally educators by profession, were engaged in the business of constructing homes for a number of years. The house bought by the Caviezels was the last house built by the Luxons and was constructed for resale. The trial court found that the Luxons were engaged in commercial construction.\nThe house remained vacant until it was purchased by the Caviezels. Before the sale, the Luxons became aware that water was seeping into the house and took steps to correct the problem. Though the Luxons believed they had corrected the problem, seepage reoccurred during the next wet season. The Caviezels informed the Luxons of the seepage, and the Luxons hired Mr. Cook to fix the problem. The Caviezels were dissatisfied with Cook and engaged Hughley Construction. Neither Cook nor Hughley Construction solved the problem, which was caused by the lack of properly installed perimeter drainage.\nThe Caviezels did not move out of the house, but a portion of the residence was impaired by the seepage and unhealthy. The cost of repairing the perimeter drainage was $2,045 and the cost of cleaning required because of the seepage was $1,059.04, for total damages relating to the seepage of $3,104.04.\nWhen the house was built, septic system requirements by Skagit County were based on the number of bedrooms. At the time of trial, county requirements were based on square footage. Luxon built the house after receiving a septic system permit for a 2-bedroom house, but listed the house for sale as a 4-bedroom. The Caviezels intended to use five rooms in the house as bedrooms. They made this known to the Luxons, who let them believe this was practical. The Caviezels' use overloaded the septic tank system.\nThe trial court determined that the house was in violation of the building code for having an inadequate septic tank and that this breached an express warranty included in the earnest money agreement. The system should have been designed for at least a 4-bedroom house. The trial court found that the Caviezels sustained damages of $4,000 with respect to the septic tank system.\nThe trial court also found that the defects in construction materially affected the habitability of the premises. The Luxons had knowledge of these defects, but they did not inform the Caviezels. The Luxons intended the Cavie-zels to rely on this nondisclosure, and the Caviezels did so and were damaged as a consequence. The Caviezels could not have discovered the defects prior to purchasing the house. The trial court concluded that the Luxons had breached an implied warranty of habitability and committed fraud, but concluded that they did not violate the Consumer Protection Act.\nFraud\nIn Obde v. Schlemeyer, 56 Wn.2d 449, 353 P.2d 672 (1960), the Supreme Court applied the theory of fraudulent concealment to hold a vendor liable for damages, because he failed to disclose that a house was infested with termites. The court held that if there are concealed defects known to the vendor, which careful examination by the purchaser would not reveal, and they are dangerous to the property, health, or life of the purchaser, failure to disclose them amounts to fraud. Obde, at 452.\nThe court in Liebergesell v. Evans, 93 Wn.2d 881, 893, 613 P.2d 1170 (1980) explicated the requirements imposed upon vendors to disclose relevant information to purchasers:\nThe cases considering the duty to disclose . . . speak of the vendor's silence as \""fraudulent concealment\"", a species of fraud. The law has not yet acknowledged a general requirement of full disclosure of all relevant facts in all business relationships. However, it is clear . . . that the duty to disclose relevant information to a contractual party can arise as a result of the transaction itself within the parties' general obligation to deal in good faith.\nThis court has interpreted Obde, and the decisions following it, as imposing \""a duty to speak in cases where the undisclosed fact was a material fact to the extent that it substantially affected adversely the value of the property or operated to materially impair or defeat the purpose of the transaction.\"" Mitchell v. Straith, 40 Wn. App. 405, 411, 698 P.2d 609 (1985).\nThe trial court here specifically found that the Luxons believed they had corrected the defects causing the seepage. The Luxons, therefore, cannot be liable for the damages caused by the seepage on a theory of fraudulent concealment, because they were not aware of the defect. See Obde.\nThe Luxons are liable for the damages relating to the septic tank system because they were aware that the system was inadequate for a 4-bedroom house. This defect could not be revealed by careful inspection before the sale, and an inadequate septic system is dangerous to the health of the purchaser. See Obde.\nImplied Warranty of Habitability\nThe Luxons contend that they were not regularly engaged in building houses and selling them commercially; therefore, the implied warranty of habitability does not apply to them. Klos v. Gockel, 87 Wn.2d 567, 570, 554 P.2d 1349 (1976). Additionally, they argue the defects complained of did not make the house uninhabitable or render the building unfit for its intended purpose.\n\""An implied warranty of habitability attaches to the sale of a home where (1) the vendor is a commercial builder; and (2) the structure is built for sale, not personal occupancy.\"" Boardman v. Dorsett, 38 Wn. App. 338, 341, 685 P.2d 615, review denied, 103 Wn.2d 1006 (1984). The trial court found that the Luxons were commercial builders and that the house bought by the Caviezels was built for resale. The Luxons did not assign error to these findings, and they must be considered as verities on appeal. Davis v. Department of Labor & Indus., 94 Wn.2d 119, 615 P.2d 1279 (1980). \""The gist of the implied warranty is that the resulting building will be fit for its intended use, i.e., habitation.\"" Klos, at 571. \""The law of implied warranty is not broad enough to make the builder-vendor of a house absolutely liable for all mishaps occurring within the boundaries of the improved real property.\"" Klos, at 571-72.\nWhen the foundation of a house is unstable, making the house unsafe for occupancy, the implied warranty of habitability is breached. House v. Thornton, 76 Wn.2d 428, 457 P.2d 199 (1969). In Klos, however, the court found that defects in a doorframe and patio slabs were not structural defects which affected habitability; hence, there was no breach.\nIn Gay v. Cornwall, 6 Wn. App. 595, 494 P.2d 1371 (1972), the court affirmed the trial court, which had held that a sewer problem, and a leaky roof which caused water damage, among other defects, breached the implied warranty of habitability. The Oregon Supreme Court has held that, \""The use of the house is so dependent upon the proper disposition of waste through a properly operating septic tank and drain field system that the house would not be habitable without them.\"" Yepsen v. Burgess, 269 Or. 635, 642, 525 P.2d 1019, 1023 (1974).\nWhile the house in the case at bench does not appear to be as fraught with defects as the house in Gay, the situations are similar. The defect in the septic system breaches the implied warranty of habitability. See Yepsen. The trial court in the case sub judice found that, although the Caviezels never moved out, a portion of the residence was impaired by the seepage and the seepage was unhealthy. Under these circumstances, it was not error to hold that the seepage violated the implied warranty of habitability. See Gay\nExpress Warranty\nParagraph 9 of the real estate purchase and sale agreement states:\nPurchaser offers to purchase the property in its present condition on the terms noted. Seller hereby warrants that to the best of his knowledge the premises described herein and the improvements thereon do not materially violate the applicable building or zoning regulations and that he is unaware of any material defect in the premises or improvements . . .\nIn the findings of fact the trial court stated: \""The septic tank breaches paragraph No. 9 of the Earnest Money Agreement (Exhibit '2') because it does materially violate building codes except for a two-bedroom house.\"" Though listed as a finding of fact, this is more appropriately a conclusion of law. \""Findings of fact which are conclusions of law will be interpreted as conclusions of law.\"" Ridgeview Properties v. Starbuck, 96 Wn.2d 716, 719, 638 P.2d 1231 (1982).\nNeither party argued here whether the septic tank defect breached an express warranty, and the Luxons failed to assign error to the trial court's finding or conclusion that the septic tank breached an express warranty. \""Appellate courts will only review claimed error which is included in an assignment of error or clearly disclosed in the associated issue pertaining thereto.\"" Bender v. Seattle, 99 Wn.2d 582, 599, 664 P.2d 492 (1983). Further, in the absence of argument and citation to authority, an appellate court will not consider an issue. Transamerica Ins. Group v. United Pac. Ins. Co., 92 Wn.2d 21, 29, 593 P.2d 156 (1979). Thus, the damages relating to the septic tank defect must be upheld on appeal because liability attaches from violation of the express warranty.\nConsumer Protection Act\nThe Caviezels contend that they were deceived by the Luxons, and this deception is a violation of the CPA. \""For a private individual to initiate an action under the Consumer Protection Act, 'the conduct complained of must: (1) be unfair or deceptive; (2) be within the sphere of trade or commerce; and (3) impact the public interest.'\"" McRae v. Bolstad, 101 Wn.2d 161, 165, 676 P.2d 496 (1984).\nThe Luxons listed the house for sale as a 4-bedroom house in a multiple listing service. The trial court found that, \""Plaintiff had knowledge of the size of the septic tank in relation to the size of the house.\"" This deceptive practice fulfills the first prong of the test with respect to damages relating to the septic tank defect.\nWhether the damage relating to the seepage is the result of conduct which is unfair or deceptive is a more difficult question. \""For the conduct to be unfair or deceptive does not require that intent be shown if the action has the capacity to deceive a substantial portion of the purchasing public.\"" Haner v. Quincy Farm Chems., Inc., 97 Wn.2d 753, 759, 649 P.2d 828 (1982). There was no conduct, however, attributable to the Luxons which deceived the public regarding the seepage problem.\nAbsent a per se violation of the Consumer Protection Act, in order to establish an impact on the public interest, a plaintiff must satisfy the test enunciated in Anhold v. Daniels, 94 Wn.2d 40, 46, 614 P.2d 184 (1980):\n[T]he presence of public interest is demonstrated when the proof establishes that (1) the defendant by unfair or deceptive acts or practices in the conduct of trade or commerce has induced the plaintiff to act or refrain from acting; (2) the plaintiff suffers damage brought about by such action or failure to act; and (3) the defendant's deceptive acts or practices have the potential for repetition.\nIn McRae, the Supreme Court held that a prior instance of possible misrepresentation coupled with listing the property in a multiple listing service satisfied the requirements of the public interest test. Here there is no prior instance of possible deception in the record. The listing, however, of the house to the general public had the likelihood to deceive a substantial portion of the general public. In McRae, liability was imposed upon the owner, even though there was no showing that there was any potential for repetition in the sale of any other house. The court, therefore, held that the Anhold test, requiring that the deceptive acts or practices have a potential for repetition, may be met due to the manner in which the sale of the subject property was presented to the public. In the present case, there is enough to satisfy the requirement that the conduct impact the public interest. See Fisher v. World-Wide Trophy Outfitters, 15 Wn. App. 742, 748, 551 P.2d 1398 (1976).\nWe affirm the trial court's judgment based on the theories of fraud and implied and express warranties. We reverse the trial court's conclusion that there was no violation of the Consumer Protection Act and remand for a determination under RCW 19.86.090 of treble damages and attorney fees, incurred at trial and on appeal, relating to the inadequate septic tank system.\nGrosse and Webster, JJ., concur.\nTo secure the purchase price, the Caviezels executed a promissory note and deed of trust, which the Luxons sought to foreclose in this action. The resolution of that aspect of the controversy is not appealed.\nNo error was assigned to the trial court's findings, and they must be considered as the established facts of the case. Obde v. Schlemeyer, 56 Wn.2d 449, 451, 353 P.2d 672 (1960).\nIn Fain v. Nelson, 57 Wn.2d 217, 356 P.2d 302 (1960), the Supreme Court failed to reach the question of whether a defective leaky roof violated the implied warranty of habitability, because the court determined for various reasons that the purchaser was not entitled to raise the issue.\nWhile the Supreme Court in Klos v. Gockel, 87 Wn.2d 567, 571, 554 P.2d 1349 (1976) attaches importance to the purchasers having not moved out of the house, the case does not specifically require a purchaser to leave a home before a breach of the implied warranty of habitability can be proved."", ""type"": ""majority"", ""author"": ""Ringold, J.""}], ""attorneys"": [""C. Robert Collins, for appellants."", ""Mark T. Soine, for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 12967-8-I.\nDivision One.\nDecember 9, 1985.]\nGene C. Luxon, et al, Appellants, v. James G. Caviezel, et al, Respondents.\nC. Robert Collins, for appellants.\nMark T. Soine, for respondents.""}, ""cites_to"": [{""cite"": ""356 P.2d 302"", ""year"": 1960, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""57 Wn.2d 217"", ""year"": 1960, ""case_ids"": [1023830], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/57/0217-01""], ""opinion_index"": 0}, {""cite"": ""551 P.2d 1398"", ""year"": 1976, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""15 Wn. App. 742"", ""year"": 1976, ""case_ids"": [1776041], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""748""}], ""case_paths"": [""/wash-app/15/0742-01""], ""opinion_index"": 0}, {""cite"": ""614 P.2d 184"", ""year"": 1980, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""94 Wn.2d 40"", ""year"": 1980, ""case_ids"": [1164057], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""46""}], ""case_paths"": [""/wash-2d/94/0040-01""], ""opinion_index"": 0}, {""cite"": ""649 P.2d 828"", ""year"": 1982, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""97 Wn.2d 753"", ""year"": 1982, ""case_ids"": [1154987], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""759""}], ""case_paths"": [""/wash-2d/97/0753-01""], ""opinion_index"": 0}, {""cite"": ""676 P.2d 496"", ""year"": 1984, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""101 Wn.2d 161"", ""year"": 1984, ""case_ids"": [1139592], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""165""}], ""case_paths"": [""/wash-2d/101/0161-01""], ""opinion_index"": 0}, {""cite"": ""593 P.2d 156"", ""year"": 1979, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""92 Wn.2d 21"", ""year"": 1979, ""case_ids"": [1099464], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""29""}], ""case_paths"": [""/wash-2d/92/0021-01""], ""opinion_index"": 0}, {""cite"": ""664 P.2d 492"", ""year"": 1983, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""99 Wn.2d 582"", ""year"": 1983, ""case_ids"": [1145898], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""599""}], ""case_paths"": [""/wash-2d/99/0582-01""], ""opinion_index"": 0}, {""cite"": ""638 P.2d 1231"", ""year"": 1982, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""96 Wn.2d 716"", ""year"": 1982, ""case_ids"": [1157588], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""719""}], ""case_paths"": [""/wash-2d/96/0716-01""], ""opinion_index"": 0}, {""cite"": ""269 Or. 635"", ""year"": 1974, ""weight"": 2, ""case_ids"": [2127113], ""category"": ""reporters:state"", ""reporter"": ""Or."", ""pin_cites"": [{""page"": ""642""}, {""page"": ""1023""}], ""case_paths"": [""/or/269/0635-01""], ""opinion_index"": 0}, {""cite"": ""494 P.2d 1371"", ""year"": 1972, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""6 Wn. App. 595"", ""year"": 1972, ""case_ids"": [1864361], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""case_paths"": [""/wash-app/6/0595-01""], ""opinion_index"": 0}, {""cite"": ""457 P.2d 199"", ""year"": 1969, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""76 Wn.2d 428"", ""year"": 1969, ""case_ids"": [1080097], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/76/0428-01""], ""opinion_index"": 0}, {""cite"": ""615 P.2d 1279"", ""year"": 1980, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""94 Wn.2d 119"", ""year"": 1980, ""case_ids"": [1164073], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/94/0119-01""], ""opinion_index"": 0}, {""cite"": ""103 Wn.2d 1006"", ""year"": 1984, ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""opinion_index"": 0}, {""cite"": ""685 P.2d 615"", ""year"": 1984, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""38 Wn. App. 338"", ""year"": 1984, ""case_ids"": [1791720], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""341""}], ""case_paths"": [""/wash-app/38/0338-01""], ""opinion_index"": 0}, {""cite"": ""554 P.2d 1349"", ""year"": 1976, ""weight"": 2, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""87 Wn.2d 567"", ""year"": 1976, ""weight"": 2, ""case_ids"": [1113793], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""570""}, {""page"": ""571""}], ""case_paths"": [""/wash-2d/87/0567-01""], ""opinion_index"": 0}, {""cite"": ""698 P.2d 609"", ""year"": 1985, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""40 Wn. App. 405"", ""year"": 1985, ""case_ids"": [1796371], ""category"": ""reporters:state"", ""reporter"": ""Wash. 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+1864359,"{""id"": 1864359, ""name"": ""Willie S. Sorrell et al., Appellants, v. H. E. Young et al., Respondents"", ""court"": {""id"": 8985, ""name"": ""Washington Court of Appeals"", ""name_abbreviation"": ""Wash. Ct. App.""}, ""analysis"": {""sha256"": ""0c34373583a194bd4e1ac9b6f33147385ba442cc53edd190d3acd007b613f017"", ""simhash"": ""1:637837af46bb61f4"", ""pagerank"": {""raw"": 0.00000030278957356918434, ""percentile"": 0.8543534777510194}, ""char_count"": 11823, ""word_count"": 1979, ""cardinality"": 719, ""ocr_confidence"": 0.649}, ""casebody"": {""judges"": [], ""parties"": [""Willie S. Sorrell et al., Appellants, v. H. E. Young et al., Respondents.""], ""opinions"": [{""text"": ""James, J.\nDoes caveat emptor apply, or may a vendee rescind an “arm’s length” real estate contract upon discovering the nondisclosed fact that the residential lot he purchased had been filled?\nIn May of 1968, plaintiffs (Sorrell) contracted to purchase a residential lot (lot 3) from defendants (Young). Upon discovering that the lot had been filled, Sorrell made no further installment payments, but brought this action to rescind the contract and recover $1,457.55 paid upon the purchase price of $3,500. Sorrell also seeks reimbursement of $77 paid for real estate taxes and $70 spent for advertising in an attempt to resell the lot.\nBy cross complaint, Young claims the right to terminate the contract for nonpayment and to forfeit the $1,457.55 which Sorrell paid.\nSorrell’s evidence established that in 1960 Young bought a block of six lots from King County at a tax foreclosure sale. All were below the grade of the street upon which they fronted. It was apparent to Young that lots 1, 2, 3 and 4 had been partially filled before he purchased them. By early 1963, Young had accomplished filling and bulldozing all six lots so that they were at grade with the street with a gradual downslope to the back. At trial, Young would not estimate the depth of the fill.\nYoung did not offer to sell any of the lots until approximately 7 years after the placement of the fill, when he considered that “the lots were in good salable condition.” Young testified that he put the lots on the market when the land\ndidn’t show any settling that [he] could see, no cracks in the foundation and anyway, the people that would go there, they could size the proposition upon themselves and then go to the building department and find out whether the building department considered the land was in shape to build on, if they wanted to build.\nIt is undisputed that Young did not tell Sorrell that the lot had been filled. The existence of the fill was not apparent. Sorrell made no inquiry concerning a fill and was unaware of its existence.\nSorrell’s evidence further established that soil tests would be required to obtain a building permit. There was evidence that soil testing could cost up to $1,500. Sorrell’s contractor testified that because of the fill, it would at minimum be necessary to install piling as a foundation for a house at a cost of between $1,400 and $1,500. He further testified that there was no assurance that a house could be built even if piling were installed. His uncertainty was circumstantially supported by evidence that no houses have been built on any of the six lots, although all had been sold prior to Sorrell’s purchase, and by the testimony of the purchaser of another lot who found the cost of soil testing to be prohibitive.\nYoung challenged the sufficiency of Sorrell’s evidence to establish a right to rescind. The trial judge sustained the challenge but in doing so considered only whether Sorrell had met the burden of proving that the contract had been induced by Young’s express fraudulent misrepresentations. Specifically, he found that Sorrell had not established one of the nine essential elements of a fraudulent misrepresentation, be., the falsity of the representation.\n[The] plaintiffs contend that the defendants misrepresented the real property in that they contend Mr. Young, the defendant, told them orally that “we could build a house on the lot”. The court does not find that such a representation was or was not made to the plaintiffs but no proof has been offered showing that a house could not be built on said property so the court finds the defendants have not misrepresented the property to the plaintiffs.\nFinding 3. The formal finding is amplified in the judge’s oral opinion, wherein he stated:\nI find that there is no evidence that a house could not be constructed on here. The evidence from Mr. Dong is that a house could be constructed if piles were used and the evidence submitted from the testimony of Mrs. Carter was that the house could be built provided Pacific Testing Company submitted a soil inspection report.\nWe are satisfied that the trial judge viewed the evidence too narrowly. A failure to speak when there is a duty to do so may also be fraudulent. The controlling principle is expressed in Restatement of Contracts § 472, comment b (1932):\nA party entering into a bargain is not bound to tell everything he knows to the other party, even if he is aware that the other is ignorant of the facts; and unilateral mistake, of itself, does not make a transaction voidable (see § 503). But if a fact known by one party and not the other is so vital that if the mistake were mutual the contract would be voidable, and the party knowing the fact also knows that the other does not know it, nondisclosure is not privileged and is fraudulent.\nThe precise question presented here — the right to rescind for nondisclosure of the fact that land was filled — has not confronted a Washington appellate court. Washington’s early unqualified adherence to the doctrine of caveat emptor in real estate transactions was relatively short-lived. In Washington Cent. Imp. Co. v. Newlands, 11 Wash. 212, 214, 39 P. 366 (1895), a purchaser was denied rescission as a matter of law because he did not assert that he “was in such a position that he was unable to make an investigation concerning the truth or falsity of [the] alleged [false] representations.” The court reflected 19th century respect for rugged individualism in stating:\n[I]t seems to us that parties must exercise ordinary business sense, and the faculties which are given to them for the purpose of transacting business; and that they cannot call upon the law to stand in loco parentis to them in the ordinary transactions of business and their ordinary dealings with their fellow men.\nWashington Cent. Imp. Co. v. Newlands, supra at 214.\nBut by the turn of the century, Washington had recognized that “the tendency of the more recent cases has been to restrict rather than extend the doctine of caveat emptor.” Wooddy v. Benton Water Co., 54 Wash. 124, 127, 102 P. 1054 (1909). And, “[a]s would be expected when change in the law is taking place, there is no unanimity” in the decisions of other jurisdictions. Keeton, Rights of Disappointed Purchasers, 32 Tex. L. Rev. 1, 4 (1953). However, there is an “amorphous tendency” on the part of most courts to grant relief to a purchaser for nondisclosure of facts which would probably affect the purchaser’s decision to purchase. W. Prosser, Torts § 101 (3d ed. 1964). And consistent with Restatement of Torts § 551, comment b (1938), relief by way of rescission is more readily granted than damages. W. Prosser, Torts § 105 (3d ed. 1964).\nIn the frequently cited case of Clauser v. Taylor, 44 Cal. App. 2d 453, 112 P.2d 661 (1941), the operative facts are indistinguishable from the facts in this case. The vendor knew that the lots had been filled but did not disclose his knowledge to the purchaser. The purchaser viewed the lots but made no inquiry concerning a fill. The existence of the fill was not apparent from “casual observation” and “[d]ue to the fact that the lots had been filled, the cost of building on them was materially increased.” Clauser v. Taylor, supra at 454. Clauser relies upon Restatement of Contracts § 472, comment b (1932) in affirming the trial court’s judgment granting the purchaser’s prayer for rescission. Clau-ser and other cases in accord involving filled land are cited in Annot., 80 A.L.R.2d 1453 (1961).\nWe are satisfied that the ruling in Obde v. Schlemeyer, 56 Wn.2d 449, 353 P.2d 672 (1960) has aligned Washington with those jurisdictions which require a seller to disclose the existence of a fill. In Obde, the vendor did not disclose the fact that the apartment house he sold was infested with termites. The court noted that (1) the infestation was a ‘‘manifestly . . . serious and dangerous condition,” and (2) the condition was “not readily observable upon reasonable inspection.” The court concluded that\n[ujnder the circumstances, we are satisfied that “justice, equity, and fair dealing,” to use Professor Keeton’s language, demanded that the Schlemeyers speak — that they inform prospective purchasers, such as the Obdes, of the condition, regardless of the latter’s failure to ask any questions relative to the possibility of termites.\nObde v. Schlemeyer, supra at 453.\nObde’s standard for imposing upon a seller a duty to speak — whenever justice, equity, and fair dealing demand it — has been criticized as “possibly difficult of practical application.” 36 Wash. L. Rev. 202 (1960). But the hazards inherent in definitional circumscription were pointed out in American Sav. Bank & Trust Co. v. Bremerton Gas Co., 99 Wash. 18, 31, 168 P. 775 (1917):\nFraud is a thing to be described, rather than defined. Deception may find expression in such a variety of ways that most courts have studiously avoided reducing its elements to accurate definition. Human foresight is not sufficiently acute to anticipate the secret and covert methods of the artful and designing or of those who endeavor to reap where they have not sown. Once let it be known what the courts consider fraudulent and those engaged in its perpetration will busy themselves in inventing some means of evasion. The courts, therefore, should content themselves with determining from the facts of each case whether fraud does or does not exist. While fraud is not lightly to be inferred, it does not follow that the inference of fraud cannot be gathered from surrounding circumstances, provided they are of sufficient strength and cogency to overcome the presumption of honesty and fair dealing.\nThe Washington Supreme Court, however, confessing its early reluctance to define fraud, acknowledged the law’s need for certainty and “recognized” nine “elements” essential to the proof of actionable fraudulent misrepresentation. Webster v. L. Romano Eng’r Corp., 178 Wash. 118, 34 P.2d 428 (1934).\nFraudulent misrepresentation or nondisclosure has historically been treated as a tort in actions at law. But “ [misrepresentation was recognized very early as a basis for the jurisdiction of courts of equity, . . .” W. Prosser, Torts § 100, at 701 (3d ed. 1964). The coexistence of both legal and equitable remedies has resulted in considerable conceptual confusion. By the law’s standards, tortious conduct is that which is socially unreasonable. Equity is offended by unfair dealing. But the standard of conduct required of a real estate vendor by either law or equity is not more nebulous than the reasonable and prudent man standard of the law of negligence.\nWe conceive the essential “elements” in proof of constructive fraud by nondisclosure of the existence of a land fill to be: (1) a vendor, knowing that the land has been filled, fails to disclose that fact to a purchaser of the property, and (2) the purchaser is unaware of the existence of the fill because either he has had no opportunity to inspect the property, or the existence of the fill was not apparent or readily ascertainable, and (3) the value of the property is materially affected by the existence of the fill. When these three elements have been proved, a vendor’s duty imposed by Obde’s general standard of justice, equity, and fair dealing has been violated, and a purchaser of land is entitled to rescind.\nSorrell presented substantial evidence to establish each of the three elements of constructive fraud. Young’s challenge should have been denied. The cause is remanded for the presentation of Young’s defense.\nFarris, A.C.J., and Swanson, J., concur."", ""type"": ""majority"", ""author"": ""James, J.""}], ""attorneys"": [""Jack Steinberg, for appellants."", ""Hansen & Blackburn and John R. Blackburn, for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 684-1.\nDivision One—Panel 2.\nDecember 27, 1971.]\nWillie S. Sorrell et al., Appellants, v. H. E. Young et al., Respondents.\nJack Steinberg, for appellants.\nHansen & Blackburn and John R. Blackburn, for respondents.""}, ""cites_to"": [{""cite"": ""34 P.2d 428"", ""year"": 1934, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""178 Wash. 118"", ""year"": 1934, ""case_ids"": [869805], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/178/0118-01""], ""opinion_index"": 0}, {""cite"": ""168 P. 775"", ""year"": 1917, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""99 Wash. 18"", ""year"": 1917, ""case_ids"": [656762], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""pin_cites"": [{""page"": ""31""}], ""case_paths"": [""/wash/99/0018-01""], ""opinion_index"": 0}, {""cite"": ""36 Wash. L. Rev. 202"", ""year"": 1960, ""category"": ""journals:journal"", ""reporter"": ""Wash. L. Rev."", ""opinion_index"": 0}, {""cite"": ""353 P.2d 672"", ""year"": 1960, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""56 Wn.2d 449"", ""year"": 1960, ""case_ids"": [1020659], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/56/0449-01""], ""opinion_index"": 0}, {""cite"": ""80 A.L.R.2d 1453"", ""year"": 1961, ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R. 2d"", ""opinion_index"": 0}, {""cite"": ""112 P.2d 661"", ""year"": 1941, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""44 Cal. App. 2d 453"", ""year"": 1941, ""case_ids"": [4559327], ""category"": ""reporters:state"", ""reporter"": ""Cal. App. 2d"", ""case_paths"": [""/cal-app-2d/44/0453-01""], ""opinion_index"": 0}, {""cite"": ""32 Tex. L. Rev. 1"", ""year"": 1953, ""category"": ""journals:journal"", ""reporter"": ""Tex. L. Rev."", ""pin_cites"": [{""page"": ""4""}], ""opinion_index"": 0}, {""cite"": ""102 P. 1054"", ""year"": 1909, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""54 Wash. 124"", ""year"": 1909, ""case_ids"": [1297892], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""pin_cites"": [{""page"": ""127""}], ""case_paths"": [""/wash/54/0124-01""], ""opinion_index"": 0}, {""cite"": ""39 P. 366"", ""year"": 1895, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""11 Wash. 212"", ""year"": 1895, ""case_ids"": [780381], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""pin_cites"": [{""page"": ""214""}], ""case_paths"": [""/wash/11/0212-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""6 Wash. App. 220"", ""type"": ""official""}], ""file_name"": ""0220-01"", ""last_page"": ""226"", ""first_page"": ""220"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T21:11:42.596123+00:00"", ""decision_date"": ""1971-12-27"", ""docket_number"": ""No. 684-1"", ""last_page_order"": 246, ""first_page_order"": 240, ""name_abbreviation"": ""Sorrell v. 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+2417036,"{""id"": 2417036, ""name"": ""Edwin Shay, as Guardian ad Litem of Sharon Clark, a Minor, Respondent, v. V. R. Parkhurst, Appellant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""6ae3ca7f110d039793f9cc60f2003244415394075eda9c70dea686a68e71171f"", ""simhash"": ""1:93a9784441ae0573"", ""pagerank"": {""raw"": 0.00000029316485980044974, ""percentile"": 0.8473926472161118}, ""char_count"": 22769, ""word_count"": 3934, ""cardinality"": 947, ""ocr_confidence"": 0.669}, ""casebody"": {""judges"": [], ""parties"": [""Edwin Shay, as Guardian ad Litem of Sharon Clark, a Minor, Respondent, v. V. R. Parkhurst, Appellant.""], ""opinions"": [{""text"": ""Donworth, J.\n— Plaintiff, Edwin Shay, grandfather of Sharon Clark, a minor, brought this action as her guardian ad litem to recover damages sustained by the minor child on account of personal injuries alleged to have resulted from her falling out of the door of defendant’s taxicab and for medical expenses incurred in connection with this accident. The case was tried to a court and jury. The trial resulted in a verdict awarding to the plaintiff recovery against the defendant in the sum of ten thousand dollars.\nMotion for judgment notwithstanding the verdict, or, in the alternative, for a new trial was interposed by defendant and was denied. Judgment was thereupon entered on the verdict, from which defendant has appealed.\nFrom evidence presented at the trial, the jury was warranted in finding the following facts:\nOn March 14, 1949, Sharon Clark, three and one-half years old, was in the care of Violet Taylor, a tenant in an apartment house owned by respondent in Bremerton. Mrs. Taylor desired to inspect an apartment to which she intended to move soon and about one o’clock p. m. called one of appellant’s taxicabs for transportation to that place, which is about a ten-minute ride from respondent’s apartment house.\nUpon its arrival, Mrs. Taylor, Sharon Clark, and a friend, Mrs. Sumner, along with Karen Jackson (a three and one-half year old child who was in Mrs. Sumner’s care) all entered the taxicab as fare-paying passengers. All four persons entered the cab through the right rear door. Mrs. Sumner sat on the left side of the rear seat, Mrs. Taylor on the right, Karen was seated in the middle, and Sharon was standing up directly behind the driver facing forward.\nMrs. Taylor testified that, when the taxicab started to move, she cautioned Sharon to sit. down but that the driver remarked, “It’s all right; the doors are locked.” (The driver denied making this statement, but the jury apparently believed Mrs. Taylor.) The taxicab proceeded at a lawful rate of speed for approximately one mile, during which two right turns were made at slow speeds. The first right turn was made upon emerging from an alley into the street, the second right turn was made after making a full stop at an arterial. Both women testified that during the trip there was no rattling of the doors and that there was no draft in the taxicab.\nAs the taxicab rounded the third right turn, the left rear door flew open and Sharon fell out through the doorway striking the pavement. The testimony showed that this turn was not a right angle turn but rather a “half moon” curve and that, in rounding this curve, the driver was not exceeding the lawful rate of speed. When the taxicab stopped, the child was lying by the left rear wheel of the vehicle. She was immediately picked up by Mrs. Taylor and taken in the cab to a hospital a block away.\nNo purpose can be served by detailing the injuries suffered by the child. There was sufficient evidence to warrant the jury in finding that Sharon had sustained substantial injuries as a result of the fall.\nMrs. Taylor testified that during the trip Sharon was not playing with the door. Mrs. Sumner stated that, as the taxicab turned the curve, Sharon had her hands on the back of the driver’s seat and that when the door opened Sharon went through the doorway in spite of the witness’ frantic attempt to catch hold of her.\nAppellant’s evidence showed that the taxicab, a 1947 four-door Dodge sedan, was driven approximately twelve hundred miles per week and was serviced by appellant’s mechanic about every five or six days. It was part of the routine of the mechanic, in addition to oiling and greasing the doors, to check the doors and catches by closing them and pulling them hard to make sure they would not open by themsélves.\nThe taxicab was checked by this mechanic approximately forty-five minutes after the accident and he testified that the left rear door and its locks were in perfect condition. The door operated without difficulty the remainder of the day. The taxicab driver also testified that the taxicab had been used to pick up a number of passengers on that day prior to the accident and that no difficulty with the left rear door was experienced.\nThe taxicab driver not only denied that he told Mrs. Taylor that it was not necessary for Sharon to sit down on the seat since the doors were locked, but stated, on cross-examination, that Sharon had touched the door in question before it flew open. The jury had a right to believe Mrs. Taylor’s denial that Sharon touched the left door at any time (as well as her version of the driver’s statement that the doors were locked), which it apparently did in each instance.\nSharon’s stepfather, who was divorced from Sharon’s mother at the time of the trial and who had been in appellant’s employ, testified that the child had on at least two occasions previous to the accident opened the door of his automobile while it was stationary and had fallen out.\nAppellant’s first three assignments of error relate to the trial court’s refusal to grant a directed verdict in his favor and the giving of instructions which submitted the case to the jury on the doctrine of res ipsa loquitur. Respondent was unable to prove any specific acts of negligence on the part of appellant which could be said to be the proximate cause of Sharon’s injuries and, if the doctrine of res ipsa loquitur does not apply to the facts of this case, appellant’s motion for a directed verdict should have been granted. It is, therefore, necessary to consider the applicability of this doctrine.\nThe doctrine of res ipsa loquitur received a very thorough analysis in our recent case of Morner v. Union Pac. R. Co., 31 Wn. (2d) 282, 196 P. (2d) 744, in which the court stated:\n“The doctrine of res ipsa loquitur, an expression which, literally translated, means ‘the thing speaks for itself,’ as applied in this state and most jurisdictions is as follows: When the agency or instrumentality which caused the injury complained of is shown to have been under the exclusive control and management of the defendant or his servants, and the accident, or injurious occurrence, is such as in the ordinary course of events does not happen if those who have the control and management of the agency or instrumentality use proper care, the injurious occurrence of itself, in the absence of explanation by the defendant, affords reasonable evidence, or a permissible inference, that such occurrence arose from or was caused by the defendant’s want of care. . . .\n“This doctrine constitutes a rule of evidence peculiar to the law of negligence and is an exception to, or perhaps more accurately a qualification of, the general rule that negligence is not to be presumed, but must be affirmatively proved. By virtue of the doctrine, the law recognizes that an accident, or injurious occurrence, may be of such nature, or may happen under such circumstances, that the occurrence is of itself sufficient to establish prima facie the fact of negligence on the part of the defendant, without further or direct proof thereof, thus casting upon the defendant the duty to come forward with an exculpatory explanation, rebutting or otherwise overcoming the presumption or inference of negligence on his part. . . .\n“The doctrine of res ipsa loquitur is based in part upon the theory that the defendant, having the sole and exclusive charge of the agency or instrumentality which caused the injury, knows the cause of the accident, or injurious occurrence, or has the best opportunity of ascertaining it, and should, therefore, be required to produce the evidence in explanation thereof, while, on the other hand, the plaintiff has no such knowledge and is, therefore, compelled to allege negligence in general terms and to rely upon proof of the happening of such occurrence to establish negligence. . . .\n“With reference to the application of the doctrine, this court, in common with many others, has held that while the maxim, when properly applied, is of value in the administration of justice, its scope is nevertheless limited, and ordinarily it is to be sparingly applied, in peculiar and exceptional cases, and only where the facts and the demands of justice make its application essential.”\nFor a further discussion of the doctrine, see Nopson v. Seattle, 33 Wn. (2d) 772, 207 P. (2d) 674, including Judge Hill’s dissenting opinion.\nAppellant strenuously argues that the doctrine is not applicable to this case because the instrumentality involved (left rear door) was not within the sole and exclusive control of the appellant, and, further, that the accident could have happened without negligence on the part of the defendant.\nAs the Morner case, supra, points out, it would be unjust to impose upon appellant in the instant case the burden of explaining how the accident occurred and showing that it did not happen through want of care on his part if, in fact, he did not have exclusive control of the instrumentality. The evidence with respect to exclusive control consisted of the undisputed testimony that all four passengers entered the taxicab through the right rear door. Sharon’s custodian, Mrs. Taylor, testified that Sharon did not play with the left hand door. The cab driver testified that Sharon was moving around in the back of the cab, although part of the time she was standing up with her hands on the back of the front seat. The fact that Sharon and three other persons were in the back seat in a position to touch the left rear door does not preclude respondent from invoking the doctrine if, in fact, the left rear door was not touched.\nFrom the evidence, reasonable minds might very well differ as to whether or not Sharon touched the left rear door and caused it to open but, there being substantial evidence introduced by respondent that this door was not touched, this issue was for the trier of the facts.\nWe know from common observation and experience that taxicab doors do not fly open while rounding a curve at a reasonable speed if those who have control of the doors have used, proper care. The jury could reasonably have believed that either the door latch was defective or that the door was not closed securely.\nSince appellant was unable to explain how the door happened to open, the trial court properly denied appellant’s motion for a directed verdict and did not err in instructing the jury on res ipsa loquitur.\nAppellant has cited Morales v. Employers’ Liability Assur. Corp., 202 La. 755, 12 So. (2d) 804, as being in support of his position that res ipsa loquitur has no application to the instant case.\nIn the cited case, the plaintiff, a gratuitous passenger, was sitting jammed in a small space with two other gratuitous passengers beside a side door in the rear part of an ambulance and fell out of this door while the ambulance was proceeding slowly on a straight stretch of road. The driver testified that he had closed the doors tightly himself. The court held that res ipsa loquitur was not applicable since the accident happened at a place where the road was smooth and straight and while the ambulance was being driven at a speed which was not excessive. In holding that the doctrine of res ipsa loquitur was inapplicable, the supreme court of Louisiana said:\n“To render the doctrine applicable in an automobile accident, the accident must be one which ordinarily could not happen except through defects in the car or fault in its operation, or both. But the doctrine applies only where the circumstances leave no room for a different presumption, and it must appear that the probable cause was within the control of the operator of the automobile against whom the doctrine is sought to be invoked. 5 Am. Jur., Automobiles, § 607, p. 839.\n“The plaintiff’s case is predicated on the proposition that the door of the ambulance, or its lock, was defective, and that the door swung open because of these defects, or because of the negligent operation of the car.\n“The facts are that the accident happened at a place where the road was smooth and straight and while the ambulance was being driven at a speed which was not excessive. There was nothing wrong with the door of the ambulance or its lock, and the ambulance was not driven in such a way as to cause the door to swing open. The door could not open except by some person turning its handle either on the inside or on the outside.”\nThis, in substance, was a holding that the accident in that case was one that, in the ordinary course of events, happens without negligence on the part of defendant. In the instant case, none of the occupants of the rear seat was jammed against the left door. There was no testimony as to when or by whom the left rear door was last closed prior to the accident. Furthermore, the accident occurred when centrifugal force was being applied to the door as the cab made a right turn. In the Louisiana case, the ambulance door opened while it was being driven slowly on a straight road. That case, being distinguishable upon the facts, is not in point.\nIn McCormick v. Index Stages, 137 Wash. 507, 242 Pac. 1090, facts similar to the case at bar appeared. Plaintiff boarded one of defendant’s vehicles and took her place upon the right hand side of one of the seats, which ran clear across the car. She sat within a few inches of the door which was to her right. While the bus was making a turn at a speed of seventeen or eighteen miles per hour, the door next to plaintiff opened and she was thrown from her seat, through the open doorway, out onto the ground. The plaintiff testified that she did not touch the door latch at any time. The driver claimed that the door was securely latched, so far as he could see. This court affirmed a judgment in favor of plaintiff. In disposing of defendant’s contention that there was a failure of proof of negligence, the court stated:\n“The jury might well have believed, from the fact of the door flying open the way that it did upon rounding the corner, that the latch and the catch were mechanically deficient, or that the driver did not completely close and latch the door. . . . We think that, since the jury were warranted by the evidence in believing that either a defect in the latch or a want of effectual use of the latch caused the door to fly open, and it being shown that Mrs. McCormick was injured by reason of the door flying open upon the turning of the corner, there was sufficient [evidence] to warrant the jury in concluding that there was negligence on the part of appellant stage company approximately causing Mrs. McCormick’s injuries.”\nIt is true that the court in that opinion did not discuss the doctrine of res ipsa loquitur as such, but, since there was no effort on the part of respondent to show specific negligence, the court must have based respondent’s recovery on this theory. In describing the accident this court said: “Manifestly, it was the centrifugal force, caused by the speed of the stage and the turn, that caused the door to fly open and Mrs. McCormick to be thrown out.”\nThe next error assigned is the giving of instruction No. 5:\n“You are instructed that the negligence, if any, of the minor plaintiff’s custodian, Mrs. C. W. Taylor, can not be imputed to the minor plaintiff in this case.\n“However, you are instructed that the primary duty of caring for Sharon Clark, the minor plaintiff herein, at the time of the accident, was on Mrs. C. Taylor, the person who, under the undisputed evidence of this case, had the custody of said child.\n“You are further instructed that, under these circumstances, the defendant Parkhurst through his employee, the cab driver, had a right to presume and to rely on the presumption that Mrs. Taylor would take care of the child while she was riding in the taxicab as the child’s mother would under the circumstances, being prompted by her natural love as a parent.\n“However, the cab driver would not be entitled to act upon such presumption if you find that the custodian remonstrated with said child, and that the cab driver assured her that the doors were locked and that it was safe for the child to remain standing.”\nAppellant first contends that there is no evidence that the driver assured Mrs. Taylor, the custodian, that “it was safe for the child to remain standing.” Mrs. Taylor testified:\n“. . . So Sharon was standing up behind the driver and I asked her to sit down. The cab driver remarked, ‘It’s all right; the doors are locked.’ So I let her stand there.”\nThis testimony was denied by the cab driver.\nMrs. Taylor’s testimony, under the circumstances of this case, was sufficient to warrant the giving of instruction No. 5.\nAppellant, conceding that the first three paragraphs of instruction No. 5 contain a correct statement of the rule, argues that the last paragraph does not correctly state the applicable rule of law. Appellant contends that the correct statement of the rule, with respect to a common carrier’s care of children and liability therefor, is stated in 13 C.J.S., 1291, Carriers, § 694, as follows:\n“In respect of a child of tender years, it has been held or recognized that the primary duty of caring for such child is on the parents or their representative who has the immediate custody of such child, and that, where such child is in the care of his parent, the carrier, through its employees, has the right to rely on the presumption that the parent will take such care of the child as the natural love of the parent would prompt him or her to exercise under the circumstances. Where, however, the carrier’s employees who are engaged in the operation of its train know, or, in the exercise of reasonable care and diligence, should know, that such child is or will be exposed to danger or injuries by acts or negligence of the carrier’s employees, the carrier is not entitled to act on such presumption and is under the duty to use all reasonable and practicable care and diligence to avoid the danger and avert the injury.”\nThis rule simply means that where a minor child is in the custody of his parent or a custodian, the carrier need not exercise special care with respect to the child.\nHowever, the fact that the minor child is in a custodian’s charge does not absolve the carrier from liability, if the .carrier’s employees know, or should know, that such child will be injured by certain acts of negligence on their part. As applied to the case at bar, this would mean that since, as the jury apparently found, the driver had assured Mrs. Taylor that it was safe for Sharon to remain standing in the taxicab, appellant could no longer rely on the presumption that Mrs. Taylor would care for the child in the event a rear door opened. This is precisely what the court told the jury in instruction No. 5.\nThe final assignment of error to be noticed is that the trial court erred in giving the following portion of instruction No. 13 relating to damages:\n“With respect to personal injuries, you are instructed that the law fixes no definite amount as compensation for said injuries. It is a matter for the jury to assess after considering all of the facts of the case and the nature and extent of the injuries. With reference to doctors, X-rays, nursing, medicine and hospital bills you are instructed that the minor plaintiff is entitled to recover the reasonable value of such services already rendered and the reasonable value of the services she will in the future necessarily require for such purposes.” (Italics ours.)\nThe only evidence with reference to medical services was that Sharon was taken to the Naval hospital immediately after the accident and again on two occasions during the following week for a few minutes each time. She was never a patient in any hospital. Later, she was taken to Dr. Gross’ office in Port- Orchard. Dr. Rankin, a specialist in neurology, described his examination of Sharon in his office two months after the accident and expressed his opinion as to her present and future physical condition. He based his opinion upon his own observation of the child during the examination and upon X rays (taken by Dr. Blake) and an electroencephalogram (taken by his own assistant). Dr. Rankin testified that he had charged $125 for this examination of Sharon, including $75 for the electroencephalogram, and that this charge was reasonable.\nThere is no other evidence in the record showing that any “doctors, X-rays, nursing, medicine and hospital bills” were incurred as a result of this accident or that any would be in the future except Dr. Rankin’s recommendation that Sharon’s progress be checked by a local physician. Of course, there could be no evidence of the reasonable value of these items since there was no evidence that any of them had been incurred or that there would be any necessity for such medical expenses in the future. It was reversible error, therefore, for the trial court to instruct the jury that the reasonable value of these past and future medical expenses (other than Dr. Rankin’s bill) could be taken into consideration in arriving at a verdict.\nIn Carr v. Martin, 35 Wn. (2d) 753, 215 P. (2d) 411, this court recently held that, in the absence of evidence of their reasonable value, it was error for the trial court to submit to the jury claims for such special damages based on medical expenses. If we could determine what allowance for these items was included in the verdict, we might order it reduced to that extent, as we did in the Carr case. However, we must assume that the jury followed instruction No. 13, considered the items mentioned therein, and included them in fixing the amount of its verdict ($10,000).\nRespondent, citing Auerbach v. Webb, 170 Wash. 567, 17 P. (2d) 1, argues that this instruction constituted harmless error. We cannot so regard it. Respondent’s complaint alleged that $110 had been incurred for medical expenses and that estimated future expenses would be $500. These allegations being denied, respondent had the burden of proving these items. Since he failed to submit any evidence upon this issue, except to the limited extent above noted, this court cannot speculate as to what amounts the jury included in its verdict of $10,000 for these unproven items.\nFor this error, we must return the case for a new trial. Trudeau v. Snohomish Auto Freight Co., 1 Wn. (2d) 574, 96 P. (2d) 599.\nThe judgment appealed from is reversed, and the case remanded with directions to grant appellant a new trial.\nSchwellenbach, C. J., Beals, Hill, and Finley, JJ., concur."", ""type"": ""majority"", ""author"": ""Donworth, J.""}], ""attorneys"": [""Meier & Murray, for appellant."", ""Wálthew, Gershon, Yothers & Warner, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 31482.\nDepartment One.\nMarch 29, 1951.]\nEdwin Shay, as Guardian ad Litem of Sharon Clark, a Minor, Respondent, v. V. R. Parkhurst, Appellant.\nMeier & Murray, for appellant.\nWálthew, Gershon, Yothers & Warner, for respondent.\nReported in 229 P. (2d) 510.""}, ""cites_to"": [{""cite"": ""229 P. (2d) 510"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""96 P. (2d) 599"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""1 Wn. (2d) 574"", ""case_ids"": [1963381], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/1/0574-01""], ""opinion_index"": 0}, {""cite"": ""17 P. (2d) 1"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""170 Wash. 567"", ""case_ids"": [855654], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/170/0567-01""], ""opinion_index"": 0}, {""cite"": ""215 P. (2d) 411"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""35 Wn. (2d) 753"", ""case_ids"": [4926195], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/35/0753-01""], ""opinion_index"": 0}, {""cite"": ""242 Pac. 1090"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""137 Wash. 507"", ""case_ids"": [811959], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/137/0507-01""], ""opinion_index"": 0}, {""cite"": ""202 La. 755"", ""weight"": 2, ""case_ids"": [10074858, 3058092], ""category"": ""reporters:state"", ""reporter"": ""La."", ""case_paths"": [""/so2d/12/0804-01"", ""/la/202/0756-01""], ""opinion_index"": 0}, {""cite"": ""207 P. (2d) 674"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""33 Wn. 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Morner et al., Respondents, v. Union Pacific Railroad Company, Appellant, Joe Fiorito et al., Defendants; Grace Stith, Respondent, v. Union Pacific Railroad Company, Appellant, Joe Fiorito et al., Defendants"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""28dab79189450579d5dd2336d4a400c6138c0211f3c018284c019c306c7c8e97"", ""simhash"": ""1:f6fdef2a7a3b8469"", ""pagerank"": {""raw"": 0.0000006111528650698718, ""percentile"": 0.9557806265925156}, ""char_count"": 38522, ""word_count"": 6509, ""cardinality"": 1288, ""ocr_confidence"": 0.652}, ""casebody"": {""judges"": [], ""parties"": [""Lester A. Morner et al., Respondents, v. Union Pacific Railroad Company, Appellant, Joe Fiorito et al., Defendants. Grace Stith, Respondent, v. Union Pacific Railroad Company, Appellant, Joe Fiorito et al., Defendants.""], ""opinions"": [{""text"": ""Steinert, J.\n— Plaintiffs brought separate actions against defendants to recover damages for personal injuries resulting from a collision between an automobile in which plaintiffs were riding as passengers and a truck owned by defendants Fiorito and driven by their employee, defendant Jesse Helton. The collision occurred at a point on a highway where, at the time, both motor vehicles were temporarily enveloped in a cloud of steam which had been emitted by a railroad locomotive owned and operated by defendant Union Pacific Railroad Company and traveling on a track adjacent to the highway.\nThe two actions were, on motion of defendants Fiorito and Helton, consolidated for purposes of trial and appeal, and were tried to the court sitting with a jury. At the close of plaintiffs’ case, the trial court sustained the challenge of the defendants Fiorito and Helton to the sufficiency of the evidence as to them and dismissed both actions in so far as they were concerned. At the conclusion of' all the evidence, the defendant Union Pacific Railroad Company moved for directed verdicts in both actions. The motion was denied, and the cause was submitted to the jury, which returned verdicts in favor of both plaintiffs. Motion for judgment notwithstanding the verdicts or, in the alternative, for a new trial was interposed by the defendant railroad company and was denied. Judgment was thereupon entered on the verdicts, and the railroad company appealed.\nThe accident out of which these actions arose occurred on east Marginal way, in Seattle, near the point where that thoroughfare would be intersected by Findlay street, were the latter street extended westwardly. In this vicinity, east Marginal way extends generally in a northerly-southerly direction. It consists of two strips of pavement separated from each other by a twenty-three-foot strip of center, graveled roadway. The easterly strip, built of concrete and twenty feet wide, is used by northbound traffic; the westerly strip, paved with brick and twenty-one feet in width, is used by southbound traffic.\nParallel to east Marginal way in this same vicinity, and nine feet west of the westernmost portion thereof, is a standard gauge railroad track approximately four feet eight inches in width; eight feet west of this track, and parallel to it, is another railroad 'tradk of standard gauge. The two tracks are, within a few inches, at the same level as the brick pavement. The testimony indicates that the easterly railroad track is a spur track, and that the westerly track is the main line. The entire area described above is, for all practical purposes, flat and level.\nAt approximately seven-thirty a. m., on March 6, 1944, the defendant Jesse Helton, an employee of defendants Fiorito, was driving a Mack truck south along east Marginal way, on the westerly portion of the westerly strip of pavement, which was immediately adjacent to the railroad tracks. The truck had a capacity of five cubic yards and was loaded with sand and gravel. Helton was alone and was driving at a speed of twenty or twenty-five miles an hour. The pavement was dry, visibility was good, and the atmospheric temperature registered approximately 33° Fahrenheit.\nA railroad locomotive, owned by appellant, Union Pacific Railroad Company, was proceeding in the same direction, some distance ahead of the truck, and was pulling a “drag” of seven freight cars. The locomotive and freight cars were traveling along the easterly railroad track, on the west, or right-hand side, of the truck, at a speed of four or five miles an hour.\nRespondents Mildred M. Morner and Grace Stith, to whom we shall hereinafter refer as though they alone were respondents, were also traveling south on east Marginal way, along the westerly portion of the westerly strip of pavement, but some distance back of both the locomotive and the truck. They were riding as paying passengers, under the so-called “Share-a-ride plan,” in a 1930 Model A Ford coupe owned and being driven by one Mrs. Jeanne Shallow, and were on their way to work at the Boeing aircraft plant. Mrs. Morner was sitting in the middle of the seat, next to the driver, and Mrs. Stith occupied the extreme right-hand side thereof. The Ford coupe was traveling at a speed of twenty-five or thirty miles an hour.\nImmediately prior to the time of the accident, the railroad locomotive and the two motor vehicles were traveling in the direction and at the respective rates of speed described above, and were occupying approximately the following relative positions: The locomotive, traveling on the easterly railroad track, was eighty feet north of the intersection of Findlay street and east Marginal way. The truck, traveling along its right-hand portion of the westerly strip of pavement of east Marginal way, was twenty feet from the rear, and to the east, or on the left-hand side, of the locomotive. The Ford coupe was fifty feet back of the truck, also to the east, or on the left-hand side, of the locomotive. Mrs. Shallow, driver of the Ford, was preparing to pass the truck and had moved over to her left, or eastwardly, so that the Ford was slightly to the west of the center line of the westerly strip of pavement of east Marginal way.\nWhile the locomotive and the two motor vehicles were in these relative positions, a large quantity of steam emanated from the locomotive and enveloped an area extending along east Marginal way for approximately one hundred feet or more and covering the entire westerly strip of pavement. By reason of its density, the steam precluded all visibility within its area.\nAs Helton, the driver of the truck, entered the cloud of steam, he slackened his feed of gasoline and then gradually applied his brake. In this manner, he proceeded approximately one hundred feet into the enveloping cloud. As Mrs. Shallow entered the clouded area, she too applied her brake, slowly reducing her speed. While both the truck and the Ford coupe were thus traveling through this cloud of emitted steam, the right front end of the coupe struck the left rear end of the truck, causing the coupe to come to an immediate stop and, by the force of the impact, damaging it to such an extent that it was later sold for junk.\nThe truck was brought to a stop a few feet south of the point of collision and was not damaged. The locomotive continued on its way down the track. It appears that none of the train crew was aware of the accident at the time and did not learn of it until the following day.\nAs a result of the collision between the two motor vehicles, both respondents were seriously injured and were taken to a hospital.\nThe evidence is in serious conflict on only one point of fact, that is, whether, as contended by appellant, the steam was properly emitted, through the injector valve of the locomotive, in its normal and usual operation, or whether, as contended by respondents, the steam was negligently ejected from the cylinder cocks of the locomotive or else through the injector valve in an excessive and unreasonable amount, either of which respondents allege was not a necessary, normal, or usual operation of the locomotive at the time here involved. The parties are in agreement as to all other facts, except for slight discrepancies respecting the relative distances between the three moving vehicles prior to the accident, and as to the actual point of collision.\nAppellant’s contentions during the trial were, and now are: (1) that Mrs. Shallow, driver of the Ford coupe, was guilty of negligence which was the proximate cause of the accident, in that, when she observed the cloud of steam ahead of her, she had ample time and room in which to stop her car and thus avoid the collision, but negligently failed to do so; (2) that the presence of the steam upon the highway was but a condition, and not a cause of the accident; and (3) that the steam was properly emitted from the locomotive through its injector valve, in the course of its normal and necessary operation.\nRespondents’ contentions were, and now are: (1) that Mrs. Shallow was guilty of no negligence, and that none of her acts was the proximate cause or a concurring cause of the accident; (2) that the proximate cause of the accident was the presence of the cloud of steam upon the highway; and (3) that the steam was negligently emitted from the locomotive either through its cylinder cocks or through its injector valve in excessive amounts.\nThe question of contributory negligence on the part of the respondents was expressly withdrawn from the jury by an instruction given by the trial court, to which no exception was taken.\nAppellant first assigns as errors the refusal of the trial court to grant appellant’s motions for directed verdicts and for judgment notwithstanding the verdicts. Appellant contends that, even though it may have negligently emitted the steam from the cylinder cocks, or improperly through the injector valve, of its locomotive, nevertheless the undisputed facts show that Mrs. Shallow’s negligence in driving her car into the cloud of steam was the proximate cause of the damage and injury to respondents, and that the steam was only a condition.\nWhether Mrs. Shallow was, under the circumstances, negligent in driving into the clouded area or in failing to bring her car to a stop before colliding with the truck, and whether her act in the one respect or her failure to act in the other respect was the proximate cause of the injuries to the respondents, were clearly, in our opinion, questions for the jury to decide. Hence, there was no error in denying these two motions of the appellant.\nThe principal question involved in this appeal is presented under appellant’s fifth assignment of error, relating to an instruction given by the trial court on the subject of res ipsa loquitur, reading as follows:\n“You are instructed that the burden of proof is upon the plaintiffs [respondents] to establish all of the controverted allegations of their complaints by a fair preponderance of the evidence. If you find from a preponderance of the evidence that the emission of steam from the locomotive in the manner in which it was released upon the highway was such as in the ordinary course of events would not happen if those who have the management of said locomotive use reasonable and ordinary care, you are entitled to presume a want of care on the part of the Railroad Company through its agents and employees in the absence of explanation by the defendant [appellant] Railroad Company.”\nAppellant contends that the doctrine of res ipsa loquitur is not applicable in this case, for two reasons: (1) because it is clear from the evidence upon which respondents relied that the accident in question was the result of a definite cause; and (2) because the accident might reasonably have occurred as the result of acts for which the appellant would not be hable.\nThe doctrine of res ipsa loquitur, an expression which, literally translated, means “the thing speaks for itself,” as applied in this state and most jurisdictions is as follows: When the agency or instrumentality which caused the injury complained of is shown to have been under the exclusive control and management of the defendant or his servants, and the accident, or injurious occurrence, is such as in the ordinary course of events does not happen if those who have the control and management of the agency or instrumentality use proper care, the injurious occurrence of itself, in the absence of explanation by the defendant, affords reasonable evidence, or a permissible inference, that such occurrence arose from or was caused by the defendant’s want of care. Anderson v. McCarthy Dry Goods Co., 49 Wash. 398, 95 Pac. 325, 126 Am. St. 870, 16 L. R. A. (N.S.) 931; Lewinn v. Murphy, 63 Wash. 356, 115 Pac. 740, Ann. Cas. 1912D, 433, L. R. A. 1917E, 198; Poth v. Dexter Horton Estate, 140 Wash. 272, 248 Pac. 374; Brothers v. Grays Harbor Bldg. Co., 152 Wash. 19, 276 Pac. 896; Highland v. Wilsonian Inv. Co., 171 Wash. 34, 17 P. (2d) 631; Anderson v. Harrison, 4 Wn. (2d) 265, 103 P. (2d) 320; Mahlum v. Seattle School Dist. No. 1, 21 Wn. (2d) 89, 149 P. (2d) 918; Pacific Coast R. Co. v. American Mail Line, 25 Wn. (2d) 809, 172 P. (2d) 226; 38 Am. Jur. 989, Negligence, § 295; 45 C. J. 1193, Negligence, § 768; 9 Wigmore, Evidence (3d ed.), § 2509;1 Shearman and Redfield, Negligence (Rev. ed.) 151, § 56. See, also, 13 Wash. L. Rev. 215.\nThis doctrine constitutes a rule of evidence peculiar to the law of negligence and is an exception to, or perhaps more accurately a qualification of, the general rule that negligence is not to be presumed, but must be affirmatively proved. By virtue of the doctrine, the law recognizes that an accident, or injurious occurrence, may be of such nature, or may happen under such circumstances, that the occurrence is of itself sufficient to establish prima facie the fact of negligence on the part of the defendant, without further or direct proof thereof, thus casting upon the defendant the duty to come forward with an exculpatory explanation, rebutting or otherwise overcoming the presumption or inference of negligence on his part. Lynch v. Ninemire Packing Co., 63 Wash. 423, 115 Pac. 838, L. R. A. 1917E, 178; Penson v. Inland Empire Paper Co., 73 Wash. 338, 132 Pac. 39, L. R. A. 1915F, 15; 38 Am. Jur. 994, Negligence, § 298; 45 C. J. 1196, 1219, Negligence, §§ 769, 783.\nThe doctrine of res ipsa loquitur is based in part upon the theory that the defendant, having the sole and exclusive charge of the agency or instrumentality which caused the injury, knows the cause of the accident, or injurious occurrence, or has the best opportunity of ascertaining it, and should, therefore, be required to produce the evidence in explanation thereof, while, on the other hand, the plaintiff has no such knowledge and is, therefore, compelled to allege negligence in general terms and to rely upon proof of the happening of such occurrence to establish negligence.\nThis theory of superior knowledge is stated in 45 C. J. 1205, Negligence, § 773, as follows:\n“The reason or theory of the doctrine of res ipsa loquitur is based in part upon the consideration that, as the management and control of the agency which produced the injury is, under the circumstances to which the doctrine applies, exclusively vested in defendant, plaintiff is not in a position to show the particular circumstances which caused the offending instrumentality to operate to his injury, while defendant, being more favorably situated, possesses the superior knowledge or means of information as to the cause of the accident, and should, therefore, be required to produce the evidence in explanation. Accordingly if the circumstances do not suggest or indicate superior knowledge or opportunity for explanation on the part of the party charged or if plaintiff himself has equal or superior means of information, the doctrine cannot be invoked.”\nIn 38 Am. Jur. 995, Negligence, § 299, a summary of the decisions touching the matter of superior knowledge is set forth in the following paragraph:\n“The res ipsa loquitur doctrine is based in part upon the theory that the defendant in charge of the instrumentality which causes the injury either knows the cause of the accident or has the best opportunity of ascertaining it, and that the plaintiff has no such knowledge, and therefore is compelled to allege negligence in general terms and to rely upon the proof of the happening of the accident in order to establish negligence. The inference which the doctrine permits is grounded upon the fact that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to the defendant but inaccessible to the injured person. If the circumstances do not suggest or indicate superior knowledge or opportunity for explanation on the part of the party charged, or if the plaintiff himself has equal or superior means of information, the doctrine will not apply.”\nA similar expression, by this court, is found in Lynch v. Ninemire Packing Co., supra, where we said:\n“The maxim of res ipsa loquitur is applied in negligence cases on the theory that the accident, in the light of surrounding circumstances, is of such a character as to raise a presumption of negligence from the occurrence itself; and on the further theory, that the injured party is not in a position to explain its cause; while the party charged, having more favorable opportunities, is in a position to thus explain and show himself free from negligence, if such be the case. If the circumstances do not suggest or indicate superior knowledge or opportunity for explanation on the part of the party charged, or if the plaintiff himself has equal or superior means of information, the doctrine will not apply.”\nWhile the theory upon which the doctrine of res i/psa loquitur rests is well understood, there is no fixed, general rule determining its applicability in all cases, nor can any exact- classification be made of the instances in which the maxim as a rule of- evidence is to be applied. Whether or not the doctrine is applicable in a specific instance depends upon the peculiar facts and circumstances of the individual case. McClellan v. Schwartz, 97 Wash. 417, 166 Pac. 783.\nWith reference to the application of the doctrine, this court, in common with many others, has held that while the maxim, when properly applied, is of value in the administration of justice, its scope is nevertheless limited, and ordinarily it is to be sparingly applied, in peculiar and exceptional cases, and only where the facts and the demands of justice make its application essential. Anderson v. McCarthy Dry Goods Co., 49 Wash. 398, 95 Pac. 325, 126 Am. St. 870, 16 L. R. A. (N.S.) 931; Lewinn v. Murphy, 63 Wash. 356, 115 Pac. 740, Ann. Cas. 1912D, 433, L. R. A. 1917E, 198; Pacific Coast R. Co. v. American Mail Line, 25 Wn. (2d) 809, 172 P. (2d) 226. Accord: Mahlum v. Seattle School Dist. No. 1, 21 Wn. (2d) 89, 149 P. (2d) 918; Wellons v. Wiley, 24 Wn. (2d) 543, 166 P. (2d) 852.\nIn the case of Pacific Coast R. Co. v. American Mail Line, supra, we quoted approvingly the following paragraph taken from 45 C. J. 1200, Negligence, § 771:\n“ ‘Application of Doctrine. The doctrine of res ipsa loquitur, now a familiar rule of practice in the trial of negligence cases, which is frequently recognized and applied without specifically naming it, is not a rigid or arbitrary formula, but a rule that adjusts itself to circumstances. However, as it is not the naked injury but the manner and attending circumstances of the accident that justify the application of the doctrine in an action for the negligent breach of an ordinary duty, it follows, as a matter of course, that the applicability of the doctrine must depend upon the peculiar facts and circumstances of each individual case, and consequently that no rule of general application can be laid down nor exact classification made as to when it may or may not be properly applied. Furthermore, while the application of the doctrine is considered to be in the aid of the fair administration of justice, and not unjust to defendant, it has been held that the doctrine is of limited and restricted scope ordinarily to be applied sparingly and with caution in peculiar and exceptional cases, and only where the facts and demands of justice make the application essential.’ ”\nSee, also, 38 Am. Jur. 998, Negligence, § 301.\nHaving in mind the nature, purpose, scope, and limitations of the doctrine of res ipsa loquitur as above set forth, we shall next consider the matter of its applicability in the instant case.\nSince the applicability of the doctrine depends upon the facts of the particular case, it is pertinent to observe here that the injuries of which respondents complain were not sustained immediately and directly through contact with, or operation of, the locomotive itself, nor by contact with the steam which the locomotive emitted upon the adjacent highway. The injuries to them were the direct and immediate result of a collision between the two motor vehicles operating independently of the locomotive. Whether the steam be regarded merely as a condition, or whether it be considered to be a proximate cause of the collision, the fact is that respondents’ injuries resulted directly and solely from a collision between the Ford coupe and the truck.\nAppellant had no control over the operation or management of either of these two motor vehicles. Even if it be assumed, as the respondents contend, that the steam was a proximate cause of the injurious occurrence, nevertheless appellant did not have control of all of the instrumentalities which together produced the physical injuries.\nAs appears from the definition given above of res ipsa loquitur, one of the elements essential to the invocation of that doctrine is that the party charged with actionable negligence must have sole and exclusive control of the agency or instrumentality which actually caused the injury. If there is no such exclusive control, or if the injury was caused, or may reasonably be said to have been caused, by the concurrent acts of two or more persons or agencies functioning independently of each other, the doctrine does not apply.\nIn 1 Shearman & Redfield, Law of Negligence (6th ed.), 131, § 58b,- it is said, with reference to the applicability of the doctrine:\n“Certain conditions must concur. The causative force of the injury must be shown to be controlled by the defendant; it must also appear that there was no other equally efficient proximate cause. If from the nature of the event causing the injury an enquiry naturally arises which one of two or more persons, acting independently, is responsible; or, if it appear that the injury was proximately caused by the independent acts of two or more persons, the application of the maxim is excluded by its terms. Finally, it must appear that the cause of the injury was something out of the usual order.”\nIn 1 Shearman and Redfield, Negligence (Rev. ed. 1941), 153, § 56, it is stated:\n“Control is a necessary prerequisite to application of the rule of res ipsa loquitur. The rule is predicated, amongst other things, upon the condition that the agency which has produced an injury is within the exclusive possession, control and oversight of the person sought to be charged with negligence.\n“The wrongdoer must be identified. The circumstances of an accident may permit an inference or give rise to a presumption that someone has been negligent, but not that any particular person rather than another has been negligent.”\nA wealth of cases will be found in 45 C. J. 1214, Negligence, § 781, supporting the statement therein that:\n“As a necessary basis for the application of the doctrine, it must appear, in conformity with the statements of the rule, that the negligent cause or thing which produced the injury complained of was wholly and exclusively in the possession, and under the control or management, of defendant or his servants. Accordingly the doctrine cannot be invoked where there is a divided responsibility and the accident is due in part to the act of a third party over whom defendant has no control, or where the injuring agency is partly or entirely under the control or management of plaintiff.”\nAccord: Lynch v. Ninemire Packing Co., supra.\nAlso, in 8 Encyclopaedia of Evidence 872 et seq., we find the following statements:\n“That a presumption of negligence may arise from the very nature of the efficient cause of the damage, certain conditions precedent must concur, as follows: . . .\n“First, the immediate cause of the accident must clearly appear to be under the control of defendant or those for whom he is responsible. . . .\n“Second, there must be no other equally proximate, apparent cause of the accident besides that for which defendant is responsible. So where the acts or omissions of two or more independent persons are apparently equally immediate causes of an injury, the negligence of neither of such persons can be presumed. . . .\n“Third, the cause of the damage must be either an act of defendant’s or of those for whom he is responsible that, if proper care is used, is ordinarily performed without damage to others, or the operation of a thing for which- the defendant is responsible that is ordinarily, with proper care, operated without damage to others.”\nThe foregoing passage was quoted in Yellow Cab Co. v. Hodgson, 91 Colo. 365, 14 P. (2d) 1081, 83 A. L. R. 1156.\nIn 38 Am. Jur. 997, Negligence, § 300, occurs the following statement:\n“If it appears that two or more instrumentalities, only one of which was under defendant’s control, contributed to or may have contributed to the injury, the doctrine cannot be invoked.”\nIn support of this statement, the text cites the following cases: Sawyer v. People’s Freight Lines, 42 Ariz. 145, 22 P. (2d) 1080; Olson v. Whitthorne & Swan, 203 Cal. 206, 263 Pac. 518, 58 A. L. R. 129; Yellow Cab Co. v. Hodgson, supra.\nThe reason for the prerequisite of exclusive control of the offending instrumentality is that the purpose of the rule is to require the defendant to produce evidence explanatory of the physical cause of an injury which cannot be explained by the plaintiff. If the defendant does not have exclusive control of the instrumentality producing the injury, he cannot offer a complete explanation, and it would work an injustice upon him to presume negligence on his part and thus in practice demand of him an explanation when the facts indicate such is beyond his ability.\nSince, in our opinion, the evidence clearly demonstrates that the injurious occurrence here involved resulted or could have resulted from the operation of one or more agencies or instrumentalities, or from several independent agencies or instrumentalities operating concurrently, the doctrine of res ipsa loquitur was not applicable.\nHowever, assuming for the purposes of this decision that, under the theory of the respondents’ complaints and the evidence adduced by them in support thereof, the doctrine was applicable to the extent of taking the case beyond a nonsuit, and thereby casting upon the appellant the burden of producing explanatory evidence as required by the rule, the question then arises whether, at the conclusion of all the evidence, it was necessary or proper to submit the doctrine to the jury under instructions by the court.\nThe record in this case discloses that respondents not only pleaded specific acts of negligence on the part of appellant, but also produced considerable evidence in support of such allegations. In fact, the issues on that subject were sharply drawn. Respondents contended, and their evidence was to the effect, that the steam which covered the highway and enveloped the two motor vehicles was ejected from the cylinder cocks of the locomotive, or else was expelled from the injector valve of the engine in such amount as under the circumstances was unusual, unnecessary, unreasonable, and dangerous to travelers upon the highway. Appellant, on the contrary, contended, and its evidence was to the effect, that the steam was emitted, not from the cylinder cocks of the locomotive, but from its injector valve, and only in such amount as was consistent with the practical and normal operation of its locomotive. Thus, from the evidence and the contentions of the parties, it is clear that the steam came either from the cylinder cocks or from the injector valve of the locomotive.\nIn our opinion, the evidence is also conclusive, and neither counsel contends to the contrary, that, if the steam was discharged from the cylinder cocks, it would not have been a usual and normal operation of the locomotive at the particular time and place, and such discharge would have constituted negligence on the part of the appellant. Furthermore, if the steam was ejected through the injector valve, but in an amount that was unusual, unnecessary, and unreasonable under the circumstances, that too would have constituted negligence. On the other hand, if the steam was emitted from the injector valve in a normal, necessary, and reasonable manner, appellant would not be guilty of any actionable negligence. Therefore, the sole question for the jury to decide regarding the emission of the steam Was whether it was ejected in the manner as contended by respondents or in the manner as contended by the appellant.\nThe decision of that question by the jury was all that was necessary to determine the liability or nonliability of the appellant. In other words, upon the case made by the respondents, and under all the evidence produced before the jury, there was nothing upon which the doctrine of res ipsa loquitur need or could operate. There was nothing further left calling for explanation by the appellant as to the cause of the injurious occurrence. The evidence was so completely explanatory as to how the steam was allowed to escape or could have escaped that it left no room for an inference that it might have escaped in some other, undisclosed manner for which appellant would be responsible.\nWe are cognizant of the rule, adopted and frequently declared by this court, that even though a plaintiff should base his action upon the doctrine of res ipsa loquitur, he may plead and prove specific acts of negligence on the part of the defendant and may rely upon the presumption of negligence and, also, upon his proof of specific acts of negligence, in support of his right to recover. Walters v. Seattle, Renton & Southern R. Co., 48 Wash. 233, 93 Pac. 419, 24 L. R. A. (N.S.) 788; Kluska v. Yeomans, 54 Wash. 465, 103 Pac. 819, 132 Am. St. 1121; Highland v. Wilsonian Inv. Co., 171 Wash. 34, 17 P. (2d) 631; Case v. Peterson, 17 Wn. (2d) 523, 136 P. (2d) 192; Mahlum v. Seattle School Dist. No. 1, 21 Wn. (2d) 89, 149 P. (2d) 918; D’Amico v. Conguista, 24 Wn. (2d) 674, 167 P. (2d) 157.\nHowever, the authorities are uniform to the effect, as stated in 38 Am. Jur. 995, Negligence, § 299, that, when all the facts attending the injury are disclosed by the evidence, and nothing is left to inference, no presumption or inference can be indulged, and the doctrine of res ipsa loquitur has no application.\nThis principle was recognized in the case of Anderson v. Harrison, 4 Wn. (2d) 265, 103 P. (2d) 320, where this court, after explaining the rationale of the doctrine of res ipsa loquitur, said:\n“In this case, however, the doctrine of res ipsa loquitur is not applicable, because it is clear from the evidence upon which the parties, respectively, relied that the collision in question was the result of a definite cause. This case is not an instance of an unsuccessful attempt to prove the precise cause, but, on the contrary, is an instance of a reliance upon definite causative facts, excluding all inferences of a cause or thing which, unexplained, does not happen, according to common experience, without fault on the part of the carrier. In such cases, the doctrine does not apply. [Citing cases.]”\nSo, in the case at bar, this was not an instance of an unsuccessful attempt to prove a precise cause, but rather was it an instance of a reliance upon definite causative facts, excluding all inferences of any other cause or thing which, unexplained, does not happen, according to common experience, without fault on the part of the defendant.\nThe instruction given by the trial court in this case was, in our opinion, inapplicable for two reasons: (1) It was not necessary for the fair administration of justice between the parties; and (2) it imposed upon the appellant the unjust burden of producing evidence upon some unknown, uncertain, conjectural cause which neither party had, or could have had, in mind. The facts constituting the alleged negligence, if any there was, and the only circumstances upon which the claim of negligence could have been based, were produced before the jury. The instruction, however, permitted the jury to return verdicts in favor of respondents, even though it found from the evidence that appellant was not guilty of any specific act of negligence alleged or relied upon by respondents. The instruction was prejudicial and constituted reversible error.\nSince this case must be returned for a new trial, it is necessary to discuss certain other assignments of error, relating to instructions. The trial court gave instruction No. 6, which reads:\n“The defendant railroad and its fireman and engineer were required to use reasonable and ordinary care in the operation of the defendant’s switch engine and not to unnecessarily jeopardize the safety of users of the highway by emitting sudden and unnecessary exhausts of steam and smoke which would obstruct the vision of the users of the highway at a time when the railroad company’s employees observed, or by the exercise of reasonable caution and care should have observed the vehicle in which the plaintiffs were riding and the truck operated by the Fioritos.” (Italics ours.)\nThe court also gave instruction No. 7, which reads, in part, as follows:\n“If you find by a preponderance of the evidence that the defendant Railroad Company’s engineer and fireman saw, or by the exercise of reasonable care should have seen, the vehicle involved in the collision prior to the time when the steam was emitted from the locomotive, and if you further find by a preponderance of the evidence that said engineer and fireman knew, or with the exercise of reasonable care should have known, that the emission of a sudden cloud of steam would obstruct the vision of the operator of said motor vehicle, then the emission of such steam under such circumstances would constitute negligence.” (Italics ours.)\nAppellant excepted to these instructions, and to the refusal of the trial court to give its requested instruction reading:\n“You are instructed that the agents of the defendant Union Pacific Railroad Company, properly operating the engine along the track parallel to East Marginal Way, were under no duty to observe travelers on the highway.”\nIt is conceded that there was no evidence that the railroad crew actually saw either of the two motor vehicles. Therefore, unless appellant’s agents were under some legal duty to observe those vehicles, the instructions as given by the trial court were improper.\nAppellant contends that there was no such legal duty. Respondents, however, in their brief state that:\n“While the railroad may have been under no duty to have observed traffic, insofar as the usual and normal incidents to the operation of the railroad were concerned, there certainly is a duty to avoid any act which was not usual and necessary to the normal operation, and which would unnecessarily endanger travelers upon the highway.”\nIn the absence of statute, there is no legal duty imposed upon the engineer or fireman of a locomotive to observe traffic upon a highway alongside its railroad track. Lamb v. Old Colony R. Co., 140 Mass. 79, 2 N. E. 932, 54 Am. Rep. 449; Louisville & N. R. Co. v. Smith, 107 Ky. 178, 53 S. W. 269, 21 Ky. Law Rep. 857; Robinson v. Chesapeake & O. R. Co., 227 Ky. 458, 13 S. W. (2d) 500; Southern R. Co. v. Flynt, 2 Ga. App. 162, 58 S. E. 374; Button v. Pennsylvania R. Co., 115 Ind. App. 210, 57 N. E. (2d) 444; 52 C. J. 762, Railroads, § 2301.\nWhile these cases relate mainly to situations where animals are frightened by a railroad train and the plaintiff is injured, the rule is, in our opinion, equally applicable to situations such as we have here, in so far as the rule relates to the duty of the engineer or fireman to observe traffic upon the highway alongside, and to the degree of care owed to them.\nHowever, while under that rule a railroad engineer and fireman are under no duty to observe such travelers, yet, if they have observed them, or, if such employees discover a dangerous situation, then it becomes their duty to use care to avert injury. Jones v. Spokane, Portland & Seattle R. Co., 69 Wash. 12, 124 Pac. 142; Lamb v. Old Colony R. Co., supra; Robinson v. Chesapeake & O. R. Co., supra; 52 C. J. 763, Railroads, § 2303.\nUnder the rules above stated, the instructions complained of did not correctly inform the jury as to the law. Instead, they advised the jury that, even though the emission of the steam from the locomotive was a normal operation, nevertheless, if the steam would jeopardize the respondents, and, if the engineer or fireman should have seen the respondents, then the emission of the steam would constitute negligence. The instructions were erroneous and should not have been given in that form. For the same reason, since the members of the railroad crew did not see the respondents and were unaware of the impending danger, the instruction requested by the appellant was proper, and should have been given.\nAppellant finally assigns as error the refusal of the trial court to give its requested instruction No. 9, which reads:\n“You are instructed that the driver of the automobile in which plaintiffs were riding could see the defendant’s locomotive and train, and knew that in due course she would overtake and pass said locomotive, and that no other warning of its presence or that it would emit steam in its proper operation could be required.”\nWe think this instruction, taken as a whole, constituted or included a comment on the evidence, and for that reason should not have been given in the form presented. Moreover, other instructions advised the jury that appellant had a right to operate its trains on the track adjoining east Marginal way and was not responsible to respondents or other travelers on the highway for the consequences of noise, vibration, smoke, or steam caused by the proper running of its trains.\nA reading of the instructions as a whole convinces us that appellant was not prejudiced by the refusal of the court to give its requested instruction, or some equivalent thereof, oh the subject of warning.\nFor the errors committed, as hereinabove indicated, the judgment is reversed and the cause remanded for a new trial.\nMallery, C. J., Beals, Robinson, and Jeffers, JJ., concur."", ""type"": ""majority"", ""author"": ""Steinert, J.""}], ""attorneys"": [""Merritt, Summers & Bucey and Roscoe Krier (Roy F. Shields, of counsel), for appellant."", ""Morrissey & Eagen and Lee Olwell, for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 30508.\nDepartment Two.\nAugust 6, 1948.]\nLester A. Morner et al., Respondents, v. Union Pacific Railroad Company, Appellant, Joe Fiorito et al., Defendants. Grace Stith, Respondent, v. Union Pacific Railroad Company, Appellant, Joe Fiorito et al., Defendants.\nMerritt, Summers & Bucey and Roscoe Krier (Roy F. Shields, of counsel), for appellant.\nMorrissey & Eagen and Lee Olwell, for respondents.\nReported in 196 P. (2d) 744.""}, ""cites_to"": [{""cite"": ""196 P. (2d) 744"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""124 Pac. 142"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""69 Wash. 12"", ""case_ids"": [566846], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/69/0012-01""], ""opinion_index"": 0}, {""cite"": ""57 N. E. (2d) 444"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.E.2d"", ""opinion_index"": 0}, {""cite"": ""115 Ind. App. 210"", ""case_ids"": [1594316], ""category"": ""reporters:state"", ""reporter"": ""Ind. App."", ""case_paths"": [""/ind-app/115/0210-01""], ""opinion_index"": 0}, {""cite"": ""58 S. E. 374"", ""category"": ""reporters:state_regional"", ""reporter"": ""S.E."", ""opinion_index"": 0}, {""cite"": ""2 Ga. App. 162"", ""case_ids"": [1253850], ""category"": ""reporters:state"", ""reporter"": ""Ga. App."", ""case_paths"": [""/ga-app/2/0162-01""], ""opinion_index"": 0}, {""cite"": ""13 S. W. (2d) 500"", ""category"": ""reporters:state_regional"", ""reporter"": ""S.W.2d"", ""opinion_index"": 0}, {""cite"": ""227 Ky. 458"", ""case_ids"": [5021696], ""category"": ""reporters:state"", ""reporter"": ""Ky."", ""case_paths"": [""/ky/227/0458-01""], ""opinion_index"": 0}, {""cite"": ""21 Ky. Law Rep. 857"", ""category"": ""reporters:state"", ""reporter"": ""Ky. L. Rptr."", ""opinion_index"": 0}, {""cite"": ""53 S. W. 269"", ""category"": ""reporters:state_regional"", ""reporter"": ""S.W."", ""opinion_index"": 0}, {""cite"": ""107 Ky. 178"", ""case_ids"": [2351559], ""category"": ""reporters:state"", ""reporter"": ""Ky."", ""case_paths"": [""/ky/107/0178-01""], ""opinion_index"": 0}, {""cite"": ""54 Am. Rep. 449"", ""category"": ""reporters:state_regional"", ""reporter"": ""Am. Rep."", ""opinion_index"": 0}, {""cite"": ""2 N. 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(2d) 523"", ""case_ids"": [2580635], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/17/0523-01""], ""opinion_index"": 0}, {""cite"": ""103 Pac. 819"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""54 Wash. 465"", ""case_ids"": [1297889], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/54/0465-01""], ""opinion_index"": 0}, {""cite"": ""24 L. R. A. (N.S.) 788"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A.N.S."", ""opinion_index"": 0}, {""cite"": ""93 Pac. 419"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""48 Wash. 233"", ""case_ids"": [535893], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/48/0233-01""], ""opinion_index"": 0}, {""cite"": ""58 A. L. R. 129"", ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R."", ""opinion_index"": 0}, {""cite"": ""263 Pac. 518"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""203 Cal. 206"", ""case_ids"": [2172015], ""category"": ""reporters:state"", ""reporter"": ""Cal."", ""case_paths"": [""/cal/203/0206-01""], ""opinion_index"": 0}, {""cite"": ""42 Ariz. 145"", ""weight"": 2, ""case_ids"": [5056294], ""category"": ""reporters:state"", ""reporter"": ""Ariz."", ""case_paths"": [""/ariz/42/0145-01""], ""opinion_index"": 0}, {""cite"": ""83 A. L. R. 1156"", ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R."", ""opinion_index"": 0}, {""cite"": ""91 Colo. 365"", ""weight"": 2, ""case_ids"": [5356330], ""category"": ""reporters:state"", ""reporter"": ""Colo."", ""case_paths"": [""/colo/91/0365-01""], ""opinion_index"": 0}, {""cite"": ""166 P. 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(2d) 543"", ""case_ids"": [2538556], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/24/0543-01""], ""opinion_index"": 0}, {""cite"": ""166 Pac. 783"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""97 Wash. 417"", ""case_ids"": [570624], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/97/0417-01""], ""opinion_index"": 0}, {""cite"": ""132 Pac. 39"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""73 Wash. 338"", ""case_ids"": [291246], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/73/0338-01""], ""opinion_index"": 0}, {""cite"": ""115 Pac. 838"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""63 Wash. 423"", ""case_ids"": [552848], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/63/0423-01""], ""opinion_index"": 0}, {""cite"": ""13 Wash. L. Rev. 215"", ""category"": ""journals:journal"", ""reporter"": ""Wash. L. Rev."", ""opinion_index"": 0}, {""cite"": ""172 P. (2d) 226"", ""weight"": 2, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""25 Wn. (2d) 809"", ""weight"": 2, ""case_ids"": [2533171], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/25/0809-01""], ""opinion_index"": 0}, {""cite"": ""149 P. (2d) 918"", ""weight"": 3, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""21 Wn. (2d) 89"", ""weight"": 3, ""case_ids"": [2602549], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/21/0089-01""], ""opinion_index"": 0}, {""cite"": ""103 P. (2d) 320"", ""weight"": 2, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""4 Wn. (2d) 265"", ""weight"": 2, ""case_ids"": [5280513], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/4/0265-01""], ""opinion_index"": 0}, {""cite"": ""17 P. 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R. A. (N.S.) 931"", ""weight"": 2, ""category"": ""reporters:federal"", ""reporter"": ""L.R.A.N.S."", ""opinion_index"": 0}, {""cite"": ""95 Pac. 325"", ""weight"": 2, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""49 Wash. 398"", ""weight"": 2, ""case_ids"": [549468], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/49/0398-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""31 Wash. 2d 282"", ""type"": ""official""}], ""file_name"": ""0282-01"", ""last_page"": ""302"", ""first_page"": ""282"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T18:55:09.520501+00:00"", ""decision_date"": ""1948-08-06"", ""docket_number"": ""No. 30508"", ""last_page_order"": 316, ""first_page_order"": 296, ""name_abbreviation"": ""Morner v. 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+2513679,"{""id"": 2513679, ""name"": ""Donald B. Smith, Respondent, v. King County, Appellant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""ee5d653c4daacc05c9c30a5c463ef99a4b9fb79b45863b7f693611f3ecb622ed"", ""simhash"": ""1:eec2192af8963d49"", ""pagerank"": {""raw"": 0.00000022255363512959344, ""percentile"": 0.7781247092011928}, ""char_count"": 7099, ""word_count"": 1259, ""cardinality"": 453, ""ocr_confidence"": 0.667}, ""casebody"": {""judges"": [""Mallery, C. J., Steinert, Jeffers, and Robinson, JJ., concur.""], ""parties"": [""Donald B. Smith, Respondent, v. King County, Appellant.""], ""opinions"": [{""text"": ""Hill, J.\nThis action arose out of the alleged negligence of King county in the maintenance of a public recreation area near Enumclaw. Within the area was a large field house, which was, on the night of November 23, 1945, being used for a “teen-agers’ ” dance. A jury could have found that along the entire south side of the building was a light and air well for the benefit of the basement. Along the outer edge of the light and air well there was a wall made of stones set in cement, which wall varied in height from eighteen inches to a trifle more than two feet. At twelve-foot intervals along this stone wall were iron posts three feet in height which were intended as part of the supports for a heavy wire screen to protect the windows in the building from footballs, etc. The screen had not yet been put in place on the night in question, although the building had been constructed for some five years. This delay was due to the difficulty, caused by the war, of getting the necessary pipes and other fittings.\nAt night, the lights from the windows in the field house shone upon this stone wall in such a way that, to a person approaching the building from the south, there appeared to be a stone or concrete walk along the south side of the building, level with the top of the stone wall. Several people had been deceived by that situation and had gone over the curbing into the light and air well and been injured.\nOn the night in question, respondent, who was twenty-one years old, had gone to the recreation area with two younger boys. He had procured beer for them and they had placed the car in a parking area where it was dark, although there was a parking area at the other side of the building which was floodlighted. The boys had consumed some of the beer, and then respondent’s companions had gone in to the dance. After waiting for some time, he decided to look for his friends. He climbed a bank, as the parking area was below the level of the ground on which the building stood, failing to see the steps provided for the purpose of getting from one level to the other. After climbing the bank, however, he eventually came to a cinder walk which was about seven and a half feet in width and which ran parallel with the low stone wall referred to. As he approached the building on this walk, he was deceived by what appeared to be a concrete walk along the south side of the building and, in attempting to step up on it, he fell into the light and air well.\nThe jury brought in a verdict for respondent in the sum of twenty-five hundred dollars, which, if the county is liable at all, was very moderate considering the serious and permanent character of his injuries.\nThe county appealed, urging (1) that there was no substantial evidence of negligence by the county which was the proximate cause of respondent’s injuries, (2) that respondent was a licensee, and hence the county owed him only the duty of not wantonly and willfully injuring him, and (3) that respondent was guilty of contributory negligence as a matter of law.\nWe shall first dispose of the question of whether respondent was a licensee or an invitee, because of its bearing on the question of what constitutes negligence on the part of the county.\nAppellant did not even suggest at any time during the trial that respondent was a licensee, and the case was tried on the theory that he was an invitee.. Counsel for the appellant on the first day of the trial said of the respondent, “He was an invitee on public premises.” The court, in denying the motion for a nonsuit, referred to him as one “who is assumed to be an invitee,” and the statement was not challenged. Appellant requested no instruction relative to licensees and took no exception to the instructions given, which, in effect, told the jury that respondent was an invitee.\nAppellant cannot try the case in the lower court on the theory that respondent was an invitee and seek a reversal here because he was a licensee. As we said in Lawson v. Helmich, 20 Wn. (2d) 167, 146 P. (2d) 537, 151 A. L. R. 930,\n“This question not having been presented to or considered by the trial court, respondents are not entitled to have it considered here.”\nAnd, as we said in In re Corneliusen’s Estate, 182 Wash. 488, 47 P. (2d) 843,\n“Nor may a party present his case upon one theory at the trial, and then adopt a wholly different theory upon appeal. In re Lind’s Estate, 90 Wash. 10, 155 Pac. 159.”\nThis appeal must be determined on the basis of respondent’s status as an invitee.\nThe distinctive feature of this case is the unusual character of the negligence relied upon by the respondent to justify his recovery, but we have no doubt that knowingly permitting a situation to exist whereby reasonably prudent people might be deceived into believing that a dangerous opening was a safe place to stand or walk, would be negligence, which could be the proximate cause of any injury sustained by falling through the opening. The question of appellant’s negligence and whether it was the proximate cause of respondent’s injury was clearly for the jury to pass upon.\nAppellant’s final contention is that respondent was guilty of contributory negligence in (1) going to a dark and prohibited place on the premises, (2) roaming aimlessly about in the dark and prohibited area without apparent effort to see or use the facilities available for his safety, and (3) approaching the rear and south side of the building - where the dance was being held in an abundance of light and failing to see what he should have seen.\nThere was nothing to advise respondent that there was any prohibited area, if there was; parking in the dark in a parking area is not necessarily negligence. There was no evidence that he roamed aimlessly about; he was proceeding along the most direct route to find his friends. Certainly neither (1) nor (2) of the acts urged as constituting contributory negligence was a proximate cause of respondent’s injuries, 'for respondent had come out of the dark and prohibited (?) area into the partially lighted area and was, prior to his injury, on a cinder walk or path intended for pedestrian use.\nWe,' too, would have been disposed to view with some skepticism the theory of an optical illusion as the basis for respondent’s injuries if it had rested on his uncorroborated statement, as was the case in Johnson v. Washington Route, 121 Wash. 608, 209 Pac. 1100, relied on by appellant. Respondent was corroborated by four others who had been similarly deceived, and there was not one witness called by the county to deny that the effect of the lights falling on the wall was just what the respondent and these four witnesses said it was.\nThe question of respondent’s contributory negligence was likewise for the jury.\nThe judgment is affirmed.\nMallery, C. J., Steinert, Jeffers, and Robinson, JJ., concur."", ""type"": ""majority"", ""author"": ""Hill, J.""}], ""attorneys"": [""Lloyd Shorett, L. C. Brodbeck, and J. W. Croome, for appellant."", ""H. I. Kyle and Leo W. Stewart, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 30205.\nDepartment Two.\nSeptember 18, 1947.]\nDonald B. Smith, Respondent, v. King County, Appellant.\nLloyd Shorett, L. C. Brodbeck, and J. W. Croome, for appellant.\nH. I. Kyle and Leo W. Stewart, for respondent.\nReported- in 184 P. (2d) 562.""}, ""cites_to"": [{""cite"": ""184 P. (2d) 562"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""209 Pac. 1100"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""121 Wash. 608"", ""case_ids"": [757379], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/121/0608-01""], ""opinion_index"": 0}, {""cite"": ""155 Pac. 159"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""90 Wash. 10"", ""case_ids"": [634418], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/90/0010-01""], ""opinion_index"": 0}, {""cite"": ""47 P. (2d) 843"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""182 Wash. 488"", ""case_ids"": [871958], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/182/0488-01""], ""opinion_index"": 0}, {""cite"": ""151 A. L. R. 930"", ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R."", ""opinion_index"": 0}, {""cite"": ""146 P. (2d) 537"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""20 Wn. (2d) 167"", ""case_ids"": [2596662], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/20/0167-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""28 Wash. 2d 917"", ""type"": ""official""}], ""file_name"": ""0917-01"", ""last_page"": ""921"", ""first_page"": ""917"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T16:46:37.595617+00:00"", ""decision_date"": ""1947-09-18"", ""docket_number"": ""No. 30205"", ""last_page_order"": 935, ""first_page_order"": 931, ""name_abbreviation"": ""Smith v. 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+2520169,"{""id"": 2520169, ""name"": ""Doris Gardner, Individually and as Administratrix, Respondent, v. August Seymour et al., Appellants"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""41cb4fb2faf1e0b3cd979f731458c46cada40d8263ba4eb141b8ee77f98dfa4f"", ""simhash"": ""1:bbe2a082bd8754cb"", ""pagerank"": {""raw"": 0.000000766875595908085, ""percentile"": 0.9713019948267254}, ""char_count"": 25749, ""word_count"": 4533, ""cardinality"": 1155, ""ocr_confidence"": 0.666}, ""casebody"": {""judges"": [""Steinert, Robinson, and Jeffers, JJ., concur."", ""Mallery, C. J., dissents.""], ""parties"": [""Doris Gardner, Individually and as Administratrix, Respondent, v. August Seymour et al., Appellants.""], ""opinions"": [{""text"": ""Hill, J.\nAppellants have a six-story-and-basement building. On the two lower floors, they conduct a merchandising business, and the upper four floors are used for storing stock.\nOn October 3, 1944, Jean W. Gardner, who had been working for appellants for about two years and who was manager of the second floor store, went out of the store premises on the second floor, to a hallway, for the express purpose of getting stock replacements from one of the upper floors. From that hallway there were stairs going up and down, and also an entrance to a freight elevator. About six minutes later, he was found at the bottom of the elevator shaft, critically injured. No one saw him in the intervening time. He told a fellow employee that he fell down the shaft. As a consequence of his injuries, he died eleven days later.\nHis widow sued, individually and as administratrix of his estate, to recover damages for his wrongful death. From a judgment on a verdict in her favor, this appeal is taken.\nThe freight elevator was a platform operating in a shaft closed on three sides and with the open side protected by doors which opened in the center. They could be latched on the inside by a hook-and-eye arrangement similar to but larger than those commonly found on screen doors. These doors did not close tightly and could be unlatched by slipping a knife blade or a piece of cardboard through the opening between them and lifting the hook out of the eye. There was some evidence that there was another safety device, called a bar lock, the operation of which was not very thoroughly explained, but it is clear that, whatever it was, when the doors were unlatched, a little shaking made it possible to open them.\nThe elevator operated by what is known as a tiller cable; you pulled down on the cable to send the elevator up, and you pulled up on it to move the elevator down. If the elevator was operated properly and the doors were kept latched, none of them would be open except at the level where the elevator was standing. If, however, stating a theoretical case, a person on the second floor wanted to use the elevator, which had been left on the sixth floor, he could insert a knife blade or a piece of cardboard in the opening between the doors on the second floor and unlatch the doors and, by shaking them a little, get them open, and then, by the proper manipulation of the cables in the elevator shaft, he could bring the elevator to the second floor level, thus avoiding a climb; but, by this procedure, the elevator doors on the sixth floor would have been left open.\nAs to what actually happened in this case, we have absolutely no evidence. There was no testimony as to where the elevator was found after the fall; no testimony as to what, if any, elevator doors were found to be open.\nThe evidence concerning the construction and manner of operating the elevator doors was sufficient to take the case to the jury on the questions of whether or not the appellants had provided a safe place for their employee to work, and whether or not they had violated the provisions of the “factory act” requiring that the openings of all elevators in storehouses, warerooms, and stores be protected, where practicable, by good and sufficient fences, gates, or other safeguards, and that all due diligence be used to keep all such means of protection closed except when necessary to have the same open that they might be used. Rem. Rev. Stat, § 7660 [P.P.C. § 699-97].\nParenthetically, we will say here that instruction No. 12, complained of by appellants, stating that they were guilty of negligence, as a matter of law, if the jury should find that they failed to provide for their elevator “all the safeguards which from the evidence you find were practicable,” was erroneous. Appellants’ obligation, under the statute, was to provide “good and sufficient fences, gates, or other safeguards.” However, we have no doubt that the trial court would have corrected this error if it had been given an opportunity so to do; the exception taken was not sufficient to apprise the trial court of the error now claimed.\nFrom what has been said, it will appear that respondent has established: (1) that Jean Gardner fell down an elevator shaft and died as a result of his injuries; and (2) that there was evidence from which a jury could have found that appellants failed to provide a safe place for Mr. Gardner to work, and that they failed to comply with the provisions of Rem. Rev. Stat., § 7660.\nRespondent, however, has failed to establish that appellants’ negligence was the proximate cause of Mr. Gardner’s death. There are at least two equally reasonable explanations of Mr. Gardner’s fall:\nHypothesis 1. The elevator might, sometime before Mr. Gardner’s fall, have been stopped on the second floor. Someone on one of the upper floors, say the fifth, not wanting to come down after the elevator, may have opened the doors on the fifth floor and, by operating the cables, brought the elevator to that floor, thus leaving the doors open on the second floor. Mr. Gardner, seeing the doors open on the second floor and assuming that the elevator was there, may have walked into the elevator shaft. The inadequate safeguards would have been the proximate cause of his death.\nHypothesis 2. Knowing that the elevator was above him and not wanting to walk up to it, Mr. Gardner may have opened the doors on the second floor by the method indicated, with the intention of operating the cables in such a way as to bring the elevator down to him, and, while attempting so to do, may have fallen down the shaft. Were that the case, the only reason appellants’ safeguards did not work, inadequate as they may have been, was that Mr. Gardner deliberately removed them to avoid the inconvenience of climbing the stairs. His own negligence would then have been the proximate cause of his fall.\n(We do not mean to indicate that we believe Mr. Gardner fell from the second floor—it might have been from any floor below the sixth; nor that these are the only hypotheses that are possible. Only three things are certain in this case: the fall, the death, and that the elevator doors could be opened from the outside.)\nWe recognize that this is a case in which the presumption will be indulged that the decedent used due care, since there is no evidence to the contrary. Respondent still fails to make a prima facie case, because she cannot establish the negligence of the appellants as the proximate cause of Mr. Gardner’s injuries by relying upon that presumption. In the case of Young v. Chicago, M. St. P. & P. R. Co., 223 Iowa 773, 273 N. W. 885, speaking of the presumption of due care, the court said:\n“This presumption only goes to the question of freedom from contributory negligence, and cannot be used to supply the need of proof of causal connection between the negligence of the defendant and the injury and death of the decedent.”\nIn Scarpelli v. Washington Water Power Co., 63 Wash. 18, 114 Pac. 870, and Morris v. Chicago, M. St. P. & P. R. Co., 1 Wn. (2d) 587, 97 P. (2d) 119, 100 P. (2d) 19, we quoted with approval from the case of Peters v. Lohr, 24 S. D. 605, 124 N. W. 853, in which it was said:\n“A presumption is not evidence of anything, and only relates to a rule of law as to which party shall first go forward and produce evidence sustaining a matter in issue. A presumption will serve as and in the place of evidence in favor of one party or the other until prima facie evidence has been adduced by the opposite party; but the presumption should never be placed in the scale to be weighed as evidence. ... A presumption is not evidence of a fact, but purely a conclusion. Elliott, Ev. §§91, 92, 93; Wigmore, Ev. §§ 2490, 2491.”\nIn 144 A. L. R., at p. 1473, there is an annotation entitled “Presumption of due care by person killed in accident as supporting or aiding inference of negligence by defendant, or inference that latter’s negligence was proximate cause of accident.” Many cases are there cited in support of the general rule that a presumption that a decedent exercised due care for his own safety cannot be used to create an inference of negligence on the part of the defendant, or to supply evidence, or to aid in the establishment of such negligence, or to show that the defendant’s negligence was the proximate cause of the accident.\nWe have examined and considered the cases referred to in that note in which it has been held that, where there is evidence of negligence by the defendant sufficient to constitute a case submissible to a jury, in an action based upon death by accident, the presumption that the decedent was exercising due care for his own safety might at least serve the purpose of resolving any doubt in the minds of the jurors in a case of equipoise upon the subject created by the defendant’s insistence that the proximate cause of the accident was not his own negligence but some conduct of the decedent. These cases, some eight in number, come from five jurisdictions, California, Kentucky, Missouri, Texas, and Utah. Only in the California cases is there any consideration of the purpose or function of a presumption, and the rule is stated to be that a presumption is evidence in that jurisdiction. In most of the cases referred to, we would have arrived at the same conclusion as did the courts deciding them, but on the basis that there was a reasonable inference, from the evidence, that the defendants’ negligence was a proximate cause of the decedents’ injuries. Such an inference is described by Judge Chadwick in Parmelee v. Chicago, M. & St. P. R. Co., 92 Wash. 185, 158 Pac. 977, as\n“ . . . that conclusion to which the mind will inevitably return when it weighs the circumstances for either side, and will say, not arbitrarily, but as a result of due deliberation and a measuring of all the facts, that the proximate cause of the accident is to be found in the negligent conduct of the party charged.”\nTo the extent that those cases hold that the presumption of due care can be used as evidence to supply the need of proof of causal connection between the negligence of a defendant and the death of a decedent, they represent a minority view which we decline to follow.\nThe test to be applied here is whether the jury could have determined that the appellants were liable as a reasonable inference from the evidence, or whether the verdict rests on conjecture. As was said in Home Ins. Co. v. Northern Pac. R. Co., 18 Wn. (2d) 798, 802, 140 P. (2d) 507, 147 A. L. R. 849:\n“The rule is well established that the existence of a fact or facts cannot rest in guess, speculation, or conjecture. It is also the rule that the one having the affirmative of an issue does not have to make proof to an absolute certainty. It is sufficient if his evidence affords room for men of reasonable minds to conclude that there is a greater probability that the thing in question, such as the occurrence of a fire, happened in such a way as to fix liability upon the person charged therewith than it is that it happened in a way for which a person charged would not be liable. In applying the circumstantial evidence submitted to prove a fact, the trier of fact must recognize the distinction between that which is mere conjecture and what is a reasonable inference.”\nThe following statement from 9 Blashfield, Cyclopedia of Automobile Law & Practice (part 2, Perm, ed.) 520, §. 6126, is quoted in Paddock v. Tone, 25 Wn. (2d) 940, 949, 172 P. (2d) 481:\n“The burden of proving proximate cause is not sustained unless the proof is sufficiently strong to remove that issue from the realm of speculation by establishing facts affording a logical basis for all inferences necessary to support it,”\nand, in the same case, we quoted the following from Wright v. Wilson, 64 F. Supp. 694:\n“The burden of proof was upon the plaintiff to show not only in what the defendant was negligent but also that his negligence in that respect was the proximate or efficient cause of the accident. . . .\n“It has been held many times that negligence consisting in the violation of a statutory duty by the defendant will not support a verdict unless it can be shown that such violation was the proximate cause of the injury. Nor can a plaintiff meet his burden of proving negligence merely by showing that he himself was free from contributory negligence, and that statement applies equally to his burden in the matter of proximate cause. In the present case, for example, the plaintiff was presumed to have been exercising due care and the jury so found but, so far as the evidence goes, he might, without any negligence on his part, have slipped or stumbled forward in front of the defendant’s car or he might have been pushed or jostled by his companion, and the defendant would not have been liable for the accident.”\nWe have frequently said that, if there is nothing more tangible to proceed upon than two or more conjectural theories under one or more of which a defendant would be liable and under one or more of which a plaintiff would not be entitled to recover, a jury will not be permitted to conjecture how the accident occurred. Hansen v. Seattle Lbr. Co., 31 Wash. 604, 72 Pac. 457; Armstrong v. Cosmopolis, 32 Wash. 110, 72 Pac. 1038; Reidhead v. Skagit Co., 33 Wash. 174, 73 Pac. 1118; Whitehouse v. Bryant Lbr. & Shingle Co., 50 Wash. 563, 97 Pac. 751; Chilberg v. Colcock, 80 Wash. 392, 141 Pac. 888; Parmelee v. Chicago, M. & St. P. R. Co., supra; Johanson v. King Co., 7 Wn. (2d) 111, 109 P. (2d) 307; Home Ins. Co. v. Northern Pac. R. Co., supra. In Whitehouse v. Bryant Lbr. & Shingle Co., supra, we said:\n“For conceding, for the purpose of the case, that there was testimony upon which the jury might have been warranted in finding negligence on the part of the respondent, there is no testimony upon which a jury could have based a conclusion that such negligence was the proximate cause of the injury, not because there was no eyewitness to the accident, since it is undoubtedly the established law that the proximate cause may be shown by direct evidence or it may be adduced as an inference from other facts proven, but because no legitimate inference can be drawn that an accident happened in a certain way by simply showing that it might have happened in that way, and without further showing that it could not reasonably have happened in any other way,”\nand, in Parmelee v. Chicago, M. & St. P. R. Co., supra, we quoted from Wheelan v. Chicago, M. & St. P. R. Co., 85 Iowa 167, 175, 52 N. W. 119, as follows:\n“In Asbach v. Chicago, B. & Q. Railway Co., 74 Iowa 250, it is said: ‘A theory cannot be said to be established by circumstantial evidence, even in a civil action, unless the facts relied upon are of such a nature, and so related to each other, that it is the only conclusion that can fairly or reasonably be drawn from them. It is not sufficient that they be consistent merely with that theory, for that may be true, and yet they may have no tendency to prove the theory. This is the well settled rule.’ It seems to us that we may reasonably draw other conclusions as to the cause of this injury from the facts in evidence than those contended for by the plaintiff. ‘Verdicts must have evidence to support them, and must not be founded on mere theory or supposition.’ Bothwell v. C., M. & St. P. Railway Co., 59 Iowa, 194. A jury will not be permitted merely to conjecture how the accident occurred. Cumberland & P. R. Co. v. State (Md.), 20 Atl. Rep. 785. And it is said that ‘in matters of proof we are not justified in inferring from mere possibilities the existence of facts.’ Baltimore & O. R. Co. v. State (Md.), 18 Atl. Rep. 971.”\nWe then said:\n“In discussing the rules of circumstantial evidence, Mr. Labatt, §§ 1602, 1603, 1604, says that a recovery cannot be had where the plaintiff’s evidence is equally consistent with the absence as with the existence of negligence, and that the establishment of a juridical connection between the master’s negligence and the injury being one of the essential prerequisites to the maintenance of the action, the burden of proving that there was such a connection rests on the plaintiff; that the action cannot be maintained if, after all the testimony is put in, it remains doubtful whether the injury resulted from the cause suggested by the master or the cause suggested by the servant.”\nRespondent, apparently recognizing this weakness in her case, sought to invoke the doctrine of res ipsa loquitur to fill in the gaps in her evidence and to throw the burden of exculpatory explanation on the appellants.\nThe authorities abundantly support the statement in the article, “The Doctripe of Res Ipsa Loquitur in Washington,” 13 Wash. L. Rev. 215, 220, that:\n“The prerequisites to the application of the doctrine, then, are: (1) that the circumstances be such as to logically allow a presumption of negligence; and (2) that the circumstances suggest superior knowledge or opportunity for explanation on the part of the party charged. And before these requirements can be said to exist, exclusive control in the defendant will be essential as a matter of logic.”\nWe have here a situation where the person injured knew as much about the elevator and its manner of operation as did the appellants, perhaps more, and there is no element of exclusive control. We have further pointed out that the person who may invoke the rule is usually\n“ . . . one to whom the defendant owed a duty of protection and who was under no obligation to, and did not, know or have reason or opportunity to know of the danger that threatened him.” Anderson v. McCarthy Dry Goods Co., 49 Wash. 398, 95 Pac. 325, 126 Am. St. 870, 16 L. R. A. (N.S.) 931.\nIn Wellons v. Wiley, 24 Wn. (2d) 543, 166 P. (2d) 852, we quoted, with approval, the following excerpt from the opinion in Klein v. Beeten, 169 Wis. 385, 172 N. W. 736, 5 A. L. R. 1237, where it was held that the burden was on the plaintiff affirmatively to prove negligence, and that\n“. . . while the inferences allowed by the rule or doctrine of res ipsa loquitur constitute such proof, it is only where the circumstances leave no room for a different presumption that the maxim applies. When it is shown that the accident might have happened as the result of one of two causes, the reason for the rule fails and it cannot be invoked. Quass v. Milwaukee G. L. [Gaslight] Co., 168 Wis. 575, 170 N. W. 942.”\nThe respondent cannot substitute the doctrine of res ipsa loquitur for proof of proximate cause in this case. Much as we sympathize with the respondent, the proof of proximate cause cannot be left to conjecture or speculation. In Huffine v. Alvin Inv. Co., 126 Wash. 490, 218 Pac. 194, Mr. Huffine was found fatally injured in the bottom of an elevator shaft, and there was no evidence as to how he got there. A judgment entered on a verdict for the plaintiff was reversed, the court stating:\n“No necessity exists for a minute recapitulation of the evidence to show how conjecture meets counter-conjecture and how surmise must be substituted for proof in order to sustain the verdict. Nor is a review of the authorities illuminating, as the principle of law involved is of the utmost simplicity, and that is, that verdicts must rest on evidence and not on guesswork.\n“There is no field here for the play of res ipsa loquitur.”\nIn lieu of proof of proximate cause, respondent also relies on the following quotation from 38 Am. Jur. 838, § 166:\n“If the injury complained of is a natural and probable consequence of a violation of the statute, then that violation is correctly taken as the proximate cause of the injury. If the very injury has happened which was intended to be prevented by the statute law, that injury must be considered as directly caused by the nonobservance of the law.”\nAs supporting this rule, American Jurisprudence cites cases from South Carolina, West Virginia, and Texas. This court did not adopt that rule in Kelly v. The Vogue, 21 Wn. (2d) 785, 153 P. (2d) 277, as contended by respondent. We, in that case, merely followed the rule which we have consistently adhered to, that the violation of an ordinance or statute, generally speaking, is negligence, and that a person guilty of such negligence is liable for injuries proximately caused thereby. The rule was stated in Berry v. Farmers Exchange of Walla Walla, 156 Wash. 65, 286 Pac. 46:\n“That violation of an ordinance, generally speaking, is negligence, there can be no dispute, but the law is well settled that there must be a causal connection between the negligence arising from the violation of the ordinance and the accident itself, before a-cause of action arises from such violation. This rule is recognized in the case of Ross v. Smith & Bloxom, 107 Wash. 493, 182 Pac. 582. See, also, Bullis v. Ball, 98 Wash. 342, 167 Pac. 942; 22 R. C. L., p. 113, §3.”\nOther cases so holding are legion, two of the more recent ones being Mathers v. Stephens, 22 Wn. (2d) 364, 156 P. (2d) 227, and Everest v. Riecken, 26 Wn. (2d) 542, 174 P. (2d) 762.\nRespondent, by her argument on this point, asks us to say that, if a jury can find that a building owner failed to provide the safeguards for an elevator shaft required by statute, and if an employee is injured in the elevator shaft, the injury must be deemed to be attributable to the violation of the statute.\nThe West Virginia case which is the basis for the statement in 20 R. C. L. 43, § 37, which is carried over into 38 Am. Jur. 837, § 166, on which respondent relies, is Norman v. Virginia-Pocahontas Coal Co., 68 W. Va. 405, 69 S. E. 857, 31 L. R. A. (N.S.) 504. That case involved the question of the liability of a coal mining company for injuries sustained by a boy who had been employed in violation of a statute prohibiting children under fourteen years of age from working in mines. This was an entirely different type of statute from that we have under consideration here, and it was aimed at an unusual type of negligence. It was intended for the protection of individuals who were deemed to be incapable of protecting or safeguarding themselves. While the majority opinion indicated that there could be no defense of “assumption of risk,” it was suggested that in certain circumstances the defense of contributory negligence might be available. There was a strong dissent insisting that the defense of contributory negligence should never be permissible under such a statute.\nAll other cases now cited as supporting the statement in American Jurisprudence are cases which have quoted and relied upon the statement in Ruling Case Law based upon this West Virginia case.\nIn any event, the great weight of authority supports the rule which this court has followed and which is nowhere more clearly stated than by Justice Jaggard, speaking for the Minnesota supreme court, in Anderson v. Settergren, 100 Minn. 294, 111 N. W. 279:\n“Plaintiff claims [as here] that the fact of the defendants’ violation of this statute constituted negligence per se, and established a prima facie case in favor of the plaintiff. In order that a complainant may recover in accordance with the general law for failure to perform a statutory duty, he must show (a) that he is within the class for whose benefit legislation creating not a purely public duty was designed; (b) that there was violation of statutory requirement by the defendant; and (c) that he suffered damage as the proximate result of such violation.”\nThere are lengthy notes in 9 L. R. A. (N.S.)- 338 and L. R. A. 1915E, 500, on “Private action for violation of statute not expressly conferring it.” In the latter note (p. 516) appears the following statement:\n“Like the cases cited in the primary note, those decided since it was published hold fast to the general abstract principle that the neglect to obey a statute commanding or forbidding something to be done or omitted for the benefit and protection of others never affords the sufferer of a coincident injury a right of action, unless such negligence was the proximate cause of the injury.”\nThere are, of course, many cases where the causal connection between an injury and the violation of the statute is so plain that there can be no reasonable doubt or difference of opinion that the violation is the proximate cause of the injury. We said, in Mathers v. Stephens, supra:\n“There are many cases in which we have held, as a matter of law, that the negligence of one violating a statute or ordinance was a proximate cause of an accident, but in those cases the conduct of the party constituting the violation was so clearly a cause thereof that by no process of reasoning could it be said the accident would not have happened if it were not for such conduct. In this case the effect of the statutory negligence of appellant is debatable and open to differences of opinion.”\nIn the present case, the effect of any violation by the appellants of the “factory act” on the injury and death of Jean Gardner is purely a matter of speculation.\nFrom what has heretofore been said, it follows that the trial court erred in overruling appellants’ challenge to the sufficiency of the evidence and their motion for judgment notwithstanding the verdict, and in entering judgment on that verdict: It therefore becomes unnecessary to pass upon the questions raised with reference to the instructions complained of. The judgment is reversed and the action dismissed.\nSteinert, Robinson, and Jeffers, JJ., concur.\nMallery, C. J., dissents."", ""type"": ""majority"", ""author"": ""Hill, J.""}], ""attorneys"": [""Shank, Belt, Rode & Cook, for appellants."", ""Copeland & Tollefson, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 30065.\nDepartment Two.\nMay 9, 1947.]\nDoris Gardner, Individually and as Administratrix, Respondent, v. August Seymour et al., Appellants.\nShank, Belt, Rode & Cook, for appellants.\nCopeland & Tollefson, for respondent.\nReported in 180 P. (2d) 564.""}, ""cites_to"": [{""cite"": ""180 P. (2d) 564"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""9 L. R. A. (N.S.)- 338"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A.N.S."", ""opinion_index"": 0}, {""cite"": ""111 N. W. 279"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.W."", ""opinion_index"": 0}, {""cite"": ""100 Minn. 294"", ""case_ids"": [8890076], ""category"": ""reporters:state"", ""reporter"": ""Minn."", ""case_paths"": [""/minn/100/0294-01""], ""opinion_index"": 0}, {""cite"": ""31 L. R. A. (N.S.) 504"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A.N.S."", ""opinion_index"": 0}, {""cite"": ""69 S. E. 857"", ""category"": ""reporters:state_regional"", ""reporter"": ""S.E."", ""opinion_index"": 0}, {""cite"": ""68 W. Va. 405"", ""case_ids"": [8631613], ""category"": ""reporters:state"", ""reporter"": ""W. Va."", ""case_paths"": [""/w-va/68/0405-01""], ""opinion_index"": 0}, {""cite"": ""174 P. (2d) 762"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""26 Wn. (2d) 542"", ""case_ids"": [2523467], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/26/0542-01""], ""opinion_index"": 0}, {""cite"": ""156 P. (2d) 227"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""22 Wn. (2d) 364"", ""case_ids"": [2551601], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/22/0364-01""], ""opinion_index"": 0}, {""cite"": ""167 Pac. 942"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""98 Wash. 342"", ""case_ids"": [654032], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/98/0342-01""], ""opinion_index"": 0}, {""cite"": ""182 Pac. 582"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""107 Wash. 493"", ""case_ids"": [683799], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/107/0493-01""], ""opinion_index"": 0}, {""cite"": ""286 Pac. 46"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""156 Wash. 65"", ""case_ids"": [828195], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/156/0065-01""], ""opinion_index"": 0}, {""cite"": ""153 P. 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+2520563,"{""id"": 2520563, ""name"": ""Austin E. Griffiths, Appellant, v. Henry Broderick, Inc., Respondent"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""5394e6153cf281cc7330d5ba1acfadcc97d0ab6bf58804dc277cfbb5e2b0bbdf"", ""simhash"": ""1:9570d4f19678240d"", ""pagerank"": {""raw"": 0.000000642172567232846, ""percentile"": 0.9596901209298303}, ""char_count"": 18814, ""word_count"": 3171, ""cardinality"": 940, ""ocr_confidence"": 0.668}, ""casebody"": {""judges"": [""Mallery, C. J., Steinert, Simpson, Jeffers, Schwellenbach, Abel, and Hill, JJ., concur.""], ""parties"": [""Austin E. Griffiths, Appellant, v. Henry Broderick, Inc., Respondent.""], ""opinions"": [{""text"": ""Robinson, J.\nThe defendant in this action filed a demurrer to the complaint therein, which was sustained by the trial court, and, plaintiff having failed and neglected to serve or file any further pleading, the cause was dismissed, on defendant’s motion, by a judgment entered on March 1, 1946. From that judgment, this appeal was duly and regularly taken.\nPlaintiff, suing as the agent for the community composed of himself and Ella M. Griffiths, his wife, prayed for a judgment against the defendant in the amount of $2,292.49, alleging in his complaint: (1) that, during all the times therein mentioned, the community owned a small apartment house in the city of Seattle; (2) that defendant, Henry Broderick, Inc., was engaged in the real estate business and in caring for and managing buildings of various kinds, including apartment houses; (3) that, on January 9, 1942, plaintiff appointed the defendant corporation as his agent to care for and manage said apartment house; (4) that, prior to and after that appointment, an apartment in said building was occupied by Robert G. Loggins and Lina C. Loggins, his wife; (5) that, in November, 1943, Lina C. Loggins suffered an injury by reason of a defective stairway; (6) that the proximate cause thereof was the negligence of Henry Broderick, Inc., in permitting said stairway to become out of repair; (7) that Loggins and wife brought suit against the plaintiff, and, although plaintiff seasonably demanded that his agent, the defendant in this cause, defend that action, it refused to so defend; (8) that, as a result of such refusal, plaintiff was compelled to do so; (9) that a judgment was rendered against him therein which he was compelled to pay; and (10) that the discharge of this judgment, plus attorneys’ fees and other sums necessarily expended in defense of the action, required a total expenditure on his part of $2,292.49.\nAttached to the complaint, and by reference made a part thereof as Exhibit “A,” is the management contract between the plaintiff, Griffiths, and the defendant, Henry Broderick, Inc. We quote the material parts thereof, italicizing that portion which induced the trial court to sustain the demurrer:\n“Seattle, Washington, 1/9/42\n“I appoint Henry Broderick, Inc., my agent, from until further notice, and authorize Henry Broderick, Inc., to take charge of and to manage the property specified on the reverse side of this authorization, situate in the City of Seattle, King County, Washington, and in consideration of such services rendered or to be rendered, I hereby agree to pay a commission of five (5%) per cent per month on all amounts collected from said property, which commission may be deducted monthly by Henry Broderick, Inc., from said amounts.\n“I agree that Henry Broderick, Inc., will not be held responsible for any injury or damage to said property, or for the loss of or injury to any furniture, fixtures or other articles therein; and that all persons employed at said property shall be deemed to be the employees of the undersigned; and I further agree to save and hold Henry Broderick, Inc., harmless of and from any and all loss, damage or injury to any person or persons whomsoever, or property, arising from any cause or for any reason whatsoever in or about said premises.\n“This agreement is subject to cancellation by the undersigned after sixty (60) days from the effective date of this authorization upon payment in full to Henry Broderick, Inc., of all commission due on any leases negotiated in this property by Henry Broderick, Inc., less any .moneys paid thereafter for collection of rentals upon said leases. The rate of commission prescribed by the Seattle Real Estate. Board shall be used in calculating said commission.\n“This agreement is subject to cancellation by Henry Broderick, Inc., upon three days’ written notice to the undersigned.\n“Bldg. 603-603 Federal Avenue.\n“(Signed) Austin E. Griffiths.”\nThe appellant contends (1) that the contract does not unequivocally provide that he shall indemnify the defendant for the consequences of its own negligence; and (2) that, if it does so provide, it is clearly void as against public policy.\nIn support of his first contention, the appellant quotes the following from the treatise on “Indemnity” in 27 Am. Jur. 464, § 15':\n“It is well settled that a contract of indemnity will not be construed to indemnify the indemnitee against losses resulting to him through his own negligent acts, where such intention is not expressed in unequivocal terms.”\nThere is no doubt but that this rule is well settled. But we think the author of the sentence, above quoted, meant no more than that the rule in such situations is that doubts, if any, should be resolved in favor of the indemnitor. It is scarcely conceivable that he intended to state an exception to the rule which he had stated only two pages before, to wit:\n“Contracts of indemnity, therefore, must receive a reasonable construction so as to carry out, rather than defeat, the purpose for which they were executed. To this end they should neither, on the one hand, be so narrowly or technically interpreted as to frustrate their obvious design, nor, on the other hand, so loosely or inartificially as to relieve the obligor from a liability within the scope or spirit of their terms.” 27 Am. Jur. 462, § 13.\nThe appellant stresses the fact that the word “negligence” does not appear in the indemnity covenant and contends that it is, therefore, manifest that the indemnity clause of the contract is equivocal. We think counsel’s contention is well answered in Payne v. National Transit Co., 300 Fed. 411, 413. The indemnity covenant in that case reads as follows:\n“Said party of the second part does further agree to indemnify and save harmless the party of the first part from and against all claims, suits, damages, costs, losses, and expenses, in any manner resulting from or arising out of the laying, maintenance, renewal, repair, use, or existence of the said pipe (whether heretofore or hereafter laid), including the breaking of the same or the leaking of oil from the same.”\nIn holding that the above covenant provided that the indemnitor should indemnify the indemnitee against the indemnitee’s own negligence, the court said:\n“It is true that the courts have said that, in order to indemnify against the indemnitee’s negligence, the language must be clear and unequivocal; but I do not understand that the indemnifying contract must contain express words against negligence. If it is clear, from the language used, that it was intended to cover losses arising from the negligence of the indemnitee, this is sufficient.”\nThe above, of course, is but a one-man opinion, but the decision was affirmed in every particular by the circuit court of appeals (3rd circuit). 6 F. (2d) 729. Quoting five pages of the six-page opinion of the trial court in the footnotes, the circuit court, in affirming the decision, said:\n“In so holding we are of opinion that neither in the questions discussed as above, or in the other points raised in the case, all of which have had our attention, did the court below commit error. Its judgment is therefore'affirmed.”\nIn Southern Pac. Co. v. Fellows, 22 Cal. App. (2d) 87, 90, 71 P. (2d) 75, a case which the supreme court of California declined to review, it is said:\n“The indemnity clause in the contract, undertaking, as it does, to indemnify railroad company from and against ‘any and all claims, loss, damage, injury and liability howsoever the same may be caused, resulting directly or indirectly from work covered by this agreement,’ is so sweeping and all-embracing in its terms that, although it does not contain an express stipulation indemnifying appellant against liability caused by its own negligence, it accomplishes the same purpose. (Italics ours.)”\nIt would seem that an indemnity covenant could not be more “sweeping and all-embracing in its terms” than the covenant in this case, which, as we have hitherto seen, reads as follows:\n“I further agree to save and hold Henry Broderick, Inc., harmless of and from any and all loss, damage or injury to any person or persons whomsoever, or property, arising from any cause or for any reason whatsoever in or about said' premises.”\nIn our opinion, there can be no doubt but that a loss, damage, or injury occasioned by negligence is clearly within the following language of the indemnity provision of the management contract; “ . . . all loss, damage or injury to any person . . . arising from any cause or for any reason . . . in or about said premises.”\n, Appellant’s second contention is that the indemnity provision is void as against public policy. Many of the cases which appellant cites are common carrier cases. It is the universal rule that a common carrier cannot by contract relieve itself of liability for negligence in the performance of contracts of carriage. But even a common carrier can bargain for indemnity with respect to its own negligence in contracts in which carriage is not involved. The case of Michigan Millers Mut. Fire Ins. Co. v. Canadian Northern R. Co., 152 F. (2d) 292, is typical of the many so holding, of which a long list is cited in the opinion. That cases involving contracts of carriage in no way support appellant’s contention, is clearly shown in at least one of our own decisions, Broderson v. Rainier Nat. Park Co. (1936), 187 Wash. 399,. 60 P. (2d) 234, from which we quote as follows:\n“It is a well-recognized rule that corporations engaged in the performance of public duties, as for instance, common carriers, and, generally, those engaged in the operation of public utilities, cannot by contract relieve themselves of liability for negligence in the performance of their duty to the public or the measure of care they owe their patrons under the law. Hartford Fire Ins. Co. v. Chicago M. & S. P. R. Co., 175 U. S. 91, 20 S. Ct. 33; Railroad Co. v. Lockwood, 84 U. S. 357. While there are found, in some of the cases, expressions implying an extension of this rule to all contracts in which it is sought to waive liability for negligence, this, extension of the rule is not generally accepted.\n“ ‘Some expressions may be found to the general effect that any contract by any person which assumes to place another party at the mercy of his own faulty conduct is void as against public policy, but such a statement of the rule of the law is too general and sweeping to receive judicial sanction.’ Checkley v. Illinois Central R. Co., 257 Ill. 491, 100 N. E. 942, Ann. Cas. 1914A, 1202, 44 L. R. A. (N.S.) 1127.”\nAppellant has cited certain cases in which it is held that a contract by which one agrees to save another harmless from the consequences of his own negligence is void as against public policy. Typical of these are Johnson v. Richmond & D. R. Co., 86 Va. 975, 11 S. E. 829, and Otis Elevator Co. v. Maryland Cas. Co., 95 Colo. 99, 33 P. (2d) 974. The latest case cited of this type is Nashua Gummed & Coated Paper Co. v. Noyes Buick Co., 93 N. H. 348, 41 A. (2d) 920, decided in 1945. In that case, it is said:\n“Defendant’s counsel concede that in this jurisdiction the ordinary contract exempting a person from liability for the consequences of his negligence is held to be void as against public policy.”\nHowever, it appears that that rule was vigorously attacked by counsel, who cited 6 Williston on Contracts (Rev. ed.) 4967, § 1751B, and 37 Columbia L. Rev. 248. The court was quite evidently in some doubt as to its former decisions, for it said:\n“We deem it unnecessary to discuss these contentions, however, or to determine whether the rule governing exculpatory contracts has been too broadly phrased in our decisions, for we believe that the covenant under consideration was not intended to apply to such an extraordinary situation as that here disclosed.”\nThe basis of the broad rule prevailing in some jurisdictions, that one cannot validly contract for indemnity for the consequences of his own negligence, is the theory that the inevitable tendency of such a contract is to promote negligence, or, concretely to apply the rule to the instant case, it is contended that the contract involved here would inevitably tend to make Henry Broderick, Inc., less careful than it would have been had the contract not contained the indemnity provision. Hence, it is asserted that the indemnity provision is invalid.\nIt must become apparent, upon reflection, that the theory upon which the rule is based is not recognized in many analogous situations. For example, thousands upon thousands of trucks and automobiles are continually operating upon our streets and highways whose owners have indemnity contracts as to injuries which they may negligently inflict upon the person or property of the members of the public. Many automobile owners hold such contracts protecting them from the results of their own negligence, up to twenty-five thousand dollars with respect to the injury of one person, and fifty thousand dollars as to persons injured in any one accident. They have contracted for full indemnity against injuries caused by their own negligence, and the validity of such contracts is unquestioned.\nIn the case of Northern Pac. R. Co. v. Thornton Bros. Co., 206 Minn. 193, 288 N. W. 226, wherein a contractor agreed to indemnify a railroad against any liability it might incur from damages to third persons as a consequence of its own negligence, the supreme court of Minnesota, in holding the contract valid, said:\n“Quite fanciful is the suggestion that to hold as we do is ‘to put a premium on negligence rather than to discourage it.’ See note, 23 Virginia L. Rev. 85, 86. . . .\n“Neither law nor public policy prevents the ordinary contractor from buying from a third party indemnity from the pecuniary result of his own negligence. That is legitimate as insurance. How does the same process, with identical result, become illicit simply because they are those of the original and basic contract rather than a collateral one for conventional insurance? See 19 Minn. L. Rev. 471; 22. Id. 107.” (Italics ours.)\nWe have concluded, as a result of our own researches, that the great weight of authority is against appellant’s contention. The infinitely more comprehensive research of The American Law Institute resulted in the same conclusion. 2 Restatement of the Law of Contracts, pp. 1077-1082. Note particularly §§ 572, 574, and 575. Furthermore, our decision in Broderson v. Rainier Nat. Park Co., supra, is decisive as to the law of this jurisdiction. The appellant attempts to dispose of the Broderson case in his reply brief in the following manner. Referring to the contract involved in that case, he says:\n“A reading of this contract, contained on pages 400 and 401 of 187 Wash., discloses no mention nor inference that the rights of any third party or parties were involved.”\nAnd of the contract in the instant case, he says:\n“To the contrary, by the terms of the agreement, it was clearly understood that the rights of others were under consideration as shown from the following quotation from the agreement:\n“ ‘And I further agree to save and hold Henry Broderick, Inc., harmless of and from any and all loss, damage, or injury to any person or persons whomsoever, or property, arising from any cause or for any reason whatsoever in or about said premises.’ ”\nThere is no merit in the attempted distinction. In fact, there is no such distinction. No third person’s rights were affected by either contract. The contract of the parties in the instant case does not purport to, and could not possibly, affect or in any way limit the right of recovery of any person injured by the negligent condition of the Griffiths premises. The Loggins chose to sue the owner of the building, that is, the plaintiff in this action. We assume that he did not plead the management contract as a defense, and we may affirm, with complete confidence, that, if he did, it was stricken from the pleadings. Neither could Henry Broderick, Inc., have pleaded the management contract as a defense had the Loggins brought suit against it. The management contract directly affects the rights of the parties to it only, that is to say, the parties to this case, and no other persons.\nIf, by asserting that the management contract in this case affected third parties, the appellant merely means that it indirectly affected the renting public, in that it promoted negligence as to keeping the premises in repair, then it must also be conceded that the contract, held legal in the Broderson case, indirectly affected the tobogganing and skiing public, in that it promoted negligence in furnishing safe equipment. The full text of the contract held legal in the Broderson case may be found in 187 Wash. 399, 60 P. (2d) 234. The defendant in that case maintained a supply of toboggans, skis, snowshoes, and other winter sports equipment. These articles customers could rent, but only by agreeing in writing to the following terms:\n“This equipment is not in any way guaranteed,, either as to correct construction or safe use. Parties renting and using this equipment will do so entirely upon their own judgment and at their own risk.\n“A toboggan slide and ski slides have been built, but the Company does not in any way vouch for the correct construction or safe operation of any of these devices or equipment. Parties using any or all of the equipment or facilities indicated will do so entirely at their own risk.”\nObviously, this is a contract by which one of the parties agrees to save the other harmless from the consequences of furnishing him with defective equipment to be used in dangerous sports. We say “dangerous sports” since tobogganing was specifically held, in the Broderson opinion, to be a dangerous sport, and it is a matter of common knowledge, at least among those who read the Monday morning’s papers during the winter season, that skiing is a dangerous sport. In fact, it is stated, in the very first line of the contract by which the defendant in that case sought to relieve itself from the consequences of its own negligence in furnishing defective equipment, that: “All forms of winter sports are attended with more or less danger, . . . ” Yet, that contract was held valid, for reasons so fully shown in the opinion that they need not be repeated here. It is clear that the broad rule for which plaintiff contends does not obtain in this state.\nThe judgment of the trial court is affirmed.\nMallery, C. J., Steinert, Simpson, Jeffers, Schwellenbach, Abel, and Hill, JJ., concur."", ""type"": ""majority"", ""author"": ""Robinson, J.""}], ""attorneys"": [""Lewie Williams, Austin E. Griffiths, and Frederick R. Burch, for appellant."", ""J. E. Hullin, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 29962.\nEn Banc.\nJune 4, 1947.]\nAustin E. Griffiths, Appellant, v. Henry Broderick, Inc., Respondent.\nLewie Williams, Austin E. Griffiths, and Frederick R. Burch, for appellant.\nJ. E. Hullin, for respondent.\nReported in 182 P. (2d) 18.""}, ""cites_to"": [{""cite"": ""182 P. (2d) 18"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""19 Minn. L. Rev. 471"", ""category"": ""journals:journal"", ""reporter"": ""Minn. L. Rev."", ""opinion_index"": 0}, {""cite"": ""288 N. W. 226"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.W."", ""opinion_index"": 0}, {""cite"": ""206 Minn. 193"", ""case_ids"": [239202], ""category"": ""reporters:state"", ""reporter"": ""Minn."", ""case_paths"": [""/minn/206/0193-01""], ""opinion_index"": 0}, {""cite"": ""41 A. (2d) 920"", ""category"": ""reporters:state_regional"", ""reporter"": ""A.2d"", ""opinion_index"": 0}, {""cite"": ""93 N. 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E. 942"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.E."", ""opinion_index"": 0}, {""cite"": ""257 Ill. 491"", ""case_ids"": [4717341], ""category"": ""reporters:state"", ""reporter"": ""Ill."", ""case_paths"": [""/ill/257/0491-01""], ""opinion_index"": 0}, {""cite"": ""84 U. S. 357"", ""case_ids"": [62446], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/84/0357-01""], ""opinion_index"": 0}, {""cite"": ""175 U. S. 91"", ""weight"": 2, ""case_ids"": [1239473], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/175/0091-01""], ""opinion_index"": 0}, {""cite"": ""60 P. (2d) 234"", ""weight"": 2, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""187 Wash. 399"", ""weight"": 2, ""case_ids"": [477678], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/187/0399-01""], ""opinion_index"": 0}, {""cite"": ""152 F. (2d) 292"", ""year"": 1936, ""case_ids"": [1258245], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""case_paths"": [""/f2d/152/0292-01""], ""opinion_index"": 0}, {""cite"": ""71 P. (2d) 75"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""22 Cal. App. (2d) 87"", ""case_ids"": [2363708], ""category"": ""reporters:state"", ""reporter"": ""Cal. App. 2d"", ""pin_cites"": [{""page"": ""90""}], ""case_paths"": [""/cal-app-2d/22/0087-01""], ""opinion_index"": 0}, {""cite"": ""6 F. (2d) 729"", ""case_ids"": [1674048], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""case_paths"": [""/f2d/6/0729-01""], ""opinion_index"": 0}, {""cite"": ""300 Fed. 411"", ""case_ids"": [3645872], ""category"": ""reporters:federal"", ""reporter"": ""F."", ""pin_cites"": [{""page"": ""413""}], ""case_paths"": [""/f/300/0411-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""27 Wash. 2d 901"", ""type"": ""official""}], ""file_name"": ""0901-01"", ""last_page"": ""910"", ""first_page"": ""901"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T18:14:20.667867+00:00"", ""decision_date"": ""1947-06-04"", ""docket_number"": ""No. 29962"", ""last_page_order"": 928, ""first_page_order"": 919, ""name_abbreviation"": ""Griffiths v. Henry Broderick, 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+2572531,"{""id"": 2572531, ""name"": ""August Ferdinand Kuhr et al., Respondents, v. The City of Seattle, Appellant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""2c53d3789e2f319f2c3ded5dd8c70df5e6dfc8178cf7f2b312c09a27225ea3f7"", ""simhash"": ""1:5ec8df4e94a42ba0"", ""pagerank"": {""raw"": 0.00000015812247054065901, ""percentile"": 0.6804110973265237}, ""char_count"": 5922, ""word_count"": 1042, ""cardinality"": 444, ""ocr_confidence"": 0.666}, ""casebody"": {""judges"": [], ""parties"": [""August Ferdinand Kuhr et al., Respondents, v. The City of Seattle, Appellant.""], ""opinions"": [{""text"": ""Blake, J.\nPlaintiffs brought this action against the city of Seattle to recover for damage to property owned by them at the northeast corner of Fairview avenue and Shelby street. The damage was caused by the sliding of earth from Shelby street onto the property.\nEastlake avenue is parallel with, and a block east of, Fairview. Shelby street has never been improved. The slope of Shelby street descending to Fairview is 27% for the first half block and 20% for the rest of the way. When Eastlake avenue was improved, the city made a fill extending into Shelby street for about twenty feet. A drain was laid through this fill to carry off surface water that accumulated in a depression in the pavement on Eastlake.\nIn 1939, this fill was augmented and extended for an additional twenty feet by the encroachment of earth dumped by certain persons on the lot at the southwest corner of Eastlake and Shelby. In the early part of 1940, the entire fill, both from the street and from the lot, began to slide. The city was notified of the condition, but did nothing about it. The slide ultimately encroached upon plaintiff’s property, damaging it to the extent, as found by the trial court, of one thousand five hundred dollars. From judgment accordingly entered, the city appeals.\nThe appellant raises two questions, one of fact and one of law. It contends that the slide, and consequent damage, was wholly due' to the dumping of earth on the lot at the southwest corner of Eastlake and Shelby, for which it was not responsible.\nIf there had been no fill in Shelby street in the beginning and had not the fill on the lots encroached upon the street, there might be some basis for this contention. But we think it is quite clear from the evidence that, had there been no fill at all in the street, the slide from the lot would never have crossed the street and encroached upon respondents’ property. So, unless appellant can escape liability upon the rule of law it invokes, it must respond in damages.\nThe rule relied upon is that a municipality is not liable for damage to persons or property injured in the use of streets which have never been opened and improved for public travel. 25 Am. Jur. 697, § 397; 7 McQuillin, Municipal Corporations (2nd ed.), p. 64, § 2924; Tait v. King County, 85 Wash. 491, 148 Pac. 586; LaBreck v. Hoquiam, 95 Wash. 463, 164 Pac. 67, L. R. A. 1917F, 297. This rule is generally applied in cases where persons have been injured while using an unopened and unimproved street as a highway. It is not applicable to a situation such as this where the city has created or permitted the creation of a nuisance in such a street. For the creation or maintenance of a nuisance, a municipality’s liability is no different from that of a private person. Harper v. Milwaukee, 30 Wis. 365; Hill v. New York, 139 N. Y. 495, 34 N. E. 1090; Roth v. St. Joseph, 164 Mo. App. 26, 147 S. W. 490; Vanderslice v. Philadelphia, 103 Pa. 102; Pennoyer v. Saginaw, 8 Mich. 533; Fitzgerald v. Sharon, 143 Iowa 730, 121 N. W. 523.\nThis court has repeatedly held municipalities liable for damage' to private property for removal of lateral support and for encroachment by slides occasioned by the improvement of streets. Casassa v. Seattle, 66 Wash. 146, 119 Pac. 13; Hinckley v. Seattle, 74 Wash. 101, 132 Pac. 855; Marks v. Seattle, 88 Wash. 61, 152 Pac. 706; Lochore v. Seattle, 98 Wash. 265, 167 Pac. 918.\nWith some show of justification, it might be asserted that these cases are inapposite, because they are grounded in the theory of a violation of Art. I, § 16, of the constitution, which prohibits the taking or damaging of private property for public use without payment of just compensation. Of course, the encroachment involved in the instant case is in no sense a damaging of property for public use. Nevertheless, we think the decisions cited are expressive of well-recognized rights and liabilities of adjoining landowners.\n“Ownership of property necessarily implies the right to exclusive use and enjoyment, and any unauthorized use of adjoining premises renders the trespasser liable for resulting damage. If one of two adjoining owners wishes to raise the grade of his lot, he must build a wall on his own ground, or in some other way keep the dirt within his own line. He cannot so fill up his own lot as to let the earth pass over his line on the lot of his-neighbor.” 1 Am. Jur. 507, § 7.\nWhen this right against encroachment is invaded, we think it of little moment what the theory of the injured party’s cause of action may be. Whether it be brought on the theory of trespass, nuisance, negligence, or violation of rights guaranteed by Art. I, § 16, of the constitution, is not important. If, under the facts and circumstances of the particular case, the theory of the cause of action is adapted to the relief sought, it is sufficient.\nIn the light of this well-established right and obligation of adjoining landowners, it seems to us wholly immaterial that Shelby street had not been opened or improved for public travel. Nor does the fact that the fee of the street was not in the city affect its liability. The street was under its jurisdiction and control. For all practical purposes, it was an adjoining landowner with the respondents. Its obligation to respondents was no different from what it would be in a situation where it owned property in a proprietary capacity; and such obligation is that, in making or permitting a fill to be on its land, the city is bound to prevent earth or other material from encroaching upon a neighbor’s property.\nJudgment affirmed.\nRobinson, C. J. and Driver, J., concur.\nBeals and Simpson, JJ., concur in the result."", ""type"": ""majority"", ""author"": ""Blake, J.""}], ""attorneys"": [""A. C. Van Soelen and John E. Sanders, for appellant."", ""Arthur E. Griffin, for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 28760.\nDepartment Two.\nNovember 25, 1942.]\nAugust Ferdinand Kuhr et al., Respondents, v. The City of Seattle, Appellant.\nA. C. Van Soelen and John E. Sanders, for appellant.\nArthur E. Griffin, for respondents.\nReported in 131 P. (2d) 168.""}, ""cites_to"": [{""cite"": ""131 P. (2d) 168"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""167 Pac. 918"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""98 Wash. 265"", ""case_ids"": [654013], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/98/0265-01""], ""opinion_index"": 0}, {""cite"": ""152 Pac. 706"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""88 Wash. 61"", ""case_ids"": [648916], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/88/0061-01""], ""opinion_index"": 0}, {""cite"": ""132 Pac. 855"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""74 Wash. 101"", ""case_ids"": [620601], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/74/0101-01""], ""opinion_index"": 0}, {""cite"": ""119 Pac. 13"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""66 Wash. 146"", ""case_ids"": [561079], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/66/0146-01""], ""opinion_index"": 0}, {""cite"": ""121 N. W. 523"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.W."", ""opinion_index"": 0}, {""cite"": ""143 Iowa 730"", ""case_ids"": [2165229], ""category"": ""reporters:state"", ""reporter"": ""Iowa"", ""case_paths"": [""/iowa/143/0730-01""], ""opinion_index"": 0}, {""cite"": ""8 Mich. 533"", ""category"": ""reporters:state"", ""reporter"": ""Mich."", ""opinion_index"": 0}, {""cite"": ""103 Pa. 102"", ""case_ids"": [449149], ""category"": ""reporters:state"", ""reporter"": ""Pa."", ""case_paths"": [""/pa/103/0102-01""], ""opinion_index"": 0}, {""cite"": ""147 S. W. 490"", ""category"": ""reporters:state_regional"", ""reporter"": ""S.W."", ""opinion_index"": 0}, {""cite"": ""164 Mo. App. 26"", ""case_ids"": [1632570], ""category"": ""reporters:state"", ""reporter"": ""Mo. App."", ""case_paths"": [""/mo-app/164/0026-01""], ""opinion_index"": 0}, {""cite"": ""34 N. E. 1090"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.E."", ""opinion_index"": 0}, {""cite"": ""139 N. Y. 495"", ""case_ids"": [24553], ""category"": ""reporters:state"", ""reporter"": ""N.Y."", ""case_paths"": [""/ny/139/0495-01""], ""opinion_index"": 0}, {""cite"": ""30 Wis. 365"", ""case_ids"": [11285286], ""category"": ""reporters:state"", ""reporter"": ""Wis."", ""case_paths"": [""/wis/30/0365-01""], ""opinion_index"": 0}, {""cite"": ""164 Pac. 67"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""95 Wash. 463"", ""case_ids"": [624733], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/95/0463-01""], ""opinion_index"": 0}, {""cite"": ""148 Pac. 586"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""85 Wash. 491"", ""case_ids"": [642561], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/85/0491-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""15 Wash. 2d 501"", ""type"": ""official""}], ""file_name"": ""0501-01"", ""last_page"": ""505"", ""first_page"": ""501"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T22:54:21.867932+00:00"", ""decision_date"": ""1942-11-25"", ""docket_number"": ""No. 28760"", ""last_page_order"": 523, ""first_page_order"": 519, ""name_abbreviation"": ""Kuhr v. 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+2587085,"{""id"": 2587085, ""name"": ""The Home Insurance Company of New York, Respondent, v. Northern Pacific Railway Company, Appellant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""bae513bc795d7fe8b87d98745d27628d50cd53363934964b1140bed012ea9f0b"", ""simhash"": ""1:dab386d3afb6ec53"", ""pagerank"": {""raw"": 0.0000007547637011605534, ""percentile"": 0.9703795472245679}, ""char_count"": 21546, ""word_count"": 3902, ""cardinality"": 1012, ""ocr_confidence"": 0.664}, ""casebody"": {""judges"": [], ""parties"": [""The Home Insurance Company of New York, Respondent, v. Northern Pacific Railway Company, Appellant.""], ""opinions"": [{""text"": ""Grady, J.\nThe Home Insurance Company of New York brought this action against the Northern Pacific Railway Company to recover a judgment for the loss of wheat by fire while in the possession of the defendant as a common carrier. After a trial before the court without a jury, a judgment was entered against the defendant for the value of the wheat as found by the court, from which the defendant has taken this appeal. ’\nThe substance of the complaint is that there was delivered by the Lewiston Grain Growers, Inc., to the defendant railway company two carloads of wheat, to be carried by it to its destination, and for which the defendant issued its uniform bills of lading; that thereafter the wheat was destroyed by fire; that, prior to the loss, the plaintiff had issued to the owner of the wheat a policy of fire insurance covering it and other grain in the hands of any owner thereof; that, after the loss occurred, the plaintiff paid the amount thereof to the owner, and received an assignment of the cause of action therefor and became subrogated to the rights of such party; and that plaintiff then made claim to the defendant for the amount of the loss, but the defendant denied liability.\nThe answer of the defendant, after making certain admissions and denials, alleged affirmatively that the fire causing the loss was due to the negligence of the owner and shipper; and that, by reason of a certain provision contained in the bills of lading issued by the defendant (which will later be quoted and referred to), the plaintiff is barred from any recovery against it. The affirmative allegations of the answer were put in issue by the reply of the plaintiff.\nOn July 25, 1941, the Lewiston Grain Growers, Inc., operated a grain elevator on a branch line of the appellant at Ferdinand, Idaho. It was in close proximity to a sidetrack on which cars were switched and spotted at the elevator for loading. Grain was brought to the elevator and deposited in a bin eight or nine feet above the ground level. Running from the ground level to the top of the elevator was a wooden box, or chute, referred to as the “leg.” At the bottom of the' leg was a metal container, called the “boot.” There was a shaft and pulley in the boot. The shaft revolved on babbit bearings. In the leg and running over the pulley in the boot was an electric power-driven belt, with' a series of buckets attached to it. There was also another pulley in the leg at the top of the elevator, over which the belt and buckets ran and continued downward through another leg, and thus completed the circuit. On the floor above the boot was a screw conveyor, which conveyed the grain from the bin to the leg and into the buckets. The grain was then elevated by the revolving belt and buckets to a higher level, from which it fell by gravity through a pipe into the car being loaded. The belt and buckets had but a small amount of clearance between them and the inside of the leg. The elevator, a wooden structure, was very dry, and there was an accumulation of dry dust in the leg.\nOn the morning of the day in question, the machinery had been inspected and lubricated. The two cars were loaded, and the machinery stopped and not started up again. The operation was completed shortly before four o’clock in the afternoon. At four o’clock the cars were sealed and the bills of lading issued. Just before six o’clock, two elevator employees, who were cutting weeds and clearing up around the outside of the elevator, heard a noise which they described as being like a wind blowing hard or that a draft would make. Other than the two employees, there was no person present in or about the elevator and had not been for sometime. When they reached the platform of the' elevator, they could smell smoke, and they found a fire was burning in the leg and which appeared to be coming up from the boot. The fire gained rapid momentum and destroyed the elevator and the two cars of wheat.\nThe acts of negligence on the part of the shipper alleged by appellant in its answer was that it failed to maintain proper fire protection facilities and that its elevator was at a place where the nearest fire plug was five hundred feet away, and it had made no effort to correct these conditions. But such acts of alleged negligence are not urged in this court and need ho further consideration. Neither is there any claim of negligence on the part of the appellant.\nThe appellant relies for its first defense on the following provision in the bills of lading:\n“Sec. 1. (b) No carrier or party in possession of all or any of the property herein described shall be liable for any loss thereof or damage thereto or delay caused by the act of God, the public enemy, the authority of the law or the act or default of the shipper or owner.”\nThis presents the question as to whether the appellant has sustained the burden of proof that the firé was caused by “the act or default of the shipper or owner” of the wheat, as no claim is made that it was caused by any of the other excepted acts.\nThe appellant was unable to produce any direct evidence as to the cause of the fire and necessarily had to rely on circumstantial evidence and inferences. If we understand the appellant’s position correctly, it is that, as the fire had its origin in the boot and inside the elevator and neither it nor any third person contributed thereto in any way, then it must have been caused by some act or default on the part of the owner or shipper, using a process of elimination to arrive at this result. A circumstance relied upon by it is that the shaft bearings in the boot were babbit instead of roller bearings, which are of a more modern use, and babbit bearings, especially if they become worn or are not properly lubricated, are more likely to heat and cause ignition than would be the case if roller bearings are used. Babbit bearings have been in general use in elevator machinery for many years. The roller bearings have been installed in the newer elevators, but many of the older ones still retain the babbit bearings.\nThere seems to be no doubt that the fire started in the boot, but such evidence as there is in the record is to the effect that the bearings had been lubricated the morning of the day of the fire. All the machinery ran smoothly while being operated that day. If the bearings had become dry, they would have “squeaked,” and it would have been known. And if they had become worn, such condition would have been made manifest by the way the conveyor belt would have acted. None of these things occurred.\nThe rule is well established that the existence of a fact or facts cannot rest in guess, speculation, or conjecture. It is also the rule that the one having the affirmative of an issue does not have to make proof to an absolute certainty. It is sufficient if his evidence affords room for men of reasonable minds to conclude that there is a greater probability that the thing in question, such as the occurrence of a fire, happened in such a way as to fix liability upon the person charged therewith than it is that it happened in a way for which a person charged would not be liable. In applying the circumstantial evidence submitted to prove a fact, the trier of fact must recognize the distinction between that which is mere conjecture and what is a reasonable inference.\nThese principles are defined and discussed in many of our cases, and we cite among them the following: Parmelee v. Chicago, M. & St. P. R. Co., 92 Wash. 185, 158 Pac. 977; Prentice Packing and Storage Co. v. United Pac. Ins. Co., 5 Wn. (2d) 144, 106 P. (2d) 314; Nelson v. West Coast Dairy Co., 5 Wn. (2d) 284, 105 P. (2d) 76, 130 A. L. R. 606; Letres v. Washington Co-Op. Chick Ass’n, 8 Wn. (2d) 64, 111 P. (2d). 594. The factual situation in each of the cases is different from the others and from the one now under consideration, but we cite them merely as an exposition, of the principles which must guide us in deciding this case.\nThe appellant contends that, as babbit bearings are more likely to wear and become hot than roller bearings and, hence, create a greater hazard, and since the fire originated in the boot, the overheating of the bearings must have been the cause of the fire. It seems to us, however, that what was said by this court in the Prentice case, supra, p. 162, is applicable here:\n“The pressure of the refrigerant could have caused the rupture if the pipe were worn to a thinness of approximately one ten-thousandth of an inch; the rupture did occur; therefore, the pipe must have been worn 'to the required point. This, however, is but reasoning in a circle. It assumes a fact necessary to establish a cause of action, but concerning which assumed fact there is no evidence, and then employs the suppositi-tious fact as the basis for a conjecture as to the possible cause of a particular physical result.”\nWe believe that the claim made by the appellant as to the cause of the fire rests upon conjecture and speculation rather than upon the existence of any proven facts from which a reasonable inference may be drawn that the fire was the result of any act or default of the shipper, and that the trial court was correct in the conclusion it reached on this branch of the case.\nThe appellant also claims that, even though it may be liable to the shipper for the value of the wheat destroyed by fire, it is entitled to the benefit of the following provision in the bills of lading issued by it:\n“Sec. 2. (c) Any carrier or party liable on account of loss or damage to any of said property shall have the full benefit of any insurance that may have been effected upon or on account of said property so far as this shall not avoid the policies or contracts of insurance: Provided, that the carrier reimburses the claimant for the premiums paid thereon.”\nIf this be a valid and enforcible provision of the bills of lading, then the respondent, having paid the insured owner its loss, cannot recover the amount so paid from the appellant.\nThe general rule is that a provision in a bill of lading giving the carrier the benefit of insurance taken out by the shipper, is valid in the absence of anything contained in the insurance policy to the contrary. The reason for this rule is that the carrier has an insurable interest in the property delivered to it for transportation, and it can make a valid contract with the shipper to have the benefit of his insurance to reimburse it for what it pays him for the loss of such property; and the result is the same whether the carrier pays the shipper for the loss in the first instance and then makes claim to the insurer for reimbursement, or whether the insurer pays the insured his loss and seeks reimbursement from the carrier, as was done in this case.\nOrdinarily, an insurer of property lost or damaged while in the possession of a carrier, and for which the carrier is liable to the shipper, is subrogated to the rights of the shipper against the carrier when it pays the loss. But the insurer is subrogated only to such rights as the insured possessed, and, if the insured has contracted with the carrier that it may have the benefit of any insurance available to the shipper in case of loss or damage, such right of subrogation is defeated. Phoenix Ins. Co. v. Erie & Western Transportation Co. (1886), 117 U. S. 312, 29 L. Ed. 873, 6 S. Ct. 750; Wager v. Providence Ins. Co. (1893), 150 U. S. 99, 37 L. Ed. 1013, 14 S. Ct. 55; Missouri Pac. R. Co. v. International Marine Ins. Co. (1892), 84 Tex. 149, 19 S. W. 459; North British & Mercantile Ins. Co. v. Central Vermont R. Co. (1896), 75 N. Y. St. Rep. 427, 40 N. Y. Supp. 1113 (affirmed 158 N. Y. 726, 53 N. E. 1128); Roos v. Philadelphia, W. & B. R. Co. (1901), 199 Pa. 378, 49 Atl. 344; Hartford Fire Ins. Co. v. Payne (1921), 199 Iowa 1008, 203 N. W. 4, 39 A. L. R. 1109; Yazoo & M. V. R. Co. v. Blum (1921), 124 Miss. 318, 86 So. 805; 10 C. J. 515, § 836; 13 C. J. S. 880, § 399; 9 Am. Jur. 959, § 858; 39 A. L. R. (annotation) 1116.\nThe cases we have just cited are among those in which the courts were not confronted with provisions in insurance policies designed to avoid the effect of a provision in a bill of lading giving the carrier the benefit of the insurance. A review of them will show that, over a long period of time, there has been an effort by the carriers and the insurance companies, by ingenious devices and provisions in insurance policies and shipping contracts, to shift to the other the ultimate burden of loss of property while in the possession of carriers. But these cases are of no benefit in considering the questions before us, as the insurance policy issued to the shipper by the respondent does not contain any provision affecting the right of the insured and a carrier to enter into a shipping contract whereby the carrier shall have the benefit of the insurance in the event of loss of insured property while in its possession and for which it is liable to the shipper.\nThe respondent meets this situation by making reference to § 2 of the act of Congress of 1887, known as the interstate commerce act, as amended by the transportation act of 1920, being 49 U. S. C. A., § 2, and the case of China Fire Ins. Co. v. Davis, 50 F. (2d) 389, 76 A. L. R. 1259 (certiorari denied, Mellon v. China Fire Ins. Co., 284 U. S. 658, 76 L. Ed. 558, 52 S. Ct. 36), construing this statute and holding that a provision in a bill of lading similar to the one now before the court was invalid. The statute is as follows:\n“If any common carrier subject to the provisions of this chapter shall, directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect, or receive from any person or persons a greater or less compensation for any service rendered, or to be rendered, in the transportation of passengers or property or the transmission of intelligence, subject to the provisions of this chapter, than it charges, demands, collects, or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation or transmission of a like kind of traffic or message under substantially similar circumstances and conditions, such common carrier shall be deemed guilty of unjust discrimination, which is prohibited and declared to be unlawful.”\nReferring to the provision in the bill of lading, the court in the China Fire Ins. Co. case said, p. 392:\n“The clause put it in the power of the shipper at his pleasure to take out policies which might, or might not, contain the now usual clause that the underwriter should be liable only so far as the shipper did not recover from the carrier. Thus the shipper was free in effect to insure the carrier or not, as he chose, and while we .are not advised whether this choice involved a difference in premium, it is certainly possible that this may have been the case. In any event such insurance appears to us to be ‘compensation’ within the purport of. the section. Certainly it had a present value, quite aside from whether it cost anything to the shipper, a value ascertainable by actuarial calculation. Nor does it matter that it was a favor from the shipper to the carrier, and not vice versa. . . . The statute forbids any discrimination, whichever side profits. It is quite true that the same option was given to all shippers alike, but that is in effect no more than to say that each might so far favor the carrier as his interests dictated. Pro tanto the carrier’s ‘compensation’ was left open to the action of the parties in the particular case, which is what the statute forbids.”\nThe case was decided in 1931. The only case in which it is cited upon the point involved here is that of The Steel Inventor, 35 F. Supp. 986. Respondent contends that the reason there are no cases reported involving the question we have here is that the China Fire Ins. Co. case has settled the whole controversy, and the shipper’s insurance is no longer available to the carrier. It is interesting to note that, although the act of Congress above referred to was passed in 1887, yet subsequent to that time none of the cases dealing with this question referred to the statute or used it as a basis for decision until the China Fire Ins. Co. case was decided. Even the one case subsequent to it that we have found, Staple Cotton Co-Operative Ass’n v. Yazoo & M. V. R. Co., 189 Miss. 387, 197 So. 828, indicates the court would have followed Yazoo & M. V. R. Co. v. Blum, supra, had not a provision in the insurance policy then before the court made the general rule inapplicable. The court did not cite or follow the rule of the China Fire Ins. Co. case, which it might have done if it had agreed with it, and thus have reached the same result. Instead, it cited and followed a case decided by the United States supreme court (Lucken-bach v. W. J. McCahan Sugar Ref. Co., 248 U. S. 139, 63 L. Ed. 170, 39 S. Ct. 53, 1 A. L. R. 1522) approving the general rule.\nWhen a Federal statute is construed by a United States court of appeals, such construction is entitled to great weight with us when the same statute is involved in a case we are considering, but it is not binding on us if we do not deem it logical or sound. There are some cases and texts which state broadly that the decisions of “Federal courts” construing Federal statutes are binding on the state courts, but an examination of them will disclose that what is referred to is the United States supreme court, not the Federal courts generally. We have found no case in which the question has been squarely presented holding that decisions of the inferior Federal courts on any Federal question are binding on the state courts, or are anything more than persuasive and entitled to great weight. Noble v. Dibble, 119 Wash. 509, 205 Pac. 1049; Oregon-Washington R. & N. Co. v. C. M. Kopp Co., 12 Wn. (2d) 146, 120 P. (2d) 845, 138 A. L. R. 633; Black’s Law of Judicial Precedents, p. 372, § 113; 14 Am. Jur. 339, § 121.\nThe author of the last authority cited Cross v. Spokane, Portland & Seattle R. Co., 158 Wash. 428, 291 Pac. 336, 71 A. L. R. 451, as holding that state courts are bound by the construction given Federal statutes by “Federal courts.” But it will be observed from a critical reading of that case that, although it was said by the writer of the opinion, p. 436, “The question is, of course, controlled by the decisions of the Federal courts,” yet it is stated in another part of the opinion, p. 434, when referring to the Federal statute involved, “This has been construed by the authoritative court.” (Italics ours.) It is clear that the court was referring to the United States supreme court. In order that there may be no doubt about what the rule is in this state, we now declare it to be that the construction placed upon a Federal statute by the inferior Federal courts, while entitled to great weight by the courts of this state, is not binding upon them.\nThe purpose of the statute (49 U. S. C. A., § 2) is stated by the code annotator as follows, p. 139:\n“The purpose of this section is to enforce equality between shippers over the same line, and to prohibit any rebate or other device by which two shippers, shipping over the same line, the same distance, under the same circumstances of carriage, are compelled to pay different prices therefor.”\nMany Federal cases are cited.\nThe provision in the uniform bills of lading before us giving the carrier the benefit of insurance on the goods for which it is liable, is no more than a recognition on the part of the shipper that he is not entitled to recover the loss from the carrier and retain the same as well as the insurance money received from the insurance company. The insurance company is compensated for the risk it assumes. When there is a loss, it should bear the burden. It can make no difference to it whether it pays the insurance to the insured or to someone for whose benefit the insurance was taken out.\nThe carrier is required, if it gets the insurance, to reimburse the insured for the premiums it has paid. By becoming the beneficiary of any insurance which the shipper has contracted for, the carrier does not render service to a shipper for any less rate than the regular published tariff rates charged to all shippers. The insurance is not given or received as any compensation for service, but is merely to reimburse the carrier for what it has paid to the shipper for the property loss, which reimbursement it might have received had it contracted therefor direct with the insurer. It would seem that it logically follows that, if the carrier can secure insurance from an insurer to protect itself against loss, it can be the beneficiary of such insurance by contract with the shipper.\nWe are of the opinion that the Federal statute above referred to was not designed to forbid the making of a contract between a shipper and a carrier whereby the carrier may become entitled to any insurance contracted for by a shipper to reimburse it for loss paid to' the shipper.\nThe judgment is reversed and the cause remanded, with instruction to the trial court to enter a judgment of dismissal.\nSimpson, C. J., Beals, Blake, and Robinson, JJ., concur.\nSeptember 15, 1943. Petition for rehearing denied."", ""type"": ""majority"", ""author"": ""Grady, J.""}], ""attorneys"": [""Cannon, McKevitt & Fraser (Frank J. Blade, of counsel), for appellant."", ""Roy A. Redfield, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 29055.\nDepartment Two.\nAugust 9, 1943.]\nThe Home Insurance Company of New York, Respondent, v. Northern Pacific Railway Company, Appellant.\nCannon, McKevitt & Fraser (Frank J. Blade, of counsel), for appellant.\nRoy A. Redfield, for respondent.\nReported in 140 P. (2d) 507.""}, ""cites_to"": [{""cite"": ""140 P. (2d) 507"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""71 A. L. R. 451"", ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R."", ""opinion_index"": 0}, {""cite"": ""291 Pac. 336"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""158 Wash. 428"", ""case_ids"": [831097], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/158/0428-01""], ""opinion_index"": 0}, {""cite"": ""138 A. L. R. 633"", ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R."", ""opinion_index"": 0}, {""cite"": ""120 P. (2d) 845"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""12 Wn. (2d) 146"", ""case_ids"": [2559061], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/12/0146-01""], ""opinion_index"": 0}, {""cite"": ""205 Pac. 1049"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""119 Wash. 509"", ""case_ids"": [748277], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/119/0509-01""], ""opinion_index"": 0}, {""cite"": ""1 A. L. R. 1522"", ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R."", ""opinion_index"": 0}, {""cite"": ""248 U. S. 139"", ""weight"": 3, ""case_ids"": [3690929], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/248/0139-01""], ""opinion_index"": 0}, {""cite"": ""189 Miss. 387"", ""weight"": 2, ""case_ids"": [1894634], ""category"": ""reporters:state"", ""reporter"": ""Miss."", ""case_paths"": [""/miss/189/0387-01""], ""opinion_index"": 0}, {""cite"": ""35 F. Supp. 986"", ""case_ids"": [4187576], ""category"": ""reporters:federal"", ""reporter"": ""F. Supp."", ""case_paths"": [""/f-supp/35/0986-01""], ""opinion_index"": 0}, {""cite"": ""52 S. Ct. 36"", ""category"": ""reporters:federal"", ""reporter"": ""S. Ct."", ""opinion_index"": 0}, {""cite"": ""76 L. Ed. 558"", ""category"": ""reporters:federal"", ""reporter"": ""L. Ed."", ""opinion_index"": 0}, {""cite"": ""284 U. S. 658"", ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""opinion_index"": 0}, {""cite"": ""76 A. L. R. 1259"", ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R."", ""opinion_index"": 0}, {""cite"": ""50 F. (2d) 389"", ""case_ids"": [1824747], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""case_paths"": [""/f2d/50/0389-01""], ""opinion_index"": 0}, {""cite"": ""124 Miss. 318"", ""weight"": 3, ""case_ids"": [757489], ""category"": ""reporters:state"", ""reporter"": ""Miss."", ""case_paths"": [""/miss/124/0318-01""], ""opinion_index"": 0}, {""cite"": ""39 A. L. R. 1109"", ""year"": 1921, ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R."", ""opinion_index"": 0}, {""cite"": ""203 N. W. 4"", ""year"": 1921, ""category"": ""reporters:state_regional"", ""reporter"": ""N.W."", ""opinion_index"": 0}, {""cite"": ""199 Iowa 1008"", ""year"": 1921, ""case_ids"": [2289876], ""category"": ""reporters:state"", ""reporter"": ""Iowa"", ""case_paths"": [""/iowa/199/1008-01""], ""opinion_index"": 0}, {""cite"": ""49 Atl. 344"", ""year"": 1921, ""category"": ""reporters:state_regional"", ""reporter"": ""A."", ""opinion_index"": 0}, {""cite"": ""199 Pa. 378"", ""year"": 1921, ""case_ids"": [922720], ""category"": ""reporters:state"", ""reporter"": ""Pa."", ""case_paths"": [""/pa/199/0378-01""], ""opinion_index"": 0}, {""cite"": ""53 N. E. 1128"", ""year"": 1901, ""category"": ""reporters:state_regional"", ""reporter"": ""N.E."", ""opinion_index"": 0}, {""cite"": ""158 N. Y. 726"", ""year"": 1901, ""case_ids"": [44162, 44197], ""category"": ""reporters:state"", ""reporter"": ""N.Y."", ""case_paths"": [""/ny/158/0726-01"", ""/ny/158/0726-02""], ""opinion_index"": 0}, {""cite"": ""40 N. Y. Supp. 1113"", ""case_ids"": [5681722], ""category"": ""reporters:state"", ""reporter"": ""N.Y.S."", ""case_paths"": [""/nys/40/1113-01""], ""opinion_index"": 0}, {""cite"": ""75 N. Y. St. Rep. 427"", ""case_ids"": [1997269], ""category"": ""reporters:state"", ""reporter"": ""N.Y. St. Rep."", ""case_paths"": [""/ny-st-rep/75/0427-01""], ""opinion_index"": 0}, {""cite"": ""19 S. W. 459"", ""year"": 1896, ""category"": ""reporters:state_regional"", ""reporter"": ""S.W."", ""opinion_index"": 0}, {""cite"": ""84 Tex. 149"", ""year"": 1896, ""case_ids"": [2210049], ""category"": ""reporters:state"", ""reporter"": ""Tex."", ""case_paths"": [""/tex/84/0149-01""], ""opinion_index"": 0}, {""cite"": ""150 U. S. 99"", ""year"": 1892, ""weight"": 3, ""case_ids"": [3572362], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/150/0099-01""], ""opinion_index"": 0}, {""cite"": ""117 U. S. 312"", ""year"": 1893, ""weight"": 3, ""case_ids"": [8299786], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/117/0312-01""], ""opinion_index"": 0}, {""cite"": ""8 Wn. (2d) 64"", ""case_ids"": [5292053], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/8/0064-01""], ""opinion_index"": 0}, {""cite"": ""130 A. L. R. 606"", ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R."", ""opinion_index"": 0}, {""cite"": ""105 P. (2d) 76"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""5 Wn. (2d) 284"", ""case_ids"": [5804642], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/5/0284-01""], ""opinion_index"": 0}, {""cite"": ""106 P. (2d) 314"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""5 Wn. (2d) 144"", ""case_ids"": [5804818], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/5/0144-01""], ""opinion_index"": 0}, {""cite"": ""158 Pac. 977"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""92 Wash. 185"", ""case_ids"": [639305], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/92/0185-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""18 Wash. 2d 798"", ""type"": ""official""}], ""file_name"": ""0798-01"", ""last_page"": ""810"", ""first_page"": ""798"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T21:00:08.420896+00:00"", ""decision_date"": ""1943-08-09"", ""docket_number"": ""No. 29055"", ""last_page_order"": 908, ""first_page_order"": 896, ""name_abbreviation"": ""Home Insurance v. Northern Pacific Railway 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+2596886,"{""id"": 2596886, ""name"": ""William R. Forman et al., Respondents, v. Columbia Theater Company et al., Appellants"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""f597ca5221078f3250e5398564bb5aca6cc5e1551da9f314a61cf214f3df178c"", ""simhash"": ""1:0e13473339c63880"", ""pagerank"": {""raw"": 0.00000027865071474964144, ""percentile"": 0.8356581792992565}, ""char_count"": 21608, ""word_count"": 3653, ""cardinality"": 961, ""ocr_confidence"": 0.651}, ""casebody"": {""judges"": [], ""parties"": [""William R. Forman et al., Respondents, v. Columbia Theater Company et al., Appellants.""], ""opinions"": [{""text"": ""Simpson, C. J. —\nThis action was instituted by plaintiffs to enjoin defendants from removing certain fixtures from a building, owned by plaintiffs, which had been held by defendants under lease.\nIn their complaint, the plaintiffs allege that they owned a certain theater building in the city of Longview which had been held and used by defendants under a lease obtained from a former owner. The building had been wired by the builder for theater purposes and thereafter altered and improved from time to time by rewiring and the placing therein of certain new fixtures. The defendants were in the process of abandoning the premises and were removing property which plaintiffs claimed as fixtures. Removal of the fixtures from the building would render it valueless for the purposes for which it was constructed and the property removed would be reduced to a mass of worthless materials. They asked in their complaint that defendants be enjoined from taking the equipment and property; that defendants be required to return what had already been removed and pay damages for every item not returnable; and, in addition, they asked for damages to the building.\nThe defendants answered, alleging their ownership of the contested items and also of all the fixtures placed in the building by them; and then asked to be adjudged to be the owners of the equipment and property in question; that they be allowed to remove it from the premises.\nAt the completion of the trial, the court entered its findings of fact and conclusions of law and judgment favorable to plaintiffs.\nDefendants prosecute this appeal and make the following assignments of error: (1) In awarding to respondents certain original conduit, wiring, switches and switch boxes, and automatic fire shutters and frames; (2) in awarding respondents additional conduits and wiring, switches and switch boxes, signs, and other articles of improvement placed in the theater building; (3) that the court erred in entering certain findings of fact and conclusions of law, in that they were not supported by the evidence or the record; (4) that the court erred in signing and entering certain paragraphs of the decree.\nThe facts may be summarized as follows: The building\"" in question was erected in 1925. Although the structure-includes space devoted to two small shops and one apartment, the main purpose for which it was constructed was\"" the operation of a motion picture theater. In 1926, V. P. Quoidbach purchased the property from the original owner and continued the operation of the motion picture theater for about six months. In May, 1926, it was leased to the appellant Columbia Theater Company and has been occupied by it until the events giving rise to this action which occurred in 1943. During the operation of the theater by the original owners and Mr. Quoidbach, it was known and advertised as the “Peekin.” The Columbia Theater Company continued business on the premises under the same name until 1934. In that year, the name was changed to the “Roxy.”\nFrom the beginning of its tenancy until 1936, the Columbia Theater Company was in possession of the premises under a series of leases which were renewed from time to time. After 1936, it continued to occupy the building under a month to month tenancy. At the time of the signing of the first lease or shortly thereafter, Quoidbach sold to the Columbia Theater Company certain property evidenced by a bill of sale, a portion of which reads as follows:\n“That V. P. Quoidbach and G. M. Quoidbach, his wife, : . . the parties of the first part, for and in consideration of the sum of One Dollar and other valuable consideration, lawful money of the United States of America, to them in hand paid by Columbia Theater Company, a Corporation, . . . the party of the second part, the receipt whereof is hereby acknowledged, do by these presents grant, bargain, sell and deliver unto the said party of the second part, the following described personal property . . . to-wit: All of the fixtures, seats, furniture and theater equipment, which consists of projection machines, screen, curtains, organ, and generally speaking, all of the theater equipment in and appertaining to what is known as the ‘Peekin Theater,’ . . . ”\nThe following memorandum was drawn up and furnished, stating specifically the equipment covered by the bill of sale:\n“Robert Morten Organ........................;. $4,000.00\nExpress and Installing Same.................... 300.00\n502 Opera Chairs............................... 1,706.80\nExpress & Installing same...................... 350.00\n2 Special Motiograph Projectors................. 1,300.00\n2 Manhattan Lenses ........................... 25.00\n6 2000 ft. reels................................. 19.50\nLabor & Parts on stereopticon................... 15.00\nSlide Machine, Work Bench, Rewinders, etc....... 149.25\n1 11' 6\"" x 15' 4\"" Minusa mazda screen............ 220.41\nExpress, Frame and installing same.............. 100.00\nFire Protection and Installing................... 200.00\nStage and house Draperies...................... 850.00\nMatting and Rubber Ends................... 188.83\nSopozones, Toilet Supplies, Lights, Janitor Supplies, Lobby Display, Bill-Boards, etc......... 575.21\n$10,000.00”\nThat portion of the original lease which is pertinent here is clause ten thereof:\n“That on termination of this lease by expiration of the term thereof or otherwise, they will immediately without notice quit and surrender said premises to the lessors in as good order and condition and repair as reasonablé use and wear of same will permit, and will promptly remove their theater equipment and personal property, and will leave on said premises all permanent improvements and repairs made during the term; and that in case they shall hold over after the expiration of the term with the consent of the lessors, express or implied, such holding shall be construed to be a tenancy from month to month at the monthly rent hereinbefore specified; ...” (Italics ours.)\nThe lease dated May 19, 1926, was canceled and another executed on June 1, 1931, calling for a reduced rental. A third lease, further reducing the rent, was entered into between the parties in July, 1932. The last lease executed between the parties was signed in June, 1934, for the obvious purpose of making further adjustments in the rent of the premises. Clause ten contained in the first lease was included in all subsequent leases and the expiration date named in each of the leases was June 1, 1936. No reference is made in any of the documents to specific improvements which had been made or contemplated by the lessees.\nIn January, 1943, Quoidbach and wife sold the property to respondents herein and shortly thereafter the Columbia Theater Company began to abandon the premises. In so doing, it proceeded to remove certain property which is the subject of this suit.\nWe shall first consider the question relating to the items which appellants claimed passed to the corporation by virtue of the bill of sale. The items claimed to have been included were the original wiring and conduits in the building, five fire doors, and the frames for automatic fire shutters. It is appellants’ contention that the articles were in the building at the time of the execution of the bill of sale and were included under the term, “etc.” This abbreviation occurs at two different places in the memorandum which itemized the property which passed to the corporation.\nAccording to Webster’s New International Dictionary, “et cetera” or its abbreviation, “etc.,” means\n“And others (of the like kind); and the rest; and so on; and so forth; — used to point out that other things which could be mentioned are to be understood.”\nAccord: Schouler, Petitioner, 134 Mass. 426.\nThe witnesses for appellants and those testifying in favor of respondents were not in agreement as to the understanding relative to whether or not the items were included and covered by the term “etc.”\nThe doors in question may best be described by quoting the testimony of Mr. Quoidbach:\n“Q. Explain to the court, how many of these fire doors do you have like this? A. We have three doors like that. Wait a minute. We have two doors on the stage, and the other door in the basement to shut off the boiler room was on a hinge. Lately here when we revamped the boiler room and we revamped the fuel room there, as I remember, and I think I am right, we took the door that was hung at the boiler room out and put it at the fuel room for fire protection. Q. Would you explain to the court how these fire doors are constructed? A. It is wood construction, three layers of wood, what we call the core, and then they are covered with sheet metal. Q. How are they hung? A. They are hung on a track and they are supposed to have fusible links, so in case of fire they will automatically shut themselves. Q. How are they affixed to the building? A. They are hung by irons, just bolted down to the concrete wall.”\nIt seems highly improbable that articles of such importance as electrical wiring and conduits, fire doors, and automatic fire shutters in a building designed for the use of a motion picture theater would be included without definite reference if title thereto was intended, to pass. There is no connection between the items mentioned and those set out in the bill of sale. Moreover, the trial court heard the witnesses and is the best judge of their credibility. We hold that the wiring and conduits, the fire doors, and the frames for automatic fire shutters did not pass to the corporation by virtue of the bill of sale.\nOther contested items were cork floor covering, a porcelain urinal, a large vertical sign on the face of the theater, bearing the words, “Roxy Theater,” advertising boards made of metal with intricate wiring for illumination, a marquee over the entrance to the theater, and Ozite soundproof material pasted on the walls for the purpose of improving the acoustical properties of the room.\nAs to these items, counsel have ably briefed the law of fixtures. However, we do not believe that law is applicable to the case at bar. Our conclusion is that the contract between the parties determines the ownership of the property in question and for that reason, the rights of the parties depend entirely upon the proper interpretation of that instrument.\nIf the various leases had been silent as to the ownership of the items in dispute, then the ownership would necessarily have to be determined upon whether or not there were fixtures and, if so, to whom they belonged — to the landlord or tenant. When, however, a landlord and tenant make a lease agreement in which there are stipulations relative to the ownership of chattels which may be placed upon the leased premises by the tenant, the agreement will be enforced regardless of what might be the rights of the parties at common law. In cases of that character, the contract is the law made by the parties themselves which must determine their rights.\nIn this connection, it must be borne in mind that all of the contested items were put upon the premises by the Columbia Theater Company prior to June, 1936, which was during the time the company was in possession of the premises under the lease agreement. It must be presumed that the annexations were made with the above-quoted clause ten in mind, which provided that all permanent improvements would be left upon the premises at the expiration of the lease.\nThe question before us is determined by several of our cases to which we now call attention. In Siegloch v. Iroquois Mining Co., 106 Wash. 632, 181 Pac. 51, we held that the term “improvements” has a broader significance than the term “fixtures.” That case was concerned with property placed upon a tract of mining land under a contract of sale. The contract was forfeited for failure to make the required payments, and the question presented was whether a drill press and other mining equipment placed upon the land by the vendee for use in the business of mining were removable by the vendee when his contract was forfeited. The contract for the sale of the land had provided that, upon default, the vendee would surrender the premises, together with all improvements placed thereon by the vendee. The trial court found that the personal propertywas attached to the freehold; that it had been the intent of the vendee, in bringing it upon the land, to make a permanent accession to the realty. In passing upon the trial court’s findings, this court said:\n“We think the term ‘improvements,’ as here used, must have a somewhat broader signification than that which is usually accorded to the term ‘fixtures,’ and that the rights of the parties are to be determined by the meaning of this term rather than by the meaning of the word fixtures. By the term improvements, however, not everything placed upon the property will pass to the owner on a retaking of possession after default. The term must mean improvements of the realty; that is to say, such things as are placed thereon by the way of betterments which are of a permanent nature and which add to the value of the property as real property. This would include buildings and structures of every kind, and also such machinery as was placed thereon of a permanent nature and which tended to increase the value of the property for the purposes for which it was used; in this instance, those things of a permanent nature which tended to increase the value of the property as a mine. Much can pass thereunder which, strictly speaking, cannot be denominated fixtures, and which in the absence of such a condition might be taken away.”\nWe had occasion to apply the same principle in Olympia Lodge No. 1, F. & A. M. v. Keller, 142 Wash. 93, 252 Pac. 121, 52 A. L. R. 795. In that case, the lessor leased to its tenant certain property to be used as a gasoline filling station and auto park. The lease provided:\n“At the expiration of lease, lessee agrees to quit the premises and leave all improvements thereon which shall become the property of the party of the first part.”\nThe lessee had made certain improvements consisting of the installation of gas pumps, tanks, oil barrels, and com-pressers, and had fitted up the rest room with suitable fixtures. He had also erected an electric sign at the entrance to the property. In discussing the question, we said:\n“The question involved is whether, under the terms of the lease, the articles of property removed, and sought to be removed from the leased premises by the tenant, are the property of the tenant or the property of the landlord. That they are what are customarily known as trade fixtures there can be but little doubt. They are articles manufactured for general use, without special reference to any particular building or place. They are articles sold by the general trade, and a person desiring their use designs his structure in which he intends to use them so as to adapt it to the articles, rather than first erecting the structure and then ordering articles designed to fit the particular structure. It is a general rule, also, that many things will be held to be a fixture as between a vendor and purchaser, or a mortgagor or mortgagee, that will not be so held as between a landlord and a tenant; the reason for the difference being that, when an annexation to the freehold is made by a landlord, the presumption is that he intends to enrich the freehold; while as to an annexation made by the tenant, the presumption is the other way. So, too, the earlier common law rule relative to fixtures put upon property by a tenant has been much relaxed, and it is now generally held that trade fixtures may be removed by the tenant when it can be done without substantial injury to the freehold.\n“It would follow from the foregoing consideration that, if nothing more were here involved than the general rule applicable to landlord and tenant, the tenant on the termination of the lease, whether by lapse of time or by forfeiture, would have the right to remove the articles mentioned on the ground that they are trade fixtures. But the parties may, by their contract of lease, provide for a different rule, and the more narrow question here is, have they so provided.\n“. . . When, therefore, the parties to the lease provided for the installation of a service station, and further provided that all improvements put upon the premises should, on the termination of the lease, become the property of the landlord, they contemplated that not only the building erected for that purpose should become the property of the landlord, but that the fixtures placed therein necessary to make it a service station should likewise become his property also. . . . It is true that the improvement, to be within the provisions of such a clause in a lease, must, when made, savor of the realty. The term would not include mere loose articles about the premises in no way attached to the freehold. But these particular articles were so attached; they could remain in position until worn out by use; and, since it was in the contemplation of the parties that they should be installed, we conclude that the trial court rightly adjudged that they passed to the landlord on the termination of the lease.\n“The toilet fixtures and electric sign fall within the same rule. Their installation was within the contemplation of the parties when the lease was entered into, and became the property of the landlord when the lease was forfeited.”\nAccord: Parker v. Wulstein, 48 N. J. Eq. 94, 21 Atl. 623; French v. Mayor etc. of New York, 16 How. Prac. (N. Y.) 220.\nIt is the conceded rule that whether or not property annexed to the freehold becomes a part of the realty depends upon the intention of the party making the annexation. Strong v. Sunset Copper Co., 9 Wn. (2d) 214, 114 P. (2d) 526, 135 A. L. R. 423. The theater building owned by respondents was rented for one purpose — the operation of a motion picture theater. The improvements and additions were made for the sole purpose of improving the building for that purpose. The new wiring, the Ozite soundproofing on the walls were merely for the purpose of making the building suitable for the showing of sound pictures. The portion of the wiring which is not imbedded in the walls and floors is attached to the walls by straps which are nailed to the walls. The Ozite is glued to the wall, and the urinal is cemented into the wall and floor. These items definitely “savor of realty,” to use the expression of the Keller case, supra. This applies to the electric sign, the false ceiling on the marquee, and the reader boards attached thereto. All are physically attached to the building, and the ease or hardship incident to removing them is immaterial.\nIn support of their contentions, appellants cite the case of Filley v. Christopher, 39 Wash. 22, 80 Pac. 834. That case states the true rule relative to fixtures and is undoubtedly correct, but has no application to the instant case. However, if we were to apply the test of the case just mentioned to the items involved here, the result would not be changed; for in that case we find:\n“The true criterion of a fixture is the united application of these requisites: (1) Actual annexation to the realty, or something appurtenant thereto; (2) application to the use or purpose to which that part of the realty with which it is connected is appropriated; and (3) the intention of the party making the annexation to make a permanent accession to the freehold.”\nAppellants place their reliance on the case of Ballard v. Alaska Theatre Co., 93 Wash. 655, 161 Pac. 478, which contains an excellent discussion of the law of trade fixtures. The lease in that case obligated the lessee to erect a theater building which at the end of the term would become the property of the landlord. The lease is not set out in the opinion, but from the resume of its provisions it indicates that there was no provision covering fixtures; hence, the common law relative to the latter was properly applied in that case.\n’ Another case having to do with fixtures is that of Whitney v. Hahn, 18 Wn. (2d) 198, 138 P. (2d) 669, and it concerned improvements placed upon leased premises after the expiration of the lease containing a clause relating to improvements and during time when the tenant was holding over under an oral agreement. One of the questions presented was whether the clause in the original lease that\n“The lessee is hereby granted the right to make necessary and convenient changes, alterations or repairs on the said premises at his own cost and expense, and the same shall remain in the building and become a part of the said premises”\nwas a part of the oral agreement entered into after the expiration of the term of the lease. We held that the clause did not carry over and that a furnace placed upon the premises after the expiration of the term, and which was used primarily in the tenant’s business of painting automobiles, was a trade fixture and might be removed by the tenant.\nThese cases state the proper rule to be applied in those Situations in which there is no contract relative to improvements. They cannot apply in the case at bar for reasons already stated.\nThe judgment of the trial court was correct, and it is therefore affirmed.\nMillard, Blake, Robinson, and Mallery, JJ., concur.\nJuly 5, 1944. Petition for rehearing denied."", ""type"": ""majority"", ""author"": ""Simpson, C. J. —""}], ""attorneys"": [""J. C. McCoy, for appellants."", ""George C. Tichy, for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 29143.\nDepartment Two.\nMay 23, 1944.]\nWilliam R. Forman et al., Respondents, v. Columbia Theater Company et al., Appellants.\nJ. C. McCoy, for appellants.\nGeorge C. Tichy, for respondents.\nReported in 148 P. (2d) 951.""}, ""cites_to"": [{""cite"": ""148 P. (2d) 951"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""138 P. (2d) 669"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""18 Wn. (2d) 198"", ""case_ids"": [2587236], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/18/0198-01""], ""opinion_index"": 0}, {""cite"": ""161 Pac. 478"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""93 Wash. 655"", ""case_ids"": [630301], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/93/0655-01""], ""opinion_index"": 0}, {""cite"": ""80 Pac. 834"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""39 Wash. 22"", ""case_ids"": [5230546], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/39/0022-01""], ""opinion_index"": 0}, {""cite"": ""135 A. L. R. 423"", ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R."", ""opinion_index"": 0}, {""cite"": ""114 P. (2d) 526"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""9 Wn. (2d) 214"", ""case_ids"": [5301056], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/9/0214-01""], ""opinion_index"": 0}, {""cite"": ""16 How. Prac. (N. Y.) 220"", ""case_ids"": [2205733], ""category"": ""reporters:state"", ""reporter"": ""How. Pr."", ""case_paths"": [""/how-pr/16/0220-01""], ""opinion_index"": 0}, {""cite"": ""21 Atl. 623"", ""category"": ""reporters:state_regional"", ""reporter"": ""A."", ""opinion_index"": 0}, {""cite"": ""48 N. J. Eq. 94"", ""case_ids"": [95438], ""category"": ""reporters:state"", ""reporter"": ""N.J. Eq."", ""case_paths"": [""/nj-eq/48/0094-01""], ""opinion_index"": 0}, {""cite"": ""52 A. L. 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Columbia Theater 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+287340,"{""id"": 287340, ""name"": ""Alice Sullivan vs. James H. O'Connor"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""b8385a778f9a61c5172eae74643a35ff2c99e8419e22a6d2b97a1e91bbac7eee"", ""simhash"": ""1:4a95a3a28ff1f7b1"", ""pagerank"": {""raw"": 0.00000080268821487581, ""percentile"": 0.97371352538314}, ""char_count"": 23057, ""word_count"": 3835, ""cardinality"": 1121, ""ocr_confidence"": 0.707}, ""casebody"": {""judges"": [], ""parties"": [""Alice Sullivan vs. James H. O’Connor.""], ""opinions"": [{""text"": ""Kaplan, J.\nThe plaintiff patient secured a jury verdict of $13,500 against the defendant surgeon for breach of contract in respect to an operation upon the plaintiff’s nose. The substituted consolidated bill of exceptions presents questions about the correctness of the judge’s instructions on the issue of damages.\nThe declaration was in two counts. In the first count, the plaintiff alleged that she, as patient, entered into a contract with the defendant, a surgeon, wherein the defendant promised to perform plastic surgery on her nose and thereby to enhance her beauty and improve her appearance; that he performed the surgery but failed to achieve the promised result; rather the result of the surgery was to disfigure and deform her nose, to cause her pain in body and mind, and to subject her to other damage and expense. The second count, based on the same transaction, was in the conventional form for malpractice, charging that the defendant had been guilty of negligence in performing the surgery. Answering, the defendant entered a general denial.\nOn the plaintiff’s demand, the case was tried by jury. At. the close of the evidence, the judge put to the jury, as special questions, the issues of liability under the two counts, and instructed them accordingly. The jury returned a verdict for the plaintiff on the contract count, and for the defendant on the negligence count. The judge then instructed the jury on the issue of damages.\nAs background to the instructions and the parties’ exceptions, we mention certain facts as the jury could find them. The plaintiff was a professional entertainer, and this was known to the defendant. The agreement was as alleged in the declaration. More particularly, judging from exhibits, the plaintiff’s nose had been straight, but long and prominent; the defendant undertook by two operations to reduce its prominence and somewhat to shorten it, thus making it more pleasing in relation to the plaintiff’s other features. Actually the plaintiff was obliged to undergo three operations, and her appearance was worsened. Her nose now had a concave line to about the midpoint, at which it became bulbous; viewed frontally, the nose from bridge to midpoint was flattened and broadened, and the two sides of the tip had lost symmetry. This configuration evidently could not be improved by further surgery. The plaintiff did not demonstrate, however, that her change of appearance had resulted in loss of employment. Payments by the plaintiff covering the defendant’s fee and hospital expenses were stipulated at $622.65.\nThe judge instructed the jury, first, that the plaintiff was entitled to recover her out-of-pocket expenses incident to the operations. Second, she could recover the damages flowing directly, naturally, proximately, and foreseeably from the defendant’s breach of promise. These would comprehend damages for any disfigurement of the plaintiff’s nose — that is, any change of appearance for the worse — including the effects of the consciousness of such disfigurement on the plaintiff’s mind, and in this connection the jury should consider the nature of the plaintiff’s profession. Also consequent upon the defendant’s breach, and compensable, were the pain and suffering involved in the third operation, but not in the first two. As there was no proof that any loss of earnings by the plaintiff resulted from the breach, that element should not enter into the calculation of damages.\nBy his exceptions the defendant contends that the judge erred in allowing the jury to take into account anything but the plaintiff’s out-of-pocket expenses (presumably at the stipulated amount). The defendant excepted' to the judge’s refusal of his request for a general charge to that effect, and, more specifically, to the judge’s refusal of a charge that the plaintiff could not recover for pain and suffering connected with the third operation or for impairment of the plaintiff’s appearance and associated mental distress.\nThe plaintiff on her part excepted to the judge’s refusal of a request to charge that the plaintiff could recover the difference in value between the nose as promised and the nose as it appeared after the operations. However, the plaintiff in her brief expressly waives this exception and others made by her in case this court overrules the defendant’s exceptions; thus she would be content to hold the jury’s verdict in her favor.\nWe conclude that the defendant’s exceptions should be overruled.\nIt has been suggested on occasion that agreements between patients and physicians by which the physician undertakes to effect a cure or to bring about a given result should be declared unenforceable on grounds of public policy. See Guilmet v. Campell, 385 Mich. 57, 76 (dissenting opinion). But there are many decisions recognizing and enforcing such contracts, see annotation, 43 A. L. R. 3d 1221, 1225, 1229-1233, and the law of Massachusetts has treated them as valid, although we have had no decision meeting head on the contention that they should be denied legal sanction. Small v. Howard, 128 Mass. 131. Gabrunas v. Miniter, 289 Mass. 20. Forman v. Wolfson, 327 Mass. 341. These causes of action are, however, considered a little suspect, and thus we find courts straining sometimes to read the pleadings as sounding only in tort for negligence, and not in contract for breach of promise, despite sedulous efforts by the pleaders to pursue the latter theory. See Gault v. Sideman, 42 Ill. App. 2d 96; annotation, supra, at 1225, 1238-1244.\nIt is not hard to see why the courts should be unenthusiastic or skeptical about the contract theory. Considering the uncertainties of medical science and the variations in the physical and psychological conditions of individual patients, doctors can seldom in good faith promise specific results. Therefore it is unlikely that physicians of even average integrity will in fact make such promises. Statements of opinion by the physician with some optimistic coloring are a different thing, and may indeed have therapeutic value. But patients may transform such statements into firm promises in their own minds, especially when they have been disappointed in the event, and testify in that sense to sympathetic juries. If actions for breach of promise can be readily maintained, doctors, so it is said, will be frightened into practising “defensive medicine.” On the other hand, if these actions were outlawed, leaving only the possibility of suits for malpractice, there is fear that the public might be exposed to the enticements of charlatans, and confidence in the profession might ultimately be shaken. See Miller, The Contractual Liability of Physicians and Surgeons, 1953 Wash. L. Q. 413, 416-423. The law has taken the middle of the road position of allowing actions based on alleged contract, but insisting on clear proof. Instructions to the jury may well stress this requirement and point to tests of truth, such as the complexity or difficulty of an operation as bearing on the probability that a given result was promised. See annotation, 43 A. L. R. 3d 1225, 1225-1227.\nIf an action on the basis of contract is allowed, we have next the question of the measure of damages to be applied where liability is found. Some cases have taken the simple view that the promise by the physician is to be treated like an ordinary commercial promise, and accordingly that the successful plaintiff is entitled to a standard measure of recovery for breach of contract — “compensatory” (“expectancy”) damages, an amount intended to put the plaintiff in the position he would be in if the contract had been performed, or, presumably, at the plaintiff’s election, “restitution” damages, an amount corresponding to any benefit conferred by the plaintiff upon the defendant in the performance of the contract disrupted by the defendant’s breach. See Restatement: Contracts § 329 and comment a, § § 347, 384 (1). Thus in Hawkins v. McGee, 84 N. H. 114, the defendant doctor was taken to have promised the plaintiff to convert his damaged hand by means of an operation into a good or perfect hand, but the doctor so operated as to damage the hand still further. The court, following the usual expectancy formula, would have asked the jury to estimate and award to the plaintiff the difference between the value of a good or perfect hand, as promised, and the value of the hand after the operation. (The same formula would apply, although the dollar result would be less, if the operation had neither worsened nor improved the condition of the hand.) If the plaintiff had not yet paid the doctor his fee, that amount would be deducted from the recovery. There could be no recovery for the pain and suffering of the operation, since that detriment would have been incurred even if the operation had been successful; one can say that this detriment was not “caused” by the breach. But where the plaintiff by reason of the operation was put to more pain than he would have had to endure, had the doctor performed as promised, he should be compensated for that difference as a proper part of his expectancy recovery. It may be noted that on an alternative count for malpractice the plaintiff in the Hawkins case had been nonsuited; but on ordinary principles this could not affect the contract claim, for it is hardly a defence to a breach of contract that the promisor acted innocently and without negligence. The New Hampshire court further refined the Hawkins analysis in McQuaid v. Michou, 85 N. H. 299, all in the direction of treating the patient-physician cases on the ordinary footing of expectancy. See McGee v. United States Fid. & Guar. Co. 53 F. 2d 953 (1st Cir.) (later development in the Hawkins case); Cloutier v. Kasheta, 105 N. H. 262; Lakeman v. LaFrance, 102 N. H. 300, 305.\nOther cases, including a number in New York, without distinctly repudiating the Hawkins type of analysis, have indicated that a different and generally more lenient measure of damages is to be applied in patient-physician actions based on breach of alleged special agreements to effect a cure, attain a stated result, or employ a given medical method. This measure is expressed in somewhat variant ways, but the substance is that the plaintiff is to recover any expenditures made by him and for other detriment (usually not specifically described in the opinions) following proximately and foreseeably upon the defendant’s failure to carry out his promise. Robins v. Finestone, 308 N. Y. 543, 546. Frankel v. Wolper, 181 App. Div. (N. Y.) 485, 488, affd. 228 N. Y. 582. Frank v. Maliniak, 232 App. Div. (N. Y.) 278, 280. Colvin v. Smith, 276 App. Div. (N. Y.) 9, 10. Stewart v. Rudner, 349 Mich. 459, 465-473. Cf. Carpenter v. Moore, 51 Wash. 2d 795. This, be it noted, is not a “restitution” measure, for it is not limited to restoration of the benefit conferred on the defendant (the fee paid) but includes other expenditures, for example, amounts paid for medicine and nurses; so also it would seem according to its logic to take in damages for any worsening of the plaintiff’s condition due to the breach. Nor is it an “expectancy” measure, for it does not appear to contemplate recovery of the whole difference in value between the condition as promised and the condition actually resulting from the treatment. Rather the tendency of the formulation is to put the plaintiff back in the position he occupied just before the parties entered upon the agreement, to compensate him for the detriments he suffered in reliance upon the agreement. This kind of intermediate pattern of recovery for breach of contract is discussed in the suggestive article by Fuller and Perdue, The Reliance Interest in Contract Damages, 46 Yale L. J. 52, 373, where the authors show that, although not attaining the currency of the standard measures, a “reliance” measure has for special reasons been applied by the courts in a variety of settings, including noncommercial settings. See 46 Yale L. J. at 396-401.\nFor breach of the patient-physician agreements under consideration, a recovery limited to restitution seems plainly too meager, if the agreements are to be enforced at all. On the other hand, an expectancy recovery may well be excessive. The factors, already mentioned, which have made the cause of action somewhat suspect, also suggest moderation as to the breadth of the recovery that should be permitted. Where, as in the case at bar and in a number of the reported cases, the doctor has been absolved of negligence by the trier, an expectancy measure may be thought harsh. We should recall here that the fee paid by the patient to the doctor for the alleged promise would usually be quite disproportionate to the putative expectancy recovery. To attempt, moreover, to put a value on the condition that would or might have resulted, had the treatment succeeded as promised, may sometimes put an exceptional strain on the imagination of the fact finder. As a general consideration, Fuller and Perdue argue that the reasons for granting damages for broken promises to the extent of the expectancy are at their strongest when the promises are made in a business context, when they have to do with the production or distribution of goods or the allocation of functions in the market place; they become weaker as the context shifts from a commercial to a noncommercial field. 46 Yale L. J. at 60-63.\nThere is much to be said, then, for applying a reliance measure to the present facts, and we have only to add that our cases are not unreceptive to the use of that formula in special situations. We have, however, had no previous occasion to apply it to patient-physician cases.\nThe question of recovery on a reliance basis for pain and suffering or mental distress requires further attention. We find expressions in the decisions that pain and suffering (or the like) are simply not compensable in actions for breach of contract. The defendant seemingly espouses this proposition in the present case. True, if the buyer under a contract for the purchase of a lot of merchandise, in suing for the seller’s breach, should claim damages for mental anguish caused by his disappointment in the transaction, he would not succeed; he would be told, perhaps, that the asserted psychological injury was not fairly foreseeable by the defendant as a probable consequence of the breach of such a business contract. See Restatement: Contracts, § 341 and comment a. But there is no general rule barring such items of damage in actions for breach of contract. It is all a question of the subject matter and background of the contract, and when the contract calls for an operation on the person of the plaintiff, psychological as well as physical injury may be expected to figure somewhere in the recovery, depending on the particular circumstances. The point is explained in Stewart v. Rudner, 349 Mich. 459, 469. Cf. Frewen v. Page, 238 Mass. 499; McClean v. University Club, 327 Mass. 68. Again, it is said in a few of the New York cases, concerned with the classification of actions for statute of limitations purposes, that the absence of allegations demanding recovery for pain and suffering is characteristic of a contract claim by a patient against a physician, that such allegations rather belong in a claim for malpractice. See Robins v. Finestone, 308 N. Y. 543, 547; Budoff v. Kessler, 2 App. Div. 2d (N. Y.) 760. These remarks seem unduly sweeping. Suffering or distress resulting from the breach going beyond that which was envisaged by the treatment as agreed, should be compensable on the same ground as the worsening of the patient’s conditions because of the breach. Indeed it can be argued that the very suffering or distress “contracted for” — that which would have been incurred if the treatment achieved the promised result — should also be compensable on the theory underlying the New York cases. For that suffering is “wasted” if the treatment fails. Otherwise stated, compensation for this waste is arguably required in order to complete the restoration of the status quo ante.\nIn the light of the foregoing discussion, all the defendant’s exceptions fail: the plaintiff was not confined to the recovery of her out-of-pocket expenditures; she was entitled to recover also for the worsening of her condition, and for the pain and suffering and mental distress involved in the third operation. These items were com-pensable on either an expectancy or a reliance view. We might have been required to elect between the two views if the pain and suffering connected with the first two operations contemplated by the agreement, or the whole difference in value between the present and the promised conditions, were being claimed as elements of damage. But the plaintiff waives her possible claim to the former element, and to so much of the latter as represents the difference in value between the promised condition and the condition before the operations.\nPlaintiff’s exceptions waived.\nDefendant’s exceptions overruled.\nThe defendant also excepted to the judge’s refusal to direct a verdict in his favor, but this exception is not pressed and could not be sustained.\nJudicial skepticism about whether a promise was in fact made derives also from the possibility that the truth has been tortured to give the plaintiff the advantage of the longer period of limitations sometimes available for actions on contract as distinguished from those in tort or for malpractice. See Lillich, The Malpractice Statute of Limitations in New York and Other Jurisdictions, 47 Cornell L. Q. 339; annotation, 80 A. L. R. 2d 368.\nSee Horowitz v. Bogart, 218 App. Div. (N. Y.) 158, 160; Monahan v. Devinny, 223 App. Div. (N. Y.) 547, 548; Keating v. Perkins, 250 App. Div. (N. Y.) 9, 10, and comment in 5 U. of Chicago L. Rev. 156.\nSome of the exceptional situations mentioned where reliance may be preferred to expectancy are those in which the latter measure would be hard to apply or would impose too great a burden; performance was interfered with by external circumstances; the contract was indefinite. See 46 Yale L. J. at 373-386; 394-396.\nIn Mt. Pleasant Stable Co. v. Steinberg, 238 Mass. 567, the plaintiff company agreed to supply teams of horses at agreed rates as required from day to day by the defendant for his business. To prepare itself to fulfil the contract and in reliance on it, the plaintiff bought two “Cliest” horses at a certain price. When the defendant repudiated the contract, the plaintiff sold the horses at a loss and in its action for breach claimed the loss as an element of damages. The court properly held that the plaintiff was not entitled to this item as it was also claiming (and recovering) its lost profits (expectancy) on the contract as a whole. Cf. Noble v. Ames Mfg. Co. 112 Mass. 492. (The loss on sale of the horses is analogous to the pain and suffering for which the patient would be disallowed a recovery in Hawkins v. McGee, 84 N. H. 114, because he was claiming and recovering expectancy damages.) The court in the Mt. Pleasant case referred, however, to Pond v. Harris, 113 Mass. 114, as a contrasting situation where the expectancy could not be fairly determined. There the defendant had wrongfully revoked an agreement to arbitrate a dispute with the plaintiff (this was before such agreements were made specifically enforceable). In an action for the breach, the plaintiff was held entitled to recover for his preparations for the arbitration which had been rendered useless and a waste, including the plaintiff’s time and trouble and his expenditures for counsel and witness. The context apparently was commercial but reliance elements were held compensable when there was no fair way of estimating an expectancy. See, generally, annotation, 17 A. L. R. 2d 1300. A noncommercial example is Smith v. Sherman, 4 Cush. 408, 413-414, suggesting that a conventional recovery for breach of promise of marriage included a recompense for various efforts and expenditures by the plaintiff preparatory to the promised wedding. See Garfield & Proctor Coal Co. v. Pennsylvania Coal & Coke Co. 199 Mass. 22, 43; Narragansett Amusement Co. v. Riverside Park Amusement Co. 260 Mass. 265, 279-281. Cf. Johnson v. Arnold, 2 Cush. 46, 47; Greany v. McCormick, 273 Mass. 250, 253. But cf. Irwin v. Worcester Paper Box Co. 246 Mass. 453.\nRecovery on a reliance basis for breach of the physician’s promise tends to equate with the usual recovery for malpractice, since the latter also looks in general to restoration of the condition before the injury. But this is not paradoxical, especially when it is noted that the origins of contract lie in tort. See Farnsworth, The Past of Promise: An Historical Introduction to Contract, 69 Col. L. Rev. 576, 594-596; Breitel, J. in Stella Flour & Feed Corp. v. National City Bank, 285 App. Div. (N. Y.) 182, 189 (dissenting opinion). A few cases have considered possible recovery for breach by a physician of a promise to sterilize a patient, resulting in birth of a child to the patient and spouse. If such an action is held maintainable, the reliance and expectancy measures would, we think, tend to equate, because the promised condition was preservation of the family status quo. See Custodio v. Bauer, 251 Cal. App. 2d 803; Jackson v. Anderson, 230 So. 2d 503 (Fla. App.). Cf. Troppi v. Scarf, 31 Mich. App. 240. But cf. Ball v. Mudge, 64 Wash. 2d 247; Doerr v. Villate, 74 Ill. App. 2d 332; Shaheen v. Knight, 11 D. & C. 2d (Pa.) 41. See also annotation, 27 A. L. R. 3d 906.\nIt would, however, be a mistake to think in terms of strict “formulas.” For example, a jurisdiction which would apply a reliance measure to the present facts might impose a more severe damage sanction for the wilful use by the physician of a method of operation that he undertook not to employ.\nThat condition involves a mental element and appraisal of it properly called for consideration of the fact that the plaintiff was an entertainer. Cf. McQuaid v. Michou, 85 N. H. 299, 303-304 (discussion of continuing condition resulting from physician’s breach)."", ""type"": ""majority"", ""author"": ""Kaplan, J.""}], ""attorneys"": [""John F. Finnerty for the defendant."", ""Francis C. Newton, Jr., for the plaintiff.""], ""corrections"": """", ""head_matter"": ""Alice Sullivan vs. James H. O’Connor.\nSuffolk.\nMarch 6, 1973.\nMay 9, 1973.\nPresent: Tauro, C.J., Reardon, Quirico, Kaplan, & Wilkins, JJ.\nDoctor. Contract, With doctor. Damages. For breach of contract with doctor.\nDiscussion of the law respecting liability of doctors to their patients for breach of contract to produce a given result and the measure of damages available. [581-588]\nIn an action by a professional entertainer against a surgeon for breach of a contract to improve the appearance of the plaintiff’s nose in two operations, the plaintiff was entitled to recover not only her out of pocket expenses, but also for worsening of the appearance of her nose by the surgery and for pain and suffering and mental distress involved in a third operation. [588-589]\nContract or tort. Writ in the Superior Court dated February 8,1967.\nThe action was tried before Brogna, J.\nJohn F. Finnerty for the defendant.\nFrancis C. Newton, Jr., for the plaintiff.""}, ""cites_to"": [{""cite"": ""27 A. L. R. 3d 906"", ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R. 3d"", ""opinion_index"": 0}, {""cite"": ""74 Ill. App. 2d 332"", ""case_ids"": [2579806], ""category"": ""reporters:state"", ""reporter"": ""Ill. App. 2d"", ""case_paths"": [""/ill-app-2d/74/0332-01""], ""opinion_index"": 0}, {""cite"": ""64 Wash. 2d 247"", ""case_ids"": [1043129], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/64/0247-01""], ""opinion_index"": 0}, {""cite"": ""31 Mich. App. 240"", ""case_ids"": [2095891], ""category"": ""reporters:state"", ""reporter"": ""Mich. 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+287373,"{""id"": 287373, ""name"": ""Boston Housing Authority vs. Ruth Hemingway (and a companion case)"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""052c011d6ba221148b5f9c3d2fd3578f0f5dfb1936998c745bb3fa19d6674d95"", ""simhash"": ""1:16d4c59dbaac7658"", ""pagerank"": {""raw"": 0.0000021785619181954625, ""percentile"": 0.995670210888743}, ""char_count"": 80206, ""word_count"": 13403, ""cardinality"": 2195, ""ocr_confidence"": 0.689}, ""casebody"": {""judges"": [], ""parties"": [""Boston Housing Authority vs. Ruth Hemingway (and a companion case).""], ""opinions"": [{""text"": ""Tauro, C.J.\nThe Boston Housing Authority (landlord) brought two actions of summary process against the defendants (tenants) for failure to pay rent. The tenants contend that they were entitled to withhold rent under G. L. c. 239, § 8A, because their apartments were in uninhabitable condition in violation oi the State Sanitary Code. The tenants argue in the alternative that the landlord’s breach of an implied warranty that the demised premises were suitable for human occupation extinguished the tenants’ rental obligations. The cases were originally entered and tried in the Municipal Court of the Roxbury District where the judge found for the landlord against the tenants. The tenants appealed to the Superior Court under G. L. c. 239, § 5, as amended through St. 1969, c. 366, where the cases were retried. The trial judge found as to each tenant that the landlord was entitled to possession and rent of $1,200 up to and including June 30, 1970. The cases come before us on a consolidated bill of exceptions.\nThe evidence is summarized. After making repeated demands to the landlord that repairs be made to remedy the defects which rendered their apartments uninhabitable, the tenants began withholding rent on March 1,1969. They took this action after the Boston housing inspection department had issued a report to the landlord which certified that serious housing code violations existed which “may endanger or materially impair the health or safety, and the well-being of any tenant therein or persons occupying said property.” Although G. L. c. 239, § 8A, permits a tenant to withhold rent in such situations, it required the tenant to give written notice to his landlord of his intention to do so. The record supports the Superior Court judge’s finding that the tenants failed to comply with this provision of the statute and thus were foreclosed from asserting G. L. c. 239, § 8A, as a defence to the Boston Housing Authority’s action.\nHowever, at the close of the evidence, the tenants presented requests for findings of fact and rulings of law. Among the requests were the following: “8. That the obligations of the Housing Authority to supply and maintain premises in compliance with the Housing Regulations and the obligations of the tenant to pay rent under a rental agreement are dependent.” “15. That any money owed by the Defendants to the Plaintiff ought to be determined by this Court according to the degree of in-habitability of each apartment of Defendants.” “21. That even if the Defendants had not complied with Chapter 239 (8) (A) of the Withholding Statute the defense of uninhabitability would still exist if the premises were as a matter of fact found to be in violation of the State Sanitary Code.” The Superior Court judge held that he need not reach these requests for rulings because of the tenants’ failure to comply with the notice requirement of c. 239, § 8A. The denial of these requests presents the central issue in these cases, namely, whether the tenants’ remedies are limited to the pertinent statutory provisions.\nImplicit in the trial judge’s decision was the assumption that the tenants had no common law defence. The trial judge correctly applied the common law as it has existed in the Commonwealth for many years in refusing to permit the tenants to raise the landlord’s alleged breach of an implied warranty of habitability as a de-fence to the landlord’s summary process action. “There is no implied agreement, apart from fraud, that the demised premises are or will continue to be fit for occupancy or safe and in good repair. The tenant takes the premises as he finds them and there is no obligation on the landlord to make repairs.” Fiorntino v. Mason, 233 Mass. 451, 452. Although the Fiorntino case involved a tenancy at will, the language applies equally to a tenancy under a lease, absent any express provisions to the contrary. Since the leases between the landlord and the tenants in the present cases do not contain any express covenant to deliver or maintain the apartments in habitable condition, the tenants do not have any common law defence to the landlord’s action of summary process unless we change the old common law independent covenants rule as the tenants urge us to do. The tenants’ challenge to our common law rule of independent covenants has led us to reconsider whether the historical source and justifications for the rule are still valid in the modern context.\n1. The Boston Housing Authority relies on a series of Massachusetts cases which established and followed the doctrine of caveat emptor and independent covenants between the landlord and the tenant. Mr. Justice Gray stated the old common law rule in Royce v. Guggenheim, 106 Mass. 201, 202-203: “It is now well settled, both here and in England, that in a lease of a building for a dwelling-house or store no covenant is implied that it should be fit for occupation. [Citations omitted.] And the English authorities, ancient and modern, are conclusive, that even where the landlord is bound by custom or express covenant to repair, and by his failure to do so the premises become uninhabitable, or unfit for the purpose for which they were leased, the tenant has no right to quit the premises, or to refuse to pay rent according to his covenant, but his only remedy is by action for damages.” See, e.g., Kramer v. Cook, 7 Gray 550; Leavitt v. Fletcher, 10 Allen 119; Ware v. Hobbs, 222 Mass. 327; Stone v. Sullivan, 300 Mass. 450.\nThese cases were predicated on the old common law assumption that a lease was in fact a conveyance of an estate in real property for a term. This characterization of the lease as a transfer of a property interest governed by property law reflected the parties’ expectations in a rural agrarian society where the right to possession of the land constituted the chief element of the exchange. “The common law focused on possession rather than service. The ideal landlord delivered possession, then did nothing more; the ideal tenant paid his rent and demanded nothing more than possession.” Notes, 56 Cornell L. Rev. 489, 490.\nThus, originally at common law, the tenant could not even escape his rental obligation when the demised premises were destroyed because of the law’s view that the land and not the premises was the essential part of the transaction. See Paradine v. Jane, 82 Eng. Rep. R. 897; Am. Law of Property, § 3.103. Even if the landlord made express maintenance promises in the lease, courts often held that the landlord’s breach of these “secondary” obligations did not affect the tenant’s obligation to pay rent. See Stone v. Sullivan, 300 Mass. 450. The tenant was released from his covenant to pay rent only when the landlord repossessed the property or interfered with the tenant’s quiet enjoyment of his leasehold. See Royce v. Guggenheim, 106 Mass. 201 (1870).\nGiven the rural agrarian context in which these rules were judicially formulated, the independent covenants rule made sense. However, the rule’s strict application often produced harsh results in those cases where the tenant was more interested in the demised building than the land on which it was situated. The chief judicial response to this problem was the development of the “constructive eviction” doctrine “which relieved the tenant of his rent obligation if he could show that he had vacated the leased premises due to a severe failure of maintenance services amounting to a breach of the landlord’s duty to assure quiet possession.” Notes,. 56 Cornell L. Rev. 489, 491. See Nesson v. Adams, 212 Mass. 429 (1912). This rule allowed the court to mitigate some of the injustices stemming from strict application of the independent covenants rule without repudiating the rule’s basic premise that the lease was essentially a conveyance of a possessory interest in land for a term and not a contract for a dwelling suitable for human occupation. The constructive eviction doctrine created the legal fiction that the tenant had been “evicted” to show that the tenant’s possessory interest in the property itself was destroyed by the landlord’s failure to provide adequate maintenance services. It was the loss of the tenant’s possessory interest which excused him from paying rent.\nThe constructive eviction defence gave the tenant the option of abandoning the demised premises in order to extinguish his rental obligation if the court shared the tenant’s view as to what acts or omissions on the landlord’s part constituted a breach of his duty to assure quiet possession. However, this defence offered little solace to the tenant who was more interested in securing a livable dwelling than a plot of land. Once again, this court responded by creating another exception to the independent covenants rule in those cases where the circumstances made it clear that the tenant’s purpose in signing the lease was to secure a dwelling fit for human occupation.\nWith rare foresight, this court in Ingalls v. Hobbs, 156 Mass. 348, 350, held that the independent covenants rule did not apply to a leasing of a furnished house or room for a short term. “But there are good reasons why a different rule should apply to one who hires a furnished room or a furnished house for a few days or a few weeks or months. Its fitness for immediate use of a particular kind, as indicated by its appointments, is a far more important element entering into the contract than when there is a mere lease of real estate. One who lets for a short term a house provided with all furnishings and appointments for immediate residence may be supposed to contract in reference to a well understood purpose of the hirer to use it as a habitation. ... It would be unreasonable to hold, under such circumstances, that the landlord does not impliedly agree that what he is letting is a house suitable for occupation in its condition at the time.” Although the court’s holding in the Ingalls case has been limited to its special facts of a short term lease for a furnished room or dwelling, its rationale rested on the broader premise that we would not apply the independent covenants rule in those cases where the essential purpose of the lease was not the transfer of an interest in land but the use of the demised premises for immediate occupation. In effect, the Ingalls case reflected this court’s willingness to imply a warranty of habitability when it was clear that the lease was essentially a contract in which the landlord promised to deliver premises suitable to the tenant’s purpose in return for the tenant’s promise to pay rent.\nThis judicial willingness to expand the number of exceptions to the independent covenants rule in appropriate cases by treating the lease more as a contract than as a property conveyance was supported by our decision in Charles E. Burt, Inc. v. Seven Grand Corp. 340 Mass. 124. We held in the Burt case that the tenant may get damages in a suit for equitable relief despite its failure to abandon the premises. We noted that damages without abandonment are possible in those cases where the breach of the covenant of quiet enjoyment “goes to the essence” of the contract. P. 129. We decided that the tenant was entitled to damages in the Burt case because “[s]uch relief is more nearly adequate than the incomplete and hazardous remedy at law which requires that the lessee (a) determine at its peril that the circumstances amount to a constructive eviction, and (b) vacate the demised premises, possibly at some expense, while remaining subject to the risk that a court may decide that the lessor’s breaches do not go to the essence of the lessor’s obligation.” The Burt case, supra, 129-130.\nThe gradual judicial erosion of the independent covenants rule has been accelerated by the Massachusetts Legislature’s initial reforms in the landlord-tenant area. In 1960, the Massachusetts Department of Public Health, pursuant to the authority granted by G. L. c. Ill, § 5, adopted art. II of the State Sanitary Code which established minimum standards of fitness for human habitation for all housing in the Commonwealth. However, this initial legislative and administrative response to the growing housing crisis had little effect because the public agencies, which were totally responsible for the enforcement of the State Sanitary and Housing codes, lacked the resources necessary to police the entire housing sector. See 52 Mass. L. Q. 205. Since the efforts of these agencies to enforce Code regulations had proved ineffective, the Legislature enacted new legislation in 1965 to help promote effective enforcement of Code regulations and thereby insure that all housing would meet the minimal standards of habitability defined by art. II of the State Sanitary Code.\nThe common purpose underlying these new statutes was to create a private remedy for these public violations by giving the tenant the power to initiate the Code enforcement process. (See 52 Mass. L. Q. 205.) General Laws c. Ill, §§ 127C-127F and 127H, allow the tenant himself to initiate the process by a petition to either a District Court (§ 127C) or the Superior Court (§ 127H) requesting a finding that Code violations exist which “may endanger or materially impair the health or well-being of any tenant.” If the court makes this finding and concludes that “such rental payments are necessary to remedy the condition constituting the violation,” the court may by written order “authorize the petitioner . . . to make rental payments ... to the clerk of the court” (§ 127F). The court can then order the clerk to “disburse all or any portion of the rental payments received by him to the respondent [lessor] for the purpose of effectuating the removal of the violation” (§ 127F). Once the defects are corrected, the remaining balance of any rent paid to the court will be given back to the landlord (§ 127F).\nThe purpose of these statutes was to allow tenants to initiate the Code enforcement process by bringing before the courts recalcitrant landlords who refused to remedy conditions in the tenants’ dwelling units which violate the State Sanitary Code. However, many tenants, especially poor tenants, would not avail themselves of a remedy which required them to sue their landlords. Therefore, the Legislature has also granted tenants a defensive remedy by enacting c. 239, § 8A. It authorizes tenants to withhold rent where a housing code inspection report citing sanitary code violations has been issued to the landlord. The tenant can take this action without having to sue the landlord and without fear of being evicted for nonpayment of rent. Chapter 239, § 8A, amended summary process so that the landlord’s violation of State Sanitary Code standards of fitness for human habitation, if properly raised, would constitute a defence for the tenant in that proceeding. This statute allows the tenant to initiate the Code enforcement process by direct action against his landlord without using the court as an intermediary. Unlike the more cumbersome procedure established in c. Ill, §§ 127A-127H, where the landlord can use delaying tactics by asking for repeated continuances, c. 239, § 8A’s provisions force him to take the initiative by making repairs or contesting the tenant’s action in court in order to recover the withheld rent.\nThus, G. L. c. 239, § 8A, grants the tenant the right to withhold rent in order to aid effective enforcement of State Sanitary Code regulations. The statute’s authorization of rent withholding “was to provide a tenant with yet another means of enforcing the state sanitary code or local health regulations, but without the necessity for a timid tenant to initiate court proceedings in what may appear to be a ‘frightening’ system.” 52 Mass. L. Q. 205, 228. This purpose is made clear by the fact that once repairs are made, the landlord receives the balance of any remaining rent held in escrow. Appelstein v. Quinn, 361 Mass. 861. The statute’s clear purpose is to promote repairs by giving the landlord the incentive of getting his rent if he complies with the Code regulations.\nAt common law, the tenant could never justifiably withhold rent until the landlord made repairs because his rental obligation was not dependent on any services performed by the landlord besides delivery of the property to the tenant. However, both the courts in rendering decisions such as those in the Ingalls case, 156 Mass. 348, and the Burt case, 340 Mass. 124, supra, and the Legislature in enacting the rent withholding provisions, have retreated from the fundamental common law assumption on which the independent covenants rule is based, namely, that a lease is primarily a conveyance of an interest in real estate. By fixing a clear duty of repair on the landlord before the landlord can recover withheld rent in those cases where the demised premises are in violation of the standards of fitness for human habitation established under the State Sanitary Code, the Massachusetts Legislature has further weakened the old common law rule that the tenant’s obligation to pay rent is totally independent of any obligation the landlord may bear.\nThus, we are confronted with a situation where the legislation’s “establishment of policy carries significance beyond the particular scope of each of the statutes involved.” Moragne v. States Marine Lines, Inc. 398 U. S. 375, 390. As Professor James Landis noted in his essay, Statutes and the Sources of Law, Harvard Legal Essays (1934), pp. 222-223, “Doctrines of common law dealing with the relationship betwen individuals will often be seen to hinge upon a conception as to the position that one party is to occupy in our social structure. This becomes solidified into a concept of status. But obviously status has no meaning apart from its incidents. These incidents, often so numerous as to escape description, have a varying importance in shaping the nucleus of a status. The alteration of some of them possesses no importance beyond the change itself; the alteration of others, however, may call for a radical revision of the privileges or disabilities that have generally been attached to a particular status. The common-law incidents of status, that in their origin have themselves been of empiric growth, must then give way before the new aims deducible from such a basic alteration.\n“Changes of this nature are commonly the product of legislation. The statutes that express them rarely directly make or alter a status as such; nor do the statutes often see the seamlessness of the pattern that they seek to change. The task of modifying the existing body of the law to fit the structural changes must of necessity be left to courts with the hope that given an end they will mould substantive doctrine to make it effective.”\nThe independent covenants rule was the most important logical incident flowing from the common law’s conception of the lease as a conveyance of an interest in real estate. Although c. 239, § 8A, did not abrogate the independent covenants rule, it drastically altered most of the logical incidents flowing from the lease’s old status as property conveyance by allowing rent withholding, a remedy which reflects the Legislature’s judgment that the tenant should be paying rent only for habitable premises. This legislative alteration of the most important incident of the common law status of a lease as a property conveyance requires a judicial reappraisal of the common law status itself because the Legislature’s actions reflect a characterization of the landlord-tenant relationship that radically differs from the status accorded to it by the common law.\nOur reexamination leads us to conclude that the exception to the independent covenants rule carved out by the Ingalls case, 156 Mass. 348, supra, in response to what was then an unusual situation, must now become the rule in an urban industrial society where the essential objective of the leasing transaction is to provide a dwelling suitable for habitation. The old common law treatment of the lease as a property conveyance and the independent covenants rule which stems from this treatment have outlived their usefulness. The urban tenant in a multiple dwelling unit cares little about the property interest he has acquired. Modern tenants, rightfully expect that the premises they rent, whether furnished or unfurnished, will be suitable for occupation. In Javins v. First Natl. Realty Corp. 428 F. 2d 1071 (D. C. Cir. 1970), the court justified in part its decision that all leases for dwellings imply a warranty of habitability by demonstrating how the factual assumptions underlying the Ingalls case exception to the independent covenants rule were in closer harmony to modern housing patterns than the old common law assumption that a property conveyance was the essential objective of the transaction.\n“It is overdue for courts to admit that these assumptions are no longer true with regard to all urban housing. Today’s urban tenants, the vast majority of whom live in multiple dwelling houses, are interested, not in the land, but solely in 'a house suitable for occupation.’ Furthermore, today’s city dweller usually has a single, specialized skill unrelated to maintenance work; he is unable to make repairs like the ‘jack-of-all-trades’ farmer who was the common law’s model of the lessee. Further, unlike his agrarian predecessor who often remained on one piece of land for his entire life, urban tenants today are more mobile than ever before. A tenant’s tenure in a specific apartment will often not be sufficient to justify efforts at repairs. In addition, the increasing complexity of today’s dwellings renders them much more difficult to repair than the structures of earlier times. In a multiple dwelling repair may require access to equipment and areas in the control of the landlord. Low and middle income tenants, even if they were interested in making repairs, would be unable to obtain any financing for major repairs since they have no long-term interest in the property.” Javins v. First Natl. Realty Corp. at 1078-1079.\nThe opinion in the Javins case reflects the view expressed in recent cases and law review articles which rejects the old common law’s conception of the lease as a property transaction. The modern view favors a new approach which recognizes that a lease is essentially a contract between the landlord and the tenant wherein the landlord promises to deliver and maintain the demised premises in habitable condition and the tenant promises to pay rent for such habitable premises. These promises constitute interdependent and mutual considerations. Thus, the tenant’s obligation to pay rent is predicated on the landlord’s obligation to deliver and maintain the premises in habitable condition.\nThis modern view that the common law should imply warranties of habitability in all leases is supported by the Massachusetts Legislature’s reforms in the landlord-tenant area which reflect the Legislature’s view that rent is paid for habitable premises and not for an interest in real estate. General Laws c. Ill, §§ 127A-127F and 127H, and G. L. c. 239, § 8A, have already-encroached to some degree on the common law rules of caveat emptor and independent covenants. If we fail to repudiate the underlying common law concept of a lease which fostered the independent covenants rule, the landlord-tenant law in Massachusetts will remain in an illogical state because our statutory and common law will be based on differing conceptual assumptions as to the essential nature and consequences of a lease. As the Wisconsin Supreme Court noted in Pines v. Perssion, 14 Wis. 2d 590, 595-596: “[T]he legislature has made a policy judgment — that it is socially (and politically) desirable to impose these duties on a property owner — which has rendered the old common-law rule obsolete. To follow the old rule of no implied warranty of habitability in leases would, in our opinion, be inconsistent with the current legislative policy concerning housing standards.”\nTherefore, we hold that in a rental of any premises for dwelling purposes, under a written or oral lease, for a specified time or at will, there is an implied warranty that the premises are fit for human occupation. “This means that at the inception of the rental there are no latent [or patent] defects in facilities vital to the use of the premises for residential purposes and that these essential facilities will remain during the entire term in a condition which makes the property livable.” Kline v. Burns, 111 N. H. 87, 92. This warranty (in so far as it is based on the State Sanitary Code and local health regulations) cannot be waived by any provision in the lease or rental agreement.\nRemedies for the Landlord’s Breach of the Implied Warranty of Habitability.\n2. Since we hold that the tenant’s covenant to pay rent is dependent on the landlord’s implied warranty of habitability, there is no need for a constructive eviction defence to justify the tenant’s decision to stop paying rent. “The doctrine of constructive eviction as an admitted judicial fiction, ... no longer serves its purpose when the more flexible concept of implied warranty of habitability is legally available.” Lemle v. Breeden, 51 Hawaii 426, 434.\nThus, instead of pleading constructive eviction as a defence to the landlord’s action to recover rent, the tenant has recourse to the following contractual rights and remedies afforded by the warranty of habitability:\n(1) The tenant can sue the landlord and ask for rescission of his written lease from the point in time that the breach of the implied warranty of habitability first arose. The existence of a material breach will be a question of fact to be determined in the circumstances of each case. Factors (not necessarily all inclusive) aiding the court’s determination of the materiality of an alleged breach of the implied warranty of habitability include: (a) the seriousness of the claimed defects and their effect on the dwelling’s habitability; (b) the length of time the defects persist; (c) whether the landlord or his agent received written or oral notice of the defects; (d) the possibility that the residence could be made habitable within a reasonable time; and (e) whether the defects resulted from abnormal conduct or use by the tenant. If the court found a material breach of warranty, the tenant would be permitted to terminate the lease and recover any security deposits made; although he will be liable for the reasonable value, if any, of his use of the premises for the time he was in possession. See Lemle v. Breeden, 51 Hawaii 426; Pines v. Perssion 14 Wis. 2d 590, 597.\n(2) If the tenant wishes to keep his lease and continue to occupy the premises, he can initiate proceedings under c. Ill, §§ 127A-127H, or withhold rent pursuant to the procedures established by c. 239, § 8A. If the landlord remedies the defects, he will recover the withheld rent. This result follows from the purpose of the statute. The tenant is allowed to withhold rent to induce the landlord to remedy the conditions rendering the premises uninhabitable. The landlord’s incentive to repair comes from the knowledge that such action taken before trial will guarantee his full recovery of the withheld rent.\nHowever, as we noted in Appelstein v. Quinn, 361 Mass. 861, these remedial statutes do not have any substantive effect on the tenant’s rental obligations under the common law. Therefore, if the tenant’s § 8A defence prevails, any withheld rent that had been paid into court must be returned to the tenant because the tenant’s rental obligation depended on the landlord’s warranty of habitability which has been broken. In these circumstances, the landlord’s breach, since it goes to the essence of the contract, renders the lease voidable at the tenant’s election. If the tenant elects to stay on for the rest of the term and the landlord promptly cures his breach by remedying the defective conditions, the tenant’s rental obligation for the remainder of the term will be revived when the dwelling becomes habit-: able. If the tenant elects to stay on until the end of the term and the landlord makes no repairs, the tenant will be liable for the reasonable value, if any, of his use of the premises for the time he remains in possession. See Lemle v. Breeden, 51 Hawaii 426; Pines v. Perssion, 14 Wis. 2d 590, 597.\n(3) If the tenant fails to follow c. 239, § 8A’s procedures, his refusal to pay some or all of the rent due will subject him to eviction proceedings to which he will have no defence. This result follows from the Legislature’s sound policy judgment that the landlord needs the incentive of recovering the rent due him to promote prompt repairs. Thus, the tenant is faced with two alternative remedies with different consequences. If he is more concerned about getting his dwelling repaired than getting his rent abated or extinguished, he should follow the procedures established by c. 239, § 8A. If the tenant fails to follow these procedures, he cannot use the landlord’s breach of the habitability warranty as a defence to a notice to quit for nonpayment of rent. However, though the landlord may, in that case, evict the tenant, the tenant may raise the landlord’s breach of his warranty of habitability as a partial or complete defence to the landlord’s claim for rent owed for the period when the dwelling was in uninhabitable condi-tian and the landlord or his agent had written or oral notice of the defects. The tenant’s claim or counterclaim for damages based on this breach would be the difference between the' value of the dwelling as warranted (the rent agreed on may be evidence of this value) and the value of the dwelling as it exists in its defective condition.\nIn the instant cases, the defendants failed to comply with the notice requirement of c. 239, § 8A. Therefore, we sustain the Superior Court judge’s ruling that the tenants cannot raise the statute as a defence to the landlord’s action of summary process.\nHowever, the landlord’s breach of its implied warranty of habitability constitutes a total or partial defence to the landlord’s claim for rent being withheld, depending on the extent of the breach. The tenants’ claim for damages based on this breach by the landlord should be limited to the period of time that each apartment remained uninhabitable after the landlord had notice of the defects. The measure of damages would be the difference between the value of each apartment as warranted and the rental value of each apartment in its defective condition.\nThe cases are remanded to the Superior Court for further proceedings consistent with this opinion.\nSo ordered.\nThe defendant tenants are Ruth Hemingway and Ruth Briggs.\nThe tenants claimed that their apartments had, among other defects, leaking ceilings, wet walls, improper heating, and broken doors and windows, and were infested with rodents and vermin.\nSince Ruth Briggs vacated her apartment on September 30, 1970, her exceptions in essence are based on the finding by the trial judge for the landlord for $1,200.\nGeneral Laws c. 239, § 8A, as appearing in St. 1967, c. 420, § 1, states in pertinent part: “There shall be no recovery under this chapter, pursuant to a notice to quit for nonpayment of rent ... of any tenement rented or leased for dwelling purposes if such premises are in violation of the standards of fitness for human habitation established under the state sanitary code . . . and if such violation may endanger or materially impair the health or safety of persons occupying the premises; provided, however (1) that the person occupying the premises, while not in arrears in his rent, gave notice in writing to the person to whom he customarily paid his rent (a) that he would, because of such violation, withhold all rent thereafter becoming due until the conditions constituting such violations were remedied and (b) that a report of an inspection of such premises has been issued by the board of health . . . which report states that such violation exists and that it may endanger or materially impair the health or safety of persons occupying said premises; (2) that such violation was not caused by the person occupying the premises . . .; (3) that the premises are not situated in a hotel or motel; nor in a lodging house or rooming house wherein the person occupying the dwelling unit has maintained said occupancy for less than three consecutive months; and (4) that the conditions constituting the violation can be remedied without the premises being vacated. . . .”\nIn 1969, the Legislature amended § 8A to allow written notification of Code violations to the landlord from the appropriate local agency (such as the Boston housing inspection department) to satisfy the tenant’s obligation to notify the landlord. Since they began withholding rent after the landlord had received notice of the Code violations, the tenants in the instant cases could have properly raised c. 239, § 8A, as a defence if the amendment applied to them. However, the amendment was enacted after the tenants had started to withhold rent and therefore did not apply to them. See St. 1969, c. 355, approved May 27, 1969, effective ninety days thereafter.\nArticle II of the State Sanitary Code was originally adopted by the Department of Public Health on September 13, 1960, in the exercise of authority granted by G. L. c. Ill, § 5. By St. 1965, c. 898, §§ 1, 3, that authority was eliminated from § 5 and placed instead in a new § 127A inserted in c. 111. Section 127A was amended by St. 1971, c. 261.\nBoth G. L. c. 111, §§ 127C-127F and 127H, and G. L. c. 239, § 8A, were approved on the same day, January 7,1966.\nGeneral Laws c. Ill, §§ 127A-127H, expressly provides that any balance of rental payments remaining after the costs of repairs have been deducted is returned to the lessor. Though there is no comparable provision in c. 239, § 8A, we noted in Appelstein v. Quinn, 361 Mass. 861, that c. 239, § 8A, “does not permanently deprive a landlord of the rent but only permits the tenant to withhold it until the stated violations are corrected.”\nHowever, c. 239, § 8A, and c. Ill, §§ 127A-127H, have not abrogated the independent covenants rule. See Rubin v. Prescott, 362 Mass. 281, 286, fn. 4, where we noted that the State Sanitary Code did not abrogate the lessor’s common law rights to recover possession when the premises did not comply with the minimum standards of the Code for dwelling purposes. If the Sanitary Code did not abrogate the common law rule of independent covenants, it seems logical to conclude that remedial legislation designed to aid enforcement of the Code has not repealed the common law rule. For similar treatment of a New York rent withholding statute’s impact on landlord-tenant common law, see Davar Holdings, Inc. v. Cohen, 255 App. Div. (N. Y.) 445, affd. 280 N. Y. 828; Matter of Himmel v. Chase Manhattan Bank, 47 Misc. 2d (N. Y.) 93, 96; Matter of De Koven v. 780 West End Realty Co. 48 Misc. 2d (N. Y.) 951; 176 East 123rd St. Corn. v. Flores, 65 Misc. 2d (N. Y.) 130.\nThe Boston Housing Authority argues that even if there is an implied warranty of habitability, c. 239, § 8A, offers tenants the exclusive remedy for its breach. However, there is no evidence to indicate that the Legislature intended the limited\"" remedy afforded by c. 239, § 8A, to exclude appropriate additional remedies created by changes in the common law.\nThis conclusion is supported by recent judicial decisions to reform the landlord-tenant common law rules in States which have rent withholding statutes. All of these decisions are predicated on the implied assumption that remedial legislation designed to promote safe and sanitary housing does not preclude the courts from fashioning new common law rights and remedies to facilitate the policy of safe and sanitary housing embodied in the withholding statutes. See Hinson v. Delis, 26 Cal. App. 3d 62; Amanuensis Ltd. v. Brown, 65 Misc. 2d (N.Y.) 15; Jackson v. Rivera, 65 Misc. 2d (N. Y.) 468; Morbeth Realty Corp. v. Rosenshine, 67 Misc. 2d (N. Y.) 325. In Jack Spring, Inc. v. Little, 50 Ill. 2d 351, the Illinois Supreme Court expressly rejected the landlord’s claim that the tenant’s request for far reaching changes in landlord-tenant law “is appropriate for legislative rather than judicial consideration.” P. 357. Despite the Legislature’s passage of a rent withholding statute, 111. Rev. Sts. c. 23, § 11-23, that court noted that there was no need to defer to future legislative' reforms of old common law rules in the landlord-tenant area. “A rule which in its origin was the creation of the courts themselves, and was supposed in the making to express the mores of the day, may be abrogated by courts when the mores have so changed that perpetuation of the rule would do violence to the social conscience. . . . This is not usurpation. It is not even innovation. It is the reservation for ourselves of the same power of creation that built up the- common law through its exercise by the judges of the past.” Justice Cardozo, The_ Growth of the Law, c. IV, p. 136, cited at p. 367 of the Jack Spring case.\nWe face a slightly different situation from that which confronted the court in the Javins case, supra. At the time of the Javins decision, the Washington, D. C., Code did not contain any rent withholding provisions which the tenants could implement when their apartments were in uninhabitable condition. The Code merely provided for criminal sanctions by public agencies when landlords maintained their apartments in violation of the Code. Thus, the Javins case holding, which granted tenants private rent withholding powers and contractual remedies which could abate or extinguish their rental obligations, constituted a judicial reform of landlord-tenant common law which radically expanded the scope of remedies previously available to the tenant under the housing codes. Since the Massachusetts Legislature has already passed a rent withholding statute, a decision to grant alternative rent abatement or suspension remedies would constitute a far less radical alteration of existing tenant remedies than that accomplished by the Javins decision.\nSee Javins v. First Natl. Realty Corp. 428 F. 2d 1071 (D. C. Cir.) ; Hinson v. Delis, 26 Cal. App. 3d 62; Lemle v. Breeden, 51 Hawaii 426; Jack Spring, Inc. v. Little, 50 Ill. 2d 351; Kline v. Burns, 111 N. H. 87; Marini v. Ireland, 56 N. J. 130; Morbeth Realty Corp. v. Rosenshine, 67 Misc. 2d (N. Y.) 325; Pines v. Perssion, 14 Wis. 2d 590; Notes, 40 Fordham L. Rev. 123; Notes, 56 Cornell L. Rev. 489; Recent Developments, (1970) Duke L.J. 1040.; Notes, 21 Drake L, Rev. 300; 52 Mass. L. Q. 205. See also American Bar Foundation Tent. Draft-Model Residential Landlord-Tenant Code (1969); Uniform Residential Landlord-Tenant Act, §§ 2.103, 2.104 (1972).\nSince these cases did not raise any question of tort liability,_ we need not consider the effect this continuing warranty of habitability may have on the landlord’s liability for injuries to the tenant or his guests which result from conditions rendering the apartment uninhabitable.\nBy discussing the outline of remedies now available to a tenant, we do not purport to forecast all the changes that will arise from our new common law rule.\nA housing inspection report which certifies that Code violations exist which “may endanger or materially impair the health or safety, and the well-being of any tenant therein or persons occupying said property” would constitute evidence of a material breach and the landlord’s notice of that breach.\nThe State Sanitary Code’s minimum standards of fitness for human habitation and any relevant local health regulations provide the trial court with the threshhold requirements that all housing must meet. Proof of any violation of these regulations would usually constitute compelling evidence that the apartment was not in habitable condition, regardless of whether the evidence was sufficient proof of a constructive eviction under our old case law. However, the protection afforded by the implied warranty of habitability does not necessarily coincide with the Code’s requirements. There may be instances where conditions not covered by the Code regulations render the apartment uninhabitable. Although we have eliminated the defence of constructive eviction in favor of. a warranty of habitability defence, a fact situation, which could have demonstrated a constructive eviction, would now be sufficient proof of a material breach of the warranty of habitability, regardless of whether a sanitary code violation existed or not. On the other hand, there may be instances of isolated Code violations which may not warrant a decision that the premises are uninhabitable. The trial court must have the same broad discretion to determine whether there is a material breach given the special circumstances of each casé as that accorded the board of health under Reg. 39 of the Code which allows the board to vary the application of any provision with respect to a particular case.\nWhere one tenant gives the landlord notice of a defect which affects the habitability of other tenant’s apartments, the other tenants may rely on the first tenant’s notice.\nIf the premises are uninhabitable at the beginning of the lease’s term and the tenant decides to rescind the lease immediately, factors (c) and (d) should not be considered because the landlord is obligated to deliver the premises in a condition fit for immediate occupation.\nIt is doubtful that a tenant at will, with a brief term between rent days, would utilize this remedy.\nThe tenant may avoid the risk of eviction by paying his rent when due under protest and then sue the landlord to recover some or all of it because of the landlord’s breach of his warranty.\nThis remedy is quite similar to the one we afforded the tenant in Charles E. Burt, Inc. v. Seven Grand Corp. 340 Mass. 124, 130. “The appropriate measure of damage thus is the difference between the value of what Burt should have received and the fair value of what it has in fact received.” See Grennan v. Murray-Miller Co. 244 Mass. 336, 339; Daniels v. Cohen, 249 Mass. 362, 364; Parker v. Levin, 285 Mass. 125, 128; Corbin, Contracts, §§ 1105, 1108, 1114, 1115; McCormick, Damages, § 142, p. 586; Williston, Contracts (3d ed.) §§ 1404, 1455, et seq. See also Am. Law of Property, §§ 3.51-3.52."", ""type"": ""majority"", ""author"": ""Tauro, C.J.""}, {""text"": ""Quirico, J.\n(concurring in part and dissenting in part with whom Reardon and Wilkins, JJ., join). These are two actions of summary process under G. L. c. 239 against tenants who admittedly had failed to pay their rent for dwelling units for a number of months. In each action the landlord seeks to recover possession of the dwelling unit and also the unpaid rent.\nThe tenants defend principally on the following grounds stated in each of their similar answers: “that prior to her refusal to pay rent, plaintiff was in violation of the State Sanitary Code including . . . [various conditions allegedly violating specifically cited regulations of the Code], that the Housing Inspection Department had inspected defendant’s apartment . . . and found said apartment to be in violation of the State Sanitary Code and that the conditions . . . [which allegedly violated the Code] were such that ‘said violations may endanger or materially impair the health or safety and the well being of any tenant therein . . .;’ and that said violations and conditions . . . render the apartment uninhabitable and such conditions continue today.” The tenants’ allegations of specific violations of the Code were based on written inspection reports issued by appropriate housing inspectors describing those same conditions and concluding “that said violations may endanger or materially impair the health or safety, and the well-being of any tenant therein or persons occupying said property.”\nThe answer of each tenant alleges that the landlord in these cases is “a public body organized and existing under the Housing Laws of Massachusetts which holds itself out to the public and its tenants as conforming to the law and specifically conforming to the State Sanitary Code . . . [and other cited statutes and regulations] requiring it to keep its premises in a safe and sanitary and habitable condition; and that the failure of [the] plaintiff herein ... to lease and maintain the premises in such condition is a breach of its implied warrantee [sic] of habitability to defendant and that defendant’s obligation to pay rent is dependent upon plaintiff’s performance of its Warrantee [sic] of Inhabitability and providing defendant with a home according to Code Standards, State and Federal Laws.”\nThe answer of each tenant also “claims the protection of . . . [G. L. c. 239, § 8A, inserted by St. 1965, c. 888, as amended] which states that a defendant may not be evicted for non-payment of rent where the plaintiff is in violation of the State Sanitary Code and a proper inspection of said premises has been made and the tenant has been paid up in her rent prior to said inspection; [and] [t]hat the defendant has complied with . . . [c. 239, § 8A] and that therefore the plaintiff cannot recover.” As to each tenant the trial judge found that she had failed to give the written notice required by § 8A, that she “would, because of such [Code] violations, withhold all rent thereafter becoming due until the conditions constituting such violations were remedied.” He then properly ruled that § 8A “is not available to the defendant as a defense to this proceeding.” See Rubin v. Prescott, 362 Mass. 281, 287-289.\nHaving thus failed to qualify for the defence which would otherwise have been available to them under § 8A, the tenants ask this court to give them relief by holding (a) that the landlord impliedly warranted the fitness of their apartments for habitation, (b) that the landlord violated the warranty, and (c) that the landlord’s obligation to comply with the warranty and their obligation to pay their rent are mutually interdependent. Despite the tenants’ use of the words “implied warranty of fitness” it is clear from their answers and requests for rulings, and from the entire record before us, that their defence and request for relief are based entirely on the existence of conditions which they contend constituted violations of the Code. I do not understand their position to be that the landlord owed them a duty to provide or maintain for them apartments which exceeded, or included more than, that which is required by the minimum standards of the Code.\nThe situation before us is that tenants who have admittedly withheld payment of rent for apartments which they continued to occupy despite alleged violations of the Code now take the position that by reason of the violations the landlord may neither evict them nor recover any rent from them. The opinion of the court holds that the tenants are subject to eviction because of their failure to pay rent, but that their liability for unpaid rent is limited to the reasonable value, if any, of their apartments, considering the alleged violations of the Code. That holding is sufficient to dispose of the only issues raised in these cases, and to that extent I concur with the opinion.\nHowever, the opinion of the court purports to declare a set of rules which go beyond the facts, issues and necessities of these cases. While I recognize that it is proper to discuss some of the far reaching implications and probable consequences of the holding, a clear line should be drawn betwen the holding and the additional discussion lest the latter be assumed, under the doctrine of stare decisis, to be a present commitment on questions not now being decided. Swan v. Superior Court, 222 Mass. 542, 545. Erickson v. Ames, 264 Mass. 436, 444. Old Colony Trust Co. v. Commissioner of Corps. & Taxn. 346 Mass. 667, 674-676. Additionally, I am unable to agree with some statements in the opinion which I think go beyond the holding necessary for the decision of these cases. Those statements from which I dissent will be discussed in a later portion of this opinion.\nI agree with the majority of the court that, at least as to dwelling units, the time has come to reconsider the rule so long imbedded in our law of landlord and tenant that “[t]here is no implied agreement, apart from fraud, that the demised premises are or will continue to be fit for occupancy or safe and in good repair [and that] [t]he tenant takes the premises as he finds them and there is no obligation on the landlord to make repairs.” Fiorntino v. Mason, 233 Mass. 451, 452. Foster v. Peyser, 9 Cush. 242, 246-247. Cowen v. Sunderland, 145 Mass. 363, 364. Kearines v. Cullen, 183 Mass. 298, 300. Walsh v. Schmidt, 206 Mass. 405, 406. Mills v. Swanton, 222 Mass. 557, 559. Conahan v. Fisher, 233 Mass. 234, 237-238. Bergeron v. Forest, 233 Mass. 392, 398. Borden v. Hirsh, 249 Mass. 205, 210. Bolieau v. Traiser, 253 Mass. 346, 348. Shepard v. Worcester County Inst. for Sav. 304 Mass. 220, 221. Hart v. Windsor, 12 M. & W. 68.\nThe record of the past century reveals a striking contrast between the judiciary and the Legislature in their respective attitudes toward the need to insure to occupants of dwelling units a reasonable opportunity to obtain at least the minimum measure of shelter, safety (including protection from exposure to health hazards), facilities and services basic to the changing exigencies of a developing society. As early as 1871 the Legislature enacted a comprehensive set of regulations (St. 1871, c. 280) governing all types of buildings, particularly dwelling houses, tenements and lodging houses, in the city of Boston. In 1872 it enacted a statute (St. 1872, c. 243) which authorized other cities and towns to “prescribe rules and regulations for the inspection, materials, construction, alteration and safe use of buildings and structures.” These were but the forerunners of a continuing series of statutes prescribing, or permitting municipalities to prescribe, detailed minimum physical standards and requirements for dwelling units and other buildings and providing criminal penalties for violations. Many of these statutes, in their amended form, ultimately became part of G. L. cc. 143, 144 and 145.\nSince 1960 dwelling units have been subject to the State Sanitary Code adopted by the Massachusetts Department of Public Health under authority delegated to it by the Legislature (G. L. c. Ill, § 5, later repealed, and § 127A). The Code, which has the force of law and applies throughout the Commonwealth, fixes minimum standards of fitness of structures for human habitation. It does so in great detail and to an extent never before incorporated in any statute. It expressly provides that “[n]o person shall ... let to another for occupancy any dwelling, dwelling unit, or rooming unit, for the purpose of living, sleeping, cooking, or eating therein, which does not comply” with its provisions, and further provides a criminal penalty for violation of its provisions. It expressly places the burden on the owner to comply with the prescribed minimum physical standards for rented dwelling units. The Code is not solely penal in nature. By G. L. c. Ill, § 127C, as amended by St. 1969, c. 242, and § 127H, as amended by St. 1972, c. 201, a tenant may file a petition in the District or Superior Court to enforce compliance with the Code by the landlord; and by § 127K, inserted by St. 1968, c. 404, § 2, any agreement by the tenant to waive that right is declared to be against public policy and void. Both the enabling statute (G. L. c. Ill, § 127A) and the Code (Art. I, Reg. 2.1) recognize the authority of municipalities to adopt local regulations containing requirements stricter than those contained in the Code. No such local regulations are involved in the cases before us.\nA recent development indicating still further legislative authorization of regulation of buildings and structures, not limited to dwelling units, is found in G. L. c. 23B, §§16 through 23, inserted by St. 1972, c. 802, § 1, which has as an ultimate goal the adoption and enforcement of a uniform State building code which shall take effect throughout the Commonwealth on January 1, 1975. (St. 1972, c. 802, § 67.)\nDuring the past century this court has continued to construe agreements for the rental of dwelling units according to historic and traditional common law concepts of property law, including the firmly imbedded rule of caveat emptor. It has continued to do so even in the face of statutes such as St. 1907, c. 550, § 127, applicable only in Boston, providing that: “Every structure and part thereof and appurtenant thereto shall be maintained in such repair as not to be dangerous. The owner shall be responsible for the maintenance of all buildings and structures. The lessee under a recorded lease shall be deemed the owner under the provisions of this act.” In commenting on this statute in Palmigiani v. D’Argenio, 234 Mass. 434, 436, involving a tenancy at will, this court said: “It is plain that there is no express repeal of the rule at common law relating to contracts creating a tenancy at will, under which no liability is imposed on the landowner for obvious defects, or for want of repair, unless he contracts to keep the premises in a safe condition, and to make suitable repairs during the tenancy. . . . The statute not having attempted to regulate or modify the.contractual relations of the parties it should not be broadened, or a construction adopted by implication which would materially limit the rights of parties to enter into such lawful contracts as they please. It would be going far to say that the Legislature intended to do away with fundamental law.” Speaking of the same statute in Vallen v. Cullen, 238 Mass. 145, 147-148, the court said that it “does not in express terms attempt to modify or affect in any way the relations between landlord and tenant as they exist at common law.” For other cases to the same effect and involving the same statute, though different sections thereof, see Borden v. Hirsh, 249 Mass. 205, 210, Wynn v. Sullivan, 294 Mass. 562, 566, and Heilbronner v. Scahill, 303 Mass. 336, 337-338. To the same effect, but involving other statutes, see Garland v. Stetson, 292 Mass. 95,100-103, involving regulations on elevators under authority of G. L. c. 143, §§ 68-69, and Richmond v. Warren Inst. for Sav. 307 Mass. 483, 485, involving G. L. c. 143, § 23, prohibiting the obstruction of stairways.\nThe net result of this court’s interpretation of these statutes was (a) that the owner of a dwelling unit which did not comply with the prescribed minimum standards could be prosecuted criminally, (b) that if he rented the unit without correcting the violations the statutes did not per se impose an obligation on him for the benefit of the tenant to correct the violations, and (c) that unless there was an express agreement to the contrary, the tenant took the unit subject to all existing violations and if he wanted them corrected the burden of doing so was on him. That result, when coupled with the operation of the further rule that even if the landlord expressly agreed to make repairs such an agreement was independent from the tenant’s obligation to pay the rent, constitutes a formidable judicial roadblock preventing the tenant from having any practical means of obtaining the benefits which the statutes were designed and intended to give him.\nThe opinion of the court in the present cases does not discuss or otherwise deal with the rule quoted above from Palmigiani v. D’Argento, 234 Mass. 434, 436. As the first step in the removal of the roadblock discussed above I would reverse that rule and hold instead (a) that the various statutes, ordinances, by-laws, rules, regulations and codes prescribing minimum standards for dwelling units impose on the landlord, for the benefit of his tenants, an obligation to comply with those minimum standards, and (b) that by renting such a unit the landlord impliedly agrees with his tentant (i) that at the time of the renting the unit complies with those standards and (ii) that during the term of the renting he will do whatever such legal provisions require him to do for compliance with such standards. Such a holding is necessary to insure that tenants shall enjoy the rights which these various legal provisions have created for their benefit. Other courts have made similar holdings.\nThe 1922 case of Altz v. Leiberson, 233 N. Y. 16, 18, involved a comprehensive statute, commonly called the “Tenement House Law,” which provided in part: “Every tenement house and all the parts thereof shall be kept in good repair.” The plaintiff was injured by the falling of a ceiling in her apartment. The landlord argued that the statute had not changed the common law under which no duty rested on him to repair the rooms demised. In rejecting that argument, Judge Cardozo said at pp. 18-19: “The command of the statute, directed, as it plainly is, against the owner . . . has thus changed the ancient rule. . . . We may be sure that the framers of this statute, when regulating tenement life, had uppermost in thought the care of those who are unable to care for themselves. The legislature must have known that unless repairs in the rooms of the poor were made by the landlord, they would not be made by any one. The duty imposed became commensurate with the need. The right to seek redress is not limited to the city or its officers” (emphasis supplied). The same language was quoted with approval in Javins v. First Natl. Realty Corp. 428 F. 2d 1071, 1080-1081 (D. C. Cir.), where the court said further that the comprehensive set of housing regulations then in effect “creates privately enforceable duties,” and that “by signing the lease the landlord has undertaken a continuing obligation to the tenant to maintain the premises in accordance with all applicable law.” To the same effect see also Whetzel v. Jess Fisher Management Co. 282 F. 2d 943, 950 (D. C. Cir.), and Kanelos v. Kettler, 406 F. 2d 951, 953 (D. C. Cir.).\nIn the case of Schiro v. W. E. Gould & Co. 18 Ill. 2d 538, the defendants agreed in writing to erect a dwelling on a lot and then convey it to the plaintiff. The agreement was silent as to sewer and water connections. The city building code required the new house to be connected directly to the city sewer and water systems. The defendants connected it to the sewer and water installations of a house on the adjoining lot. The court said, at pp. 544-545: “It is settled law that all contracts for the purchase and sale of realty are presumed to have been executed in the light of existing law, and with reference to the applicable legal principles. . . . Thus, the law existing at the time and place of the making of the contract is deemed a part of the contract, as though expressly referred to or incorporated in it. . . . Consequently, the courts, in construing the existing law as part of the express contract, are not reading into the contract provisions different from those expressed and intended by the parties . . . but are merely construing the contract in accordance with the intent of the parties. . . . Applying this established law to the instant case, it is evident that the contract ... included, as an integral part, the relevant provisions of the city code in existence at the time the contract was executed. The requirements of that code were, therefore, as much a part of the contract as if they had been enumerated by the parties.”\nThe above statement was quoted with approval in Jack Spring, Inc. v. Little, 50 Ill. 2d 351, 361-362, where the court held that in the rental of certain dwellings the landlord impliedly warrants that the premises comply with the city’s building code. A dissenting opinion in the Jack Spring case contains the following observations, at pp. 374-375: “The housing code of the city of Chicago . . . imposes certain obligations upon an owner of dwelling units to repair and maintain the same. In keeping with this expression of legislative intent I would imply in every lease covering residential property within the purview of the housing code ... an implied covenant by the lessor to repair the premises in keeping with the requirements of the housing code. . . . Possibly my preference for the use of the term ‘implied covenant’ instead of ‘implied warranty of habitability’ as used by the majority is only a matter of semantics. However, I prefer the covenant designation because it definitely indicates an obligation or an undertaking by the lessor as part of the lease' itself. The term ‘warranty,’ however, generally carries with it the idea of a holding out or a representation thereby inducing another to act. (8 Williston on Contracts, 3d ed. (Jaeger), sec. 970.) Although the concept of a representation or an inducement may be appropriate in cases where the lessee has been justified in abandoning the premises because of its original condition, as in Lemle [Lemle v. Breeden, 51 Hawaii 426] and Pines [Pines v. Perssion, 14 Wis. 2d 590], to apply the term to a simple situation concerning repairs seems to be needlessly indulging in what may possibly be a confusing fiction.”\nThe second step required for the removal of the roadblock is the reversal of the present common law rule that the obligation of the tenant to pay rent and the obligation, if any, of the landlord to repair or maintain the rented premises are independent, and the substitution therefor of a new rule that such obligations are substantially mutually interdependent. The opinion of the court accomplishes this. However, the second step without the first will apply only to those very few cases in which the landlord has expressly agreed to repair or maintain the rented premises, and it will not benefit the present tenants, and the many others similarly situated, whose landlords have not expressly agreed to do so and against whom the present law implies no obligation to do so. The present tenants and others similarly situated can benefit only if this court also takes the first step described above, thereby reversing the present common law rule that “[t]here is no implied agreement, apart from fraud, that the demised premises are or will continue to be fit for occupancy or safe and in good repair [and] the tenant takes the premises as he finds them and there is no obligation on the landlord to make repairs.” Fiorntino v. Mason, 233 Mass. 451, 452.\nThe point at which I dissent from the opinion of the court is where it attempts to accomplish the first step by resort to an implied warranty of the fitness of the rented dwelling unit instead of by the implication of an agreement that the unit will comply with the minimum standards required therefor by law. The court states the new rule to be that the landlord renting a dwelling unit impliedly warrants to the tenant “that the premises are fit for human occupation . . . [which] ‘. . . means that at the inception of the rental there are no latent [or patent] defects in facilities vital to the use of the premises for residential purposes and that these essential facilities will remain during the entire term in a condition which makes the property livable.’ ” The court makes no attempt to define what is required to make a dwelling unit “fit for human occupation,” or to make “the property livable,” or to define what may constitute a material breach of the new implied warranty. It suggests that broad discretion be left to trial courts to decide these questions on a continuing case by case basis.\nI dissent from the statement of such a broad and sweeping new rule for the reason, in part, that it would be sufficient for the decision of these cases to hold that the landlord, in renting the apartments to the tenants, impliedly agreed that the apartments would comply with the several requirements of the Code which the tenants allege were violated, and that if the tenants sustain their burden of proof of such violations their liability for the unpaid rent may be reduced to the fair value of their use and occupancy of the apartments in their deficient condition.\nI dissent from the stated new rule for the further reason that the basis and scope of the landlord’s obligation thereunder are related to the court’s implication of a new and otherwise undefined warranty of fitness of the rented premises for human habitation. The present situation in this Commonwealth is not one of a void in the law with reference to what is required of dwelling units to constitute “fitness for human habitation” (G. L. c. Ill, § 127A). As already noted in this opinion, we have had considerable legislative and administrative attention and action on this subject. We have the numerous statutes passed by the Legislature. Municipalities have been authorized to enact ordinances or by-laws and to adopt rules and regulations thereon. The Department of Public Health, by authority expressly delegated to it by the Legislature, has adopted the State Sanitary Code having the force and effect of law throughout the State. In short, the field has been occupied, and the void, if any, has been filled. It remains for the courts only to accommodate their rules of common law to enable tenants to enforce against landlords these mandatory, detailed, precise and easily understandable minimum standards of fitness of dwelling units for human occupation, rather than to create a new implied and undefined obligation which will require years of litigation to develop and define.\nSince it is clear that mandatory minimum standards for housing units as prescribed by statutes, ordinances, rules, regulations or codes having the force and effect of law cannot be waived or otherwise undercut by agreement of the parties to a tenancy, it appears that the opinion contemplates that the new implied warranty may require even higher standards to satisfy its requirement of fitness “for human occupation.” Thus these identical words would have one meaning under applicable statutes, ordinances, rules, regulations or codes, and they might have a different meaning under the proposed implied warranty. The court’s opinion itself says, in footnote 16, that “the protection afforded by the implied warranty of habitability does not necessarily coincide with the Code’s requirements.” This deliberate creation of a presently undefined, indeterminable and uncharted area of potential rights and liabilities of landlords and tenants can serve only to vex them and to produce litigation otherwise avoidable.\nIn the past dozen years we have witnessed a growing number of decisions and other legal writings which seemingly compete in their use of rhetoric and eloquence to inveigh against the “old common law” rules relating to landlords and tenants and argue that the rules which were developed for use in a “rural agrarian society” now serve only to victimize and shackle the apartment dwellers of our modern “urban industrial society.” They make frequent use of the words “implied warranty of habitability” and in most instances they make no attempt to explain or define what is included in such a warranty. In its present opinion the court seems to rely considerably on these decisions and writings, and the opinion quotes from some of them at length. Although some of the decisions on which the court seems to place its greatest reliance include in their discussions general language about the implication of a warranty of habitability, it is clear from the express language of their holdings that they imply a warranty of habitability which is limited to the minimum standards prescribed by applicable statutes, ordinances, by-laws, codes, rules and regulations.\nThe opinion of the court appears to rely principally on the decision in Javins v. First Natl. Realty Corp. 428 F. 2d 1071 (D. C. Cir.), and it quotes at length from what I believe to be dictum in that case. The facts of that case were very much like those of the present cases. The holding of that case is stated near the beginning of the opinion at pp. 1072-1073 to be that “We . . . hold that a warranty of habitability, measured by the standards set out in the Housing Regulations for the District of Columbia, is implied by operation of law into leases of urban dwelling units covered by those Regulations and that breach of this warranty gives rise to the usual remedies for breach of contract” (emphasis supplied), and the holding is repeated near the end of the opinion at p. 1082 in the following language: “We therefore hold that the Housing Regulations imply a warranty of habitability, measured by the standards which they set out, into leases of all housing that they cover” (emphasis supplied).\nThe opinion of the court also cites the 1972 case of Jack Spring, Inc. v. Little, 50 Ill. 2d 351, as standing for the rejection of the common law rule and for implying a warranty of habitability. However, the holding in that case at p. 366 was: “We find the reasoning in Javins persuasive and we hold that included in the contracts, both oral and written, governing the tenancies of the defendants in the multiple unit dwellings occupied by them, is an implied warranty of habitability which is fulfilled by substantial compliance with the pertinent provisions of the Chicago building code” (emphasis supplied). In the later case of Gillette v. Anderson, 4 Ill. App. 3d 838, 841-842, the court in applying the rule of the Jack Spring case said: “[T]he oral lease . . . included an implied warranty of habitability and the standards of that warranty would be those standards set forth in those sections of the ordinances of Waukegan related to housing” (emphasis supplied).\nThe case of Hinson v. Delis, 26 Cal. App. 3d 62, 71, cited in the court’s opinion, holds only that a tenant proving that the dwelling unit which she occupied was in violation of the applicable code was entitled to a declaration that she “is obliged to make rental payments only after the defendant [landlord] complies with his duty to substantially obey the housing codes and make the premises habitable.”\nIn the 1972 case of Mease v. Fox, 200 N. W. 2d 791, 796 (Iowa), the court said that “the implied warranty we perceive in the lease situation is a representation there neither is nor shall be during the term a violation of applicable housing law, ordinance or regulation which shall render the premises unsafe, or unsanitary and unfit for living therein.”\nThe opinion of the court also cites and quotes from the decisions in Pines v. Perssion, 14 Wis. 2d 590, and Kline v. Burns, 111 N. H. 87. Although the court in each of these cases said it was implying a warranty of habitability of the dwelling unit in question, it should be noted that in each case the facts held to constitute a breach of the warranty consisted of violations of the building or housing codes. The relationship between the court’s decision in the Pines case and legislative and administrative housing standards is obvious from the following language at pp. 595-596 of the decision: “Legislation and administrative rules, such as the safe-place statute, building codes, and health regulations, all impose certain duties on a property owner with respect to the condition of his premises. Thus, the legislature has made a policy judgment — that it is socially (and politically) desirable to impose these duties on a property owner — which has rendered the old common-law rule obsolete. To follow the old rule of no implied warranty of habitability in leases would, in our opinion, be inconsistent with the current legislative policy concerning housing standards.” For other cases to the same effect, see Marini v. Ireland, 56 N. J. 130, and Lund v. MacArthur, 51 Hawaii 473. All four of these cases could have been decided in favor of the tenants on the basis of the landlord’s violation of applicable building or housing codes, as could the cases now before us, without imposing a broader warranty. See Schoshinski, Remedies of the Indigent Tenant: Proposal for Change, 54 Georgetown L. J. 519, 523, for discussion of “Implied Warranty of Habitability Based on Housing Regulations.”\nIf it were now necessary or appropriate to indicate by dictum what the ultimate scope of our new rule might be, beyond the necessities of the present cases, I would state it to be (a) that by renting a dwelling unit a landlord impliedly agrees, with respect to the minimum standards prescribed by any applicable laws, regulations or codes (such as the State Sanitary Code) having the force and effect of law, (i) that the rented unit complies with such standards at the time of the renting, and (ii) that he will do whatever such laws, regulations or codes require a landlord to do for compliance with such standards during the term of the renting, (b) that the landlord’s obligation to provide and maintain premises which comply with those minimum standards and the tenant’s obligation to pay the agreed rent are substantially mutually interdependent, (c) that if the tenant shall fail to pay the agreed rent when due the landlord may evict him notwithstanding the tenant’s claim or allegation that the landlord has failed to comply with the prescribed minimum standards, and (d) that if the landlord fails in any material respect to comply with the prescribed minimum standards the tenant may (i) elect to remain in possession, paying the full amount of the agreed rent under protest based on such violation, and then bring an action to recover the excess of the amount paid over and above the fair value of the occupancy of the deficient premises, or (ii) vacate the premises, thereby terminating the tenancy, and as to rent unpaid for any period of occupancy the landlord may recover the fair value of such occupancy of the deficient premises. If such a rule were adopted, it would, of course, require further attention to such matters as notice to the landlord of Code violations arising after the letting, the time permitted the landlord to correct the violations, and the nature, extent or duration of a violation necessary to entitle the tenant to vacate or exercise other remedies available to him by reason of the violation.\nAdmittedly the rule suggested above does not cover the situation constituting a “constructive eviction” of a tenant which is discussed in the court’s opinion, but that is because the facts of the present cases do not involve such a situation. There is nothing to suggest that our courts which have heretofore given relief to a tenant who is the victim of a “constructive eviction” will not continue to do so in an appropriate case. Historically the orderly development and evolution of the common law has been accomplished primarily by the judicial decision of issues actually in controversy, with due consideration for the consequences of the decision, but without trying to anticipate and simultaneously decide all possible related questions which might arise later.\nRuth Briggs, the tenant in the companion case, vacated her apartment after trial of her case in the Superior Court. Thus the only issue in her case is her liability for the unpaid rent.\nDespite these repeated statements that such statutes are penal in nature and that they do not “modify or affect in any way the relations between landlord and tenant as they exist at common law,” this court has nevertheless said in many cases, including most of those cited above, that in actions against the landlord for injuries sustained on the rented premises the violation of such a statute may, in certain circumstances, be evidence of the landlord’s negligence.\nThis obvious limitation on the total interdependence of the landlord’s obligation to repair and maintain the rented premises and the tenant’s obligaton to pay rent also appears in the opinion of the court. It is a reasonable limitation in view of the fact that a tenant, if he wishes to remain in possession and either withhold payment of rent or pay rent into court, may do so to the extent permitted by G. L. c. 111, § 127F, inserted by St. 1965, c. 898, § 3, § 127H, as amended by St. 1972, c. 201, and § 127L, inserted by St. 1972, c. 799; or by G. L. c. 239, § 8A, as amended by St. 1969, c. 355. As a matter of policy it is not desirable that a tenant who does not avail himself of these statutory remedies be permitted to continue to occupy the landlord’s premises indefinitely, without paying the rent to the landlord or depositing it in court when due, while prolonged legal proceedings to establish the rights and liabilities of the parties await final disposition by the courts."", ""type"": ""concurring-in-part-and-dissenting-in-part"", ""author"": ""Quirico, J.""}], ""attorneys"": [""Joseph S. Murphy, Jr., for the defendants."", ""George F. Mahoney for the plaintiff.""], ""corrections"": """", ""head_matter"": ""Boston Housing Authority vs. Ruth Hemingway (and a companion case).\nSuffolk.\nNovember 8, 1972.\nMarch 5, 1973.\nPresent: Tauro, C.J., Reardon, Quirico, Braucher, Hennessey, & Wilkins, JJ.\nLandlord and Tenant, Habitability, Lease as contract, Dependence of obligations, Rent, State Sanitary Code, Recovery of possession. Public Health. Housing.\nIn an action of summary process by a landlord against a tenant for failure to pay rent, where the tenant failed to give notice to the landlord that rent would be withheld because there were violations of the State Sanitary Code which rendered the leased premises uninhabitable, the tenant was foreclosed from asserting a defence under G. L. c. 239, § 8A, as appearing in St. 1967, c. 420, § 1, even though the landlord had been issued a report by the city housing inspection department that such violations existed. [186-187]\nDiscussion of the nature of a letting of property and the parties’ obligations to each other at common law and a review of the authorities pertaining thereto. [188-191]\nDiscussion of modern legislation and regulations thereunder in the landlord-tenant area. [191-196]\nThe enactment of G. L. c. 239, § 8A, which provides tenants with a defence to actions by landlords for failure to pay rent where rent is withheld because of violations of the State Sanitary Code, does not preclude the courts from creating new common law rights and remedies. [196, n. 10]\nThe old common law rule that a lease was a conveyance of an estate in real property for a term and the old independent covenants rule have outlived their usefulness; the modern view of the law of landlord and tenant favors an approach which recognizes a lease as essentially a contract between a landlord and a tenant in which the landlord promises to deliver and maintain the demised premises in a habitable condition and the tenant promises to pay rent for such habitable premises, and their promises are interdependent. [196-199]\nUnder a rental of premises for dwelling purposes, by a written or oral lease, for a specified time or at will, there is an implied warranty by the landlord that the premises are fit for human occupation and will remain, so [199]; Quirico, Reardon and Wilkins, JJ., were of opinion that the warranty “fit for human occupation” was too broad and insufficiently defined, and that the landlord’s obligation should be related to the statutes and other provisions having the force of law which prescribe minimum standards for dwellings [213-220],\nStatement of remedies of a tenant of a dwelling for breach by the landlord of his implied warranty of habitability of the dwelling. [199-202]\nIf a tenant of a dwelling unit refused to pay his rent because of breach by the landlord of his implied warranty of habitability, but failed to comply with the notice requirement in G. L. c. 239, § 8A, as appearing in St. 1967, c. 420, § 1, he would have no defence against eviction, but the landlord’s breach of warranty could be raised as a defence to the landlord’s claim for rent owed during the time when the demised premises were in an uninhabitable condition, and the tenant’s claim or counterclaim for damages based on the breach would be the difference between the value of the dwelling as warranted and its value as it existed in its defective condition. [202-203]\nTWO ACTIONS OF SUMMARY PROCESS. Writs in the Municipal Court of the Roxbury District dated October 30,1969.\nUpon appeal to the Superior Court the actions were heard by Kalus, J.\nJoseph S. Murphy, Jr., for the defendants.\nGeorge F. Mahoney for the plaintiff.""}, ""cites_to"": [{""cite"": ""285 Mass. 125"", ""case_ids"": [920553], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""128""}], ""case_paths"": [""/mass/285/0125-01""], ""opinion_index"": 0}, {""cite"": ""249 Mass. 362"", ""case_ids"": [3816807], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""364""}], ""case_paths"": [""/mass/249/0362-01""], ""opinion_index"": 0}, {""cite"": ""244 Mass. 336"", ""case_ids"": [750637], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""339""}], ""case_paths"": [""/mass/244/0336-01""], ""opinion_index"": 0}, {""cite"": ""21 Drake L, Rev. 300"", ""category"": ""journals:journal"", ""reporter"": ""Drake L. Rev."", ""opinion_index"": 0}, {""cite"": ""40 Fordham L. Rev. 123"", ""category"": ""journals:journal"", ""reporter"": ""Fordham L. Rev."", ""opinion_index"": 0}, {""cite"": ""56 N. J. 130"", ""case_ids"": [1933187], ""category"": ""reporters:state"", ""reporter"": ""N.J."", ""case_paths"": [""/nj/56/0130-01""], ""opinion_index"": 0}, {""cite"": ""50 Ill. 2d 351"", ""weight"": 2, ""case_ids"": [2911056], ""category"": ""reporters:state"", ""reporter"": ""Ill. 2d"", ""case_paths"": [""/ill-2d/50/0351-01""], ""opinion_index"": 0}, {""cite"": ""26 Cal. App. 3d 62"", ""weight"": 2, ""case_ids"": [4421319], ""category"": ""reporters:state"", ""reporter"": ""Cal. App. 3d"", ""case_paths"": [""/cal-app-3d/26/0062-01""], ""opinion_index"": 0}, {""cite"": ""280 N. Y. 828"", ""case_ids"": [2035940], ""category"": ""reporters:state"", ""reporter"": ""N.Y."", ""case_paths"": [""/ny/280/0828-01""], ""opinion_index"": 0}, {""cite"": ""255 App. Div. (N. Y.) 445"", ""case_ids"": [5188769], ""category"": ""reporters:state"", ""reporter"": ""A.D."", ""case_paths"": [""/ad/255/0445-01""], ""opinion_index"": 0}, {""cite"": ""362 Mass. 281"", ""case_ids"": [44161], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""286, fn. 4""}], ""case_paths"": [""/mass/362/0281-01""], ""opinion_index"": 0}, {""cite"": ""51 Hawaii 426"", ""weight"": 4, ""case_ids"": [1451544], ""category"": ""reporters:state"", ""reporter"": ""Haw."", ""pin_cites"": [{""page"": ""434""}], ""case_paths"": [""/haw/51/0426-01""], ""opinion_index"": 0}, {""cite"": ""111 N. 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Rev."", ""pin_cites"": [{""page"": ""490""}, {""page"": ""491""}], ""opinion_index"": 0}, {""cite"": ""300 Mass. 450"", ""weight"": 2, ""case_ids"": [864389], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/300/0450-01""], ""opinion_index"": 0}, {""cite"": ""222 Mass. 327"", ""case_ids"": [40158], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/222/0327-01""], ""opinion_index"": 0}, {""cite"": ""10 Allen 119"", ""case_ids"": [2117071], ""category"": ""reporters:state"", ""reporter"": ""Allen"", ""case_paths"": [""/mass/92/0119-01""], ""opinion_index"": 0}, {""cite"": ""7 Gray 550"", ""case_ids"": [1996099], ""category"": ""reporters:state"", ""reporter"": ""Gray"", ""case_paths"": [""/mass/73/0550-01""], ""opinion_index"": 0}, {""cite"": ""106 Mass. 201"", ""weight"": 2, ""case_ids"": [715905], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/106/0201-01""], ""opinion_index"": 0}, {""cite"": ""233 Mass. 451"", ""case_ids"": [3458666], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""452""}], ""case_paths"": [""/mass/233/0451-01""], ""opinion_index"": 0}, {""cite"": ""51 Hawaii 473"", ""case_ids"": [1451475], ""category"": ""reporters:state"", ""reporter"": ""Haw."", ""case_paths"": [""/haw/51/0473-01""], ""opinion_index"": 1}, {""cite"": ""200 N. 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+289758,"{""id"": 289758, ""name"": ""Hein-Werner Corporation vs. Jackson Industries, Inc. & another"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""c24f1b416a4302581675fb7b340efa18fef4f92ca419027e6c0d2102fb6e0c9b"", ""simhash"": ""1:9ee28713686f815a"", ""pagerank"": {""raw"": 0.0000006801845302742017, ""percentile"": 0.9638444171841679}, ""char_count"": 17518, ""word_count"": 2928, ""cardinality"": 785, ""ocr_confidence"": 0.972}, ""casebody"": {""judges"": [], ""parties"": [""Hein-Werner Corporation vs. Jackson Industries, Inc. & another.""], ""opinions"": [{""text"": ""Hennessey, J.\nPursuant to S.J.C. Rule 3:21 (359 Mass. 790, approved October 29, 1971), entitled “Uniform Certification of Questions of Law,” the Chief Judge of the United States District Court, District of Massachusetts, has certified three questions to this court. All of the questions relate to construction of G. L. c. 93B, inserted by St. 1970, c. 814, § 1, a chapter which purports to regulate business practices between motor vehicle manufacturers, distributors and dealers. The chapter took effect on January 1, 1971. The three questions pose issues of first impression.\nOn November 22, 1967, the plaintiff Hein-Werner Corporation (Hein-Werner) and the defendant Jackson Industries, Inc. (Jackson) entered into a written contract. Essentially, the contract granted to Jackson the right to purchase and resell certain equipment manufactured by Hein-Werner. Thereafter the parties had various dealings with respect to such equipment.\nIn 1971 Hein-Werner filed a complaint against Jackson in the United States District Court, District of Massachusetts, seeking to recover sums allegedly due by reason of dealings under the contract. In a counterclaim, Jackson asserted, inter alla, that Hein-Werner had terminated the contract in violation of G. L. c. 93B, and that Hein-Werner in certain other respects had acted in violation of that chapter.\nIt appears that the contract antedated the enactment of G. L. c. 93B. Presumably our answer to Question 1 will be dispositive of all issues concerning c. 93B raised in the Federal case, since in that first answer we have ruled that c. 93B does not apply retroactively to such a contract. Nevertheless, we have also answered Question 2, since we consider it useful for us to deal with the issue raised by that question, viz., the scope of the applicability of c. 93B. We have declined to answer Question 3, for reasons which appear later in this opinion.\n1. Question 1 asks: “Does Massachusetts G. L., ch. 93B apply to a contract which antedates the enactment of 93B?” Our answer is, “No.”\nChapter 93B became effective about three years after the parties entered into their contract. If that chapter were applied to the contract it would substantially revise the relationships between the parties. For example, it would transform the contract from one terminable without cause by either party on thirty days written notice into one terminable only on a showing of “due cause.” G. L. c. 93B, § 4 (3) (c).\nThe general rule of interpretation is that all statutes are prospective in their operation, unless an intention that they shall be retrospective appears by necessary implication from their words, context or objects when considered in the light of the subject matter, the preexisting state of the law and the effect upon existent rights, remedies and obligations. Hanscom v. Malden & Melrose Gas Light Co. 220 Mass. 1, 3 (1914). It is only statutes regulating practice, procedure and evidence, in short, those relating to remedies and not affecting substantive rights, that commonly are treated as operating retroactively, and as applying to pending actions or causes of action. Mulvey v. Boston, 197 Mass. 178 (1908). Adams v. Adams, 211 Mass. 198 (1912). American Locomotive Co. v. Hamblen, 217 Mass. 513 (1914).\nNothing appears, expressly or by implication, to indicate that c. 93B was intended to have retroactive effect, and therefore we treat it as operating prospectively only. Accordingly, we answer Question 1 in the negative.\nIn view of what we have said, it is unnecessary for us to deal with the further contention that a retroactive application of c. 93B to the contract, and the resulting substantial alterations that statute would work upon existing contractual rights, would be unconstitutional.\n2. Question 2 is as follows: “Does ch. 93B apply to the dealership agreement between Hein-Werner Corp. and Jackson Industries through which Jackson Industries had the power to accept orders for construction equipment mounted on wheels and adapted for movement on highways, in light of the fact that only crawler mounted construction equipment, i.e., equipment which was mounted on tank treads and not on wheels, was supplied to Jackson by Hein-Werner?”\nThe answer to this question emerges only after detailed reasoning, involving terms and definitions from the statutes, as well as a consideration of the contract and the dealings between the parties. First of all, c. 93B applies only to the regulation of business practices concerning “motor vehicles.” See § 2. If the statute applies to the litigants here, it applies to Hein-Werner as a “manufacturer” engaged in the business of manufacturing or assembling new and unused motor vehicles, and to Jackson as a “motor vehicle dealer” who sells or solicits or advertises the sale of new or used motor vehicles. See § 1 (b) and (h).\nThe keystone term “motor vehicle” is defined as “any motor driven vehicle required to be registered under chapter ninety.”C. 93B, § 1 (a). Chapter 90, in turn, provides (in § 9) that no motor vehicle shall be permitted to be operated, pushed, drawn or towed upon or allowed to remain on any “way” unless such vehicle is registered. Five specific exceptions to this requirement are provided. Definitions of both “motor vehicles” and “way” are found in c. 90, § l.\nNo motor vehicles are required by the terms of c. 90 to be registered simply by virtue of their status as such. Instead, c. 90 prohibits certain uses unless the motor vehicle is registered. From this it can be argued that there are no “motor vehicles” within the meaning of c. 93B. It would follow from this that there are no “manufacturers” or “motor vehicle dealers” within the meaning of c. 93B, §§ 1 (b) and 1 (h), respectively. Such a construction would effectively nullify the entire chapter and thus is not to be favored. Commissioner of Corps. & Taxn. v. Springfield, 321 Mass. 31, 37-38 (1947). Johnson v. Commissioner of Pub. Safety, 355 Mass. 94, 99 (1968).\nIt can also be argued that a vehicle becomes a c. 93B motor vehicle only at the time it is first used on a public way in a manner which requires its registration under c. 90. This construction would make c. 93B impossible to administer, since in the normal course of events the registration of vehicles occurs at a time after they have passed beyond the control of the parties sought to be regulated by c. 93B. Such an interpretation would permit application of c. 93B to a manufacturer because of a purchaser’s use of a vehicle perhaps months or years after its sale by a dealer.\nHein-Werner urges that the legislative intent in enacting c. 93B was to provide regulation of the relationship between automobile dealers and automobile manufacturers in the commonly accepted usage of those terms. See Brown, A Bill of Rights for Auto Dealers, 12 B. C. Industrial & Commercial L. Rev. 757, 760-776, 822 (1971). The argument is that an “automobile” owner will be required to register his vehicle under the provisions of c. 90 if he is to make effective use of it. Thus registration of such vehicles is a virtual certainty. Acceptance of the foregoing interpretation of the definition of “motor vehicle” as contained in c. 93B would clearly exclude both Hein-Werner and Jackson from the regulation of that statute. There is no suggestion that the parties dealt or had power to deal in “automobiles” as that term is commonly used.\nWe reject the foregoing interpretation. First of all, we believe that it does not comport with the albeit imperfectly expressed legislative intent as we have identified it. Furthermore, in our view it leaves the standards for the application of c. 93B both imprecise and difficult or impossible to administer. Common usage of the word “automobile” permits a substantial measure of certainty in understanding, but it also leaves large potential areas of dispute as to the scope of the description.\nWe hold that the term “motor vehicle” as used in c. 93B, § 1 (a), and wherever that term otherwise appear in that chapter, is defined as shown in c. 90, §1, and as that definition is quoted in the margin, supra, fn. 2.\nIn so holding we adopt the clarity and precision of a standard already in operational administrative use. It is fair to infer that the Legislature intended to be definite and precise rather than to follow the indefiniteness and difficulty of administration inherent in any of the suggested alternative meanings.\nOur conclusion is supported by a review of the legislative history of the statute. Before its enactment, the bill which was to become c. 93B was changed by the deletion of the words “of the type” in the crucial definition in § 1 (a), as follows: “‘motor vehicle,’ any motor driven vehicle [of the type] required to be registered under chapter ninety.” If viewed as an intentional substantive change, this seems to narrow the scope of the term “motor vehicle” and to require a literal reading of the words “required to be registered under chapter ninety,” with all the problems inherent in such a reading. From a review of the entire history, however, we believe that the change was one of mere form and style. As such it is reflective of legislative intent, since reading the three words back in clarifies the intended meaning. “The type” of motor vehicles which may be required to be registered under c. 90 are those defined in § 1 of that statute, as quoted in fn. 2, supra. This in turn imports the definition of “motor vehicle” in c. 90, § 1, into c. 93B.\nWe appreciate that our construction makes the incidence of c. 93B in some respects broader than that of c. 90. This is true because the definition which is applied in c. 93B by importation from c. 90, § 1, may not be rendered nugatory by the manner of use of the vehicle; nor is the operative definition subject to the several exceptions in c. 90, § 9, which may apply in determining the applicability of that chapter. Nevertheless, the broad view we have taken is, for practical purposes, a necessary one. The alternative view, as we have shown above, would either nullify the effect of c. 93B or would render its operation difficult or even impossible.\nWe appreciate also that the definition as we have construed it is broader than a description of “automobiles” in the usual understanding of that word. Nevertheless, the words of exclusion in c. 90, § 1, confine the class to “motor vehicles” within the common usage of that term. We emphasize here the language of exclusion, viz.: “vehicles used for other purposes than the transportation of property and incapable of being driven at a speed exceeding twelve miles per hour and which are used exclusively for the building, repair and maintenance of highways or designed especially for use elsewhere than on the traveled part of ways . . ..” Beyond doubt, this definition includes only the vehicles which are designed for regular use in the transportation of persons and property on the traveled part of public highways. Just as clearly, many kinds of special vehicles, such as tracked vehicles used in construction work, are excluded. Cf. Lincoln v. Shea, 361 Mass. 1,3-4 (1972).\nA further issue arises as to whether, even in the light of our definition of “motor vehicle,” c. 93B applies to a contract of the type between the parties here. The statement of facts submitted to us establishes that only equipment which was mounted on tank treads and not on wheels was supplied to Jackson by Hein-Werner. However, Question 2 also establishes in its phrasing that Jackson had the power under the contract to accept orders for construction equipment mounted on wheels and adapted for movement on highways. Even with these circumstances established, it is not clear that Jackson had the power to accept orders for motor vehicles as defined in c. 90, § 1, which is the definition we have applied in construction of c. 93B. For example, under c. 90, § 1, wheeled vehicles adapted for movement on the highways are not considered to be motor vehicles if they qualify as highway repair, maintenance and construction equipment of a certain kind. There are other specified exemptions from the definition.\nFor the purpose of giving a definitive answer to Question 2, we proceed under the assumption that Jackson had power to accept orders for motor vehicles within the definition of c. 90, § 1. Acting under that assumption, it is clear that c. 93B applies to the relationship here, by reason of the provisions of § 2 of c. 93B. By the terms of § 2, that chapter applies to a person who “engages directly or indirectly in purposeful contacts within this commonwealth in connection with the offering or advertising for sale or has business dealings with respect to a motor vehicle within the commonwealth . . ..” Clearly, it is not necessary to show that the parties have actually bought and sold appropriate motor vehicles. That Jackson had the power to accept orders for such motor vehicles is sufficient to establish the status of Hein-Werner as one who made an offer of c. 93B motor vehicles and to establish that the parties had business dealings with respect to c. 93B motor vehicles within the Commonwealth. Parties who do not intend to deal in c. 93B “motor vehicles” can easily, by clear language in the contract, avoid the applicability of c. 93B.\nOur answer to Question 2 is, “Yes.”\n3. Question 3 is: “If ch. 93B applies to a contract which antedates the enactment of said chapter, does ch. 93B violate the Massachusetts or United States Constitution?” We have ruled that the statute does not have retroactive effect. Thus, by the very terms of Question 3, we are not requested to answer it, and we therefore do not do so.\n4. In summary, we need not answer Question 3. We answer Question 1, “No.” We answer Question 2, “Yes.” The Reporter of Decisions is to furnish attested copies of this opinion to the clerk of this court. The clerk in turn will transmit one copy, under the seal of this court, to the clerk of the United States District Court, District of Massachusetts, as answer to the questions certified, and will also transmit a copy to each party.\nSo ordered.\nChapter 90, § 9, provides detailed exceptions for (1) out of State vehicles, (2) a 48 hour year end change of registration period, (3) short distance use of an agricultural or industrial vehicle between two properties of the vehicle’s owner, (4) unloading and short distance delivery to a dealer, and (5) certain short distance uses of earth-moving vehicles.\n“ ‘Motor vehicles,’ all vehicles constructed and designed for propulsion by power other than muscular power including such vehicles when pulled or towed by another motor vehicle, except railroad and railway cars, vehicles operated by the system known as trolley motor or trackless trolley under chapter one hundred and sixty-three or section ten of chapter five hundred and forty-four of the acts of nineteen hundred and forty-seven, vehicles running only upon rails or tracks, vehicles used for other purposes than the transportation of property and incapable of being driven at a speed exceeding twelve miles per hour and which are used exclusively for the building, repair and maintenance of highways or designed especially for use elsewhere than on the travelled part of ways, wheelchairs owned and operated by invalids and vehicles which are operated or guided by a person on foot. In doubtful cases, the registrar may determine whether or not any particular vehicle is a motor vehicle as herein defined. If he determines that it should be so classified, he may require that it be registered under this chapter, but such determination shall not be admissible as evidence in any action at law arising out of the use or operation of such vehicle previous to such determination.”\n“ ‘Way,’ any public highway, private way laid out under authority of statute, way dedicated to public use, or way under the control of park commissioners or body having like powers.”\nWe observe also that § 8 of c. 93B makes the chapter applicable to “all written or oral agreements” between such parties."", ""type"": ""majority"", ""author"": ""Hennessey, J.""}], ""attorneys"": [""James F. McHugh for the plaintiff."", ""Cornelia C. Adams (Robert H. Goldman with her) for the defendants.""], ""corrections"": """", ""head_matter"": ""Hein-Werner Corporation vs. Jackson Industries, Inc. & another.\nSuffolk.\nSeptember 19, 1973.\nJanuary 28, 1974.\nPresent: Tauro, C.J., Reardon, Quirico, Braucher, & Hennessey, JJ.\nStatute, Construction, Retroactive statute. Motor Vehicle, What constitutes, Dealer, Manufacturer. Words, “Motor vehicle.”\nChapter 93B of the General Laws, inserted by St. 1970, c. 814, § 1, purporting to regulate business practices among motor vehicle manufacturers, distributors and dealers, does not apply to a contract which antedates the enactment of c. 93B. [524-525]\nThe term “motor vehicle” as used in G. L. c. 93B, § 1 (a), and as appearing elsewhere in c. 93B, is defined in c. 90, § 1. [526-529]\nThe power granted to a dealer in Massachusetts under a contract with a manufacturer to accept orders from it to purchase and resell its construction equipment which was mounted on wheels and adapted for movement on highways and came within the definition of “motor vehicles” in G. L. c. 90, § 1, brought the business dealings between the parties within the application of c. 93B, notwithstanding the fact that only construction equipment which was mounted on tank treads and not on wheels was supplied to the dealer by the manufacturer. [529-530]\nQuestions of law certified to the Supreme Judicial Court by the United States District Court for the District of Massachusetts.\nJames F. McHugh for the plaintiff.\nCornelia C. Adams (Robert H. Goldman with her) for the defendants.""}, ""cites_to"": [{""cite"": ""361 Mass. 1"", ""year"": 1972, ""case_ids"": [3870133], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""3-4""}], ""case_paths"": [""/mass/361/0001-01""], ""opinion_index"": 0}, {""cite"": ""355 Mass. 94"", ""year"": 1968, ""case_ids"": [302522], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""99""}], ""case_paths"": [""/mass/355/0094-01""], ""opinion_index"": 0}, {""cite"": ""321 Mass. 31"", ""year"": 1947, ""case_ids"": [499816], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""37-38""}], ""case_paths"": [""/mass/321/0031-01""], ""opinion_index"": 0}, {""cite"": ""217 Mass. 513"", ""year"": 1914, ""case_ids"": [89661], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/217/0513-01""], ""opinion_index"": 0}, {""cite"": ""211 Mass. 198"", ""year"": 1912, ""case_ids"": [476915], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/211/0198-01""], ""opinion_index"": 0}, {""cite"": ""197 Mass. 178"", ""year"": 1908, ""case_ids"": [72865], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/197/0178-01""], ""opinion_index"": 0}, {""cite"": ""220 Mass. 1"", ""year"": 1914, ""case_ids"": [3460317], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""3""}], ""case_paths"": [""/mass/220/0001-01""], ""opinion_index"": 0}, {""cite"": ""359 Mass. 790"", ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""opinion_index"": 0}], ""citations"": [{""cite"": ""364 Mass. 523"", ""type"": ""official""}], ""file_name"": ""0523-01"", ""last_page"": ""531"", ""first_page"": ""523"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T16:54:50.614914+00:00"", ""decision_date"": ""1974-01-28"", ""docket_number"": """", ""last_page_order"": 541, ""first_page_order"": 533, ""name_abbreviation"": ""Hein-Werner Corp. v. Jackson Industries, 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+291960,"{""id"": 291960, ""name"": ""Commonwealth vs. Charles E. Lamb"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""a86564b89eee8001d9f6f024c542c1b99e4251f6d6a73ca402fca136f9c01ceb"", ""simhash"": ""1:bfb797958c9c4b5b"", ""pagerank"": {""raw"": 0.0000007559637013490149, ""percentile"": 0.9704695138596884}, ""char_count"": 13329, ""word_count"": 2139, ""cardinality"": 647, ""ocr_confidence"": 0.865}, ""casebody"": {""judges"": [], ""parties"": [""Commonwealth vs. Charles E. Lamb.""], ""opinions"": [{""text"": ""Reardon, J.\nThe defendant argued exceptions in the Appeals Court, alleging errors in the proceedings leading to his commitment as a sexually dangerous person under G. L. c. 123A, § 6. The Appeals Court sustained his exceptions with respect to both the admission of hearsay evidence and the denial of his right to invoke the psychotherapist-patient privilege under G. L. c. 233, § 20B. Commonwealth v. Lamb, Mass. App. Ct. (1973). The Commonwealth’s application for further appellate review under G. L. c. 211A, § 11, was granted to be limited to the issue of the applicability vel non of the psychotherapist-patient privilege.\nFollowing prior proceedings, a judge of the Superior Court ordered the defendant committed to the treatment center for the care, custody, treatment and rehabilitation of sexually dangerous persons established under G. L. c. 123A, § 2, for a period not to exceed sixty days for the purpose of examination and diagnosis. On December 15, 1970, the Suffolk County district attorney petitioned the Superior Court to commit the defendant pursuant to c. 123A, § 6. On March 9,1972, after hearing, a judge of the Superior Court found the defendant to be a sexually dangerous person and committed him to the treatment center for an indeterminate period.\nAt the hearing on the petition for commitment, the judge heard testimony from Dr. Newman Cohen, a psychiatrist who by order of the court had interviewed the defendant at the treatment center. The defendant attempted to invoke the privilege of G. L. c. 233, § 20B, and requested the judge to instruct the witness not to testify as to the content of any conversations with the defendant. The judge refused this request and, subject to the defendant’s exception, permitted Dr. Cohen to testify inter alla that the defendant had admitted to the use of drugs and alcohol.\nThe sole issue before us is whether the psychotherapist-patient privilege of G. L. c. 233, § 20B, applies to communications between a person under custody at the treatment center under G. L. c. 123A and a psychiatrist appointed to examine him and report to the court. The relevant parts of the privilege statute are recited in the margin. By its terms the privilege covers the communications at issue here. Both parties agree that if the privilege is not to apply, the communications must fall within one of the specified exceptions and in particular in either exception (a) or exception (b). The Commonwealth contends that both (a) and (b) must be applicable to maintain the objectives of G. L. c. 123A (the sexually dangerous persons act). For exception (b) to apply, the patient must have been informed by the psychiatrist that any communication would not be privileged. No such warnings were given in this case. If both exceptions (a) and (b) are relevant, of course, this failure to inform the patient that the communication would not be privileged would be of no consequence since the privilege would be properly denied under exception (a). We agree, however, with the Appeals Court that exception (b) must govern exclusively in these circumstances and that, absent the proper warnings, there can be no departure from the general policy of the statute protecting the confidentiality of communications between a patient and psychotherapist.\nFor exception (a) to be applicable, one would have to find in this case that Dr. Cohen “in the course of his diagnosis” determined that the defendant was “in need of treatment in a hospital for mental or emotional illness” and that he disclosed the communication “for the purpose of placing or retaining the patient in such hospital.” Passing the question noted by the Appeals Court, Mass. App. Ct. at (1973), as to whether the treatment center is to be considered a “hospital” within the meaning of the statute, we believe that the quoted language is intended to apply to a situation in which the patient is not institutionalized or is about to be discharged from an institution. It is not, we think, applicable to the case where the patient is already in the custody of State officials and where there has commenced a deliberate, orderly, judicially-supervised proceeding for determining whether he shall be committed. Exception (a) specifies that the privilege is inapplicable not only when the disclosure is made for the purpose of “placing or retaining” but also when it is made for the purpose of placing the patient under arrest or under the supervision of law enforcement authorities. These three permitted purposes show the Legislature’s intention to dispense with the privilege when there is an imminent threat that a person who should be in custody will instead be at large. For any other purpose the privilege is to be maintained. The proviso indicates that after the patient is in a hospital the privilege is ordinarily to continue. We believe that the defendant’s situation here was more analogous to the case of a patient in a hospital than it is to the case where a psychiatrist’s otherwise privileged testimony is necessary “to place or retain” a patient in a hospital.\nPerhaps more significantly, reading the statute as a whole, we are convinced that a construction which deems a court-ordered interview between a psychotherapist and a patient under G. L. c. 123A to be within the exclusive ambit of exception (b) yields a more effectual and harmonious piece of legislation. See Mathewson v. Contributory Retirement Appeal Bd. 335 Mass. 610, 614-615 (1957). The policy of exception (b) is to permit a court to utilize expert psychiatric evidence by ordering an examination. In that situation, however, the statute recognizes that such court-initiated interviews entail certain risks for the person to be examined. It provides the procedural protection that notice is to be given if the privilege is not to apply in those circumstances. This protection seems particularly suitable for cases such as this where the patient runs the risk of commitment as a sexually dangerous person depending on what he says in an interview which in the normal course of affairs would be accorded confidentiality. If we were to hold that this protection was denied patients because psychiatric examinations under G.L. c. 123A also were covered by exception (a), we would render nugatory the important policy objective of the statute evinced by the notice requirement in exception (b). Such an interpretation is to be avoided. See Selectmen of Topsfield v. State Racing Commn. 324 Mass. 309, 312-314 (1949).\nMoreover, by interpreting the statute to preserve the privilege in the circumstances being considered, we are able to avoid a construction which raises substantial constitutional questions on the procedures prescribed by G. L. c. 123A. “We must construe the statute, ‘if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score.’ ” Board of Appeals of Hanover v. Housing Appeals Comm. in the Dept. of Community Affairs, 363 Mass. 339, 364 (1973), quoting United States ex rel. Attorney Gen. of U. S. v. Delaware & Hudson Co. 213 U. S. 366, 408 (1909). The procedures which constitutionally must be accorded one who is the subject of a proceeding under G. L. c. 123A are not identical to those required for persons accused of crimes since G. L. c. 123A proceedings are civil and nonpunitive in nature. Commonwealth v. Hogan, 341 Mass. 372, 376 (1960). Commonwealth v. Ackers, 343 Mass. 63, 68 (1961). Nevertheless such persons are plainly entitled to certain minimum standards of procedural due process. Commonwealth v. Gomes, 355 Mass. 479, 484 (1969). In certain circumstances it has been assumed that one in custody prior to the commencement of proceedings under c. 123A has rights under the Fifth Amendment including the right to receive the warnings articulated in Miranda v. Arizona, 384 U. S. 436 (1966). Commonwealth v. Cain, 361 Mass. 224 (1972). The question of which procedural safeguards are constitutionally required in commitment proceedings under G. L. c. 123A is currently undergoing a thorough reexamination. Compare Commonwealth v. McGruder, 348 Mass. 712 (1965), cert. den. sub nom. McGruder v. Massachusetts, 383 U. S. 972 (1966), with Commonwealth v. Bladsa, 362 Mass. 539 (1972). Compare Commonwealth v. Gomes, 355 Mass. 479 (1969), with Sarzen v. Gaughan, 489 F. 2d 1076, 1082-1086 (1st Cir. 1973). We construe G. L. c. 233, § 20B, as preserving a patient’s rights to keep privileged any communications made to a court-appointed psychotherapist in the case of a court-ordered examination, absent a showing that he was informed that the communication would not be privileged and thus, inferentially, that it would be used at the commitment hearing. In so doing we avoid considering whether the use of such statements in the absence of such warnings infringes upon the rights of due process guaranteed by the Fourteenth Amendment of the United States Constitution.\nThe Commonwealth contends that such an interpretation would eliminate the ability of the psychiatrist to provide specific information which might be critical to a judge’s determination at the hearing. We do not agree. Exception (b) is directed to exactly the opposite result. As prerequisite to its use, however, the patient will have to be informed that the statement is not privileged. We believe it is this balance between the need for fairness and disclosure to the patient and full information for the court which the Legislature intended to strike.\nThe exception relating to the psychotherapist-patient privilege is sustained, and the case is remanded to the Superior Court.\nSo ordered.\n303 N. E. 2d 122.\nSection 20B, inserted by St. 1968, c. 418. “The following words as used in this section shall have the following meanings:—\n“ ‘Patient’, a person who, during the course of diagnosis or treatment, communicates with a psychotherapist;\n“ ‘Psychotherapist’, a person licensed to practice medicine who devotes a substantial portion of his time to the practice of psychiatry; and\n“ ‘Communications’ includes conversations, correspondence, actions and occurrences relating to diagnosis or treatment before, during or after institutionalization, regardless of the patient’s awareness of such conversations, correspondence, actions and occurrences, and any records, memoranda or notes of the foregoing.\n“Except as hereinafter provided, in any court proceeding and in any proceeding preliminary thereto and in legislative and administrative proceedings, a patient shall have the privilege of refusing to disclose, and of preventing a witness from disclosing, any communication, wherever made, between said patient and a psychotherapist relative to the diagnosis or treatment of the patient’s mental or emotional condition.\n“If a patient is incompetent to exercise or waive such privilege, a guardian shall be appointed to act in his behalf under this section. A previously appointed guardian shall be authorized to so act.\n“Upon the exercise of the privilege granted by this section, the judge or presiding officer shall instruct the jury that no adverse inference may be drawn therefrom.\n“The privilege granted hereunder shall not apply to any of the following communications:—\n“(a) If a psychotherapist, in the course of his diagnosis or treatment of the patient, determines that the patient is in need of treatment in a hospital for mental or emotional illness or that there is a threat of imminently dangerous activity by the patient against himself or another person, and on the basis of such determination discloses such communication either for the purpose of placing or retaining the patient in such hospital, provided however that the provisions of this section shall continue in effect after the patient is in said hospital, or placing the patient under arrest or under the supervision of law enforcement authorities.\n“(b) If a judge finds that the patient, after having been informed that the communications would not be privileged, has made communications to a psychotherapist in the course of a psychiatric examination ordered by the court, provided that such communications shall be admissible only on issues involving the patient’s mental or emotional condition but not as a confession or admission of guilt.”\n303 N. E. 2d at 125."", ""type"": ""majority"", ""author"": ""Reardon, J.""}], ""attorneys"": [""J. Keuin Leary, Assistant District Attorney, for the Commonwealth."", ""Francis John Stolarz for the defendant.""], ""corrections"": """", ""head_matter"": ""Commonwealth vs. Charles E. Lamb.\nSuffolk.\nMarch 5, 1974.\nMay 6, 1974.\nPresent: Reardon, Quirico, Braucher, Kaplan, & Wilkins, JJ.\nEvidence, Communication between patient and psychiatrist. Statute, Construction.\nIn a proceeding under G. L. c. 123A, § 6, for commitment of the defendant as a sexually dangerous person, it was held that, with respect to communications between the defendant and a psychiatrist who by court order had interviewed him while he was in custody at a treatment center, the only applicable exception in c. 233, § 20B, to the psychotherapist-patient privilege afforded thereby was exception (b), and that that exception did not preclude the defendant from invoking the privilege where it appeared that the defendant had not been warned that such communications would not be privileged. [266-270]\nPetition for commitment filed in the Superior Court on December 15,1970.\nThe case was heard by Robert Sulliuan, J.\nJ. Keuin Leary, Assistant District Attorney, for the Commonwealth.\nFrancis John Stolarz for the defendant.""}, ""cites_to"": [{""cite"": ""303 N. E. 2d 122"", ""weight"": 2, ""category"": ""reporters:state_regional"", ""reporter"": ""N.E.2d"", ""pin_cites"": [{""page"": ""125""}], ""opinion_index"": 0}, {""cite"": ""489 F. 2d 1076"", ""year"": 1973, ""case_ids"": [208261], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""1082-1086""}], ""case_paths"": [""/f2d/489/1076-01""], ""opinion_index"": 0}, {""cite"": ""362 Mass. 539"", ""year"": 1972, ""case_ids"": [43902], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/362/0539-01""], ""opinion_index"": 0}, {""cite"": ""383 U. S. 972"", ""year"": 1966, ""case_ids"": [6301728, 6302449, 6301426, 6301943, 6302169], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/383/0972-02"", ""/us/383/0972-05"", ""/us/383/0972-01"", ""/us/383/0972-03"", ""/us/383/0972-04""], ""opinion_index"": 0}, {""cite"": ""348 Mass. 712"", ""year"": 1965, ""case_ids"": [522349], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/348/0712-01""], ""opinion_index"": 0}, {""cite"": ""361 Mass. 224"", ""year"": 1972, ""case_ids"": [3869714], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/361/0224-01""], ""opinion_index"": 0}, {""cite"": ""384 U. S. 436"", ""year"": 1966, ""case_ids"": [12046400], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/384/0436-01""], ""opinion_index"": 0}, {""cite"": ""355 Mass. 479"", ""year"": 1969, ""weight"": 2, ""case_ids"": [302745], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""484""}], ""case_paths"": [""/mass/355/0479-01""], ""opinion_index"": 0}, {""cite"": ""343 Mass. 63"", ""year"": 1961, ""case_ids"": [4024314], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""68""}], ""case_paths"": [""/mass/343/0063-01""], ""opinion_index"": 0}, {""cite"": ""341 Mass. 372"", ""year"": 1960, ""case_ids"": [3853823], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""376""}], ""case_paths"": [""/mass/341/0372-01""], ""opinion_index"": 0}, {""cite"": ""213 U. 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+292019,"{""id"": 292019, ""name"": ""Robert E. McDonough, Jr., & another vs. William T. Whalen (and a companion case)"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""3b0c021e29606a96cfdebbe21d718627c57aecb434485bcf38dc48454d3752e7"", ""simhash"": ""1:e8e2055350262912"", ""pagerank"": {""raw"": 0.0000007545048333068922, ""percentile"": 0.9703612063869361}, ""char_count"": 28825, ""word_count"": 4805, ""cardinality"": 1163, ""ocr_confidence"": 0.891}, ""casebody"": {""judges"": [], ""parties"": [""Robert E. McDonough, Jr., & another vs. William T. Whalen (and a companion case).""], ""opinions"": [{""text"": ""Quirico, J.\nThe plaintiffs Robert E. McDonough, Jr., and Suellen McDonough brought these actions of tort against the defendants William T. Whalen (Whalen) and Roger G. DesVergnes (DesVergnes) to recover for personal injuries and property damage allegedly caused by the defendants’ negligent design and installation of a sewerage or septic system for the plaintiffs’ house.\n■ The facts may be summarized. The plaintiffs are a married couple with three young children. In November, 1966, they purchased a house at 107 Stanson Drive, North Attleborough, from Fred’s Realty Co., Inc., the builder, for $22,500 plus expenses. The plaintiffs took occupancy in September, 1966, before the house was finished, but the house was completed at the time title passed in November. Since there was no town sewerage, the house had a private septic system.\nWhalen had designed the septic system for the builder, using a form of design he had prepared for the North Attleborough board of health. He had also performed the required percolation test on the house lot before the septic system was installed. He was paid by the builder for both these services. Whalen, in his capacity as agent of the North Attleborough board of health, inspected the septic system once it was installed and certified that its installation was done in accordance with the board’s construction permit. DesVergnes actually installed the system for the builder in May, 1966.\nIn the spring of 1967, about six months after the plaintiffs moved in, their lot surrounding the house became flooded with water, and they detected the odor of sewage; sewage was found to be flowing over their land from the septic system’s leaching field. The plaintiffs complained to the builder and to the board of health. Whalen, again in his capacity as the board’s agent, came to inspect the premises in June, 1967. He advised the plaintiffs to curtail their use of water. The plaintiffs did so in several respects, and they did not permit their three children to play in the yard because of the problem with the septic system.\nAt some time the builder constructed a drainage area in the rear of the lot. While this alleviated the drainage problem, it did not help the sewerage problem. In February, 1968, the plaintiffs engaged an engineer to devise a solution to the sewerage problem. Thereafter, they commenced an action against the builder and the present actions against Whalen and DesVergnes. At some point before trial the builder repurchased the house from the plaintiffs, and their action against it was discontinued. The plaintiffs suffered a loss of about $1,000 in out-of-pocket expenses as a result of the transaction. After the house was repurchased by the builder the plaintiff Robert McDonough visited a doctor four or five times over a three or four month period beginning in June, 1968.\nThe plaintiffs’ amended declaration against Whalen contains four counts: the first and second allege that Whalen negligently designed the septic system in question; the third alleges that Whalen as agent of the North Attleborough board of health negligently inspected and approved the plaintiffs’ property for residential construction; the fourth alleges that in such capacity he also negligently issued a certificate of compliance for the septic system. In their first and third counts the plaintiffs sought recovery for property damage consisting of pecuniary loss and expense, loss of use, and depreciation in the property’s value; in the second and fourth counts the plaintiff Robert McDonough sought recovery for “great anguish of mind and embarrassment.” The plaintiffs’ amended declaration against DesVergnes contained two counts, both alleging that he had negligently installed the sewerage system at their house. The first count sought recovery for the same elements of property damage as alleged in their action against Whalen; the second sought recovery for “great mental anguish and embarrassment.”\nThe actions were consolidated and tried together. The jury returned verdicts for the plaintiffs against both defendants, awarding $1,000 on the counts alleging property damage and $4,000 to Robert McDonough on the counts alleging mental anguish. Thereafter, the cases went before the Appeals Court on Whalen’s and DesVergnes’s consolidated bill of exceptions, which included their exceptions to the denial of their motions for directed verdicts.\nThe Appeals Court sustained the defendants’ exceptions and ordered judgments to be entered for the defendants on all counts. McDonough v. Whalen, Mass. App. Ct. , (1973). The case is presently before us on our allowance of the plaintiffs’ application for further appellate review. G. L. c. 211A, § 11. S.J.C. Rule 3:24, § 7, 359 Mass. 838 (1972).\nThe Appeals Court’s decision was based neither on a conclusion that the plaintiffs’ proof of negligence on the part of either Whalen or DesVergnes was insufficient nor on the arguments apparently asserted by the two defendants (and which they raise again before us here). Rather, the court held that the plaintiffs were not entitled to prevail because neither the plaintiff Robert McDonough’s alleged mental anguish nor the plaintiffs’ alleged property damage would qualify as the type of personal injury or physical property damage “justifying the imposition of tort liability” on the defendants within the theoretical framework of the plaintiffs’ actions. Id. at , and fn. 3.\n1. We consider first the plaintiffs’ property damage claim. The Appeals Court’s opinion makes clear that it considered the plaintiffs’ actions as falling within the line of cases imposing liability in tort on manufacturers or suppliers of chattels for negligently made products despite the lack of privity, first adopted in Carter v. Yardley & Co. Ltd. 319 Mass. 92, 96-97, 104 (1946), and later applied to permit recovery for property damage in Brown v. Bigelow, 325 Mass. 4, 5-6 (1949). We agree with the Appeals Court’s analysis of these actions. However, for reasons discussed later in this opinion, we do not agree that under such an analysis the plaintiffs are precluded from recovering the property damages they claim.\nNotwithstanding the existence of the Carter v. Yardley & Co. rule in Massachusetts and its counterpart in most other jurisdictions, it has traditionally been held that building contractors were not liable for injuries or property damage sustained by persons not in contractual relation with them after their work was completed and accepted by the owner or their employer. In Cunningham v. T. A. Gillespie Co. 241 Mass. 280 (1922), this court applied such a rule of nonliability to an independent contractor who had completed and turned over the control of allegedly negligent construction work he had done on a city sidewalk before the plaintiff was injured. Id. at 282-283. However, as the Appeals Court notes, the Cunningham case was decided long before Carter v. Yardley & Co. Ltd., supra, and has been questioned in later cases. See Flaherty v. New York, N. H. & H. R. R. 337 Mass. 456, 459-462 (1958); Donahue v. Stephens, 342 Mass. 89, 93 (1961). But see Christman v. Shagoury Constr. Co.Inc. 349 Mass. 113, 114-115 (1965).\nWe believe that it is time to overrule expressly the rule stated in the Cunningham case. As numerous cases in other jurisdictions and many commentators have pointed out, there is no sound reason to treat a builder of houses or other realty structures differently from a manufacturer of chattels. A house which is constructed in a negligent manner is just as likely to cause substantial harm to persons therein as are the many types of goods and services falling within the scope of the Carter v. Yardley & Co. rule. And the ordinary person buying such a house is in no better position to discover hidden dangers caused by the negligent construction than is the purchaser of a defective bottle of perfume, Carter v. Yardley & Co. Ltd., supra, or of an automobile, MacPherson v. Buick Motor Co. 217 N. Y. 382 (1916). There is no sound reason why he should be prevented from recovering for property damage or personal injury merely because he is not in privity with the builder or contractor responsible for such work. We therefore hold that a builder or contractor may be liable for injuries or damage caused by his negligence to persons with whom he has no contractual relation and even though his work is completed and accepted by the owner before the injuries or damage occurred. Liability will be imposed, however, only if it is foreseeable that the contractor’s work, if negligently done, may cause damage to the property or injury to persons living on or using the premises .\nSpencer v. Gabriel, 328 Mass. 1 (1951), and Donahue v. Stephens, 342 Mass. 89 (1961), cited by the Appeals Court as raising doubts about the status in Massachusetts of the rule stated above, are perhaps distinguishable from the case presently before us. In each of these cases, the plaintiff vendee of a house sued the defendant builder-vendor to recover for property damage caused by allegedly negligent construction. However, both actions purported to be framed as actions for deceit and misrepresentation with respect to the sales of the houses, not as actions to recover for the negligent construction itself. We held in each case that the defendant was not liable as a matter of law because the plaintiffs had shown nothing but a failure to disclose when there was no duty to do so. 328 Mass, at 2 (1951). 342 Mass, at 92 (1961). Nevertheless, to the extent that these cases and others similar thereto seem in conflict with the rule of liability for negligent construction we adopt today, we do not follow them.\n2. Applying the rule we have adopted above to the facts in this case, we hold that the plaintiffs are entitled to recover for their property damage. The Appeals Court stated that the plaintiffs had failed to make out a case of “physical damage” to their property and therefore could not recover. Mass. App. Ct. at - (1973). It is not clear what distinguishes “physical” from other types of property damage. We need not consider the issue here, however, because we believe that in any event the plaintiffs did suffer physical damage to their property in the form of sewage flowing over their land. The recovery they seek for the loss of use of the property and the depreciation in its value as indicated in part by the cost of repairs for the septic system all arise from this physical damage.\nThe traditional rule of damages for wrongful injuries to real property has permitted recovery for these types of losses. There appears to be no reason why the same rule should not be applicable in this case. Accordingly, we hold that the plaintiffs are entitled to recover damages they claim for injury to their property, on proof that (1) Whalen or DesVergnes or both were negligent with respect to the design and installation of the septic system; (2) the property damage the plaintiffs sustained was causally related to such negligence; and (3) they actually suffered such damage.\n3. We turn to the question whether the evidence summarized in the record before us was sufficient, if believed, to satisfy these three requirements for recovery.\nTreating the last requirement first, we believe there was sufficient evidence to prove the damages the plaintiffs claim. Their loss of $1,000 in connection with the builder’s repurchase of their house was not disputed. Nor was there contradiction of their testimony that they lost the full enjoyment of their premises as a result of the faulty septic system. The question then is whether Whalen or Des Vergnes or both are liable for this damage to the plaintiffs’ property.\nWe consider the case against Whalen. When the evidence is examined in the light most favorable to the plaintiffs, it is clear that there was sufficient evidence to warrant the jury in finding him negligent. There was testimony by the plaintiffs’ expert witness that the septic system was improperly designed and failed to meet the governing requirements of art. XI of the State Sanitary Code. A finding that the sanitary code regulations had been violated would constitute evidence of negligence. Afienko v. Harvard Club of Boston, ante, 320, 330 (1974), and cases cited. The jury could reasonably infer from the evidence that the property damage the plaintiffs suffered was caused by Whalen’s negligent design of the septic system. In addition there was evidence which tended to show that Whalen had performed the required percolation test and had inspected the septic system after its installation in an improper and negligent manner.\nWhalen contends that he cannot be held liable for negligence in designing, testing, inspecting, or certifying the plaintiffs’ septic system because in performing all these tasks he was acting at the request of the North At-tleborough board of health and thus as a public official. As such, he argues, he is entitled to the limited immunity from liability for negligence afforded public officers with respect to decisions made or acts performed within the scope of their authority. Gildea v. Ellershaw, 363 Mass. 800, 820 (1973).\nWe do not agree that the immunity applies to everything Whalen did in this case. It does not appear from art. XI of the State Sanitary Code nor from any other evidence in the record that a septic system was required to be designed by an agent of the town’s board of health. Nor does G. L. c. Ill, §§ 27, 30, which authorize boards of health to appoint and employ necessary officers and agents, contain such a requirement. Whalen was paid by the builder for designing the septic system and for performing the percolation test. It is thus clear that at least as to the design of the system, Whalen was acting in a private capacity, and Gildea v. Ellershaw, supra, offers him no defence.\nAs we have already concluded that there was sufficient evidence for the jury to find Whalen negligent with respect to his design, we hold that the judge properly denied his motion for a directed verdict on the counts claiming property damage. There is thus no need to consider the questions (1) whether Whalen was acting as a public official in performing the percolation tests or (2) whether in the light of his private interest in at least the design of the septic system he is entitled to immunity from liability with respect to his inspection and certification of the system as the agent of the North Attleborough board of health.\nWe also conclude that there was sufficient evidence to warrant the jury in finding DesVergnes liable for the negligent installation of the septic system. There was testimony that the leaching field for the septic system was not placed at least four feet above ground water level as required by art. XI of the State Sanitary Code and the town’s construction permit. As was true of the plaintiffs’ case against Whalen, a finding that the sanitary code regulations had been violated would constitute evidence of negligence. There was also testimony that the plaintiffs’ damage was causally related to the faulty installation. We therefore hold that the judge also properly denied Des Vergnes’s motion for a directed verdict on the plaintiffs’ count for property damage.\n4. Finally, we consider the plaintiff Robert Me Donough’s claim of recovery for “great anguish of mind and embarrassment” allegedly caused by Whalen’s and Des Vergnes’s negligent work. McDonough contends that his case raises squarely the question whether a person may “recover for severe emotional distress caused by the negligent acts of another in the absence of any other physical injury.” Since this court’s decision in Spade v. Lynn & Boston R.R. 168 Mass. 285 (1897), the rule in the Commonwealth has been that recovery is not permitted for emotional distress caused in such manner. The Appeals Court clearly believed that the Spade case governed Robert McDonough’s claim. See McDonough v. Whalen, Mass. App. Ct.at ,fn. 3 (1973).\nIn George v. Jordan Marsh Co. 359 Mass. 244 (1971), this court held that recovery may be had from one who “by extreme and outrageous conduct intentionally causes severe emotional distress to another, with bodily harm resulting from such distress.” 359 Mass, at 255 (1971). We expressly declined to rule “on the legal sufficiency of allegations of negligent, grossly negligent, wanton or reckless conduct causing severe emotional distress resulting in bodily injury, or on the legal sufficiency of allegations of distress without resulting bodily injury,” stating that the “ ‘question may be left until it arises.’ ” Ibid. The plaintiffs request that we answer the question here. We again decline to do so.\nThe only evidence appearing in the record of mental anguish suffered by Robert McDonough is (1) that in June, 1967, when the plaintiffs discovered that sewage was flowing on their property, “[i]t bothered McDonough and gave him gagging sensation when he smelled obnoxious ... [sewage],” and (2) that Robert McDonough testified “that as a result of the problem with the septic system, he got a little nervous and uptight and that he saw a Dr. David Landeau in Boston on four or five occasions over a three or four month period commencing in June 1968 after he had sold the house back to Fred’s Realty Company, Inc.” It does not appear that the doctor mentioned testified at the trial. It likewise does not appear that Robert McDonough suffered any direct physical harm as a result of being “nervous and uptight.”\nWe do not believe this case presents an appropriate occasion to take up the question we left unanswered in George v. Jordan Marsh Co., supra, and to review and reconsider the Spade doctrine. Even if a person were held liable for negligent conduct causing mental anguish or emotional distress to another without- accompanying physical injuries, the evidence in the record before us of the mental anguish allegedly suffered by Robert McDonough would be insufficient as a matter of law to allow him to recover. We therefore hold that both defendants’ motions for directed verdicts should have been allowed as to the plaintiff Robert McDonough’s counts against them alleging “great anguish of mind and embarrassment.”\n5. DesVergnes also excepts to the allowance of the plaintiffs’ motion to amend their declaration to include the count for mental anguish allegedly suffered by Robert McDonough. In view of our holding with respect to the merits of this count, it is unnecessary to consider Des Vergnes’s exception.\nWhalen’s exception to the denial of his motion for a directed verdict is overruled as to count 1 of the plaintiffs’ amended declaration against him, and is sustained as to counts 2, 3, and 4 thereof. DesVergnes’s exception to the denial of his motion for a directed verdict is overruled as to count 1 of the plaintiffs’ amended declaration against him and is sustained as to count 2 thereof. Judgment is to enter in the Superior Court for the plaintiffs in accordance with the verdicts of the jury on count 1 against Whalen and count 1 against DesVergnes; judgment is to enter for the defendants on all other counts against them.\nSo ordered.\nThe repurchase price is not disclosed in the record before us.\n304 N. E. 2d 199, 202.\nOn the contrary, the court expressly stased that “there was evidence from which the jury could have found negligence on the part of Whalen ... and on the part of DesVergnes.” Mass. App. Ct. at (1973) (304 N. E. 2d at 201).\n304 N. E. 2d at 201, and fn. 3.\nThe court stated that “(tjhe tort liability for negligence by a supplier of defective products extends to negligent manufacture, processing or handling which foreseeably results in physical harm to persons ... or to property .... In the absence of personal injury or physical damage to property, the negligent supplier or defective products is not ordinarily liable in tort to a purchaser for simple pecuniary loss caused .by defective or inferior merchandise [citations and footnotes omittedj.” Mass. App. Ct. at (1973) (304 N. E. 2d at 201).\nAnnotation, 13 A. L. R. 2d 191 (1950). Annotaton, 58 A. L. R. 2d 865 (1958). Harper & James, Torts, § 28.10, pp. 1556-1557 (1956). Prosser, Torts (4th ed.) § 104, pp. 680-681 (1971).\nWhile we refer here to the “builder” and “contractor,” we see no reason to distinguish between them and a subcontractor responsible for only one aspect or part of the construction. The duty of care owed by the latter with respect to his particular work is not altered by the fact that someone else is responsible for the construction as a whole. Such a distinction has not been drawn in other jurisdictions. See, e.g., Hunterv. Quality Homes, Inc. 45 Del. 100 (1949); Totten v. Gruzen, 52 N. J. 202 (1968); Pastorelli v. Associated Engrs. Inc. 176 F. Supp. 159, 165-166 (D. R. I. 1959).\nSimilarly, we do not distinguish between the builder or contractor responsible for the construction or installation work in a house and the person responsible for its design. See Totten v. Gruzen, 52 N. J. 202, 210 (1968); Inman v. Binghamton Housing Authy. 3 N. Y. 2d 137 (1957); Restatement 2d: Torts, supra, §§ 395, comment f, 398 (1965); annotation, 76 A. L. R. 2d 91 (1961).\nOne aspect of the rule we have adopted should be noted. In this case the plaintiffs are the original purchasers of the house with the septic system claimed to have been negligently designed and installed. They initially brought an action against Fred’s Realty Co., Inc., the builder, as well as against the present defendants, but the action was discontinued. Therefore the question does not arise whether a subsequent purchaser of the plaintiffs’ house, claiming to have suffered damages for the same or additional elements of negligent construction, could bring anew action against any or all of these three original defendants.\nSee, e.g., Hanna v. Fletcher, 231 F. 2d 469, 473 (D. C. Cir. 1956), cert. den. sub nom. Gichner Iron Works, Inc. v. Hanna, 351 U. S. 989 (1956); Pastorelli v. Associated Engrs. Inc. 176 F. Supp. 159, 164-165 (D. R. I. 1959) (but see Maggi v. De Fusco, 107 R. I. 278, 283-284 [1970]); Dow v. Holly Mfg. Co. 49 Cal. 2d 720, 724-725 (1958); Stewart v. Cox, 55 Cal. 2d 857 (1961); Sabella v. Wisler, 59 Cal. 2d 21, 28 (1963); Hunter v. Quality Homes, Inc. 45 Del. 100, 106 (1949); Kapalczynski v. Globe Constr. Co. 19 Mich. App. 396, 402 (1969); Russell v. Arthur Whitcomb, Inc. 100 N. H. 171, 173 (1956); Schipper v. Levitt & Sons, Inc. 44 N. J. 70, 81-88 (1965); Totten v. Gruzen, 52 N. J. 202, 207-210 (1968); Foley v. Pittsburgh-Des Moines Co. 363 Pa. 1, 34 (1949); Fisher v. Simon, 15 Wis. 2d 207, 211-219 (1961); Restatement 2d: Torts §§ 385, 394-398, 403-404 (1965); Annotation, 58 A. L. R. 2d 865, 891-898 (1958); Prosser, Torts (4th ed.) § 104, pp. 680-681 (1971). Cf. Inman v. Binghamton Housing Authy. 3 N. Y. 2d 137, 144-145 (1957).\nMass. App. Ct. at , fn. 5 (1973) (304 N. E. 2d at 201, fn. 5).\nCompare the discussion in the Donahue case concerning the liability of the defendant heating subcontractor. 342 Mass, at 92-94 (1961).\nCases clearly distinguishable from the present case, however, are those raising the issue whether a builder-vendor of a house impliedly warrants to the purchaser that the house is constructed in a good and workmanlike manner and is fit for human habitation. SeeAlbano v. Western Constr. Corp. 357 Mass. 647, 652 (1970); McMahon v. M & D Builders, Inc. 360 Mass. 54, 62-63 (1971). Cf. Boston Housing Authy. v. Hemingway, 363 Mass. 184, 198-199 (1973), holding that a warranty of habitability is implied in the rental of any premises for dwelling purposes. The issue of such an implied warranty was not raised by the parties and we do not consider it.\n304 N. E. 2d at 201.\nThe Appeals Court cited Karl’s Shoe Stores, Ltd.v. United Shoe Mach. Corp. 145 F. Supp. 376 (D. Mass. 1956), in support of this proposition. Other cases holding that a manufacturer or supplier of chattels is not liable for financial or pecuniary losses such as loss of business, profits or good will include: Seely v. White Motor Co. 63 Cal. 2d 9, 15-17 (1965); Anthony v. Kelsey-Hayes Co. 25 Cal. App. 3d 442, 446-447 (1972); A. J. P. Contr. Corp. v Brooklyn Builders Supply Co. 171 Misc. (N. Y.) 157 (1939), affd. 258 App. Div. (N. Y.) 747 (1939); Trans World Airlines, Inc. v. Curtiss-Wright Corp. 1 Misc. 2d (N. Y.) 477, 481-482 (1955).\nSee 63 Am. Jur. 2d, Products Liability, § 224 (1972); 22 Am. Jur. 2d, Damages, §§ 131, 132 (1965); note, 7 B. C. Ind. & Commercial L. Rev. 767, 771 (1966). Several cases in other jurisdictions have permitted recovery against contractors or builders found liable for negligent work for the same types of property damage the plaintiffs seek in this case. See Stewart v. Cox, 55 Cal. 2d 857, 866 (1961); Sabella v. Wisler, 59 Cal. 2d 21, 28 (1963); Fisher v. Simon, 15 Wis. 2d 207, 211, 214 (1961). Cf. Santor v. A & M Karagheusian, Inc. 44 N. J. 52, 59 (1965).\nAlthough he seeks to recover for both mental anguish and embarrassment we consider only the former. As a general principle, mere “embarrassment,” without more, is not the type of emotional injury for which recovery would be warranted. See George v. Jordan Marsh Co. 359 Mass. 244, 253-254 (1971); Restatement 2d: Torts, §§ 306, 313, comment a (1965).\n304 N. E. 2d at 201, fn. 3.\nThe court stated in this footnote: “Questions of foreseeability aside, the plaintiffs emotional distress would not qualify as a personal injury justifying the imposition of tort liability, if for no other reason than that it would be noncompensable in the absence of physical injury even if liability could be otherwise established. Spade v. Lynn & Boston R. R. 168 Mass. 285, 290 (1897). Sullivan v. H. P. Hood & Sons, Inc. 341 Mass. 216, 221-223 (1960). This is not a case of intentional or reckless conduct which is extreme and outrageous. George v. JordanMarsh Co.” 359 Mass. 244, 255 (1971).\nSee George v. Jordan Marsh Co., supra, at 253-254; Prosser, Torts (4th ed.) § 54, pp. 328-330, 333 (1971): Restatement 2d: Torts, supra, § 313, comments a and c (1965); annotation, 64 A. L. R. 2d 100, 115-119 (1959). See also annotation, 28 A. L. R. 2d 1070, 1089-1090, 1093-1095 (1953)."", ""type"": ""majority"", ""author"": ""Quirico, J.""}], ""attorneys"": [""Donald J. Fleming for the plaintiffs."", ""Jarvis Hunt for the defendant Whalen."", ""Stephen D. Clapp (Henry G. Barrett & David G. Toone with him) for the defendant Des Vergnes.""], ""corrections"": """", ""head_matter"": ""Robert E. McDonough, Jr., & another vs. William T. Whalen (and a companion case).\nBristol.\nApril 4, 1974.\nJune 24, 1974.\nPresent: Tauro, C.J., Reardon, Quirico, Braucher, & Wilkins, JJ.\nNegligence, Of designer, Of contractor. Emotional Distress. Damages, For emotional distress.\nPrivity of contract is no longer required in order to hold a builder of houses or other realty structures liable for injuries or damage caused by his negligence where it is foreseeable that the contractor’s work, if negligently done, may cause damage to the property or injury to persons living on or using the premises. [510-513 j\nWhere there was evidence that the defendant had negligently designed, tested and inspected a septic system and that as a result sewage flowed over the plaintiffs’ land, resulting in loss of use of the property and depreciation in its value, the plaintiffs could recover damages for injury to their property even though there was no contractual relation between them and the defendant. [514-515]\nWhere there was evidence that the defendant had negligently installed a septic system and that as a result sewage flowed over the plaintiffs’ land, resulting in loss of use of the property and depreciation in its value, the plaintiffs could recover damages for injury to their property even though there was no contractual relation between them and the defendant. [516]\nInasmuch as there was no evidence that a septic system was required to be designed by an agent of a town’s board of health, one who designed a septic system for a builder, and later as an agent of the town’s board of health inspected and certified it, was acting in a private capacity at least as to the design of the system and thus was not entitled to the limited immunity from liability for negligence afforded public officers. [515]\nTestimony by the plaintiff that as a result of overflow of sewage on his property, caused by the defendants’ negligent design and installation of a septic system, he was “nervous and uptight” and visited a physician on four or five occasions during a three or four month period, would be insufficient to warrant his recovery for mental anguish even if a person were held liable for negligent conduct causing emotional distress without accompanying physical injuries. [516-518]\nTwo actions of tort. Writs in the Superior Court dated September 1,1967.\nThe actions were tried before Ponte, J.\nDonald J. Fleming for the plaintiffs.\nJarvis Hunt for the defendant Whalen.\nStephen D. Clapp (Henry G. Barrett & David G. Toone with him) for the defendant Des Vergnes.\nRobert E. McDonough, Jr., & another vs. Roger G. DesVergnes.""}, ""cites_to"": [{""cite"": ""28 A. L. 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+294532,"{""id"": 294532, ""name"": ""Irenee George, Jr., vs. Jordan Marsh Company & others"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""1d2dc87cb0e48a2ad07ff2dcd2292531bc77d898a57aca72df5bc35d1cda61bc"", ""simhash"": ""1:91fbf4e86dbd7e8b"", ""pagerank"": {""raw"": 0.0000007977939021347508, ""percentile"": 0.9734042409422325}, ""char_count"": 28162, ""word_count"": 4682, ""cardinality"": 1194, ""ocr_confidence"": 0.579}, ""casebody"": {""judges"": [], ""parties"": [""Irenee George, Jr., vs. Jordan Marsh Company & others.""], ""opinions"": [{""text"": ""Quirico, J.\nThis is an action of tort to recover damages for mental anguish and emotional distress resulting in two heart attacks, all allegedly caused by the defendants in attempting to collect from the plaintiff on a debt incurred by her emancipated son. The counts are identical except for the fact that the first count names Jordan Marsh Com-pony (Jordan Marsh), and each of the second and third counts names an employee of the company, as the defendants. The case is before us on the plaintiff’s appeal under G. L. c. 231, § 96, from an order of a judge of the Superior Court sustaining the defendants’ demurrer to each of the three counts.\nWe summarize the allegations contained in the three counts of the declaration. Each count alleged that Jordan Marsh sold goods on credit to the plaintiff’s emancipated son, and that thereafter each defendant (Jordan Marsh acting through the individual defendants as its agents, servants and employees) did the following: They alleged that the plaintiff had guaranteed in writing to pay her son’s debt, and that they knew that she had not given such a guaranty. With the intent to cause the plaintiff emotional distress and in an attempt to intimidate the plaintiff into paying the debt which she did not owe or guarantee, they badgered and harassed her (a) by telephone calls during late evening hours, (b) by repeatedly mailing bills to her marked “account referred to law and collection department,” (c) by letters to her stating that her credit was revoked, that the debt was charged to her personal account, and that late charges were being added to the debt, and (d) by “numerous other dunning tactics.” These acts allegedly caused the plaintiff “great mental anguish and emotional distress as intended by the defendant's],” and as a result her health deteriorated and she suffered a heart attack. The plaintiff's attorney requested that the “harassing tactics be discontinued” because the plaintiff did not owe the debt and because the tactics were adversely affecting her health. The defendants persisted in their “above mentioned harassing tactics,” and as a result thereof the plaintiff suffered greater emotional distress resulting in a second heart attack. All of this has allegedly prevented the plaintiff from engaging in gainful employment and she has incurred expenses for medicine, medical attendance and nursing.\nFor the purpose of obtaining a decision on their demurrer, the defendants admit all of the facts well pleaded in the declaration and the necessary inferences from the facts thus admitted. Monach v. Koslowski, 322 Mass. 466, 468. Grammenos v. Zolotas, 356 Mass. 594, 597. The question to be decided by us is whether the facts and inferences thus admitted constitute a cause of action in favor of the plaintiff against the defendants. Since the facts and inferences admitted by each defendant are the same it is unnecessary for us to consider the case against each defendant separately.\nThe arguments on both sides of this case seem to revolve on the following language in the 1897 decision in Spade v. Lynn & Boston R.R. 168 Mass. 285, 290: “We remain satisfied with the rule that there can be no recovery for fright, terror, alarm, anxiety, or distress of mind, if these are unaccompanied by some physical injury; and if this rule is to stand, we think it should also be held that there can be no recovery for such physical injuries as may be caused solely by such mental disturbance, where there is no injury to the person from without.” The Spade decision was the progenitor of a long judicial lineage in this Commonwealth. On the same day the decision was issued, it was cited as authority for the decision in White v. Sander, 168 Mass. 296, and it was most recently cited with approval in O’Dea v. Mitchell, 350 Mass. 163, 165. The decision has been discussed or cited, but distinguished, in a number of decisions, the most recent being Skelton v. Mass. Elec. Co. 358 Mass. 807. It has been cited, discussed, questioned and criticized in numerous articles in law journals and other legal periodicals.\nThe present case is typically illustrative of the continuing question of the application, scope or limitations of the rule of the Spade case. The defendants rely on the holding in the Spade case and contend that it is controlling on the facts before us. The plaintiff seeks to distinguish it and to avoid its application in this case. In this respect the present case is similar to Sullivan v. H. P. Hood & Sons, Inc. 341 Mass. 216, where the court said at page 222: “We have not been asked to overrule the Spade case, and we are not disposed to do so. What we have been asked to do is to draw a distinction on the ground that . . . [the defendant’s acts] constituted a ‘battery.’” The court then concluded that there was no battery and applied the rule of the Spade case.\nThe rule quoted above from the Spade decision denying recovery for emotional distress where there is no injury to the person from without is but a part of the decision. It is clear from the decision in its entirety that the rule was originally intended to apply only to actions in tort for negligence. The court concluded its discussion of the rule with the following statement at p. 290: “It is hardly necessary to add that this decision does not reach those classes of actions where an intention to cause mental distress or to hurt the feelings is shown, or is reasonably to be inferred, as, for example, in cases of seduction, slander, malicious prosecution, or arrest, and some others. Nor do we include cases of acts done with gross carelessness or recklessness, showing utter indifference to such consequences, when they must have been in the actor’s mind.”\nIn Smith v. Postal Tel. Cable Co. of Mass. 174 Mass. 576, decided approximately two and one-half years after the Spade case, the plaintiff, apparently mindful of the language quoted above from the Spade case, sought recovery for mental anguish and resulting sickness allegedly caused by the defendant’s “gross carelessness and recklessness and with utter indifference to the consequences that it knew would follow from its . . . acts.” In upholding the sustaining of a demurrer to the declaration, Chief Justice Holmes said, at p. 578: “If the rule [jof the Spade case] is to be adhered to that there can be no recovery for sickness due to the purely internal operation of fright caused by a negligent act, it cannot be avoided by calling the negligence gross and alleging that the defendant ought to have known that the result complained of would follow his act. . . . [T]o allow it to be avoided by such an allegation would be to do away with it. The decisions leave open the question whether if the harm to the plaintiff was actually foreseen and intended that would make a difference. It is possible that in some rases motive and actual intent would be more considered in this Commonwealth than they would be in England. That question may be left until it arises” (emphasis supplied). For indications that notwithstanding the Spade rule a defendant may be liable for emotional distress intentionally caused by him even though there be “no injury to the person from without,” see Sullivan v. H. P. Hood & Sons, Inc. 341 Mass. 216, 222-223, and Mills v. Keeler, 351 Mass. 502, 503.\nThat question which Chief Justice Holmes said in 1899 “the decisions leave open” and “may be left until it arises,” is still open and has now arisen for the first time for decision by this court. We start our discussion of this question by holding that the rule laid down in the Spade case does not apply to bar recovery for emotional distress resulting from acts intended to produce such results, or to bar recovery for physical injuries resulting from emotional distress thus produced. The defendants’ contention to the contrary is rejected. Whatever may be said for or against the rule of the Spade case, it has no application to this case.\nThe defendants argue that “there is no authority under existing Massachusetts law for the proposition that the intentional infliction of mental or emotional distress provides a separate and distinct basis of tort liability.” That is true only because the precise question has never been presented to this court for decision. That argument is therefore no more valid than would be an argument by the plaintiff that there is no record of any Massachusetts law denying recovery on such facts. No litigant is automatically denied relief solely because he presents a question on which there is no Massachusetts judicial precedent. It would indeed be unfortunate, and perhaps disastrous, if we were required to conclude that at some unknown point in the dim and distant past the law solidified in a manner and to an extent which makes it impossible now to answer a question which had not arisen and been answered prior to that point. The courts must, and do, have the continuing power and competence to answer novel questions of law arising under ever changing conditions of the society which the law is intended to serve.\nThe defendants also argue that “this Court has heretofore allowed recovery for these items of damages [¡mental or emotional distress] only in the cases where the defendant has committed an independent and separate tort recognized at common law.” This, if true, is basically the same argument, or a subsidiary of the same argument, discussed and disposed of in the preceding paragraph. The right to recover for these items of damages should not be denied just because they do not fit in any of the existing niches in the ancient walls surrounding the law of torts. If the current needs of society require and justify so doing, the walls may be extended and additional niches built to accomplish justice.\nThese items of damages have sometimes been described as “parasitic” because of the very argument made by the defendants. 38 Am. Jur. 2d, Fright, Shock, and Mental Disturbance, § 29. Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 Harv. L. Rev. 1033, 1048, 1059. The fact that they are “parasitic” in nature when permitted to be recovered in addition to other damages recoverable for torts recognized at common law does not require a conclusion that they cannot, or should not, be proper elements of compensable damages when standing alone or with illness or injuries flowing therefrom.\nThe decision in the Spade case recognized the difficulty in trying to justify the denial of recovery where there was “no injury to the person from \""without.” It finally said, at p. 288, that “it is hard on principle to say why there should not also be a recovery for the mere mental suffering when not accompanied by any perceptible physical effects. It would seem therefore that the real reason for refusing damages sustained from mere fright . . . probably rests on the ground that in practice it is impossible satisfactorily to administer any other rule.” It said further, at p. 290, that to allow such recovery “would open a wide door for unjust claims, which could not successfully be met.” These reasons, if sound, would seem to apply equally to all claims for damages for emotional distress, whether “parasitic” to recovery for a tort recognized at common law, or independent of any such tort. The possibility of “unjust claims” is inherent in either type of case. Fact finding tribunals, whether judges, juries or auditors, are considered qualified and competent to decide whether there is any emotional distress resulting from a recognized common law tort, and, if there is, to in-elude compensation therefor in any damages awarded the victim. They would seem to be equally qualified and competent to decide the same issues when the claim is based on intentional acts allegedly causing emotional distress without a recognized common law tort. When some of these same objections were made to recovery for prenatal injuries, we said: “The advancement of medical science should take care of most of these arguments. The element of speculatian is not present to any greater extent than in the usual tort claim where medical evidence is offered and the issue of causation must be weighed with great care. . . . The opportunity for fraudulent claims can be faced by the courts as in other types of cases. . . . We are not impressed with the soundness of the arguments against recovery. They should not prevail against logic and justice.” Torigian v. Watertown News Co. Inc. 352 Mass. 446, 448-449.\nThe combined effect of the decisions in the Spade case and in Smith v. Postal Tel. Cable Co. of Mass., supra, was to declare that in this Commonwealth, when there is “no injury to the person from without,” there can be no recovery for emotional distress caused by negligent or grossly negligent conduct of a defendant. However those decisions, and the decisions in Sullivan v. H. P. Hood & Sons, Inc. and Mills v. Keeler, both supra, carefully and pointedly intimated that there might be a right to recover for emotional distress intentionally caused, even though no other recognized tort was committed.\nDespite the absence of any controlling judicial precedent on this subject in this Commonwealth, there have been many persuasive decisions thereon in other jurisdictions. These decisions, particularly those within the last forty years, show a considerable change by way of a departure from the former position hmiting recovery for emotional distress to cases where it resulted from the commission of a recognized common law tort. The development in the law on this subject has been reflected in changing statements in succeeding editions of the Restatement of the Law and in scholarly treatises by recognized authorities on the law of torts. The Restatement and the treatises are so fully annotated with references to the decisions accomplishing the change in the law that it is unnecessary for us to repeat the citations. Instead it may be sufficient- to give the following-summary of the statements illustrating the developments in this field of law.\n1. In 1934 the Restatement: Torts, § 46, said: “Except as stated in §§ 21 to 34 [on assault and battery] and § 48 [on special liability of carrier for insults by servants], conduct which is intended or which though not so intended is likely to cause only a mental or emotional disturbance to another does not subject the actor to liability (a) for emotional distress resulting therefrom, or (b) for bodily harm unexpectably resulting from such disturbance.”\n2. In 1936 Professor Calvert Ma grader (later Judge Magruder), writing on “Mental and Emotional Disturbance in the Law of Torts” in 49 Harv. L. Rev. 1033, said at p. 1067: “No longer is it even approximately true that the law does not pretend to redress mental pain and anguish 'when the unlawful act complained of causes that alone.’ If a consistent pattern cannot yet be clearly discerned in the cases, this but indicates that the law on this subject is in a process of growth.”\n3. In the 1948 Supplement to the Restatement: Torts, § 46 was changed to provide that “one who, without a privilege to do so, intentionally causes severe emotional distress to another is liable (a) for such emotional distress, and (b) for bodily harm resulting from it.”\n4. In 1956 Professors Harper and James said that “there is, in modern law, a distinct tendency to allow recovery for . . . [certain disagreeable emotional] disturbances,” and that “[w]here severe mental suffering is intentionally caused and it is of such a kind as is likely to and does cause bodily illness . . . the law today generally allows . . . [recovery].” Harper and James, Torts, § 9.1.\n5. In 1964 Professor Prosser said: “It is not until comparatively recent years that there has been any general admission that the infliction of mental distress, standing alone, may serve as the basis of an action, apart from any other tort. In this respect, the law is clearly in a process of growth, the ultimate limits of which cannot as yet be determined.” Prosser, Torts (3d ed.) § 11.\n6. When Restatement 2d: Torts, was published in 1965, § 46 was again revised so that the part applicable to the case before us now reads as follows: “(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.” The rest of § 46 relates to severe emotional distress caused to a person other than the one against whom the defendant directed his outrageous, intentional or reckless conduct.\nAlthough the change in the law in this area has been extensive in a relatively short span of time, there has never been any holding or even suggestion that the law should permit recovery by every person whose feelings have been hurt even though the hurt be inflicted intentionally. In his 1936 article, Professor Magruder cautioned against opening up “a wide vista of litigation in the field of bad manners, where relatively minor annoyances had better be dealt with by instruments of social control other than the law.” He added: “Of course there is danger of getting into the realm of the trivial in this matter of insulting language. No pressing social need requires that every abusive outburst be converted into a tort . . ..” 49 Harv. L. Rev. 1033, 1035, 1053.\nIt is now obvious that the cautionary comments and limitations suggested by Professor Magruder in 1936 were followed and incorporated in the law as it developed. The rule most recently stated in 1965 in Restatement 2d: Torts, § 46, bases liability for emotional distress and any bodily harm resulting therefrom on the concurrence of (a) intentional or reckless conduct which is “extreme and outrageous,” and (b) resulting “severe emotional distress” (emphasis supplied).\nThe meaning of the words “extreme and outrageous” as used in § 46 is discussed in comment d of the reporter’s notes to the section. It says in part that “[liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Comment f deals with a defendant’s knowledge as bearing on the issue whether his conduct is extreme and outrageous. It says in part: “The extreme and outrageous character of the conduct may arise from the actor’s knowledge that the other is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity. The conduct may become heartless, flagrant, and outrageous when the actor proceeds in the face of such knowledge, where it would not be so if he did not know.” This comment has particular significance in the case before us because of the plaintiff’s allegation that the defendants continued their alleged “harassing tactics” after being informed that the plaintiff did not owe the bill in question and that the tactics were affecting her health adversely. Comment j, in discussing the meaning of the words “severe emotional distress,” says in part that “[t]he law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it.”\nConsidering the weight of judicial authority as reflected in the most recent statement of the law in Restatement 2d: Torts, § 46, and limiting ourselves to the allegations contained in the declaration before us, we hold that the law of this Commonwealth should be, and is, that one who, without a privilege to do so, by extreme and outrageous conduct intentionally causes severe emotional distress to another, with bodily harm resulting from such distress, is subject to liability for such emotional distress and bodily harm even though he has committed no heretofore recognized common law tort. Because of the allegations in the declaration before us, we are not required to rule, and do not rule, on the legal sufficiency of allegations of negligent, grossly negligent, wanton or reckless conduct causing severe emotional distress resulting in bodily injury, or on the legal sufficiency of allegations of distress without resulting bodily injury. See Smith v. Postal Tel. Cable Co. of Mass. 174 Mass. 576, 578, and Restatement 2d: Torts, §§ 306, 312, and 313, concerning the negligent causation of emotional distress. As was said in the Smith case, “[tfjhat question may be left until it arises.”\nTesting the plaintiff’s declaration by the rules stated above, we hold that each count thereof states a cause of action and is therefore legally sufficient. The plaintiff is entitled to an opportunity to prove the allegations which she has made. The demurrer should have been overruled. The order sustaining the demurrer is therefore reversed as to each count of the declaration.\nSo ordered.\nAlthough the declaration alleges “mental anguish and emotional distress,” we use the limited phrase “emotional distress” in the rest of this opinion. For the purpose of this opinion these words are intended to apply to what has been variously called or referred to as mental anguish, mental suffering, mental disturbance, mental humiliation, nervous shock, emotional disturbance, distress of mind, fright, terror, alarm and anxiety.\nFor the purpose of this decision we do not assume that the defendants, by their demurrers, admitted the allegation that they were guilty of “numerous other dunning tactics” other than those specifically described.\nThe Spade decision also includes the following significant language indicating that the rule stated therein applies only to negligent acts. At page 289 the court said that it was “ determining the rules of law by which the right to recover compensation for unintended injury from others is to be governed.” On the same page it said: \""One may be held bound to anticipate and guard against the probable consequences to ordinary people, but to carry the rule of damages further imposes an undue measure of responsibility upon those who are guilty only of unintentional negligence.” At page 290, the court, after stating the rule of the case, said: “The logical vindication of this rule is, that it is unreasonable to hold persons who are merely negligent bound to anticipate and guard against fright and the consequences of fright . . .” (enrohasis supplied).\nThe cases of Stiles v. Municipal Council of Lowell, 233 Mass. 174, and Frewen v. Page, 238 Mass. 499, cited by the parties related in part to recovery of damages for mental anguish, but they did not answer this open question. When the question was presented in a trial in a Federal District Court in 1959, the court said: “Basic to a consideration of both contentions is an analysis of the nature of an action for intentionally inflicting emotional distress. There appear to be no Massachusetts cases involving this tort. But we may assume that Massachusetts would recognize that it is a tort for a person, without a privilege to do so, intentionally to cause emotional distress to another.” Cohen v. Lion Prod. Co. 177 F. Supp. 486, 489 (D. Mass.).\n“D3]omewhere around 1930 it began to be recognized that the intentional infliction of mental disturbance by extreme and outrageous conduct constituted a cause of action,” where no traditional ground of tort liability could be discovered. Prosser, Torts (3d ed.) § 11 (p. 48).\nFor other extensive collections of such citations, see 38 Am. Jur. 2d, Fright, Shock, and Mental Disturbance, and Annotations, 15 A. L. R. 2d 108, 64 A. L. R. 2d 100, and 29 A. L. R. 3d 1337. For some of the many cases involving emotional distress allegedly caused by the defendants’ attempts to collect debts, see Clark v. Associated Retail Credit Men, 105 F. 2d 62 (Ct. App. D. C.), Maze v. Employees’ Loan Soc. 217 Ala. 44, Herman Saks & Sons v. Ivey, 26 Ala. App. 240; Delta Fin. Co. v. Ganakas, 93 Ga. App. 297, Barnett v. Collection Serv. Co. 214 Iowa, 1303, LaSalle Extension Univ. v. Fogarty, 126 Neb. 457. Kirby v. Jules Chain Stores Corp. 210 N. C. 808, and Duty v. General Fin. Co. 154 Texas, 16.\nThe reporter’s comment on this change was: “This is a part of the law of torts in which real developments have occurred in recent years and this development is continuing. The cases which have appeared since 1934 establish that the interest in freedom from severe emotional distress is protected against intentional invasion.”\nThe reporter is Professor William L. Prosser quoted elsewhere in this opinion.\nThis conclusion is reached without reliance upon G. L. c. 93, § 49, inserted by St._ 1970, c. 883, § 1. This statute prohibits the collection or attempted collection of certain debts in an unfair, deceptive or unreasonable manner, and it provides that the failure to comply with its provisions “shall constitute an unfair or deceptive act or practice under the provisions of chapter ninety-three A.” General Laws c. 93A, § 9, inserted by St. 1969, c. 690, and as amended by St. 1970, c. 736, §§ 1, 2, provides that “[a]ny person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any loss of money or property ... as a result of the use or employment by another person of an unfair or deceptive act or practice . . . may . . . bring an action in the superior court in equity for damages and such equitable relief, including an injunction, as the court deems to be necessary and proper.\"" Although these statutes were mentioned in oral argument, the briefs contain no reference to them or arguments based on their provisions. The plaintiff's declaration does not state a claim under this statute; and, in any event, this is not a suit in equity."", ""type"": ""majority"", ""author"": ""Quirico, J.""}], ""attorneys"": [""Joseph Stashio for the plaintiff."", ""Joseph P. Warner for the defendants.""], ""corrections"": """", ""head_matter"": ""Irenee George, Jr., vs. Jordan Marsh Company & others.\nMiddlesex.\nNovember 5, 1970.\nApril 12, 1971.\nPresent: Tatjbo, C.J., Spalding, Reabdon, & Quibico, JJ.\nEmotional Distress. Actionable Tort. Words, “Extreme and outrageous.”\nThe rule laid down in Spade v. Lynn & Boston R.R. 168 Mass. 285, does not bar recovery for emotional distress resulting from acts intended to produce such results, or bar recovery for physical injuries resulting from emotional distress thus produced. [249]\nNo litigant is automatically denied relief solely because he presents a question on which there is no Massachusetts judicial precedent. [249] Summary of statements illustrating the developments in the law of torts respecting liability for causing emotional distress. [252-255]\nOne who, without a privilege to do so, by extreme and outrageous conduct intentionally causes severe emotional distress to another, with bodily harm resulting from such distress, is subject to liability for such emotional distress and bodily harm even though he has committed no previously recognized common law tort. [255]\nA cause of action in tort against a company and its employee was stated by a declaration alleging that the company sold goods on credit to the plaintiff’s emancipated son, that thereafter the defendants asserted that the plaintiff had guaranteed in writing to pay her son’s debt although they knew that she had not given such a guaranty, that the defendants, with the intent to cause the plaintiff emotional distress and in an attempt to intimidate her into paying her son’s debt, badgered and harassed her by \""dunning tactics” specifically described, that such acts caused the plaintiff “great mental anguish and emotional distress as intended” by the defendants, that as a result thereof the plaintiff’s health deteriorated and she suffered a heart attack, that, notwithstanding her attorney's request that the “harassing tactics be discontinued,” the defendants persisted in their “above mentioned harassing tactics,” that as a consequence the plaintiff suffered greater emotional distress which resulted in a second heart attack, and that all of such acts prevented her from enjoying a gainful employment and caused her to incur expenses for medicine, medical attendance and nursing. [255-256]\nTort. Writ in the Superior Court dated Novem-her 17, 1969.\nThe action was heard by Spring, J., on demurrer.\nJoseph Stashio for the plaintiff.\nJoseph P. Warner for the defendants.""}, ""cites_to"": [{""cite"": ""168 Mass. 285"", ""case_ids"": [471416], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/168/0285-01""], ""opinion_index"": -1}, {""cite"": ""210 N. C. 808"", ""case_ids"": [8629228], ""category"": ""reporters:state"", ""reporter"": ""N.C."", ""case_paths"": [""/nc/210/0808-01""], ""opinion_index"": 0}, {""cite"": ""126 Neb. 457"", ""case_ids"": [4648202], ""category"": ""reporters:state"", ""reporter"": ""Neb."", ""case_paths"": [""/neb/126/0457-01""], ""opinion_index"": 0}, {""cite"": ""214 Iowa, 1303"", ""case_ids"": [2322850], ""category"": ""reporters:state"", ""reporter"": ""Iowa"", ""case_paths"": [""/iowa/214/1303-01""], ""opinion_index"": 0}, {""cite"": ""93 Ga. App. 297"", ""case_ids"": [1572527], ""category"": ""reporters:state"", ""reporter"": ""Ga. App."", ""case_paths"": [""/ga-app/93/0297-01""], ""opinion_index"": 0}, {""cite"": ""26 Ala. App. 240"", ""case_ids"": [1667598], ""category"": ""reporters:state"", ""reporter"": ""Ala. App."", ""case_paths"": [""/ala-app/26/0240-01""], ""opinion_index"": 0}, {""cite"": ""217 Ala. 44"", ""case_ids"": [3623851], ""category"": ""reporters:state"", ""reporter"": ""Ala."", ""case_paths"": [""/ala/217/0044-01""], ""opinion_index"": 0}, {""cite"": ""105 F. 2d 62"", ""case_ids"": [1056253], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""case_paths"": [""/f2d/105/0062-01""], ""opinion_index"": 0}, {""cite"": ""29 A. L. R. 3d 1337"", ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R. 3d"", ""opinion_index"": 0}, {""cite"": ""64 A. L. R. 2d 100"", ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R. 2d"", ""opinion_index"": 0}, {""cite"": ""15 A. L. 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+304846,"{""id"": 304846, ""name"": ""Commonwealth vs. Massachusetts Turnpike Authority"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""e4a663a50e83d399812c3f606d3f13bb752f662b9b3b696c04e197cadae6bf2f"", ""simhash"": ""1:a25426ac4925e9c2"", ""pagerank"": {""raw"": 0.0000003161454674180487, ""percentile"": 0.863318479185466}, ""char_count"": 22004, ""word_count"": 3591, ""cardinality"": 1029, ""ocr_confidence"": 0.528}, ""casebody"": {""judges"": [], ""parties"": [""Commonwealth vs. Massachusetts Turnpike Authority.""], ""opinions"": [{""text"": ""Cutter, J.\nThe Commonwealth seeks under G. L. c. 79 the assessment of damages caused by the Authority’s eminent domain taking of premises formerly occupied by the Irvington Street armory in Boston. In Commonwealth v. Massachusetts Turnpike Authy. 349 Mass. 1, decided April 6, 1965, we held that the Authority was bound to pay damages to the Commonwealth for taking the locus, thus placing the burden of its acquisition for road purposes upon the portion of the public using the toll turnpike rather than upon the general body of taxpayers.\nA jury awarded the Commonwealth $895,000 by a verdict returned on December 18, 1963. A bill of exceptions was not allowed until May 2, 1966. The evidence would warrant finding the facts summarized below.\nThis land area of 62,356 square feet, covered almost entirely by the armory, was taken on May 29, 1962. The armory was an “old castle-fortress type” brick building, with granite trim, built in 1889 or 1890 for the use of twelve to fifteen units of militia. Part of the structure was three stories in height. Part of it was a large drill hall, 298 feet long and 130 feet wide. The building was in 1962 “the oldest armory in use in” Massachusetts.\nFour units, with a combined strength of 314 men, were using the armory in 1962. There were also nonmilitary uses. The locus had no motor vehicle parking facilities. There was need to replace the armory. If and when replaced, a modern type of armory and not an old fashioned castle type of building would be built. “ [AJrmory requirements vary from time to time” with changes in military practices and methods of training. In recent years new armories have been similar to school buildings with gymnasiums. It could reasonably have been concluded that the use of the armory might have continued for from five to fifteen years after the taking and that, if not destroyed, it would have been in use in 1963 at the time of the trial.\nArmories “are not commonly bought and sold.” One witness, however, had participated in the sale of a smaller old fortress type armory in Cambridge to Massachusetts Institute of Technology (M.I.T.) which could have been found to have been made in an effort to cooperate in expanding M.I.T.’s accommodations for students and research. Another old armory was given to the city of Brockton for school purposes when a new armory was built. An armory in Boston on Bast Newton Street was transferred to the State Department of Mental Health in 1963. The Dartmouth Street portion of the Irvington Street armory had not been used since 1956 or 1957. Prior to the taking the Armory Commission had made no decision to discontinue use of the building.\nSubject to the Authority’s exception, an expert engineer testified that the 1962 cost of reproducing the armory as new, apart from land, was $2,431,196, and that the amount of physical depreciation (exclusive of obsolescence) was $1,107,064. In his opinion the armory was a special purpose building because of its armory design, its massiveness, and the great size of the drill shed. A qualified real estate appraiser testified that, after allowing for obsolescence, the depreciated reproduction cost of the building was $1,000,000. He valued the land at $200,000. This witness was of opinion that “the highest and best use of the property was the use at the time of the taking. ’ ’ Two expert witnesses called by the Authority based their opinions in large measure upon what they thought a buyer might pay for the building. There was also evidence concerning the nature and cost of the type of modern armory likely to be built to house the units using the Irvington Street armory if that armory should be replaced.\nWe have before us the Authority’s exceptions (a) to the admission of evidence of the adjusted reproduction cost of the armory structure, (b) to the exclusion of testimony sought from expert witnesses, and (c) to the trial judge’s refusal to give requested instructions.\n1. The taking involved premises used mainly for special public or quasi-public purposes and incidentally for other collateral or .subsidiary special activities. The problem of proving the extent of the damage was particularly difficult because, over the years, changes in.military practices had made the armory less and less well adapted for its principal use. It was, however, still usable and useful in the absence of more, modern facilities.\nThe evidence, including photographs of the locus as it was at the time of the taking, tends to support the Commonwealth’s view that the armory was a ‘‘special use” or service-type property (see fn. 2). Although the building could be used incidentally for public events, athletic contests, and certain trade and social affairs, the jury could reasonably conclude that it was not primarily designed for these purposes; that such a building would not be offered for sale or have any general market; that the most valuable use of the structure was as an armory; and that its value for incidental activity was less than its residual value to the Commonwealth during the armory’s remaining useful life as public property to be employed as an armory and for related public purposes.\nIn eminent domain cases the general measure of damages is the fair market value of the property at the time of the taking. Tigar v. Mystic River Bridge Authy. 329 Mass. 514, 517. This measure necessarily “is always based upon hypothetical conditions” (see Nichols, Eminent Domain [Rev. 3d ed.] § 12.32, p. 218) in that it is supposed to be “the highest price which a hypothetical willing buyer would pay to a hypothetical willing seller in an assumed free and open market.” Epstein v. Boston Housing Authy. 317 Mass. 297, 299-300. See Bonbright, Valuation of Property, 414-415.\nIn Newton Girl Scout Council, Inc. v. Massachusetts Turnpike Authy. 335 Mass. 189, we recognized (pp. 194r-195) that for a special purpose property (developed for the particular needs of a nonprofit, charitable, or religious organization) there will generally not be an active market and that its fair value cannot readily “be shown by sales of nearby comparable property.” We said that “to reach a just result when such a property is taken by eminent domain . . . much greater flexibility in the presentation of evidence” is essential than “in the case of properties having more conventional uses,” and that, as to such properties, “the cost of land plus the reproduction cost (less depreciation where appropriate) of improvements may be more relevant than in the ordinary case.”\nThe same principles which are applicable to nonprofit agencies also apply, in general, to special purpose buildings owned by the State, public agencies, or public utilities, where the evidence warrants the conclusion that the real value of a property taken by eminent domain cannot be shown by a sequence of sales of similarly used properties, by a capitalization of earnings, or by other usual criteria. See Nichols, Eminent Domain (Rev. 3d ed.) §§ 12.32,15.1 [1] et seq., 15.42-15.44; Orgel, Valuation under Eminent Domain (2d ed.) §§ 38-40. The principal usefulness of many properties owned by governmental bodies is to their respective owners for a particular purpose which is likely to be of interest to no other person. See Bonbright, Valuation of Property, 413-421, esp. at 416, 447-449.\n2. The Authority’s principal exceptions relate to the propriety of considering, as a guide to value, evidence of the 1962 reproduction cost of the armory building with adjustments to reflect depreciation and obsolescence. As we have already indicated, such evidence may be received (to be given appropriate weight with other evidence) with respect to takings of special purpose properties of public or nonprofit owners, where reproduction of essentially the same type of structure at the same site or elsewhere would be reasonable in the event of its destruction or taldng. See Assessors of Quincy v. Boston Consol. Gas Co. 309 Mass. 60, 66; the Newton Girl Scout Council, Inc. case, 335 Mass. 189,195.\nThere is danger, of course, that evidence of reproduction cost (even if it purports to be fairly adjusted) may lead to “an excessive award unless it is [in fact] adequately discounted for obsolescence and inadequacy as well as for physical depreciation” (emphasis supplied). See Orgel, Valuation under Eminent Domain (2d ed.) § 199, and also §§ 188-198. In the Newton Girl Scout Council, Inc. case, 335 Mass. 189, the structures taken remained reasonably well adapted to the special purposes for which they were employed. They had not been shown to be in such condition as to make reproduction unlikely or imprudent. Accordingly, adjusted reproduction cost figures could have been admitted in evidence because (a) the current cost of reproducing the buildings could be adjusted (fairly and without undue complication or conjecture) to reflect accrued physical depreciation and any functional or other obsolescence, and (b) the adjusted figure would reasonably tend to prove what the owner would have to pay to obtain approximately the same still desirable and useful structures, after taking into account age, wear and tear, and observed obsolescence.\nA different situation exists, however, where special purpose structures are very greatly out of date, are no longer well fitted to their particular use, and would not be reproduced by any prudent owner. In such a case, evidence of adjusted reproduction cost will be irrelevant, for it is difficult, even for an expert, to estimate suitable allowances for physical depreciation and obsolescence of such an obsolete structure. See United States v. Benning Housing Corp. 276 F. 2d 248, 253 (5th Cir.); Buena Vista Homes, Inc. v. United States, 281 F. 2d 476, 477-478 (10th Cir.); United States v. Certain Interests, 296 F. 2d 264, 270 (4th Cir.). See also United States v. Toronto, H. & B. Nav. Co. 338 U. S. 396, 403; United States v. 25.4 Acres of Land, 65 F. Supp. 333, 337 (E. D. N. Y.); Salzberg v. State, 24 App. Div. 2d (N. T.) 664, 665 (no useful value left). See also Nichols, Eminent Domain (Rev. 3d ed.) §§ 15.43, 20.2. Cf. Fairfield Gardens, Inc. v. United States, 306 F. 2d 167, 173-174 (9th Cir.). The present record shows that evidence of the 1962 reproduction value of this obsolete armory had slight, if any, relevance in determining its value to the Commonwealth or to any other person. Even after a careful attempt to adjust the reproduction cost figures sufficiently for obsolescence, the result would be likely to confuse the jury. In the circumstances, admission of this evidence was prejudicial error.\n3. Even when a structure taken by eminent domain, because obsolete at the time of the taking, would not be reproduced, it may still be useful and usable by its owner for a substantial period after the taking for the special purposes for which it was originally built or acquired. The residual intrinsic value to the owner may still exceed what the land and structures will bring in the ordinary real estate market. The evidence in the present case would warrant the conclusion that this armory could have been used for from five to fifteen years after 1962. If the Common: wealth is not allowed to show, in some reasonable way the detriment caused to it as owner (see Davenport v. County of Franklin, 277 Mass. 89, 93; Bonbright, op. cit. 419-421; see also Nichols, Eminent Domain [Rev. 3d ed.] § 12.32) by the loss of the armory’s residual useful value, it will be deprived of just compensation.\nIf the armory had not been taken, the Commonwealth for a period of time could have postponed replacing the armory by a more modern structure. This (if done reasonably economically) clearly would have cost less than- rebuilding the old armory. There was evidence of the cost of such an economical replacement (see fn. 4). The Commonwealth, by the taking, lost not only the value of its land but also the value to' it of being able to postpone expenditure fqr a new structure. The value of that possibility of postponement (that is,.the fair value of having available the old structure or a reasonable replacement structure during the useful life of the old armory remaining after 1962) is susceptible, we think, of measurement by some appropriate actuarial computation of the monetary loss to the Commonwealth caused by the destruction of its opportunity to postpone the expenditure (e.g. the present value of the interest upon the investment in, and the depreciation upon, a reasonable replacement structure-during the remaining useful life of the old structure).\n. Any expert appraiser’s opinion of the residual value of such a building will be expressed as an amount based on his judgment and experience, but he will naturally need to use (to assist him in his judgment) one or more reasonable methods of computing residual value or fair rental value of the same structure or a reasonable replacement of it for the remaining life of the old structure. Such an expert may explain in his testimony, as part of his reasons, the considerations which in fact he has taken into account in reaching his opinion. See Southwick v. Massachusetts Turnpike Authy. 339 Mass. 666, 670-671. See also Davenport v. Haskell, 293 Mass. 454, 458-459; the Newton Girl Scout Council, Inc. case, 335 Mass. 189, 199; Fairfield Gardens, Inc. v. United States, 306 F. 2d 167, 173-174 (9th Cir.). The cost of a suitable substitute structure may be taken into account appropriately by an expert appraiser in forming his judgment of the old structure’s residual value. See, for discussion of replacement value, Orgel, op. cit. §§ 197-198; Bonbright, op. cit. 150-176, 184, 419-420; Barnsley, Equivalent Reinstatement as the Basis of Compensation for Compulsory Acquisition, 26 Conveyancer N. S. 425. He will, of course, be subject to proper testing of his reasoning on cross-examination. The jury should be cautioned, of course, that an expert’s reasons and computations are not in themselves direct evidence of value but merely state the basis of his ultimate opinion. That opinion may be given weight to the extent to which the jury, under proper instructions, find it persuasive.\nExceptions sustained.\nVarious bands and drum corps used the building. The city of Boston also used it for physical education and for track, basketball, and baseball events, voting during elections, and exhibition hall purposes.\nOne of the expert appraisers called by the Authority in his report described the armory as “a service type property as opposed to an investment type property. Service type properties include those properties whose true value derives from use and occupancy, usually public. Properties of this nature comprise churches, hospitals, museums, government buildings . . . and so forth.”\nThe widely varying opinions of the principal expert witnesses may be summarized: —\nBeal Estate Appraiser Beal Estate Appraiser Beal Estate Appraiser\nNo. 1 No. 2 No. 3\n(Called by the Commonwealth) (Called by the Authority)\nBuilding Building $100,000 Building $115,000\nBeproduction cost $2,431,196 Physical depreciation 1,107,064\n$1,324,132\nDepreciated reproduction cost (including obsolescence - economic and functional) $1,000,000\nLand Land Land\nArea 62,356 at At $2 per\n$3.20 per sq. ft. 200,000 sq. ft. 125,000 125,000\nTotal value $1,200,000 $225,000 $240,000\nThe Irvington Street armory had about 131,600 square feet of floor space. Current construction criteria would call for 32,005 to 36,880 square feet (estimated to cost $425,000, excluding site preparation and acquisition expense, for the smaller area, and $489,000 for the larger area) for administrative, storage, and training space for those units using the armory in 1962. If missile battalions were to revert to armory status, the armory on the locus “would be the only place to bring them back to.” There was thus possible need for more than 32,005 to 36,880 square feet. Ifor five armories, built between 1960 and 1963, the cost per square foot was $13.26. Presumably, if more space should be desired, the total replacement cost would be higher.\nWe also pointed out (p. 195), “Special opportunities for proof of value have long been afforded . . . where . . . there is no market value, in the sense in which . . . market value is reflected by a steady volume of sales [in the general real estate market] of ordinary . . . properties. . . . The courts in these cases . . . may be doing no more than recognizing that more complex and resourceful methods of ascertaining value must be used” in such cases and that “it is proper to determine [the hypothetical fair] market value from the intrinsic value of the property and from its value for the special purposes for which it is adapted and used. ’ ’\nSee also Gloucester Water Supply Co. v. Gloucester, 179 Mass. 365, 382-383; James Millar Co. v. Commonwealth, 251 Mass. 457, 464 (cost of reproducing filled land treated as admissible in the discretion of the trial judge); United States v. 84.4 Acres of Land, 348 F. 2d 117, 120-122 (3d Cir. — reproduction cost of golf course) ; annotation, 68 A. L. E. 2d 393. Cf. United States v. Certain Property, 306 F. 2d 439, 446-448 (2d Cir. — ordinary commercial building distinguished from special nonprofit use building). Cf. also Bachelder Truck Sales, Inc. v. Commonwealth, 350 Mass. 270, 273."", ""type"": ""majority"", ""author"": ""Cutter, J.""}, {""text"": ""Kirk, J.\n(concurring in result) For the reasons stated by the majority I agree that the exceptions should be sustained. The cost in 1962 of reproducing a structure erected in 1889, which admittedly never would be reproduced, is obviously irrelevant and confusing as a factor in determining the damages sustained by the taking.\nThe majority suggest, however, that the cost of a suitable replacement structure may be considered by an expert in forming an opinion of the residual value of the old armory. This, it seems to me, would be equally irrelevant and confusing. The Commonwealth’s evidence shows that a suitable replacement, which would necessarily require a different locus, would involve the construction of a modern school-type building with gymnasium, a parking area (for military and civilian vehicles),.a helicopter landing area and other features, none of which were present on the land taken. The dissimilarity is so gross as to make replacement cost patently absurd as a guide in reaching an opinion of the residual value of the old armory at the time of the taking. The replacement cost, like the reproduction cost, would result in a blizzard of figures irrelevant to the simple question to be resolved. The Commonwealth’s evidence tends to show that the old armory, by obsolescence, had become so ill adapted to modern needs that its value as a special purpose structure had attenuated almost to the vanishing point. This being so, I see no reason for applying any special rule for the determination of damages. Mathematical certainty is not always possible. We should require, however, the application of a sensible and understandable rule to enable the jury to reach a just result. The familiar and fundamental rule for the assessment of damages in eminent domain cases (the fair market value of the property taken, at the time of the taking) contemplates compensation to the owner for the residual useful value which the structure may contribute to the land, “taking into consideration all uses to which the land was adapted and might in reason be applied.” Nichols, Eminent Domain (Rev. 3d ed.) § 12.2 (1). Providence & Worcester R.R. v. Worcester, 155 Mass. 35, 42. Teele v. Boston, 165 Mass. 88, 92. Tigar v. Mystic River Bridge Authy. 329 Mass. 514, 517. On the Commonwealth’s evidence, it would seem that the application of the general rule would more nearly accomplish a just result than would an exceptional rule which would give free rein to the sometimes fanciful theories of experts.\nExpert opinion testimony doubtless will be necessary to establish the fair market value of the property at the time of the taking. Although the admissible range of supporting data for the expert’s opinion rests mainly in the discretion of the judge, it should not, I submit, extend to the estimated cost of a replacement structure.\nStatute 1962, c. 717, shows that the Commonwealth then contemplated the erection of a new armory by providing that the funds received from the Massachusetts Turnpike Authority be used, in addition to an amount already appropriated and to available Federal funds, for the acquisition of land and for the erection of a replacement armory with facilities."", ""type"": ""concurrence"", ""author"": ""Kirk, J.""}], ""attorneys"": [""John L. Murphy, Jr. (Arthur A. Karp with him) for the Massachusetts Turnpike Authority."", ""Charles Ingram, Special Assistant Attorney General (Nicholas G. Curuby with him), for the Commonwealth.""], ""corrections"": """", ""head_matter"": ""Commonwealth vs. Massachusetts Turnpike Authority.\nSuffolk.\nDecember 9, 1966.\nMarch 3, 1967.\nPresent: Wilkins, C.J., Spalding, Whittemore, Cutter, Kirk, Spiegel, & Reardon, JJ.\nDamages, Eminent domain. Value! Eminent Domain, Damages. Evidence, Of value; Opinion: expert.\nIn a proceeding for assessment of damages for a taking by eminent domain of an armory of the Commonwealth constituting a special purpose property, evidence of adjusted reproduction cost of the building was irrelevant and improperly admitted where the building, constructed over seventy years before the taking, was obsolete and would not have been reproduced. [149]\nAlthough an old armory building of the Commonwealth was obsolete and would not have been reproduced, evidence that it could have been used for a substantial period of years after it was taken by eminent domain entitled the Commonwealth, in a proceeding for assessment of damages for the taking, to show the building’s residual useful value to it and to be awarded damages for loss of that value, which might be determined by reasonable computations and by the aid of expert testimony [149-150]; Kirk, J., concurring in sustaining exceptions.\nPetition for assessment of damages filed in the Superior Court on October 16,1963.\nThe case was tried before Barron, J.\nJohn L. Murphy, Jr. (Arthur A. Karp with him) for the Massachusetts Turnpike Authority.\nCharles Ingram, Special Assistant Attorney General (Nicholas G. Curuby with him), for the Commonwealth.""}, ""cites_to"": [{""cite"": ""350 Mass. 270"", ""case_ids"": [526888], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""273""}], ""case_paths"": [""/mass/350/0270-01""], ""opinion_index"": 0}, {""cite"": ""306 F. 2d 439"", ""case_ids"": [256748], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""446-448""}], ""case_paths"": [""/f2d/306/0439-01""], ""opinion_index"": 0}, {""cite"": ""348 F. 2d 117"", ""case_ids"": [857476], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""120-122""}], ""case_paths"": [""/f2d/348/0117-01""], ""opinion_index"": 0}, {""cite"": ""251 Mass. 457"", ""case_ids"": [4027841], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""464""}], ""case_paths"": [""/mass/251/0457-01""], ""opinion_index"": 0}, {""cite"": ""179 Mass. 365"", ""case_ids"": [23890], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""382-383""}], ""case_paths"": [""/mass/179/0365-01""], ""opinion_index"": 0}, {""cite"": ""293 Mass. 454"", ""case_ids"": [479935], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""458-459""}], ""case_paths"": [""/mass/293/0454-01""], ""opinion_index"": 0}, {""cite"": ""339 Mass. 666"", ""case_ids"": [3850702], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""670-671""}], ""case_paths"": [""/mass/339/0666-01""], ""opinion_index"": 0}, {""cite"": ""277 Mass. 89"", ""case_ids"": [861410], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""93""}], ""case_paths"": [""/mass/277/0089-01""], ""opinion_index"": 0}, {""cite"": ""306 F. 2d 167"", ""weight"": 2, ""case_ids"": [256663], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""173-174""}, {""page"": ""173-174""}], ""case_paths"": [""/f2d/306/0167-01""], ""opinion_index"": 0}, {""cite"": ""65 F. Supp. 333"", ""case_ids"": [625700], ""category"": ""reporters:federal"", ""reporter"": ""F. Supp."", ""pin_cites"": [{""page"": ""337""}], ""case_paths"": [""/f-supp/65/0333-01""], ""opinion_index"": 0}, {""cite"": ""338 U. 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+309645,"{""id"": 309645, ""name"": ""Commonwealth vs. Olga Olivo (and a companion case)"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""ae59f4c778f0a26ed63d58f06b87d137fe3dd1f1a6bad37fe1c4566fe0990c21"", ""simhash"": ""1:bd76e0253b395329"", ""pagerank"": {""raw"": 0.0000007210006769693216, ""percentile"": 0.9676498514006029}, ""char_count"": 24908, ""word_count"": 4047, ""cardinality"": 1117, ""ocr_confidence"": 0.886}, ""casebody"": {""judges"": [], ""parties"": [""Commonwealth vs. Olga Olivo (and a companion case).""], ""opinions"": [{""text"": ""Tauro, C.J.\nThese cases are before us on a report from the Housing Court of the County of Hampden pursuant to G. L. c. 278, § 30. They raise novel questions in this Commonwealth regarding the adequacy of English-only notice to persons not literate in English.\nBriefly, the facts found by the Housing Court judge are as follows: The defendants are natives of Puerto Rico who have resided in this country for some years. Both defendants speak little English and are unable to read English. Both resided at all material times in the Spanish-speaking north end of Springfield.\nSome time prior to August 1, 1974, an inspector from the Springfield housing department inspected the apartments occupied by the defendants and their children, and condemned them as unsafe and unfit for human habitation. In addition, in the case of the defendant Olivo, the living unit was condemned due to overcrowding. Both apartments contained serious health and safety defects.\nOn August 14, 1974, both defendants were served in hand by a constable with notices ordering them to vacate. The notice stated the reasons for the orders and advised the defendants both of their right to an administrative hearing and of the fact that noncompliance would result in penalties as provided by law. A housing department inspector reinspected the premises on four subsequent occasions and found the defendants still residing therein. The inspector discussed the meaning of the orders to vacate with both defendants in “broken English” and suggested places where they might seek apartments. Both defendants were unable to read or understand the written orders to vacate.\nOn September 16, 1974, criminal complaints were issued against both defendants for failure to comply with the housing department’s orders. The defendants were arraigned on October 2, 1974, and trial was held on December 4, 1974. At all criminal proceedings, the defendants were represented by counsel.\nThe defendants filed motions to dismiss the complaints on the grounds that the English-only notice was constitutionally insufficient and that convictions for failure to comply therewith would violate due process and equal protection guaranties. These motions were denied, and the judge found the defendants guilty. He assessed a fine of $100 against each defendant, but, because the questions raised by the defense were so important or doubtful as to require decision by the Supreme Judicial Court, he stayed payment of the fines and reported the following questions to this court:\n(a) “Can a Spanish-speaking person, who is not able to read English, be convicted of the crime of refusing to comply with a written order of a Housing Department, when said written order is written entirely in English?”\n(b) “Does it violate the due process and equal protection provisions of the Fourteenth Amendment . . . [to] the U.S. Constitution to convict a Spanish-speaking person, who is not able to read English, of the crime of refusing to comply with a written order, when said written order is written entirely in English?”\n(c) “Is the Housing Department notice sufficient under due process requirements to warrant issuance of a criminal complaint when the only warning that its language gives as to the possibility of a criminal complaint is that failure to abide by the order will result in ‘penalties as provided by law?’”\n1. Although this jurisdictional issue has not been briefed by the parties, before answering the reported questions, we think it appropriate to address the threshold question whether G. L. c. 278, § 30, which provides for report “upon the trial of a person convicted in the superior court,” applies to the Housing Court. We believe it does.\nThe Housing Court of the County of Hampden was established by G. L. c. 185B, inserted by St. 1973, c. 591, § 1, and was given “common law and statutory jurisdiction concurrent with the . . . superior court of all crimes and of all civil actions . . . [under the relevant sections].” G. L. c. 185B, § 3. We believe that, by conferring such jurisdiction on the court, “the Legislature has sufficiently indicated its intention that appellate review of decisions of the Housing Court is to be had directly by this court, and that the judge of the Housing Court is to exercise the powers of a Superior Court judge to that end.” Commonwealth v. Haddad, 364 Mass. 795, 797 (1974). Accordingly, we hold that judges of the Housing Court may report important or doubtful questions of law to this court pursuant to G. L. c. 278, § 30.\n2. The first question reported by the judge asks whether a Spanish-speaking person who is unable to read English can be convicted of the crime of refusing to comply with a written order, where that order is written entirely in English. In light of the fact that the second question addresses the constitutional issues raised, we construe this question to ask whether the statute, G. L. c. 185B, § 20, allows a conviction in these circumstances. We believe it does.\nGeneral Laws c. 185B, § 20, inserted by St. 1973, c. 591, § 1, sets out the method of initiating proceedings in the Housing Court, and provides that criminal cases are to be commenced by complaint. However, it further provides that, “ [notwithstanding that a proceeding under this chapter is commenced by complaint, if the housing court finds that the offense charged was not wilful, intentional, reckless or repeated, the proceeding shall not be deemed criminal . . . .” In the context of this statute, the use of the word shall makes this section mandatory, and requires that the judge find, “wilful, intentional, reckless or repeated” conduct in order to convict. See Johnson v. District Attorney for the N. Dist., 342 Mass. 212, 215 (1961); Assessors of Springfield v. New England Tel & Tel Co., 330 Mass. 198, 201 (1953).\nIn light of what we have said, then, in order for a failure to comply to be deemed criminal, it must be shown that such failure was either wilful, intentional, reckless or repeated. A showing of any one of these statutory requirements will support a conviction. We believe the convictions here may be sustained because, on the facts of this case, the judge could have found that the defendants’ failure to comply with the housing department’s orders was reckless.\nThe word “reckless,” as used in this statute, has never been construed by this court. We have interpreted the word in other contexts. See, e.g., Hutchinson v. New England Tel. & Tel. Co., 350 Mass. 188 (1966) (construing the extent of a conditional privilege in libel cases); Commonwealth v. Welansky, 316 Mass. 383 (1944) (construing the requirements for conviction of involuntary manslaughter); Banks v. Braman, 188 Mass. 367 (1905) (construing the duty of care owed to trespassers). While none of these interpretations is wholly analogous to the cases before us, we draw support for our interpretation from them.\n“ [R]eckless conduct may consist of intentional failure to take [necessary] care in disregard of the probable harmful consequences . . . .” Commonwealth v. Welan-sky, supra at 397. However, “ [w]hat must be intended is the conduct, not the resulting harm.” Id. at 398. “ [R]eckless conduct amounts to what has been variously described as indifference to or disregard of probable consequences . . . .” Id. at 399. In determining whether any given conduct may be deemed reckless, we must look to the circumstances of the particular case. Hutchinson v. New England Tel. & Tel. Co., supra at 192.\nIn the instant cases, the defendants’ apartments were inspected by a housing department inspector and numerous violations were found. Shortly thereafter, a constable came to the apartments and personally served each defendant with an official order to vacate. Subsé-quent to this service, an inspector from the housing department visited with the defendants four times. He reinspected the apartments and attempted to explain to the defendants the meaning of the orders to vacate and the alternatives available to them. In response to this series of official contacts, the defendants did nothing. They made no attempt to have the official notice translated, nor did they make any other effort to ascertain the meaning and significance of the orders. In the circumstances, the judge could correctly have found that the conduct of the defendants in disregarding the official orders was reckless. Accordingly, we answer the first question, “Yes.”\n3. The second question asks whether it would violate the due process and equal protection provisions of the United States Constitution to convict a Spanish-speaking person who is unable to read English of the crime of failing to comply with a notice written entirely in English. We think it would not.\na. Due Process.\nThe United States Supreme Court has considered the question of sufficiency of notice on many occasions. It has uniformly held that the adequacy of notice so far as due process is concerned is dependent on whether the form of notice provided is “reasonably calculated to give . . . actual notice of the proceedings and an opportunity to be heard.” Milliken v. Meyer, 311 U.S. 457, 463 (1940). Accord, Robinson v. Hanrahan, 409 U.S. 38, 39-40 (1972); Schroeder v. City of N.Y., 371 U.S. 208, 211-212 (1962); Walker v. Hutchinson, 352 U.S. 112,115 (1956); Covey v. Somers, 351 U.S. 141, 146 (1956); City of N.Y. v. New York, N.H. & H.R.R., 344 U.S. 293, 296-297 (1953); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Our own decisions reflect similar thinking. See Milton v. Massachusetts Bay Transp. Authority, 356 Mass. 467, 471 (1969); Rousseau v. Building Inspector of Framingham, 349 Mass. 31, 37 (1965). Cf. Opinion of the Justices, 365 Mass. 681, 693 (1974).\nIt is equally well settled that “ [njotice of facts which would incite a person of reasonable prudence to an inquiry under similar circumstances is notice of all the facts which a reasonably diligent inquiry would develop.” Essex Nat’l Bank v. Hurley, 16 F.2d 427, 428 (1st Cir. 1926), quoting in substance from Coder v. McPherson, 152 F. 951, 953 (8th Cir. 1907). See United States v. Shelby Iron Co., 273 U.S. 571, 581 (1927); Ives v. Sargent, 119 U.S. 652, 661 (1887); Wollensak v. Reiher, 115 U.S. 96, 99 (1885); The Lulu, 77 U.S. (10 Wall.) 192, 202 (1869). A party may not “shut his eyes to the means of knowledge which he knows are at hand, and thereby escape the consequences which would flow from the notice if it had actually been received.” NLRB v. Local 3, RWDSU, 216 F.2d 285, 288 (2d Cir. 1954), quoting from The Lulu, supra at 201. Accord, NLRB v. Regal Aluminum, Inc., 436 F.2d 525, 527-528 (8th Cir. 1971). See Brush v. Ware, 40 U.S. (15 Pet.) 93, 111 (1841).\nThese two principles, taken together, compel us to state the rule regarding the constitutional adequacy of notice as follows: where a party actually receives notice which would be constitutionally sufficient if the party were not under a disability, that notice is constitutionally sufficient as to a person actually under a disability if (1) it would put a reasonable person on notice that inquiry is required, (2) further inquiry would reveal the facts necessary to understand the nature of the proceeding and the opportunity to be heard, and (3) the party’s disability does not render him incapable of understanding the need for such inquiry.\nApplying this rule to the instant cases, we believe that in-hand service of an official order by a constable was sufficient to put a reasonable person on notice that the order was important and, if not understood, required translation. Moreover, such translation would have provided the defendants with actual knowledge of the importance of the order and of their obligations thereunder. Finally, the nature of the defendants’ disability, here the inability to read English, was not such as would render them incapable of understanding the need for further inquiry. Thus, we are of the opinion that the notice received by the defendants was constitutionally sufficient, and that bilingual notice was not constitutionally required.* ***\nWhile we have found that the manner of notice employed in these cases is not constitutionally infirm, this does not, however, dispose of the question whether convictions for violation of the orders would likewise withstand constitutional scrutiny. We must address the further question whether, despite the adequacy of the orders to vacate, there was fair warning to the defendants that failure to comply with the housing departments orders would result in criminal penalties. We believe there was.\nThis is not a situation like Lambert v. California, 355 U.S. 225, 228 (1957), where a “person, wholly passive and unaware of any wrongdoing,” was convicted for failing to register as a convicted felon. In Lambert, the defendant had no actual knowledge of the registration requirement, nor was any showing made that such knowledge was probable. Under the circumstances, the court found “the absence of an opportunity either to avoid the consequences of the law or to defend any prosecution brought under it” violated due process. Id. at 229. This is not the case here, where defendants received adequate notice which, if translated, would have advised them that failure to obey the orders could lead to criminal penalties. Unlike Lambert, these are cases of “failure to act under circumstances that should [have] alert[ed] the doer to the consequences of his deed.” Id. at 228. The defendants cannot rely on their failure to have the notice translated, and their resulting ignorance of the actual facts, to avoid criminal conviction. In these circumstances, “ignorance of the law will not excuse.” Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 68 (1910). Accord, Williams v. North Carolina, 325 U.S. 226, 238 (1945). Accordingly, the defendants’ convictions for failure to comply with the housing department’s orders do not violate the due process guaranty of the Fourteenth Amendment to the United States Constitution.\nb. Equal Protection.\nThe defendants argue that persons of Spanish descent are a suspect classification and that any governmental action affecting them as a class, even if nondiscriminatory on its face, must be measured against a compelling State interest standard. See, e.g., Loving v. Virginia, 338 U.S. 1, 11 (1967); Korematsu v. United States, 323 U.S. 214, 216 (1944). See generally Developments in the Law — Equal Protection, 82 Harv. L. Rev. 1065, 1087-1133 (1969). While we agree that, under certain circumstances, persons of Spanish descent may constitute a suspect classification, Keyes v. School Dist. No. 1, Denver, Colo., 413 U.S. 189, 197-198 (1973); Hernandez v. Texas, 347 U.S. 475, 478-480 (1954), and that a statute neutral on its face may operate in a discriminatory manner, Williams v. Illinois, 399 U.S. 235, 242 (1970); Griffin v. Illinois, 351 U.S. 12, 17 n.ll (1956); Castro v. Beecher, 459 F.2d 725, 730 (1st Cir. 1972), we do not believe that either principle is controlling here.\nWhile on its face, the policy of sending all notices in English treats all alike, in fact it does place an extra burden, having the notice translated, on those not literate in English. The class burdened, however, is not those of Spanish descent, but those unable to read English. This is not a suspect class. Thus, the proper question is whether the governmental action here is reasonable and is rationally related to a permissible end. See, e.g., Reed v. Reed, 404 U. S. 71, 76 (1971); McDonald v. Election Com’rs of Chicago, 394 U. S. 802, 809 (1969); F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920). We believe it is.\n“English is the language of this country. This conception is fundamental in the administration of all public affairs.” . Conners v. Lowell, 209 Mass. 111, 119 (1911). Accord, Carmona v. Sheffield, 325 F. Supp. 1341, 1342 (N.D. Cal. 1971), aff’d 475 F.2d 738 (9th Cir. 1973). This is not an officially multilingual country, and notification of official matters in the sole official language of both this nation and this Commonwealth is patently reasonable. See Carmona v. Sheffield, 475 F.2d at 739. See also Guerrero v. Carleson, 9 Cal. 3d 808, 812-813 (1973), cert. denied sub nom. Guerrero v. Swoap, 414 U.S. 1137 (1974). Accordingly, it would not be a violation of equal protection to provide those not literate in English with English-only notice.\nNeither would it be a violation of equal protection to convict one not literate in English for failure to comply with an English-only notice in the circumstances of these cases. Liability for criminal penalties applies equally to all who violate housing department orders. There has been no showing of discriminatory application of the criminal sanction.\nIn light of what we have said regarding both due process and equal protection guaranties, we answer the second question, “No.”\n4. The third question asks whether it is constitutionally sufficient, in order to issue a criminal complaint, to have notified the potential defendant only that failure to abide by a housing department order will result in “penalties as provided by law.” We believe it is.\nThe defendants concede that this question was answered affirmatively in Commonwealth v. Collins, 257 Mass. 580 (1926). While we did not specifically consider the due process contention in that case, we did uphold a criminal conviction where the notice stated, “failure to abate this nuisance will render you liable to the penalties provided by law, without further notice.” Id. at 582. In the instant cases, the language is essentially similar, except the latter phrase is omitted. We do not find this omission constitutionally significant.\nWe hold that the phrase “penalties as provided by law,” when used in the context of the instant cases, is sufficient to put a potential defendant on notice that those penalties may include criminal sanction. Accordingly, we answer the third question, “Yes.”\n5. The cases are remanded to the Housing Court of the County of Hampden for disposition.\nSo ordered.\nAt the conclusion of the trial, the judge issued an interim order directing the housing specialist department to contact the Springfield redevelopment authority to arrange to have the defendants moved as quickly as possible. The defendants were successfully relocated by December 16, 1974, the date of decision on their motion to dismiss.\nWe note that the parties did not construe the question in this manner. However, if we were to treat the first question as dealing with the constitutional questions also, as do the parties, there would be no need for separate questions. We do not favor constructions that render independent sections or questions meaningless or superfluous. Cf. Commonwealth v. Gove, 366 Mass. 351, 354 (1974); Commonwealth v, Woods Hole, Martha’s Vineyard &■ Nantucket S.S. Authority, 352 Mass. 617, 618 (1967).\n“The word ‘or’ is given a disjunctive meaning unless the context and the main purpose of all the words demand otherwise. . . . The present statutory context does not demand or even suggest other than a disjunctive meaning.\"" Eastern Mass. St. Ry. v. Massachusetts Bay Transp. Authority, 350 Mass. 340, 343 (1960).\nCovey v. Somers, 351 U.S. 141 (1956), is not inconsistent with this rule. In that case, the party receiving the notice was known to be incompetent by town officials. As a result, she was totally unable to understand the need for further inquiry. In the circumstances, she could not constitutionally be charged with the knowledge such inquiry would have provided.\nWhether the agency sending the notice knows, or has reason to know, that the recipient is not literate in English does not alter the rule as stated above. The law does not place a burden on government agencies to ascertain whether the recipient is able to read English, nor does it require that they communicate with those not literate in English in anything but the nation’s official language, notwithstanding actual or constructive knowledge of such language deficiency. It might be appropriate and advisable for government agencies to give bilingual notice. It is our understanding that this is done in other contexts. See, e.g., Form DDA-CE I (April, 1974), of the Massachusetts Rehabilitation Commission; Administrators Letter 193, Department of Public Welfare (May 10, 1973). However, if such a burden on governmental function is desirable, it should be done by legislative action and with carefully delineated rules and guidelines. It is not appropriate for this court to enter so difficult and obscure an area without legislative mandate.\nThis is a different question from whether a statement notifying the defendants that failure to act would subject them to \""penalties as provided by law” is sufficient to allow convictions for violations of the orders. That issue will be treated in part 4, infra.\nThere is no argument here that the defendants’ convictions are invalid as convictions for a “status” offense. The defendants were convicted for failing to obey a housing department order, and not for their inability to read English. Compare these cases with Powell v. Texas, 392 U.S. 514 (1968), and Robinson v. California, 370 U.S. 660 (1962).\nIn having held that the applicable standard is one of reasonableness, we need not consider whether the burdens alleged by the Commonwealth — difficulty in identifying those to whom bilingual notice should be sent, increased cost and need for providing similar services to other language groups — would be sufficient to meet a stricter standard of review."", ""type"": ""majority"", ""author"": ""Tauro, C.J.""}], ""attorneys"": [""Angel I. Olmeda (Samuel Stonefield with him) for the defendants."", ""Leonard A. Shatz for the Commonwealth."", ""Jack J. Olivero, Herbert Teitelbaum, M. D. Taracido, Kenneth Kimerling, & Manuel del Valle, of New York, for Puerto Rican Legal Defense & Education Fund, Inc., amicus curiae, submitted a brief.""], ""corrections"": """", ""head_matter"": ""Commonwealth vs. Olga Olivo (and a companion case).\nHampden.\nSeptember 16, 1975.\nNovember 10, 1975.\nPresent: Tauro, C.J., Reardon, Quirico, Hennessey, Kaplan, & Wilkins, JJ.\nHousing Court of the County of Hampden. Practice, Criminal, Report. Constitutional Law, Due process of law, Equal protection of laws. Notice. Words, “Reckless.”\nA judge of the Housing Court of the County of Hampden, established by G. L. c. 185B, may report important or doubtful questions of law arising in a criminal trial to the Supreme Judicial Court pursuant to c. 278, § 30. [65-66]\nIn order for an offense charged in a complaint in a proceeding under G. L. c. 185B to be criminal, the offense must be either “wilful, intentional, reckless or repeated.” [66-67]\nConduct of a Spanish-speaking occupant of an apartment in Springfield unable to read English was “reckless” within the meaning of that word in G. L. c. 185B, § 20, and she was properly convicted upon a complaint for failing to comply with an order of the housing department of the city, written in English only, to vacate the apartment as unfit for human habitation where it appeared that the occupant was served in hand with the order by a constable and that thereafter she did nothing to comply with it, although subsequently a housing department inspector reinspected the apartment and visited with the occupant four times and discussed the meaning of the order and suggested places to seek an apartment. [67-68]\nRule stated with respect to the constitutional adequacy of an official notice received by a person under a disability. [69]\nAn official order to vacate written in English only and received by a Spanish-speaking occupant of an apartment unable to read English, served in hand by a constable, was constitutionally sufficient [70]; a statement in the order that noncompliance would result in penalties as provided by law gave fair warning of criminal penalties, and conviction of the occupant on a complaint charging failure to comply with the order did not violate the due process guaranty of the Fourteenth Amendment to the United States Constitution [68-71].\nA governmental policy of sending notices in English only, placing the burden of having the notice translated on persons not literate in English, and conviction of such a person for failure to comply with an English-only notice, do not violate the equal protection provision of the Fourteenth Amendment to the United States Constitution. [72-73]\nA statement in an order of the housing department of a city to vacate described premises as unfit for human habitation that failure to comply with the order would result in “penalties as provided by law” was sufficient to put the recipient on notice that the penalties might include criminal sanctions, and satisfied due process requirements. [73-74]\nTwo complaints received and sworn to in the Housing Court of the County of Hampden on September 16, 1974.\nThe cases were heard by Greaney, J., and reported by him after findings of guilty.\nAngel I. Olmeda (Samuel Stonefield with him) for the defendants.\nLeonard A. Shatz for the Commonwealth.\nJack J. Olivero, Herbert Teitelbaum, M. D. Taracido, Kenneth Kimerling, & Manuel del Valle, of New York, for Puerto Rican Legal Defense & Education Fund, Inc., amicus curiae, submitted a brief.\nCommonwealth vs. Lucy Colon.""}, ""cites_to"": [{""cite"": ""370 U.S. 660"", ""year"": 1962, ""case_ids"": [6169863], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/370/0660-01""], ""opinion_index"": 0}, {""cite"": ""392 U.S. 514"", ""year"": 1968, ""case_ids"": [6172531], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/392/0514-01""], ""opinion_index"": 0}, {""cite"": ""350 Mass. 340"", ""year"": 1960, ""case_ids"": [526994], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""343""}], ""case_paths"": [""/mass/350/0340-01""], ""opinion_index"": 0}, {""cite"": ""352 Mass. 617"", ""year"": 1967, ""case_ids"": [304918], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""618""}], ""case_paths"": [""/mass/352/0617-01""], ""opinion_index"": 0}, {""cite"": ""366 Mass. 351"", ""year"": 1974, ""case_ids"": [314518], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""354""}], ""case_paths"": [""/mass/366/0351-01""], ""opinion_index"": 0}, {""cite"": ""257 Mass. 580"", ""year"": 1926, ""weight"": 2, ""case_ids"": [3820102], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""582""}], ""case_paths"": [""/mass/257/0580-01""], ""opinion_index"": 0}, {""cite"": ""414 U.S. 1137"", ""year"": 1974, ""case_ids"": [11850790, 11850630, 11850673, 11850710, 11850745, 11850587, 11850557], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/414/1137-07"", ""/us/414/1137-03"", ""/us/414/1137-04"", ""/us/414/1137-05"", ""/us/414/1137-06"", ""/us/414/1137-02"", ""/us/414/1137-01""], ""opinion_index"": 0}, {""cite"": ""9 Cal. 3d 808"", ""year"": 1973, ""case_ids"": [2297477], ""category"": ""reporters:state"", ""reporter"": ""Cal. 3d"", ""pin_cites"": [{""page"": ""812-813""}], ""case_paths"": [""/cal-3d/9/0808-01""], ""opinion_index"": 0}, {""cite"": ""475 F.2d 738"", ""year"": 1973, ""weight"": 2, ""case_ids"": [281594], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""739""}], ""case_paths"": [""/f2d/475/0738-01""], ""opinion_index"": 0}, {""cite"": ""325 F. Supp. 1341"", ""year"": 1971, ""case_ids"": [3239641], ""category"": ""reporters:federal"", ""reporter"": ""F. Supp."", ""pin_cites"": [{""page"": ""1342""}], ""case_paths"": [""/f-supp/325/1341-01""], ""opinion_index"": 0}, {""cite"": ""209 Mass. 111"", ""year"": 1911, ""case_ids"": [3468827], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""119""}], ""case_paths"": [""/mass/209/0111-01""], ""opinion_index"": 0}, {""cite"": ""253 U.S. 412"", ""year"": 1920, ""case_ids"": [189363], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""page"": ""415""}], ""case_paths"": [""/us/253/0412-01""], ""opinion_index"": 0}, {""cite"": ""394 U. S. 802"", ""year"": 1969, ""case_ids"": [6180874], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""page"": ""809""}], ""case_paths"": [""/us/394/0802-01""], ""opinion_index"": 0}, {""cite"": ""404 U. 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+317466,"{""id"": 317466, ""name"": ""Commonwealth vs. Francis G. Montmeny"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""5d181141400a972ac8026ea50c072413701361ebb549f60990e01a0337907dfb"", ""simhash"": ""1:bf66d6f51f7a49cd"", ""pagerank"": {""raw"": 0.00000029528197800279337, ""percentile"": 0.8489911960118138}, ""char_count"": 9983, ""word_count"": 1698, ""cardinality"": 463, ""ocr_confidence"": 0.672}, ""casebody"": {""judges"": [], ""parties"": [""Commonwealth vs. Francis G. Montmeny.""], ""opinions"": [{""text"": ""Hennessey, J.\nThe defendant was tried before a jury on indictments charging him with kidnapping, armed robbery and rape concerning one girl (the first girl), and with the kidnapping, armed robbery and rape of another girl (the second girl). He was found guilty on all indictments except those for armed robbery, and as to those indictments he was found guilty of unarmed robbery. His appeals are here under G. L. c. 278, §§ 33A-33G.\nTwo assignments of error are argued: (1) the admission in evidence of an opinion of one Dr. Thomas O’Neil, which the defendant argues was the expression of an opinion as to the ultimate issue for the jury on the rape indictment concerning the first girl, and (2) the denial of the defendant’s motion for a directed verdict as to the indictment charging armed robbery of the first girl.\nThere was testimony from the two girls that Montmeny had forced them into an automobile driven by another man and that Montmeny forced the second girl to have sexual relations with him during the ensuing automobile ride. The car was driven to a dirt road in a wooded area, and there both girls were forced by Montmeny to have sexual relations with him. The other man also forced both girls to have sexual relations with him.\n1. Assignment 1 asserts that it was error for the trial judge, over the objection and exception of the defendant, to permit Dr. O’Neil to answer a certain question on direct examination by the district attorney: whether what the doctor had seen in his examination of the first girl was consistent with the history that he had obtained from the girl.\nThe defence argues that this question should have been excluded as calling for an opinion which was directed toward the ultimate issue before the jury. However, this court has held that a question which calls for an opinion which is in the domain of the expert’s professional knowledge is not necessarily to be excluded merely because the conclusion of the witness reaches or approaches the ultimate issue before the jury. Commonwealth v. Dawn, 302 Mass. 255, 259. Commonwealth v. Chapin, 333 Mass. 610, 625. Commonwealth v. van Kooiman, 353 Mass. 759. The further argument is that, since the doctor had already testified that the first girl had given the doctor a history of having been forced into an automobile and driven out into the country and forced to have sexual relations, the question called for an opinion as to the truthfulness of her version of the matter. This court held, in Commonwealth v. Gardner, 350 Mass. 664, 665-667, where the defendant and alleged victim had both testified, that it was error for the district attorney to elicit from a medical witness in a rape case that there had been “forcible entry” of the alleged victim. In that case (at p. 667) we said: “We are not persuaded that a gynecologist, or other expert, possesses skills or special experience which might enable him to determine, from factors such as these Chis examination of the victim, her emotional state, and her statement to him of what had happened], that acts of intercourse amounted to rape. . . . Where the jury are equally capable of drawing the conclusion sought from an expert witness, the expert’s testimony is inadmissible.”\nIn the circumstances of the case before us, the question at issue was an appropriate one. The question immediately followed a series of other questions addressed by the district attorney to the doctor as to his findings upon physical examination of the young lady, viz. abrasions of the vaginal area, dirt on her legs and thighs, and sensitivity to touch in this area of her body. The question as to whether what the doctor had “seen” was “consistent with” the history was not, as it was in the Gardner case, an attempt to elicit from the expert witness a direct opinion that a rape had occurred. Such a direct opinion would have been, in this case, beyond the witness’s appropriate province as an expert witness. The question here is rather in the category of another group of cases. In Commonwealth v. Donoghue, 266 Mass. 391, 396, it was ruled proper for the prosecutor, in the trial of an indictment for illegal abortion, to ask a medical witness, “Was the condition that you found disclosed on the autopsy consistent with an abortion having been performed on this girl?\"" In Commonwealth v. McGarty, 323 Mass. 435, 439, this court found no error in the admission in evidence of the testimony of a medical expert who examined the body that his physical findings were consistent with the victim’s having been raped before the killing.\nThe question in the case before us did not seek from the witness an intrusion into the jury’s function of judging the credibility of the witnesses, but rather sought an expert conclusion which was material to the case. The question, as read in the context of the entire questioning of the witness, called for no more than an opinion as to whether what he had seen was consistent with sexual intercourse.\nWe observe also that the precise question here objected to, as referring to the first girl, was also asked of Dr. O’Neil and was answered affirmatively by him without objection by defence counsel, with reference to the doctor’s examination and conclusions concerning the second girl. Since the Commonwealth presented evidence that the defendant had raped both girls, the question and answer concerning the first girl and here claimed as error were merely cumulative.\nAlthough the question here was proper as read in the context of the entire interrogation of the doctor, we add that the better practice in eliciting such an expert opinion is to phrase a question which states precisely what opinion is sought. Within the wording of the preliminary question there should be a clear and unambiguous showing that an admissible opinion is elicited rather than an objectionable one like that in the Gardner case. For example, in the case before us, the preliminary question preferably should have inquired of the doctor if, from what he had seen, he had an opinion as to whether the girl had been involved in sexual intercourse.\nThe answer of Dr. O’Neil was not responsive to the question. However, there was no motion at any time to strike the answer, and therefore the defence correctly does not now raise the issue of the nonresponsiveness of the answer. Nevertheless, we have considered the doctor’s answer (“It certainly appears as though the girl had been molested”), in the light of the rule of the Gardner case, and in the light of the ambiguity of the word “molested.” In recounting the history as taken from the second girl, the doctor had stated that she told him that she had been “forcibly molested” (emphasis supplied). From this the jury should have inferred no more from the use of the word “molested” in the nonresponsive answer than that the' doctor was of the opinion that the findings were consistent with sexual intercourse.\n2. Assignment 2 alleges error in the judge’s refusal to direct a verdict for Montmeny for the alleged robbery of the first girl. The ruling was correct. There was evidence that Montmeny had taken money from the wallet of the second girl; that both men asked the first girl if she had any money, and the other person (not Montmeny) reached into the first girl’s pocketbook and took her money. One of the girls testified that just after the girls had been forced into the automobile, Montmeny said that they “wanted our money and a little loving.” From this evidence it is clear that Montmeny was present as a principal, aiding and abetting a robbery from both girls. Commonwealth v. McAuliffe, 319 Mass. 635, 637. Commonwealth v. Conroy, 333 Mass. 751, 755. Commonwealth v. Dahlstrom, 345 Mass. 130, 132.\nJudgments affirmed.\nThe question and answer and the context in which they appeared were as follows: Q. “And Doctor, at the conclusion of your examination, did you form an opinion based upon a reasonable degree of medical certainty as to whether what you had seen was consistent with the history that you obtained from this girl? ... Do you have an opinion? All I’m asking you is if you have an opinion, yes or no?” A. “Yes, I do.” Q. “What is your opinion, sir, within a reasonable degree of medical certainty?” A. “It certainly appears as though the girl had been molested.”"", ""type"": ""majority"", ""author"": ""Hennessey, J.""}], ""attorneys"": [""Reuben Goodman & Alexander Whiteside, II, for the defendant."", ""Matthew J. Ryan, Jr., District Attorney, & Leonard E. Gibbons, Assistant District Attorney, for the Commonwealth.""], ""corrections"": """", ""head_matter"": ""Commonwealth vs. Francis G. Montmeny.\nHampden.\nOctober 5, 1971.\nDecember 6, 1971.\nPresent: Tauro, C.J., Cutter, Reardon, Quirico, & Hennessey, JJ.\nEvidence, Opinion: expert. Robbery. Accessory and Principal. Words, “Molested.”\nAt the trial of an indictment for rape, a question by the prosecutor whether what a doctor had seen in his examination of the alleged victim was “consistent with” a history that he had obtained from her was not improper. [527-529]\nFrom testimony by a doctor in a rape case that from what he had seen in an examination of the alleged victim it “certainly . . . [appeared! as though the girl had been molested,” the jury in the circumstances should have inferred no more than that the doctor was of opinion that what he had seen was consistent with sexual intercourse. [529-530]\nEvidence at the trial of an indictment for robbery of one of two girls, that the defendant and a companion asked that girl whether she had any money, that the companion reached into that girl’s pocketbook and took her money, that the defendant took money from the wallet of the other girl, and that the defendant had said that he and his companion “wanted . . . [the girls’! money” warranted a finding that the defendant was present as a principal, aiding and abetting a robbery of both girls, and there was no error in refusing to direct a verdict for him. [530]\nIndictments found and returned in the Superior Court on September 28, 1970.\nThe cases were tried before Linscott, J.\nThe cases were submitted on briefs.\nReuben Goodman & Alexander Whiteside, II, for the defendant.\nMatthew J. Ryan, Jr., District Attorney, & Leonard E. Gibbons, Assistant District Attorney, for the Commonwealth.""}, ""cites_to"": [{""cite"": ""345 Mass. 130"", ""case_ids"": [48134], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""132""}], ""case_paths"": [""/mass/345/0130-01""], ""opinion_index"": 0}, {""cite"": ""333 Mass. 751"", ""case_ids"": [489123], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""755""}], ""case_paths"": [""/mass/333/0751-01""], ""opinion_index"": 0}, {""cite"": ""319 Mass. 635"", ""case_ids"": [497470], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""637""}], ""case_paths"": [""/mass/319/0635-01""], ""opinion_index"": 0}, {""cite"": ""323 Mass. 435"", ""case_ids"": [504031], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""439""}], ""case_paths"": [""/mass/323/0435-01""], ""opinion_index"": 0}, {""cite"": ""266 Mass. 391"", ""case_ids"": [846882], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""396""}], ""case_paths"": [""/mass/266/0391-01""], ""opinion_index"": 0}, {""cite"": ""350 Mass. 664"", ""case_ids"": [527000], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""665-667""}], ""case_paths"": [""/mass/350/0664-01""], ""opinion_index"": 0}, {""cite"": ""353 Mass. 759"", ""case_ids"": [3863744, 3864144, 3863701, 3863527], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/353/0759-04"", ""/mass/353/0759-03"", ""/mass/353/0759-01"", ""/mass/353/0759-02""], ""opinion_index"": 0}, {""cite"": ""333 Mass. 610"", ""case_ids"": [488924], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""625""}], ""case_paths"": [""/mass/333/0610-01""], ""opinion_index"": 0}, {""cite"": ""302 Mass. 255"", ""case_ids"": [867903], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""259""}], ""case_paths"": [""/mass/302/0255-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""360 Mass. 526"", ""type"": ""official""}], ""file_name"": ""0526-01"", ""last_page"": ""530"", ""first_page"": ""526"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T16:52:31.557055+00:00"", ""decision_date"": ""1971-12-06"", ""docket_number"": """", ""last_page_order"": 544, ""first_page_order"": 540, ""name_abbreviation"": ""Commonwealth v. 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+320403,"{""id"": 320403, ""name"": ""Debra Agis & another vs. Howard Johnson Company & another"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""b9448cddf1720372d80cc47a64e8935229d3f99033f920761b1b81bb71258b64"", ""simhash"": ""1:35f7272244b679d9"", ""pagerank"": {""raw"": 0.000003544094536687968, ""percentile"": 0.9980301940383397}, ""char_count"": 14725, ""word_count"": 2441, ""cardinality"": 754, ""ocr_confidence"": 0.833}, ""casebody"": {""judges"": [], ""parties"": [""Debra Agis & another vs. Howard Johnson Company & another.""], ""opinions"": [{""text"": ""Quirico, J.\nThis case raises the issue, expressly reserved in George v. Jordan Marsh Co., 359 Mass. 244, 255 (1971), whether a cause of action exists in this Commonwealth for the intentional or reckless infliction of severe emotional distress without resulting bodily injury. Counts 1 and 2 of this action were brought by the plaintiff Debra Agis against the Howard Johnson Company and Roger Dionne, manager of the restaurant in which she was employed, to recover damages for mental anguish and emotional distress allegedly caused by her summary dismissal from such employment. Counts 3 and 4 were brought by her husband, James Agis, against both defendants for loss of the services, love, affection and companionship of his wife. This case is before us on the plaintiffs’ appeal from the dismissal of their complaint.\nBriefly, the allegations in the plaintiffs’ complaint, which we accept as true for purposes of ruling on this motion, Hub Theatres, Inc. v. Massachusetts Port Authority, 370 Mass. 153, 154 (1976), are the following. Debra Agis was employed by the Howard Johnson Company as a waitress in a restaurant known as the Ground Round. On or about May 23, 1975, the defendant Dionne notified all waitresses that a meeting would be held at 3 p.m. that day. At the meeting, he informed the waitresses that “there was some stealing going on,” but that the identity of the person or persons responsible was not known, and that, until the person or persons responsible were discovered, he would begin firing all the present waitresses in alphabetical order, starting with the letter “A.” Dionne then fired Debra Agis.\nThe complaint alleges that, as a result of this incident, Mrs. Agis became greatly upset, began to cry, sustained emotional distress, mental anguish, and loss of wages and earnings. It further alleges that the actions of the defendants were reckless, extreme, outrageous and intended to cause emotional distress and anguish. In addition, the complaint states that the defendants knew or should have known that their actions would cause such distress.\nThe defendants moved to dismiss the complaint pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), on the ground that, even if true, the plaintiffs’ allegations fail to state a claim on which relief can be granted because damages for emotional distress are not compensable absent resulting physical injury. The judge allowed the motion, and the plaintiffs appealed.\n1. Our discussion of whether a cause of action exists for the intentional or reckless infliction of severe emotional distress without resulting bodily injury starts with our decision in George v. Jordan Marsh Co., 359 Mass. 244 (1971). While in that case we found it unnecessary to address the precise question raised here, we did summarize the history of actions for emotional distress and concluded that the law of the Commonwealth should be, and is, “that one who, without a privilege to do so, by extreme and outrageous conduct intentionally causes severe emotional distress to another, with bodily harm resulting from such distress, is subject to liability... (emphasis supplied). 359 Mass. at 255. The question whether such liability should be extended to cases in which there is no resulting bodily injury was “left until it arises,” ibid., and that question has arisen here.\nIn the George case, we discussed in depth the policy considerations underlying the recognition of a cause of action for intentional infliction of severe emotional distress with resulting physical injury, and we concluded that the difficulties presented in allowing such an action were outweighed by the unfair and illogical consequences of the denial of recognition of such an independent tort. In so doing, we examined the persuasive authority then recognizing such a cause of action, and we placed considerable reliance on the Restatement (Second) of Torts § 46 (1965). Our examination of the policies underlying the extension of that cause of action to cases where there has been no bodily injury, and our review of the judicial precedent and the Restatement in this regard, lead us to conclude that such extension is both warranted and desirable. See Baldassari v. Public Fin. Trust, 369 Mass. 33, 34-35, 38-39 (1975).\nThe most often cited argument for refusing to extend the cause of action for intentional or reckless infliction of emotional distress to cases where there has been no physical injury is the difficulty of proof and the danger of fraudulent or frivolous claims. There has been a concern that “mental anguish, standing alone, is too subtle and speculative to be measured by any known legal standard,” that “mental anguish and its consequences are so intangible and peculiar and vary so much with the individual that they cannot reasonably be anticipated,” that a wide door might “be opened not only to fictitious claims but to litigation over trivialities and mere bad manners as well,” and that there can be no objective measurement of the extent or the existence of emotional distress. Harned v. E-Z Fin. Co., 151 Tex. 641, 649 (1953). There is a fear that “[i]t is easy to assert a claim of mental anguish and very hard to disprove it.” Id. at 650, citing Gardner v. Cumberland Tel. Co., 207 Ky. 249, 254 (1925). See Bartow v. Smith, 149 Ohio St. 301 (1948); Hetrick v. Willis, 439 S.W.2d 942 (Ky. 1969). See also Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 Harv. L. Rev. 1033 (1936); W. Prosser, Torts § 12 (4th ed. 1971).\nWhile we are not unconcerned with these problems, we believe that “the problems presented are not... insuperable” and that “administrative difficulties do not justify the denial of relief for serious invasions of mental and emotional tranquility....” State Rubbish Collectors Ass’n v. Siliznoff, 38 Cal. 2d 330, 338-339 (1952). “That some claims may be spurious should not compel those who administer justice to shut their eyes to serious wrongs and let them go without being brought to account. It is the function of courts and juries to determine whether claims are valid or false. This responsibility should not be shunned merely because the task may be difficult to perform.” Samms v. Eccles, 11 Utah 2d 289, 293 (1961). See George v. Jordan Marsh Co., 359 Mass. 244, 251 (1971). See also Sorensen v. Sorensen, 369 Mass. 350, 364-365 (1975).\nFurthermore, the distinction between the difficulty which juries may encounter in determining liability and assessing damages where no physical injury occurs and their performance of that same task where there has been resulting physical harm may be greatly overstated. “The jury is ordinarily in a better position... to determine whether outrageous conduct results in mental distress than whether that distress in turn results in physical injury. From their own experience jurors are aware of the extent and character of the disagreeable emotions that may result from the defendant’s conduct, but a difficult medical question is presented when it must be determined if emotional distress resulted in physical injury.... Greater proof that mental suffering occurred is found in the defendant’s conduct designed to bring it about than in physical injury that may or may not have resulted therefrom.” State Rubbish Collectors Ass’n v. Siliznoff, supra at 338. We are thus unwilling to deny the existence of this cause of action merely because there may be difficulties of proof. Instead, we believe “the door to recovery should be opened but narrowly and with due caution.” Barnett v. Collection Serv. Co., 214 Iowa 1303, 1312 (1932).\nIn light of what we have said, we hold that one who, by extreme and outrageous conduct and without privilege, causes severe emotional distress to another is subject to liability for such emotional distress even though no bodily harm may result. However, in order for a plaintiff to prevail in a case for liability under this tort, four elements must be established. It must be shown (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct, Restatement (Second) of Torts § 46, comment i (1965); Savage v. Boies, 77 Ariz. 355 (1954); Samms v. Eccles, 11 Utah 2d 289, 293 (1961); (2) that the conduct was “extreme and outrageous,” was “beyond all possible bounds of decency” and was “utterly intolerable in a civilized community,” Restatement (Second) of Torts § 46, comment d (1965); George v. Jordan Marsh Co., 359 Mass. 244, 254-255 (1971); (3) that the actions of the defendant were the cause of the plaintiff’s distress, Spackman v. Good, 245 Cal. App. 2d 518 (1966); Womack v. Eldridge, 215 Va. 338, 341 (1974); and (4) that the emotional distress sustained by the plaintiff was “severe” and of a nature “that no reasonable man could be expected to endure it.” Restatement (Second) of Torts § 46, comment j (1965); Womack v. Eldridge, supra. These requirements are “aimed at limiting frivolous suits and avoiding litigation in situations where only bad manners and mere hurt feelings are involved,” Womack v. Eldridge, supra at 342, and we believe they are a “realistic safeguard against false claims ....” Samms v. Eccles, supra.\nTesting the plaintiff Debra Agis’s complaint by the rules stated above, we hold that she makes out a cause of action and that her complaint is therefore legally sufficient. While many of her allegations are not particularly well stated, we believe that the “[pjlaintiff has alleged facts and circumstances which reasonably could lead the trier of fact to conclude that defendant’s conduct was extreme and outrageous, having a severe and traumatic effect upon plaintiff’s emotional tranquility.” Alcorn v. Anbro Eng’r, Inc., 2 Cal. 3d 493, 498 (1970). Because reasonable men could differ on these issues, we believe that “it is for the jury, subject to the control of the court,” to determine whether there should be liability in this case. Restatement (Second) of Torts § 46, comment h (1965). Womack v. Eldridge, 215 Va. 338, 342 (1974). While the judge was not in error in dismissing the complaint under the then state of the law, we believe that, in light of what we have said, the judgment must be reversed and the plaintiff Debra Agis must be given an opportunity to prove the allegations which she has made.\n2. Counts 3 and 4 of the complaint are brought by James Agis seeking relief for loss of consortium as a result of the mental distress and anguish suffered by his wife Debra. There is no question that an action for loss of consortium by either spouse may be maintained in this Commonwealth where such loss is shown to arise from personal injury to one spouse caused by the negligence of a third person. Diaz v. Eli Lilly & Co., 364 Mass. 153, 167-168 (1973). The question before us is whether an action for loss of consortium may be maintained where the acts complained of are intentional, and where the injuries to the spouse are emotional rather than physical.\nTraditionally, where the right to sue for loss of consortium has been recognized, intentional invasions of the marriage relationship such as alienation of affections or adultery have been held to give rise to this cause of action. Diaz v. Eli Lilly & Co., supra at 158-160, and cases cited. We see no reason not to apply the same rule to the tort of intentional or reckless infliction of severe emotional distress. Similarly, the fact that there is no physical injury should not bar the plaintiff’s claim. In the Diaz case, we hinted that “psychological injury” could provide the basis for a consortium action. 364 Mass, at 160. In addition, the underlying purpose of such action is to compensate for the loss of the companionship, affection and sexual enjoyment of one’s spouse, and it is clear that these can be lost as a result of psychological or emotional injury as well as from actual physical harm. Cf. Garrison v. Sun Printing & Publishing Ass’n, 207 N.Y. 1, 10 (1912). Accordingly, we hold that, where a person has a cause of action for intentional or reckless infliction of severe emotional distress, his or her spouse also has a cause of action for loss of consortium arising out of that distress.\n3. The judgment entered in the Superior Court dismissing the plaintiffs’ complaint is reversed.\nSo ordered.\nMost courts today recognize a cause of action for intentionally or recklessly causing severe emotional distress by extreme and outrageous conduct. Womack v. Eldridge, 215 Va. 338, 341 n.1 (1974). See Annot., 64 A.L.R.2d 100, §8, at 120 (1959), and cases cited. See also Restatement (Second) of Torts § 46, comment b (1965).\nCompare Golden v. Dungan, 20 Cal. App. 3d 295 (1971), and Alcorn v. Anbro Eng’r, Inc., 2 Cal. 3d 493 (1970), with Cornblith v. First Maintenance Supply Co., 268 Cal. App. 2d 564 (1968), Agostini v. Strycula, 231 Cal. App. 2d 804 (1965), and Perati v. Atkinson, 213 Cal. App. 2d 472 (1963)."", ""type"": ""majority"", ""author"": ""Quirico, J.""}], ""attorneys"": [""Dante G. Mummolo for the plaintiffs."", ""John P. Ryan (John C. Lacy with him) for the defendants.""], ""corrections"": """", ""head_matter"": ""Debra Agis & another vs. Howard Johnson Company & another.\nSuffolk.\nMarch 3, 1976.\nOctober 1, 1976.\nPresent: Reardon, Quirico, Braucher, & Wilkins, JJ.\nEmotional Distress. Actionable Tort. Husband and Wife, Consortium.\nOne who, by extreme and outrageous conduct and without privilege, causes severe emotional distress to another is subject to liability for such emotional distress even though no bodily harm may result. [142-146]\nA cause of action in tort against an owner and the manager of a restaurant was stated by a complaint alleging that the plaintiff was employed as a waitress in the restaurant, that the manager held a meeting with the waitresses at which he said that someone was stealing from the restaurant and until the identity of that person could be established he would begin firing all the waitresses in alphabetical order, that the manager then summarily dismissed the plaintiff solely because her name began with the letter “A,” that, as a result of this act the plaintiff sustained emotional distress, mental anguish, and loss of wages, that the defendants’ acts were reckless, extreme, outrageous, and intended to cause emotional distress and anguish, and that the defendants knew or should have known that their acts would cause such distress. [144-145]\nWhere a plaintiff had a cause of action for intentional or reckless infliction of severe emotional distress, her husband also had a cause of action for loss of consortium arising out of that distress. [146-147]\nCivil action commenced in the Superior Court on June 10,1975.\nThe case was heard by Adams, J., on a motion to dismiss.\nThe Supreme Judicial Court granted a request for direct appellate review.\nDante G. Mummolo for the plaintiffs.\nJohn P. Ryan (John C. Lacy with him) for the defendants.\nJames Agis.\nRoger Dionne.""}, ""cites_to"": [{""cite"": ""213 Cal. App. 2d 472"", ""year"": 1963, ""case_ids"": [2311006], ""category"": ""reporters:state"", ""reporter"": ""Cal. App. 2d"", ""case_paths"": [""/cal-app-2d/213/0472-01""], ""opinion_index"": 0}, {""cite"": ""231 Cal. App. 2d 804"", ""year"": 1965, ""case_ids"": [2153592], ""category"": ""reporters:state"", ""reporter"": ""Cal. App. 2d"", ""case_paths"": [""/cal-app-2d/231/0804-01""], ""opinion_index"": 0}, {""cite"": ""268 Cal. App. 2d 564"", ""year"": 1968, ""case_ids"": [2206804], ""category"": ""reporters:state"", ""reporter"": ""Cal. App. 2d"", ""case_paths"": [""/cal-app-2d/268/0564-01""], ""opinion_index"": 0}, {""cite"": ""20 Cal. App. 3d 295"", ""year"": 1971, ""case_ids"": [2347900], ""category"": ""reporters:state"", ""reporter"": ""Cal. App. 3d"", ""case_paths"": [""/cal-app-3d/20/0295-01""], ""opinion_index"": 0}, {""cite"": ""64 A.L.R.2d 100"", ""year"": 1959, ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R. 2d"", ""pin_cites"": [{""page"": ""§8""}], ""opinion_index"": 0}, {""cite"": ""207 N.Y. 1"", ""year"": 1912, ""case_ids"": [4501854], ""category"": ""reporters:state"", ""reporter"": ""N.Y."", ""pin_cites"": [{""page"": ""10""}], ""case_paths"": [""/ny/207/0001-01""], ""opinion_index"": 0}, {""cite"": ""364 Mass. 153"", ""year"": 1973, ""weight"": 2, ""case_ids"": [289710], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""167-168""}, {""page"": ""160""}], ""case_paths"": [""/mass/364/0153-01""], ""opinion_index"": 0}, {""cite"": ""2 Cal. 3d 493"", ""year"": 1970, ""weight"": 2, ""case_ids"": [2310873], ""category"": ""reporters:state"", ""reporter"": ""Cal. 3d"", ""pin_cites"": [{""page"": ""498""}], ""case_paths"": [""/cal-3d/2/0493-01""], ""opinion_index"": 0}, {""cite"": ""215 Va. 338"", ""year"": 1974, ""weight"": 5, ""case_ids"": [2123160], ""category"": ""reporters:state"", ""reporter"": ""Va."", ""pin_cites"": [{""page"": ""341""}, {""page"": ""342""}, {""page"": ""342""}], ""case_paths"": [""/va/215/0338-01""], ""opinion_index"": 0}, {""cite"": ""245 Cal. App. 2d 518"", ""year"": 1966, ""case_ids"": [2212186], ""category"": ""reporters:state"", ""reporter"": ""Cal. App. 2d"", ""case_paths"": [""/cal-app-2d/245/0518-01""], ""opinion_index"": 0}, {""cite"": ""77 Ariz. 355"", ""year"": 1954, ""case_ids"": [639451], ""category"": ""reporters:state"", ""reporter"": ""Ariz."", ""case_paths"": [""/ariz/77/0355-01""], ""opinion_index"": 0}, {""cite"": ""214 Iowa 1303"", ""year"": 1932, ""case_ids"": [2322850], ""category"": ""reporters:state"", ""reporter"": ""Iowa"", ""pin_cites"": [{""page"": ""1312""}], ""case_paths"": [""/iowa/214/1303-01""], ""opinion_index"": 0}, {""cite"": ""369 Mass. 350"", ""year"": 1975, ""case_ids"": [309806], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""364-365""}], ""case_paths"": [""/mass/369/0350-01""], ""opinion_index"": 0}, {""cite"": ""11 Utah 2d 289"", ""year"": 1961, ""weight"": 3, ""case_ids"": [8864302], ""category"": ""reporters:state"", ""reporter"": ""Utah 2d"", ""pin_cites"": [{""page"": ""293""}, {""page"": ""293""}], ""case_paths"": [""/utah-2d/11/0289-01""], ""opinion_index"": 0}, {""cite"": ""38 Cal. 2d 330"", ""year"": 1952, ""weight"": 2, ""case_ids"": [4405446], ""category"": ""reporters:state"", ""reporter"": ""Cal. 2d"", ""pin_cites"": [{""page"": ""338-339""}, {""page"": ""338""}], ""case_paths"": [""/cal-2d/38/0330-01""], ""opinion_index"": 0}, {""cite"": ""49 Harv. L. Rev. 1033"", ""year"": 1936, ""category"": ""journals:journal"", ""reporter"": ""Harv. L. 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+320423,"{""id"": 320423, ""name"": ""Arthur B. Blackett & others vs. Jerrold Olanoff (and a companion case)"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""3e583c00e51781ce51f3c9c1cdeed440a8050d08bd805c368ab79126c979f286"", ""simhash"": ""1:2591b4d699558d4f"", ""pagerank"": {""raw"": 0.00000018905445314484837, ""percentile"": 0.7289392161473507}, ""char_count"": 9932, ""word_count"": 1599, ""cardinality"": 620, ""ocr_confidence"": 0.811}, ""casebody"": {""judges"": [], ""parties"": [""Arthur B. Blackett & others vs. Jerrold Olanoff (and a companion case).""], ""opinions"": [{""text"": ""Wilkins, J.\nThe defendant in each of these consolidated actions for rent successfully raised constructive eviction as a defense against the landlords’ claim. The judge found that the tenants were “very substantially deprived” of quiet enjoyment of their leased premises “for a substantial time” (emphasis original). He ruled that the tenants’ implied warranty of quiet enjoyment was violated by late evening and early morning music and disturbances coming from nearby premises which the landlords leased to others for use as a bar or cocktail lounge (lounge). The judge further found that, although the landlords did not intend to create the conditions, the landlords “had it within their control to correct the conditions which... amounted to a constructive eviction of each [tenant].” He also found that the landlords promised each tenant to correct the situation, that the landlords made some attempt to remedy the problem, but they were unsuccessful, and that each tenant vacated his apartment within a reasonable time. Judgment was entered for each tenant; the landlords appealed; and we transferred the appeals here. We affirm the judgments.\nThe landlords argue that they did not violate the tenants’ implied covenant of quiet enjoyment because they are not chargeable with the noise from the lounge. The landlords do not challenge the judge’s conclusion that the noise emanating from the lounge was sufficient to constitute a constructive eviction, if that noise could be attributed to the landlords. Nor do the landlords seriously argue that a constructive eviction could not be found as matter of law because the lounge was not on the same premises as the tenants’ apartments. See 1 American Law of Property § 3.51, at 281 (A.J. Casner ed. 1952). The landlords’ principal contention, based on the denial of certain requests for rulings, is that they are not responsible for the conduct of the proprietors, employees, and patrons of the lounge.\nOur opinions concerning a constructive eviction by an alleged breach of an implied covenant of quiet enjoyment sometimes have stated that the landlord must perform some act with the intent of depriving the tenant of the enjoyment and occupation of the whole or part of the leased premises. See Katz v. Duffy, 261 Mass. 149, 151-152 (1927), and cases cited. There are occasions, however, where a landlord has not intended to violate a tenant’s rights, but there was nevertheless a breach of the landlord’s covenant of quiet enjoyment which flowed as the natural and probable consequence of what the landlord did, what he failed to do, or what he permitted to be done. Charles E. Burt, Inc. v. Seven Grand Corp., 340 Mass. 124, 127 (1959) (failure to supply light, heat, power, and elevator services). Westland Housing Corp. v. Scott, 312 Mass. 375, 381 (1942) (intrusions of smoke and soot over a substantial period of time due to a defective boiler). Shindler v. Milden, 282 Mass. 32, 33-34 (1933) (failure to install necessary heating system, as agreed). Case v. Minot, 158 Mass. 577, 587 (1893) (landlord authorizing another lessee to obstruct the tenant’s light and air, necessary for the beneficial enjoyment of the demised premises). Skally v. Shute, 132 Mass. 367, 370-371 (1882) (undermining of a leased building rendering it unfit for occupancy). Although some of our opinions have spoken of particular action or inaction by a landlord as showing a presumed intention to evict, the landlord’s conduct, and not his intentions, is controlling. See Westland Housing Corp. v. Scott, supra at 382-383.\nThe judge was warranted in ruling that the landlords had it within their control to correct the condition which caused the tenants to vacate their apartments. The landlords introduced a commercial activity into an area where they leased premises for residential purposes. The lease for the lounge expressly provided that entertainment in the lounge had to be conducted so that it could not be heard outside the building and would not disturb the residents of the leased apartments. The potential threat to the occupants of the nearby apartments was apparent in the circumstances. The landlords complained to the tenants of the lounge after receiving numerous objections from residential tenants. From time to time, the pervading noise would abate in response to the landlord’s complaints. We conclude that, as matter of law, the landlords had a right to control the objectionable noise coming from the lounge and that the judge was warranted in finding as a fact that the landlords could control the objectionable conditions.\nThis situation is different from the usual annoyance of one residential tenant by another, where traditionally the landlord has not been chargeable with the annoyance. See Katz v. Duffy, 261 Mass. 149 (1927) (illegal sale of alcoholic beverages); DeWitt v. Pierson, 112 Mass. 8 (1873) (prostitution). Here we have a case more like Case v. Minot, 158 Mass. 577 (1893), where the landlord entered into a lease with one tenant which the landlord knew permitted that tenant to engage in activity which would interfere with the rights of another tenant. There, to be sure, the clash of tenants’ rights was inevitable, if each pressed those rights. Here, although the clash of tenants’ interests was only a known potentiality initially, experience demonstrated that a decibel level for the entertainment at the lounge, accoustically acceptable to its patrons and hence commercially desirable to its proprietors, was intolerable for the residential tenants.\nBecause the disturbing condition was the natural and probable consequence of the landlords’ permitting the lounge to operate where it did and because the landlords could control the actions at the lounge, they should not be entitled to collect rent for residential premises which were not reasonably habitable. Tenants such as these should not be left only with a claim against the proprietors of the noisome lounge. To the extent that our opinions suggest a distinction between nonfeasance by the landlord, which has been said to create no liability (P. Hall, Massachusetts Law of Landlord and Tenant § § 90-91 [4th ed. 1949]), and malfeasance by the landlord, we decline to perpetuate that distinction where the landlord creates a situation and has the right to control the objectionable conditions.\nJudgments affirmed.\nThere was evidence that the lounge had amplified music (electric musical instruments and singing, at various times) which started at 9:30 P.M. and continued until 1:30 A.M. or 2 A.M., generally on Tuesdays through Sundays. The music could be heard through the granite walls of the residential tenants’ building, and was described variously as unbelievably loud, incessant, raucous, and penetrating. The noise interfered with conversation and prevented sleep. There was also evidence of noise from patrons’ yelling and fighting.\nThe general, but not universal, rule in this country is that a landlord is not chargeable because one tenant is causing annoyance to another (A.H. Woods Theatre v. North American Union, 246 Ill. App. 521, 526-527 [1927] [music from one commercial tenant annoying another commercial tenant’s employees]), even where the annoying conduct would be a breach of the landlord’s covenant of quiet enjoyment if the landlord were the miscreant. See Paterson v. Bridges, 16 Ala. App. 54, 55 (1917); Thompson v. Harris, 9 Ariz. App. 341, 345 (1969), and cases cited; 1 American Law of Property § 3.53 (A.J. Casner ed. 1952); Annot., 38 A.L.R. 250 (1925). Contra, Kesner v. Consumers Co., 255 Ill. App. 216, 228-229 (1929) (storage of flammables constituting a nuisance); Bruckner v. Helfaer, 197 Wis. 582, 585 (1929) residential tenant not liable for rent where landlord, with ample notice, does not control another tenant’s conduct).\nThe rule in New York appears to be that the landlord may not recover rent if he has had ample notice of the existence of conduct of one tenant which deprives another tenant of the beneficial enjoyment of his premises and the landlord does little or nothing to abate the nuisance. See Cohen v. Werner, 85 Misc. 2d 341, 342 (N.Y. App. T. 1975); Rockrose Assocs. v. Peters, 81 Misc. 2d 971, 972 (N.Y. Civ. Ct. 1975) (office lease); Home Life Ins. Co. v. Breslerman, 168 Misc. 117, 118 (N.Y. App. T. 1938). But see comments in Trustees of the Sailors’ Snug Harbor in the City of New York v. Sugarman, 264 App. Div. 240, 241 (N.Y. 1942) (no nuisance).\nA tenant with sufficient bargaining power may be able to obtain an agreement from the landlord to insert and to enforce regulatory restrictions in the leases of other, potentially offending, tenants. See E. Schwartz, Lease Drafting in Massachusetts § 6.33 (1961)."", ""type"": ""majority"", ""author"": ""Wilkins, J.""}], ""attorneys"": [""Philip S. Lapatin for the plaintiffs."", ""Sally A. Corwin (Jon C. Mazuy with her) for the defendants.""], ""corrections"": """", ""head_matter"": ""Arthur B. Blackett & others vs. Jerrold Olanoff (and a companion case).\nSuffolk.\nOctober 7, 1976.\nJanuary 13, 1977.\nPresent: Hennessey, C.J., Braucher, Kaplan, & Wilkins, JJ.\nLandlord and Tenant, Eviction, Quiet enjoyment.\nWhere landlords of a residential building leased to others a nearby building for use as a bar and cocktail lounge with the result that the residential tenants were subjected to loud music and disturbances into the early morning hours and where the landlords had the ability to control the objectionable conditions but failed to do so, the landlords breached the residential tenants’ implied warranty of quiet enjoyment. [715-718]\nContract. Writs in the Municipal Court of the City of Boston dated October 3,1972.\nUpon transfer by the defendants to the Housing Court of the City of Boston, the cases were heard by Garrity, J.\nPhilip S. Lapatin for the plaintiffs.\nSally A. Corwin (Jon C. Mazuy with her) for the defendants.\nArthur B. Blackett, Charles W. Brown, Third, Konrad Gesner, and Bencion Moskow, trustees of Blue Water Trust, doing business as Commercial Wharf Properties Co. The plaintiffs will be referred to herein as the landlords.\nArthur B. Blackett & others vs. Paul DiMaura.""}, ""cites_to"": [{""cite"": ""264 App. Div. 240"", ""year"": 1942, ""case_ids"": [2643749], ""category"": ""reporters:state"", ""reporter"": ""A.D."", ""pin_cites"": [{""page"": ""241"", ""parenthetical"": ""no nuisance""}], ""case_paths"": [""/ad/264/0240-01""], ""opinion_index"": 0}, {""cite"": ""168 Misc. 117"", ""year"": 1938, ""case_ids"": [877937, 877925], ""category"": ""reporters:state"", ""reporter"": ""Misc."", ""pin_cites"": [{""page"": ""118""}], ""case_paths"": [""/misc/168/0117-01"", ""/misc/168/0117-02""], ""opinion_index"": 0}, {""cite"": ""81 Misc. 2d 971"", ""year"": 1975, ""case_ids"": [1287711], ""category"": ""reporters:state"", ""reporter"": ""Misc. 2d"", ""pin_cites"": [{""page"": ""972"", ""parenthetical"": ""office lease""}], ""case_paths"": [""/misc2d/81/0971-01""], ""opinion_index"": 0}, {""cite"": ""85 Misc. 2d 341"", ""year"": 1975, ""case_ids"": [1303110], ""category"": ""reporters:state"", ""reporter"": ""Misc. 2d"", ""pin_cites"": [{""page"": ""342""}], ""case_paths"": [""/misc2d/85/0341-01""], ""opinion_index"": 0}, {""cite"": ""197 Wis. 582"", ""year"": 1929, ""case_ids"": [8696758], ""category"": ""reporters:state"", ""reporter"": ""Wis."", ""pin_cites"": [{""page"": ""585""}], ""case_paths"": [""/wis/197/0582-01""], ""opinion_index"": 0}, {""cite"": ""255 Ill. App. 216"", ""year"": 1929, ""case_ids"": [5544555], ""category"": ""reporters:state"", ""reporter"": ""Ill. App."", ""pin_cites"": [{""page"": ""228-229"", ""parenthetical"": ""storage of flammables constituting a nuisance""}], ""case_paths"": [""/ill-app/255/0216-01""], ""opinion_index"": 0}, {""cite"": ""38 A.L.R. 250"", ""year"": 1925, ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R."", ""opinion_index"": 0}, {""cite"": ""9 Ariz. App. 341"", ""year"": 1969, ""case_ids"": [1204109], ""category"": ""reporters:state"", ""reporter"": ""Ariz. App."", ""pin_cites"": [{""page"": ""345""}], ""case_paths"": [""/ariz-app/9/0341-01""], ""opinion_index"": 0}, {""cite"": ""16 Ala. App. 54"", ""year"": 1917, ""case_ids"": [1635918], ""category"": ""reporters:state"", ""reporter"": ""Ala. App."", ""pin_cites"": [{""page"": ""55""}], ""case_paths"": [""/ala-app/16/0054-01""], ""opinion_index"": 0}, {""cite"": ""246 Ill. App. 521"", ""year"": 1917, ""case_ids"": [3337999], ""category"": ""reporters:state"", ""reporter"": ""Ill. 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+324105,"{""id"": 324105, ""name"": ""Commonwealth vs. Michael V. LaCorte"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""a23cda0adfe3ee19272ae960bfae1030c3075e9306b7305f9624a5184ae4772a"", ""simhash"": ""1:370bd62f2c84d213"", ""pagerank"": {""raw"": 0.0000007492488248729153, ""percentile"": 0.9699503716239827}, ""char_count"": 16312, ""word_count"": 2659, ""cardinality"": 831, ""ocr_confidence"": 0.777}, ""casebody"": {""judges"": [], ""parties"": [""Commonwealth vs. Michael V. LaCorte.""], ""opinions"": [{""text"": ""Hennessey, C.J.\nThe defendant Michael V. LaCorte (LaCorte) was indicted for murder in the first degree in connection with the death of Richard White in White’s Boston apartment on May 29, 1974. After a five-day trial in the Superior Court, a jury found LaCorte guilty of murder in the second degree, and the judge sentenced him to fife imprisonment. The defendant’s assignments of error are here pursuant to G. L. c. 278, §§ 33A-33G, as amended. We conclude that there was no error.\nResponding to a call from a neighbor, Boston police officers entered White’s Marlborough Street apartment at approximately 6:05 a.m. and found White dead on the floor, bleeding from multiple stab wounds, a scarf tied around his neck like a noose. The jury were warranted in finding the following facts based on the Commonwealth’s evidence. LaCorte had been with White on the night in question. He was seen in a restaurant with White about 11 p.m., and a third man was present with them. LaCorte and the unidentified man left together, but were seen with White again outside the restaurant about 1:25 a.m. At that time, the men seemed to be arguing. White was trying to walk away from the others, but LaCorte kept tugging at White’s jacket and led him in another direction, saying, “Come on here, come on this way.” About 6 a.m. a neighbor in an apartment adjacent to White’s was awakened by loud screaming. Looking out her window, she saw two men running from White’s building accompanied by a woman. In White’s apartment, police found two cardboard coffee cups, one of which bore fingerprints which, in the opinion of the Commonwealth’s expert witness, were “identical” to prints taken from LaCorte at the time of his arrest. Approximately four months later, in October, 1974, LaCorte bragged to a group of friends about crimes he had committed in the past, including a murder — which he reenacted for them. He related how he and a friend had “roundhoused” a Marlborough Street man who had “ripped us off.” He illustrated his story by standing up one of his listeners, spinning him around, and pretending to stab him repeatedly at each turn. LaCorte told his friends — two of whom testified at trial — that his victim had fallen through a glass window during the struggle. Police found a broken window in White’s apartment, and tests revealed that pieces of the broken glass were stained with blood.\n1. The defendant argues that the cardboard cup bearing his fingerprint should have been excluded at trial because the prosecution failed to establish that the fingerprint was placed thereon in the apartment during the commission of the crime. This foundation, the defendant argues, is necessary to eliminate the possibility that LaCorte may have left the fingerprint during a previous visit to the apartment unrelated to the crime. Without it, he seems to argue, the evidence is irrelevant. We disagree. Certainly fingerprints found in the apartment of the victim immediately after the homicide have some tendency to prove the identity of the killer. It is this rational tendency to prove an issue in the case that makes the cup relevant and, subject to other rules, admissible. Commonwealth v. Ross, 361 Mass. 665, 679-680 (1972), judgment vacated, 410 U.S. 901, aff’d on rehearing, 363 Mass. 665, cert, denied, 414 U.S. 1080 (1973). Commonwealth v. Durkin, 257 Mass. 426, 427-428 (1926). The defendant’s argument goes only to the weight of the evidence, not to its admissibility, and it is for the jury to determine — after listening to cross-examination and the closing arguments of counsel — what significance, if any, they will attach to the discovery of the defendant’s fingerprints at the scene of the crime. See United States v. Kahaner, 317 F.2d 459, 471-472 (2d Cir. 1963); 1 J. Wigmore, Evidence § 29, at 411 (3d ed. 1940).\nThat is not to say, of course, that the mere discovery of the defendant’s fingerprints at the scene of the crime, without further evidence linking the defendant to the crime, would be sufficient identification to support a conviction. Courts universally consider the fingerprint comparison to be an adequate and reliable method of identification. 2 J. Wigmore, Evidence § 414, at 390 (3d ed. 1940). See, e.g., Commonwealth v. Bartolini, 299 Mass. 503, 513, cert, denied, 304 U.S. 565 (1938). Moreover, when the prosecution can establish that fingerprints found at the scene of the crime could have been impressed only during the commission of the crime, fingerprint evidence pointing to the defendant almost certainly will support a conviction. See Commonwealth v. Jones, 360 Mass. 498, 501 n.2 (1971); State v. Miller, 49 Ohio St. 2d 198 (1977). Nevertheless, when fingerprints constitute the only identification evidence, most jurisdictions require the prosecution to establish beyond a reasonable doubt that the fingerprints in fact were placed at the scene during the commission of the crime. E.g., United States v. Corso, 439 F.2d 956, 957 (4th Cir. 1971); State v. Mayell, 163 Conn. 419, 426 (1972); Annot., 28 A.L.R.2d 1115, 1155-1157 (1953). But cf. Borum v. United States, 380 F.2d 595, 598-602 (D.C. Cir. 1967) (Burger, J., dissenting), cited with approval in Commonwealth v. Jones, supra. We need not reach this question because in this case the prosecutor introduced abundant evidence — including the defendant’s own admissions — linking him to the murder in question.\n2. Defense counsel argues that a standard fingerprint card, kept as an arrest record by the Boston police department, was not adequately authenticated as one bearing the prints of the defendant and thus could not furnish a relevant standard against which the expert witness could compare the fingerprint found in White’s apartment. We disagree. The Commonwealth offered the card through the police officer who fingerprinted LaCorte at the time of the arrest. The officer testified that on October 29, 1974, he took the fingerprints of a person — whom he identified in court as the defendant — and recorded them, together with that person’s photograph and signature, on a standard fingerprint card. Defense counsel appears to have conceded at trial that the photograph and signature were genuine.\nThe officer identified the card offered by the prosecutor as the card on which he had taken LaCorte’s fingerprints, and the judge received the card in evidence as an exhibit. The prosecutor made no attempt to account for the custody of the fingerprint card between the date of arrest and the date of the trial. The defendant argues that this constitutes a gap in the evidence fatal to the authentication and that the judge erred in admitting the card as a genuine set of LaCorte’s fingerprints. This argument mis-perceives the nature of the authentication requirement.\nIn order to be material, a thing offered in evidence genuinely must be what its proponent represents it to be. Its authenticity must be stipulated or else proved like any other fact. “Such proof of authenticity usually takes the form of testimony of a qualified witness either (1) that the thing is what its proponent represents it to be, or (2) that circumstances exist which imply that the thing is what its proponent represents it to be.” W.B. Leach & P.J. Liacos, Massachusetts Evidence 265 (4th ed. 1967). In this case there was testimony from the officer who had taken the defendant’s fingerprints that the proffered card was the one used in the fingerprinting. In light of such direct identification of the card and its contents, uncon-troverted in cross-examination or by any other evidence, there was no necessity to authenticate the card by circumstantial proof, such as showing the chain of custody of the card since the fingerprints were taken.\n3. The Commonwealth’s expert testified that he considered one of the fingerprints on the coffee cup “to be identical with the left middle finger of one Michael Vincent LaCorte.” The defendant took exception to the use of the word “identical” and argues that the expert invaded the province of the jury by expressing an opinion as to an ultimate fact. There was no error. This court has held that “a question which calls for an opinion which is in the domain of the expert’s professional knowledge is not necessarily to be excluded merely because the conclusion of the witness reaches or approaches the ultimate issue before the jury.” Commonwealth v. Montmeny, 360 Mass. 526, 527-528 (1971). Compare Commonwealth v. Lannon, 364 Mass. 480, 484 (1974), and Commonwealth v. Boudreau, 362 Mass. 378, 380 (1972), with Commonwealth v. Gardner, 350 Mass. 664, 665-667 (1966). The many jurisdictions that have considered the issue essentially agree that such testimony by a fingerprint expert does not usurp the function of the jury, even though it may touch on an ultimate fact which the jury must determine. See, e.g., State v. Taylor, 201 N.W.2d 724, 726-727 (Iowa 1972), overruling State v. Steffen, 210 Iowa 196, 200 (1930); Annot., 28 A.L.R.2d 1115, § 25 (1953 & Supps. 1970, 1977). We find that there was no danger here “that the jury might forego independent analysis of the facts and bow too readily to the opinion of an expert or otherwise influential witness.” McCormick, Evidence § 12, at 27 (2d ed. 1972).\n4. The defendant has assigned as alleged errors several evidentiary rulings by the judge excluding questions put to prosecution witnesses on cross-examination. We hold that there was no error in any of the rulings. The questions raised are not novel, and all involved the element of judicial discretion with no showing of any abuse of that discretion. We therefore describe the alleged errors only to the extent necessary to identify them in disposing of the claims of error.\n(a) While cross-examining one Officer Charbonnier, defense counsel showed the witness certain photographs, admitted as exhibits, depicting the room where White’s body was discovered. Counsel was attempting to demonstrate where the coffee cup bearing LaCorte’s fingerprints was to be found in each picture. After a number of similar questions, the judge excluded further oral testimony and submitted the photographs to the jury. The witness had not been present when the photographs were taken, and his responses were nothing more than his own interpretation of them. The exclusion reveals no error. See generally Commonwealth v. Sandler, 368 Mass. 729, 737-738 (1975). A trial judge may, in his discretion, limit cross-examina-tian in the interest of clear and orderly presentation of the evidence. The judge’s action in no way precluded counsel from proving, if he could, that the fingerprint on the cup was due to LaCorte’s presence in the apartment on some occasion prior to the murder.\n(b) The trial judge excluded a question put to witness Sapauskas which would have established that Sapauskas entered the Warrenton Center for Addiction on October 9, 1974 — five days after LaCorte had reenacted the murder in the presence of Sapauskas and others. The judge ruled the testimony immaterial, and we agree. The defendant argues that this exclusion prevented counsel from inquiring into the witness’s possible mental impairment at the time he witnessed LaCorte’s dramatization. We find from the record, however, that Sapauskas’s drug addiction at the time of the reenactment was the subject of extensive cross-examination. There was no error.\n(c) The patrolman who discovered White’s body, one Officer Bickerton, was asked on cross-examination whether he “had some information whether or not a woman had been in the apartment at about 5:30 that morning?” The prosecutor did not object, but the judge excluded the question on his own motion. It is true that the neighbor who had called the police testified to seeing a woman running from White’s building with two men. Officer Bick-erton himself testified that he had found women’s clothing in White’s apartment. Clearly, however, Officer Bickerton could have had no first hand knowledge of the presence of a woman at the scene prior to his arrival, and the judge might have excluded the question on this ground. Since there is no suggestion by the defense that Officer Bick-erton had any such knowledge, counsel’s reliance on Commonwealth v. Johnson, 365 Mass. 534 (1974), is misplaced.\n5. The defendant argues that the prosecutor asserted his personal belief in the defendant’s guilt during his closing argument to the jury. There is no merit to this contention. The prosecutor said: \""I’m fully confident... as sure as my name is Doyle, that I expect a truthful verdict by twelve people of courage, by twelve people joined together in a single unit dedicated to one purpose and one purpose alone: What is the truth in this case.” This argument was not improper. Both judge and counsel may properly impress upon the jury their duty to act with courage as well as impartiality. Commonwealth v. Clark, 292 Mass. 409, 411 (1935). The defendant’s motion for a mistrial was properly denied.\n6. We have reviewed the entire record in accordance with our duties under G. L. c. 278, § 33E. We find that the verdict is in accordance with the law and the weight of the evidence, and we observe nothing which in justice indicates that we should modify the result reached by the jury.\nJudgment affirmed.\nSince the defendant may have been in White’s apartment on other occasions, the defendant might have been entitled to a limiting instruction emphasizing that the fingerprints were admitted in evidence to show only that the defendant was present there at some time. However, because of other circumstantial evidence in this case, the judge might well have ruled that the defendant was not entitled to such an instruction. In any event, the question is not before us, because the defendant requested no such instruction."", ""type"": ""majority"", ""author"": ""Hennessey, C.J.""}], ""attorneys"": [""John C. McBride for the defendant."", ""William J. Doyle, Assistant District Attorney, for the Commonwealth.""], ""corrections"": """", ""head_matter"": ""Commonwealth vs. Michael V. LaCorte.\nSuffolk.\nOctober 4, 1977.\nNovember 18, 1977.\nPresent: Hennessey, C.J., Quirico, Kaplan, Liacos, & Abrams, JJ.\nEvidence, Fingerprints; Relevancy and materiality; Opinion: expert; Cross-examination. Practice, Criminal, Argument by prosecutor.\nAt a trial in which there was abundant evidence linking the defendant to a murder committed in an apartment, a coffee cup found there immediately after and bearing his fingerprints was properly admitted in evidence, notwithstanding the absence of proof that the fingerprint was placed on the cup during the commission of the crime. [702-703]\nUncontroverted testimony from a police officer who had taken the defendant’s fingerprints on a standard fingerprint card at the time of his arrest was properly admitted at his murder trial on the officer’s identifying the defendant and stating that the proffered card was the one used in the fingerprinting, notwithstanding the absence of an accounting of the custody of the card between the arrest date and the trial date. [703-704]\nAt a murder trial, testimony of the Commonwealth’s expert that a fingerprint on a coffee cup was “identical” with a finger of the defendant was not erroneously admitted as an expression of an opinion as to an ultimate fact for the jury. [705]\nOn cross-examination of prosecution witnesses at a murder trial, there was no error in excluding, following testimony about certain photographs admitted as exhibits, further testimony about them from a witness who had not been present when they were taken [705-706]; there was no error in excluding, as to a witness who had been extensively cross-examined as to his drug addiction at the time the defendant reenacted the crime, testimony concerning the witness’s entry into an addiction center five days after the reenactment [706]; and there was no error in excluding questions to the patrolman who had discovered the victim’s body as to whether he “had some information” about a woman who may have been present at the scene prior to the patrolman’s arrival there [706-707].\nThe prosecutor’s closing argument at a murder trial was not improper by reason of his asking the jury to act with courage. [707]\nIndictment found and returned in the Superior Court on December 16,1974.\nThe case was tried before Roy, J.\nAfter review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.\nJohn C. McBride for the defendant.\nWilliam J. Doyle, Assistant District Attorney, for the Commonwealth.""}, ""cites_to"": [{""cite"": ""317 F.2d 459"", ""year"": 1963, ""case_ids"": [165314], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""471-472""}], ""case_paths"": [""/f2d/317/0459-01""], ""opinion_index"": 0}, {""cite"": ""292 Mass. 409"", ""year"": 1935, ""case_ids"": [3836354], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""411""}], ""case_paths"": [""/mass/292/0409-01""], ""opinion_index"": 0}, {""cite"": ""365 Mass. 534"", ""year"": 1974, ""case_ids"": [292131], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/365/0534-01""], ""opinion_index"": 0}, {""cite"": ""368 Mass. 729"", ""year"": 1975, ""case_ids"": [307050], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""737-738""}], ""case_paths"": [""/mass/368/0729-01""], ""opinion_index"": 0}, {""cite"": ""210 Iowa 196"", ""year"": 1930, ""case_ids"": [2313321], ""category"": ""reporters:state"", ""reporter"": ""Iowa"", ""pin_cites"": [{""page"": ""200""}], ""case_paths"": [""/iowa/210/0196-01""], ""opinion_index"": 0}, {""cite"": ""201 N.W.2d 724"", ""year"": 1972, ""case_ids"": [10774910], ""category"": ""reporters:state_regional"", ""reporter"": ""N.W.2d"", ""pin_cites"": [{""page"": ""726-727""}], ""case_paths"": [""/nw2d/201/0724-01""], ""opinion_index"": 0}, {""cite"": ""350 Mass. 664"", ""year"": 1966, ""case_ids"": [527000], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""665-667""}], ""case_paths"": [""/mass/350/0664-01""], ""opinion_index"": 0}, {""cite"": ""362 Mass. 378"", ""year"": 1972, ""case_ids"": [44077], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""380""}], ""case_paths"": [""/mass/362/0378-01""], ""opinion_index"": 0}, {""cite"": ""364 Mass. 480"", ""year"": 1974, ""case_ids"": [289741], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""484""}], ""case_paths"": [""/mass/364/0480-01""], ""opinion_index"": 0}, {""cite"": ""360 Mass. 526"", ""year"": 1971, ""case_ids"": [317466], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""527-528""}], ""case_paths"": [""/mass/360/0526-01""], ""opinion_index"": 0}, {""cite"": ""380 F.2d 595"", ""year"": 1967, ""case_ids"": [2073130, 4068267], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""598-602"", ""parenthetical"": ""Burger, J., dissenting""}], ""case_paths"": [""/f2d/380/0595-01""], ""opinion_index"": 0}, {""cite"": ""28 A.L.R.2d 1115"", ""year"": 1953, ""weight"": 2, ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R. 2d"", ""pin_cites"": [{""page"": ""1155-1157""}, {""page"": ""§ 25""}], ""opinion_index"": 0}, {""cite"": ""163 Conn. 419"", ""year"": 1972, ""case_ids"": [696601], ""category"": ""reporters:state"", ""reporter"": ""Conn."", ""pin_cites"": [{""page"": ""426""}], ""case_paths"": [""/conn/163/0419-01""], ""opinion_index"": 0}, {""cite"": ""439 F.2d 956"", ""year"": 1971, ""case_ids"": [755503], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""957""}], ""case_paths"": [""/f2d/439/0956-01""], ""opinion_index"": 0}, {""cite"": ""49 Ohio St. 2d 198"", ""year"": 1977, ""case_ids"": [1800046], ""category"": ""reporters:state"", ""reporter"": ""Ohio St. 2d"", ""case_paths"": [""/ohio-st-2d/49/0198-01""], ""opinion_index"": 0}, {""cite"": ""360 Mass. 498"", ""year"": 1971, ""weight"": 2, ""case_ids"": [317505], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/360/0498-01""], ""opinion_index"": 0}, {""cite"": ""304 U.S. 565"", ""year"": 1938, ""case_ids"": [10850, 10787, 10724, 10855, 10773], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/304/0565-03"", ""/us/304/0565-01"", ""/us/304/0565-02"", ""/us/304/0565-04"", ""/us/304/0565-05""], ""opinion_index"": 0}, {""cite"": ""299 Mass. 503"", ""year"": 1938, ""case_ids"": [12254991], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""513""}], ""case_paths"": [""/mass/299/0503-01""], ""opinion_index"": 0}, {""cite"": ""257 Mass. 426"", ""year"": 1926, ""case_ids"": [3820552], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""427-428""}], ""case_paths"": [""/mass/257/0426-01""], ""opinion_index"": 0}, {""cite"": ""414 U.S. 1080"", ""year"": 1973, ""case_ids"": [11827115, 11827030, 11826991], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/414/1080-03"", ""/us/414/1080-02"", ""/us/414/1080-01""], ""opinion_index"": 0}, {""cite"": ""363 Mass. 665"", ""year"": 1973, ""case_ids"": [288077], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": 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""docket_number"": """", ""last_page_order"": 721, ""first_page_order"": 714, ""name_abbreviation"": ""Commonwealth v. 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+330421,"{""id"": 330421, ""name"": ""John P. Back, administrator, vs. The Wickes Corporation & another (and four companion cases)"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""2948e919a48a8bf83a2ecad764e39f9d32b9a17b818ecf1e0ecf6c9240c05fef"", ""simhash"": ""1:c50699b3e21d2ed2"", ""pagerank"": {""raw"": 0.000001615657370495253, ""percentile"": 0.9927652152693072}, ""char_count"": 23462, ""word_count"": 3892, ""cardinality"": 1167, ""ocr_confidence"": 0.91}, ""casebody"": {""judges"": [], ""parties"": [""John P. Back, administrator, vs. The Wickes Corporation & another (and four companion cases).""], ""opinions"": [{""text"": ""Hennessey, C.J.\nThese are five consolidated actions, four for wrongful death and conscious suffering, and one for personal injuries, arising out of an accident on the Massachusetts Turnpike. The plaintiffs’ four decedents perished when the motor home in which they were riding caught fire and exploded after hitting a cable fence at the side of the highway. There was agreement among the parties’ experts that the collision might have occurred at a speed as low as twenty-five miles an hour. The plaintiff Albert L. Mead, a passing truck driver, tried to rescue the four from the burning vehicle, and he was injured in the attempt.\nThe motor home had been manufactured by The Wickes Corporation (Wickes) on a chassis manufactured by Chrysler Corporation (Chrysler). At the trial, the plaintiffs endeavored to prove by expert testimony that the motor home was negligently designed and unmerchantable. The plaintiffs alleged that certain conscious design choices by the defendants were responsible for making an otherwise minor collision fatal. The jury returned verdicts for the defendants in each case on both the negligence and the warranty counts. The plaintiffs appealed, and this court allowed direct appellate review.\nWe hold that it was error for the trial judge to instruct the jury on the issue of misuse. Accordingly, we reverse the judgments and remand the cases for a new trial on the warranty claims. Contrary to the plaintiffs’ assertions, we find no error in the charge with respect to the negligence claims, as will be seen infra. We discuss the remaining assignments of error only in so far as they may arise at a new trial.\n1. The facts. On June 8, 1974, about midnight, Gerald Back, Laura Franceschi, Warren King, and Laurie Yeslow, all students at the University of Massachusetts, were traveling west on the Massachusetts Turnpike in a twenty-three-foot motor home borrowed by Back from a friend of his brother. The vehicle was traveling at an estimated fifty miles an hour when it passed a truck driven by the plaintiff Mead. The motor home left Mead’s sight as it rounded a curve, veered off the road into a reflector post and cable fence, and tipped over on its side.\nMead testified that as he rounded the curve he saw the motor home overturned at the side of the road and that “all at once the whole vehicle burst into flames from one end to the other.” Mead stopped his truck, as did Wendall W. Betts, another truck driver, and the two attempted to free the screaming occupants by breaking the windshield. Their efforts ceased when an explosion shattered the windshield, killing the occupants and throwing Mead some distance from the vehicle.\nThe record contains no explanation as to why the motor home struck the fence. Mead did not observe anything unusual about the motor home when it passed his truck. Betts had seen the motor home sway as it changed lanes, and he thought the vehicle had a flat tire. The plaintiffs’ theory is that a tire blew out, but the accident reconstruction experts who testified at trial could not venture an opinion on this one way or the other.\nThe fence consisted of short metal posts connected by heavy wire cables. The experts agreed that one of the posts dislodged the motor home’s gasoline tank — located near the right rear wheel — and caused it to become impaled on the vehicle’s rear spring hanger. The experts did not agree, however, on how the tank became dislodged. The plaintiffs maintained that the motor home simply sideswiped the fence and that the posts tore away the side of the vehicle, including the tank, which the plaintiffs contend was not properly shielded from collision damage.\nThe defendants’ reconstruction of the accident was somewhat different. Their evidence tended to show that the vehicle’s right front wheel mounted the fence, that the motor home became virtually airborne, and that the impact to the gasoline tank came from beneath when the vehicle came down hard on the fence. The defendants submit that it is highly unusual for such a motor home to sustain a serious blow in its right rear quarter, especially from beneath.\n2. The alleged design deficiencies. At trial, the plaintiffs maintained that the design of the motor home was dangerous in many respects. The defendants, in turn, denied that the motor home was defectively designed, and they relied heavily on evidence that the vehicle conformed to all product safety standards prevailing in the industry in 1973, when it was manufactured. We briefly review the conflicting evidence.\nIt was the opinion of the plaintiffs’ expert Burnstine that the location of the fuel tank was not in conformance with good engineering practice. The forty-gallon tank was mounted on the chassis, but outside the perimeter of the chassis frame. Thus situated, the tank did not receive the protection of the chassis frame during the collision. Burnstine testified that, given the state of the art in 1973, it would have been possible to design the chassis in such a way as to include the forty-gallon fuel tank within the frame. Chrysler’s engineer testified, however, that mounting the tank inside the frame was not feasible for this model motor home. He also testified that all manufacturers in the industry place the fuel tanks outside the chassis frame on vehicles with an equivalent wheelbase; that the tank was mounted in the safest possible location; that it was located where the Federal government insists fuel tanks be placed on school buses; and that Chrysler, who had supplied the fuel tank, specifically recommended that Wickes not change the location.\nThe plaintiffs further contended that many other aspects of the vehicle’s design contributed to making the side-mounted tank unnecessarily vulnerable to collision damage. Because of its shape, the tank protruded about eighteen inches outboard of the chassis frame, although it was still inside the outermost skin of the vehicle. The evidence tended to show that cost, rather than safety considerations, had determined the shape of the tank and that, if this tank had protruded less, it would have been less likely to rupture in a collision. The plaintiffs also stressed, among other things, the lack of protection afforded the fuel tank by the plywood floor and the aluminum siding; the failure of Wickes to treat the inflammable building materials with flame retardants; and the absence of structural members called body outriggers, which would have provided strength to the vehicle in a fore and aft direction, possibly preventing the dislocation of the fuel tank. The plaintiffs further stressed the lack of crash testing to determine the actual integrity of the fuel system.\nThe defendants’ experts testified that the alternative designs suggested by the plaintiffs were all either less safe or structurally less sound. An inflammability expert testified that he tested all the interior materials of an identical vehicle and that they met or exceeded the voluntary standards of the National Fire Protection Association and also the minimum standards prescribed for all vehicles by the United States Department of Transportation. As to each defect alleged by the plaintiffs, the defendants introduced evidence tending to show that the motor home’s features were safe and proper and that Wickes and Chrysler had adhered to the highest industry practice.\n3. The instruction on misuse. In his instructions on the warranty count, the judge charged the jury, over objection, that the misuse or abuse of the product would be a complete defense. He told the jury that if a product were used in an “extraordinary or unusual manner” there would be no warranty liability for any injury resulting from such “unusual or abusive or different use.” The correctness of this charge is determined not in the abstract, but by reference to the state of the evidence in the case. Nelson v. Economy Grocery Stores Corp., 305 Mass. 383 (1940). In light of the evidence, this portion of the charge was erroneous.\nThere was no evidence whatsoever that the motor home had been misused; thus the instruction on misuse was superfluous and misleading. Commonwealth v. Scagliotti, 373 Mass. 626, 629 (1977). It should have been omitted. Caron v. Lynn Sand & Stone Co., 270 Mass. 340, 348 (1930).\nThis portion of the charge also was incomplete in its statement of the law concerning misuse. Even if the evidence had warranted a charge on this issue, the charge given was misleading in that it allowed the jury to conclude that crashing into a highway guardrail is an “abnormal” or “extraordinary” use of a motor home such as would absolve the manufacturer from liability. We have rejected this view in so far as it pertains to negligence actions, Smith v. Ariens Co., ante 620, 624 (1978), and we likewise reject it with regard to products liability actions brought under the Uniform Commercial Code. It is no more than a play on words to charge that goods must be fit for “ordinary” purposes, but not for “extraordinary” or “different” or “unusual” purposes. Such an instruction fails to inform the jury as to whether the defendant has warranted the goods to be free from the propensity that caused the plaintiff’s injuries.\nAmendments to the Massachusetts version of the Uniform Commercial Code make clear that the Legislature has transformed warranty liability into a remedy intended to be fully as comprehensive as the strict liability theory of recovery that has been adopted by a great many other jurisdictions. See Swartz v. General Motors Corp., ante 628, 630 (1978); Hoffman v. Howmedica, Inc., 373 Mass. 32, 34-37 (1977). By enacting St. 1971, c. 670, § 1, amending G. L. c. 106, § 2-318, the Legislature abolished the requirement of privity which previously had been deemed essential to recovery. Nectas v. General Motors Corp., 357 Mass. 546, 549 (1970) . The Legislature has sanctioned the judicial extension of warranty liability, in a proper case, to nonsales transactions such as commercial leases. St. 1973, c. 750, further amending G. L. c. 106, § 2-318. See Cintrone v. Hertz Truck Leasing & Rental Serv., 45 N.J. 434 (1965). Suppliers of goods may not exclude or limit the operation of § 2-318 by contract, nor may merchants disclaim the implied warranty of merchantability. See G. L. c. 106, § 2-318, most recently amended by St. 1974, c. 153; id. § 2-316A, as amended by St. 1973, c. 799, § 1. All these features indicate clearly that the duty which the plaintiff sues to enforce in a “warranty” action for personal injuries is one imposed by law as a matter of social policy, and not necessarily one which the defendant has acquired by contract. See generally Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358 (1960); Jacob E. Decker & Sons v. Capps, 139 Tex. 609 (1942). The Legislature has jettisoned many of the doctrinal encumbrances of the law of sales, and what remains is a very different theory of recovery from that traditionally associated with the sale of goods. The Legislature has made the Massachusetts law of warranty congruent in nearly all respects with the principles expressed in Restatement (Second) of Torts § 402A (1965). For this reason, we find the strict liability cases of other jurisdictions to be a useful supplement to our own warranty case law. See Heavner v. Uniroyal, Inc., 63 N.J. 130, 146-162 (1973); Codling v. Paglia, 32 N.Y.2d 330, 341-345 (1973); Dawson v. Canteen Corp., W. Va. , (1975).\nThe merchant seller warrants that his goods are, among other things, “fit for the ordinary purposes for which such goods are used.” G. L. c. 106, § 2-314 (2) (c), inserted by St. 1957, c. 765, § 1. The “ordinary purposes” contemplated by this section include both those uses which the manufacturer intended and those which are reasonably foreseeable. See, e.g., Grant v. National Acme Co., 351 F. Supp. 972, 978 (W.D. Mich. 1972). Cf. Smith v. Ariens Co., supra at 623-624. Clearly, a defendant is not liable for the consequences of the unforeseeable misuse of a product. See, e.g., Colosimo v. May Dep’t Store Co., 466 F.2d 1234 (3d Cir. 1972); Olson v. Babbitt, 291 Minn. 105 (1971). Warranty liability is not absolute liability, and the manufacturer of a motor vehicle is not obliged to make its product collision-proof. See, e.g., Willis v. Chrysler Corp., 264 F. Supp. 1010 (S.D. Tex. 1967) (head-on collision at high speed). Nor is the motor vehicle manufacturer obliged to design against bizarre, unforeseeable accidents. Mieher v. Brown, 54 Ill. 2d 539, 545 (1973). But a manufacturer must anticipate the environment in which its product will be used, and it must design against the reasonably foreseeable risks attending the product’s use in that setting. See doCanto v. Ametek, Inc., 367 Mass. 776, 782-783 (1975); Bolm v. Triumph Corp., 33 N.Y.2d 151 (1973); Mickle v. Blackmon, 252 S.C. 202 (1969). See also Turcotte v. Ford Motor Co., 494 F.2d 173, 180, 187 (1st Cir. 1974); Ritter v. Narragansett Elec. Co., 109 R.I. 176, 184-185 (1971).\nThe risk that a motor home may collide with a highway guardrail clearly is foreseeable, see Smith v. Ariens Co., supra, and the instruction as to misuse should have been omitted because there was no evidence suggesting that the accident had resulted from an unforeseeable misuse of the motor home.\n4. Standards of the trade. In charging the jury on negligence, the judge stated: “Evidence as to whether or not a person conformed to a business custom that has grown up in a given industry or location is relevant, and it ought to be considered, but it is not necessarily controlling on the question of whether or not the defendant exercised ordinary care.” Later, in his discussion of the warranty count, the judge gave no further instruction as to the significance of conformity with industry practice. The plaintiffs argue that the judge erred in refusing to instruct that the jurors were not to consider industry custom and practice to determine if the motor home was of merchantable quality. There was no error.\nThe question for the jury was whether this motor home was, at a minimum, “fit for the ordinary purposes for which such goods are used.” G. L. c. 106, § 2-314 (2) (c). If this were a case involving a manufacturing defect, the jury might simply compare the propensities of the product as sold with those which the product’s designer intended it to have and thereby reach a judgment as to whether the deviation from the design rendered the product unreasonably dangerous and therefore unfit for its ordinary purposes. This case presents a more difficult jury question, however.\nThe evidence in this case warranted a finding that the motor home had a built-in propensity to catch fire and explode under certain crash conditions. One question for the jury was whether these circumstances were reasonably foreseeable. See G. L. c. 106, § 2-715 (2) (b). A separate question, however, was whether this propensity, resulting from conscious design choices of the manufacturer, rendered the product unreasonably dangerous to its users and therefore unfit for highway travel. See, e.g., Dreisonstok v. Volkswagenwerk, A.G., 489 F.2d 1066, 1070-1071 (4th Cir. 1974). The “fitness” of this motor home and all others of the same design is a question of degree, depending largely, although not exclusively, on reasonable consumer expectations. See Bruce v. Martin-Marietta Corp. 544 F.2d 442, 447 (10th Cir. 1976); Barker v. Lull Eng’r Co., 20 Cal. 3d 413 429-430 (1978).\nIn deciding this issue, the jury must weigh competing factors much as they would in determining the fault of the defendant in a negligence case. The inquiry focuses on product characteristics rather than on the defendant’s conduct, but the nature of the decision is essentially the same. See Dreisonstok v. Volkswagenwerk, A.G., supra at 1068 n.2; Phillips v. Kimwood Mach. Co., 269 Ore. 485, 492 (1974); W. Prosser, Torts § 99 at 659 n.72 (4th ed. 1971). In evaluating the adequacy of a product’s design, the jury should consider, among other factors, “the gravity of the danger posed by the challenged design, the likelihood that such danger would occur, the mechanical feasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequences to the product and to the consumer that would result from an alternative design.” Barker v. Lull Eng’r Co., supra at 431. See Bowman v. General Motors Corp., 427 F. Supp. 234, 242 (E.D. Pa. 1977).\nIn balancing all the pertinent factors, the jury made a judgment as to the social acceptability of the design, and this is the same judgment originally made by the designer of the product. Evidence that all product designers in the industry balance the competing factors in a particular way clearly is relevant to the issue before the jury. Conformity to standard practice is not dispositive, of course, and counsel may argue that industry standards can and should be more stringent. But the judge correctly refused to instruct the jury that evidence of conformity to industry practice was immaterial to their decision on the warranty count.\n5. Standard of care. There was no error in the judge’s charge concerning the negligence count. The plaintiffs requested the judge to instruct that “[a] manufacturer who undertakes to manufacture and market a product for use by consumers is held by the law to an expert’s knowledge of the arts, materials and processes relating to his product.” The judge declined to give the instruction “as requested,” and he charged, in essence, that the defendants were held to the standard of the ordinary, reasonably prudent manufacturer in like circumstances. This was a correct statement of the law. See Schaeffer v. General Motors Corp., 372 Mass. 171, 174 (1977); Ricciutti v. Sylvania Elec. Prods., Inc., 343 Mass. 347, 352 (1951); Thornhill v. Carpenter-Morton Co., 220 Mass. 593, 597 (1915). The shortcoming of the requested instruction is that it would have directed the jury to require of the defendants the knowledge and skill of some unspecified “expert” rather than simply the knowledge and skill of a reasonable person in the same circumstances (including, of course the circumstance of being a manufacturer of motor homes). Cf. Brune v. Belinkoff, 354 Mass. 102, 109 (1968).\n6. Closing argument. The plaintiffs assert that an independent engineer, designated by Chrysler as an expert witness in the case, was present in the court room throughout most of the trial; that this expert was one of the authors of an article on automotive crash fires; that the article would have rendered him highly vulnerable on cross-examination if he had testified; and that defense counsel for Chrysler sent the expert from the court room on the last day of the trial, shortly before Chrysler rested its case. None of these facts is in evidence. At a lobby conference, plaintiffs’ counsel announced that he intended to comment in closing argument on Chrysler’s failure to call this witness and to argue the inference that the expert’s testimony would have been unfavorable to Chrysler.\nThere was no error in the judge’s ruling which prohibited the plaintiffs’ lawyer from so arguing. A judge has discretion to allow such an argument when it is based on facts in evidence. E.g., McKim v. Foley, 170 Mass. 426, 428 (1898). But it is fundamental that counsel may not state in argument facts which are not part of the evidence or the fair inferences from the evidence. Leone v. Doran, 363 Mass. 1, 18 (1973). There was no evidence in this case even of the expert’s existence.\n7. Conclusion. The only error in the cases relates to the warranty claims. The judgments are therefore reversed as to the warranty claims, and the cases are remanded to the Superior Court for a new trial on those claims only.\nSo ordered.\nThe judge charged as follows: “The misuse, the abuse of a product is, of course, a defense. The implied warranty of merchantability is that the product is reasonably suited for its ordinary use. If this product is used in extraordinary or unusual manner, then, of course, there is no breach of warranty for any injury resulting from an unusual or abusive or different use. I’ll give you a perfect example; A motor home may be meant to travel between one place and another, and we all know that, but we all know that you couldn’t put one in the Atlantic Ocean and go to London in it. So it’s only the . . . implied warranty of merchantability which means that the thing is reasonably suited for its ordinary purposes.”\nEqually fatal to the warranty claim in Nectas was the fact that the wrongful death statute in that case did not allow recovery for breach of warranty. Nectas v. General Motors Corp., 357 Mass. 546, 549-550. The statute has since been amended to eliminate this obstacle. G. L. c. 229, § 2, as most recently amended by St. 1973, c. 957, § 1.\n212 S.E.2d 82, 84 (1975)."", ""type"": ""majority"", ""author"": ""Hennessey, C.J.""}], ""attorneys"": [""Albert P. Zabin for the plaintiffs."", ""Philander S. Ratzkoff (Cynthia J. Cohen with him) for The Wickes Corporation."", ""Karl L. Gollub for Chrysler Corporation.""], ""corrections"": """", ""head_matter"": ""John P. Back, administrator, vs. The Wickes Corporation & another (and four companion cases).\nMiddlesex.\nMarch 8, 1978.\nJuly 6, 1978.\nPresent: Hennessey, C.J., Kaplan, Wilkins, Liacos, & Abrams, JJ.\nPractice Civil, Charge to jury, Argument by counsel. Sale, Warranty. Uniform Commercial Code, Warranty. Evidence, Business custom. Negligence, Manufacturer, Motor vehicle.\nAt the trial of products liability actions, arising out of an accident involving a motor home, the judge erred in instructing the jury that misuse or abuse of the product would be a complete defense where there was no evidence that the accident had resulted from an unforeseeable misuse of the motor home. [638-641]\nAt the trial of products liability actions, arising out of an accident involving a motor home which caught fire after hitting a cable fence at the side of a highway, the judge did not err in refusing to instruct that the jurors were not to consider industry custom and practice to determine if the motor home was of merchantable quality. [641-643]\nIn negligence actions, arising out of an accident involving a motor home, against the manufacturers of the motor home and its chassis, the judge correctly charged the jury that the defendants were held to the standard of the ordinary, reasonably prudent manufacturer in like circumstances and there was no error in his refusal to instruct that “[a] manufacturer who undertakes to manufacture and market a product for use by consumers is held by the law to an expert’s knowledge of the arts, materials and processes relating to his product”. [643]\nAt a civil trial, the judge did not err in refusing to allow the plaintiffs’ counsel to comment in closing argument on the defendant’s failure to call an expert witness who had been present throughout the trial and to argue the inference that the expert’k testimony would have been unfavorable to the defendants. [643-644]\nFive civil actions commenced in the Superior Court on September 13, 1974, September 16, 1974, November 12, 1974, July 15, 1975, and June 6, 1976, respectively.\nThe cases were tried before Ronan, J.\nThe Supreme Judicial Court granted a request for direct appellate review.\nAlbert P. Zabin for the plaintiffs.\nPhilander S. Ratzkoff (Cynthia J. Cohen with him) for The Wickes Corporation.\nKarl L. Gollub for Chrysler Corporation.\nChrysler Corporation.\nMargaret E. King, administratrix, vs. The Wickes Corporation & another; Ruth Yeslow, administratrix, vs. The Wickes Corporation & another; Renzo Franceschi, administrator, vs. The Wickes Corporation & another; Albert L. Mead vs. The Wickes Corporation & another.""}, ""cites_to"": [{""cite"": ""212 S.E.2d 82"", ""year"": 1975, ""category"": ""reporters:state_regional"", ""reporter"": ""S.E.2d"", ""pin_cites"": [{""page"": ""84""}], ""opinion_index"": 0}, {""cite"": ""363 Mass. 1"", ""year"": 1973, ""case_ids"": [288185], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""18""}], ""case_paths"": [""/mass/363/0001-01""], ""opinion_index"": 0}, {""cite"": ""170 Mass. 426"", ""year"": 1898, ""case_ids"": [465839], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""428""}], ""case_paths"": [""/mass/170/0426-01""], ""opinion_index"": 0}, {""cite"": ""354 Mass. 102"", ""year"": 1968, ""case_ids"": [3866723], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""109""}], ""case_paths"": [""/mass/354/0102-01""], ""opinion_index"": 0}, {""cite"": ""220 Mass. 593"", ""year"": 1915, ""case_ids"": [3463714], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""597""}], ""case_paths"": [""/mass/220/0593-01""], ""opinion_index"": 0}, {""cite"": ""343 Mass. 347"", ""year"": 1951, ""case_ids"": [4022356], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""352""}], ""case_paths"": [""/mass/343/0347-01""], ""opinion_index"": 0}, {""cite"": ""372 Mass. 171"", ""year"": 1977, ""case_ids"": [4030919], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""174""}], ""case_paths"": [""/mass/372/0171-01""], ""opinion_index"": 0}, {""cite"": ""427 F. Supp. 234"", ""year"": 1977, ""case_ids"": [3910412], ""category"": ""reporters:federal"", ""reporter"": ""F. 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+330456,"{""id"": 330456, ""name"": ""Gail F. Dziokonski, administratrix, vs. Ola Babineau & others (and a companion case)"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""88c390da09c3ad355eb4372fa947ad09500f20206b4fdb8d8b1735348ac20572"", ""simhash"": ""1:bb13c7c328ffcefe"", ""pagerank"": {""raw"": 0.0000007973649117946591, ""percentile"": 0.9733783707080992}, ""char_count"": 34449, ""word_count"": 5674, ""cardinality"": 1252, ""ocr_confidence"": 0.895}, ""casebody"": {""judges"": [], ""parties"": [""Gail F. Dziokonski, administratrix, vs. Ola Babineau & others (and a companion case).""], ""opinions"": [{""text"": ""Wilkins, J.\nThese appeals require us to reexamine the question whether a person who negligently causes emotional distress which leads to physical injuries may be liable for those injuries even if the injured person neither was threatened with nor sustained any direct physical injury. At the heart of the plaintiffs’ claims is the argument that this court should abandon the so called “impact” rule of Spade v. Lynn & Boston R.R., 168 Mass. 285, 290 (1897), which denies recovery for physical injuries arising solely from negligently caused mental distress. We agree that the rule of the Spade case should be abandoned. Our inquiry does not cease at that point, however, because we must determine what new limits of liability are appropriate and how those limits affect the plaintiffs’ decedents, parents of a child alleged to have been injured by the defendants’ negligence.\nThese appeals, transferred here on our own motion, come to us following the allowance of the defendants’ motions to dismiss for failure to state claims on which relief can be granted. Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). For the purpose of considering the propriety of the allowance of these motions, we summarize the allegations of each complaint.\nOn October 24, 1973, Norma Dziokonski, a minor, alighted from a motor vehicle, used as a school bus, on Route 117 in Lancaster. That motor vehicle was owned by the defendant Pelletier and operated by the defendant Kroll. A motor vehicle owned and operated by the defendant Babineau struck Norma as she was crossing the road. The complaints allege the negligence of each defendant on various grounds.\nThe complaint filed by the administratrix of the estate of Lorraine Dziokonski (Mrs. Dziokonski) alleges that Mrs. Dziokonski was the mother of Norma and that she “lived in the immediate vicinity of the accident, went to the scene of the accident and witnessed her daughter lying injured on the ground.” Mrs. Dziokonski “suffered physical and emotional shock, distress and anguish as a result of the injury to her daughter and died while she was a passenger in the ambulance that was driving her daughter to the hospital.” This complaint alleges one count for wrongful death and one count for conscious suffering against each of the three defendants.\nThe complaint filed by the administratrix of the estate of Anthony Dziokonski (Mr. Dziokonski) alleged the facts previously set forth and added that he was the father of Norma and the husband of Mrs. Dziokonski. Mr. Dziokonski “suffered an aggravated gastric ulcer, a coronary occlusion, physical and emotional shock, distress and anguish as a result of the injury to his daughter and the death of his wife and his death was caused thereby.” This complaint similarly alleged a count for wrongful death and one count for conscious suffering against each of the three defendants.\nThe Spade Case.\nWe start with an analysis of Spade v. Lynn & Boston R.R., 168 Mass. 285 (1897), which announced a principle of tort law that has been limited and refined by our subsequent decisions but not heretofore abandoned. Margaret Spade had been a passenger on a crowded car of the Lynn & Boston Railroad Company late one Saturday night in February, 1895. She was so frightened by the negligent conduct of an employee of the defendant in removing an unruly passenger from the car that she sustained emotional shock and consequent physical injury. The trial judge instructed the jury that, when physical injury results from fear or nervous shock, “there may be a recovery for that bodily injury, and for all the pain, mental or otherwise, which may arise out of that bodily injury.” Id. at 287. The jury returned a verdict for Mrs. Spade, but this court held that the judge’s charge misstated the law.\nWe acknowledged that fright might cause physical injury and that “it is hard on principle” to say why there should not be recovery even for the mental suffering caused by a defendant’s negligence. Id. at 288. The court concluded, however, that “in practice it is impossible satisfactorily to administer any other rule.” Id. We noted that recovery for fright or distress of mind alone is barred and, that being so, there can be no recovery for physical injuries caused solely by mental disturbance. Id. at 290. It was said to be unreasonable to hold persons bound to anticipate and guard against fright and its consequences and thought that a contrary rule would “open a wide door for unjust claims.” Id.\nSubsequent Treatment of the Spade Rule in Massachusetts.\nIn Smith v. Postal Tel. Cable Co., 174 Mass. 576, 577-578 (1899), which applied the Spade rule to a case involving a claim of gross negligence, Chief Justice Holmes, speaking for the court, said that the point decided in the Spade case “is not put as a logical deduction from the general principles of liability in tort, but as a limitation of those principles upon purely practical grounds.” Id. Later, he described the Spade rule as “an arbitrary exception, based upon a notion of what is practicable.” Homans v. Boston Elevated Ry., 180 Mass. 456, 457 (1902).\nConsistently and from its inception, the Spade rule has not been applied to deny recovery where immediate physical injuries result from negligently induced fright or emotional shock. Thus, recovery has been allowed “[wjhen the fright reasonably induces action which results in external injury.” Cameron v. New England Tel. & Tel. Co., 182 Mass. 310, 312 (1902) (defendant’s negligent blasting caused the plaintiff to faint and sustain physical harm). Freedman v. Eastern Mass. St. Ry., 299 Mass. 246, 250 (1938) (plaintiff’s shoulder injured when she jumped to escape impending danger). Gannon v. New York, N.H. & H.R.R., 173 Mass. 40 (1899) (physical injuries sustained when plaintiff moved in fright to avoid injury). See Sullivan v. H.P. Hood & Sons, 341 Mass. 216, 219-222 (1960).\nMoreover, recovery for emotionally based physical injuries, sometimes described as “parasitic claims,” has been allowed in tort cases founded on traditional negligent impact. Driscoll v. Gaffey, 207 Mass. 102, 105, 107 (1910). Thus, where the plaintiff sustained direct physical injuries as a result of the defendant’s negligence and the plaintiff also sustained paralysis, perhaps resulting solely from nervous shock, we did not require the plaintiff to prove that the nervous shock or paralysis was a consequence of the direct physical injuries. Homans v. Boston Elevated Ry., 180 Mass. 456, 458 (1902). We note that allowing recovery for emotionally based physical injuries unrelated to the physical consequences of the negligently caused impact also presents the threat of “unjust claims” (Spade v. Lynn & Boston R.R., supra at 290), or, perhaps more exactly, the threat of exaggerated claims.\nWe have declined to apply the Spade rule to workmen’s compensation claims. See Fitzgibbons’s Case, 374 Mass. 633, 637 (1978), and cases cited. “The special reasons assigned in the Spade case for denying recovery have no application to workmen’s compensation cases.” Charon’s Case, 321 Mass. 694, 697 (1947).\nWe have never applied the Spade rule to bar recovery for intentionally caused emotional distress. The Spade opinion itself recognized that the result might be different if the defendant’s conduct had been intentional and not negligent. Spade v. Lynn & Boston R.R., supra at 290. White v. Sander, 168 Mass. 296, 297 (1897). We left that question open in Smith v. Postal Tel. Cable Co., 174 Mass. 576, 578 (1899), and it so remained until 1971, when we decided George v. Jordan Marsh Co., 359 Mass. 244 (1971).\nThe George case involved allegations that, in their debt collection practices, the defendants intentionally caused emotional distress to the plaintiff and, as a result, her health deteriorated and she suffered two heart attacks. We held that “one who, without a privilege to do so, by extreme and outrageous conduct intentionally causes severe emotional distress to another, with bodily harm resulting from such distress, is subject to liability for such emotional distress and bodily harm.” Id. at 255. We expressly left open the question now before us, whether there could be liability for negligent conduct causing emotional distress resulting in bodily injury. Id.\nThe question of liability for intentionally or recklessly caused severe emotional distress in the absence of bodily harm came before us in Agis v. Howard Johnson Co., 371 Mass. 140 (1976). There, we held that a complaint alleging extreme, outrageous, and unprivileged conduct by the defendant stated a cause of action in favor of both the female plaintiff who sustained emotional distress but no bodily harm and her husband for loss of consortium. We rejected arguments that we should deny recovery for emotional distress where there is no physical injury because of the insurmountable difficulties of proof and the danger of fraudulent or frivolous claims. Although we recognized these problems, we rejected them as an absolute bar in all such cases and concluded that these were proper matters for consideration by the trier of fact in the adversary, trial process. Id. at 143-144.\nAlthough many industrial States initially required some impact as a basis for liability for physical harm resulting from fright, that rule has been abandoned in more recent times to the point where it has been said that “the courts which deny all remedy in such cases are fighting a rearguard action.” W. Prosser, Torts § 54, at 333 (4th ed. 1971). As we have already indicated, we think the Spade rule should be abandoned. The threat of fraudulent claims cannot alone justify the denial of recovery in all cases. Whether a plaintiff’s injuries were a reasonably foreseeable consequence of the defendant’s negligence and whether the defendant caused those injuries are best left to determination in the normal manner before the trier of fact.\nRecovery for Injuries Arising from Concern over Harm to Another.\nThe abandonment of the Spade rule is only the beginning in the process of determining whether the complaints in these cases state valid claims for relief. The typical case involving physical harm resulting from emotional distress concerns a person who was put in fear for his own safety as a result of alleged negligence of the defendant. Here, neither Mr. nor Mrs. Dziokonsld was threatened with direct, contemporaneous injury as a result of the negligence of any defendant. Thus, we must consider the extent to which any defendant in this case may be held liable to the father or the mother, each of whom sustained physical injuries as a result of emotional distress over injuries incurred by their child.\nThe weight of authority in this country would deny recovery in these cases. W. Prosser, Torts § 54, at 333 (4th ed. 1971). Annot., 29 A.L.R.3d 1337 (1970). Thus, as we fall back from the Spade rule, we could find comfort in numbers in denying recovery in these cases. We conclude, however, that we should not adopt a rule which absolutely denies recovery to every parent for whatever negligently caused, emotionally based physical injuries result from his concern over the safety of or injury to his injured child.\nThe arguments against imposing liability for a parent’s injuries from shock and fear for his child have been stated clearly and forcefully in numerous opinions. See, e.g., Tobin v. Grossman, 24 N.Y.2d 609, 615-619 (1969); Amaya v. Home Ice, Fuel & Supply Co., 59 Cal. 2d 295 (1963); Jelley v. LaFlame, 108 N.H. 471 (1968); Waube v. War rington, 216 Wis. 603 (1935). The reasons advanced for not permitting recovery are principally that (1) there is still a difficulty of proof of causation which has not been mitigated by any change in technology or medical science, (2) no logical justification exists for limiting recovery solely to parents who are affected physically by fear for the safety of an injured child, and (3) the extension of liability will impose an inordinate burden on defendants. In short, under this view, liability should be denied for injuries from shock and fear for another’s safety regardless of (a) the relationship of the plaintiff to the accident victim, (b) the plaintiff’s proximity to the accident, or (c) whether the plaintiff observed either the accident or its immediate consequences.\nUntil 1968, the nearly unanimous weight of authority in this country denied recovery for emotionally based physical injuries resulting from concern for the safety of another where the plaintiff was not himself threatened with contemporaneous injury. W. Prosser, Torts § 54, at 334 (4th ed. 1971). There was support for recovery where the plaintiff was himself threatened with direct bodily harm because of the defendant’s conduct. This rule, known as the zone of danger test, is expressed in Restatement (Second) of Torts § 313 (2) (1965). It denies recovery for bodily harm “caused by emotional distress arising solely from harm or peril to a third person, unless the negligence of the actor has otherwise created an unreasonable risk of bodily harm to the . . . [plaintiff].” Id. This Restatement rule was recommended with reluctance by the Reporter (Dean Prosser) and the advisers (Restatement [Second] of Torts 9-11 [Tent. Draft No. 5, I960]), but the recommendation was thought to be compelled by the absence of then recent authority in support of a contrary view. Id. As a result of adding § 313 (2), a caveat appearing in the first Restatement of Torts was deleted. That caveat had left open the question whether a person might be liable “to the parent or spouse who witnesses the peril or harm of the child or spouse and thereby suffers anxiety or shock” causing bodily harm to the parent or spouse. Restatement of Torts § 313, at 851 (1934).\nThe “zone of danger” rule has something to commend it as a measure of the limits of liability. It permits a relatively easy determination of the persons who might recover for emotionally caused bodily injury by including only those to whom contemporaneous bodily harm of some sort might reasonably have been foreseen. It is arguably reasonable to impose liability for the physical consequences of emotional distress where the defendant’s negligent conduct might have caused physical injury by direct impact but did not. The problem with the zone of danger rule, however, is that it is an inadequate measure of the reasonable foreseeability of the possibility of physical injury resulting from a parent’s anxiety arising from hárm to his child. The reasonable foreseeability of such a physical injury to a parent does not turn on whether that parent was or was not a reasonable prospect for a contemporaneous injury because of the defendant’s negligent conduct. Although the zone of danger rule tends to produce more reasonable results than the Spade rule and provides a means of limiting the scope of a defendant’s liability, it lacks strong logical support.\nIn 1968, the Supreme Court of California, by a divided court (four to three), broke the solid ranks, overruled its decision in Amaya v. Home Ice, Fuel & Supply Co., 59 Cal. 2d 295 (1963), and held that a cause of action was properly stated on behalf of a mother, in no danger herself, who witnessed her minor daughter’s death in a motor vehicle accident allegedly caused by the defendant’s negligence, and who sustained emotional disturbance and shock to her nervous system which caused her physical and mental pain and suffering. Dillon v. Legg, 68 Cal. 2d 728 (1968). An intermediate appellate court in California has since applied the reasoning of Dillon v. Legg to permit recovery by a mother who came on the scene of the accident but did not witness it. Archibald v. Braverman, 275 Cal. App. 2d 253 (1969). That court said, “Manifestly, the shock of seeing a child severely injured immediately after the tortious event may be just as profound as that experienced in witnessing the accident itself.” Id. at 256.\nSome tendency toward allowing recovery seems to be developing. The Supreme Court of Rhode Island has reached the same conclusion as the California Supreme Court in Dillon v. Legg, on substantially similar facts. D’Ambra v. United States, 114 R.I. 643 (1975). The results in these cases have the general support of commentators. See W. Prosser, Torts § 54, at 334-335 (4th ed. 1971); 2 F. Harper & F. James, Torts § 18.4, at 1035-1039 (1956). In Leong v. Takasaki, 55 Haw. 398, 399 (1974), the Supreme Court of Hawaii held that a complaint stated a cause of action “for nervous shock and psychic injuries suffered without accompanying physical impact or resulting physical consequences” when the plaintiff, a ten-year old boy, witnessed from a distance of several feet the death of his stepfather’s mother who was struck by a motor vehicle driven by the defendant. In Toms v. McConnell, 45 Mich. App. 647 (1973), the Michigan Court of Appeals held that a mother alleged a cause of action where, from outside the zone of danger, she saw her daughter struck by the defendant’s vehicle after her daughter alighted from a school bus and, as a result, the mother sustained significant depression. The Supreme Court of Washington has construed a statute as authorizing recovery by a parent for mental anguish in cases involving the wrongful death of or injury to a child. Wilson v. Lund, 80 Wash. 2d 91 (1971).\nIt is not argued seriously here, nor has it been regularly a basis for decisions denying liability, that the threat of fraudulent claims requires the adoption of a rule denying recovery to a parent who sustains physical harm from distress over peril to his child. See, e.g., Tobin v. Grossman, 24 N.Y.2d 609, 615-616 (1969). The facts of cases of this character involve tortious injury to the child and substantial physical consequences to the parent. The tortfeasor is not confronted with the results of a fleeting instance of fear or excitement of which he might be unaware and against which he would be unable to present a defense. The fact that some claims might be manufactured or improperly expanded cannot justify the wholesale rejection of all claims. Of course, there is no suggestion that the physical injuries to Mr. and Mrs. Dziokonski were contrived. We have rejected the idea that tort liability in particular classes of cases must be denied because of the threat of fraud. Lewis v. Lewis, 370 Mass. 619, 622-623 (1976) (interspousal immunity in motor vehicle torts abrogated). Sorensen v. Sorensen, 369 Mass. 350, 363-365 (1975) (parental immunity in motor vehicle torts abrogated). We have chosen to leave the detection of fraud and collusion to the adversary process. See Agis v. Howard Johnson Co., 371 Mass. 140, 143-144 (1976).\nThe fact that the causal connection between a parent’s emotional response to peril to his child and the parent’s resulting physical injuries is difficult to prove or disprove cannot justify denying all recovery. No one asserts, and we have never claimed, that physical reactions to emotional responses do not occur. See Spade v. Lynn & Boston R.R., 168 Mass. 285, 288 (1897). We have recognized liability for exclusively emotional reactions to tortious conduct in particular circumstances (see, e.g., Agis v. Howard Johnson Co., 371 Mass. 140 [1976]), and, in other instances, we have recognized liability for bodily harm resulting from emotional distress (George v. Jordan Marsh Co., 359 Mass. 244 [1971]). We have upheld claims of the character involved here, as so called “parasitic” claims, where they are accompanied by a traditional form of tortious injury. See Homans v. Boston Elevated Ry., 180 Mass. 456, 457-458 (1902). Indeed, certain elements of pain and suffering, recoverable in almost all personal injury actions, may be as tenuous causally as the harm for which recovery is sought in these cases.\nThe scope of duty in tort is often defined in terms of the reasonable foreseeability of the harm to the plaintiff resulting from the defendant’s negligent conduct. Sometimes, liability is predicated on a judicial characterization that the defendant owed a duty to the plaintiff, or that the defendant’s negligence was the proximate cause of the plaintiff’s injury, or that the defendant is liable for the natural and probable consequences of his conduct. Each of these characterizations is actually a conclusion and is not a helpful guide to arriving at the proper answer in a given set of circumstances. We think reasonable foreseeability is a proper starting point in determining whether an actor is to be liable for the consequences of his negligence. Measured by this standard, it is clear that it is reasonably foreseeable that, if one negligently operates a motor vehicle so as to injure a person, there will be one or more persons sufficiently attached emotionally to the injured person that he or they will be affected. See Tobin v. Grossman, 24 N.Y.2d 609, 615 (1969), where the New York Court of Appeals acknowledged this fact but denied recovery for other reasons. The problem, however, is that the class of persons vicariously affected by the tortfeasor’s conduct may be large. This concern has prompted many courts to deny all liability. See, e.g., Tobin v. Grossmann, supra at 615, 617, 619. They perceive no logical place at which to impose reasonable limits on the scope of a defendant’s liability without going to the full extent of reasonable foreseeability, which would produce, as they see it, a risk of liability disproportionate to the defendant’s culpability. The result has been that, as a matter of policy, courts have decided not to give full effect to reasonable foreseeability and have adopted limitations on liability, such as the impact rule or the zone of danger rule.\nEvery effort must be made to avoid arbitrary lines which “unnecessarily produce incongruous and indefensible results.” Mone v. Greyhound Lines, Inc., 368 Mass. 354, 365 (1975) (Braucher, J., dissenting). The focus should be on underlying principles. Id. In cases of this character, there must be both a substantial physical injury and proof that the injury was caused by the defendant’s negligence. Beyond this, the determination whether there should be liability for the injury sustained depends on a number of factors, such as where, when, and how the injury, to the third person entered into the consciousness of the claimant, and what degree there was of familial or other relationship between the claimant and the third person. See Dillon v. Legg, 68 Cal. 2d 728, 740-741 (1968). It does not matter in practice whether these factors are regarded as policy considerations imposing limitations on the scope of reasonable foreseeability (see R.E. Keeton, Legal Cause in the Law of Torts 66 [1963]), or as factors bearing on the determination of reasonable foreseeability itself. The fact is that, in cases of this character, such factors are relevant in measuring the limits of liability for emotionally based injuries resulting from a defendant’s negligence. In some instances, it will be clear that the question is properly one for the trier of fact, while in others the claim will fall outside the range of circumstances within which there may be liability.\nWith these considerations in mind, we conclude that the allegations concerning a parent who sustains substantial physical harm as a result of severe mental distress over some peril or harm to his minor child caused by the defendant’s negligence state a claim for which relief might be granted, where the parent either witnesses the accident or soon comes on the scene while the child is still there. This conclusion is not inconsistent with opinions of the highest courts in California (Dillon v. Legg, 68 Cal. 2d 728 [1968]), Hawaii (Leong v. Takasaki, 55 Haw. 398 [1974]), and Rhode Island (D’Ambra v. United States, 114 R.I. 643 [1975]), and of informed commentators on the subject. W. Prosser, Torts § 54, at 334-335 (4th ed. 1971). 2 F. Harper & F. James, Torts § 18.4, at 1035-1038 (1956).\nOn this premise, we think it clear that the complaint concerning Mrs. Dziokonski states a claim which withstands a motion to dismiss. The allegations of the complaint concerning Mr. Dziokonski, however, are far more indefinite. We do not know where, when, or how Mr. Dziokonski came to know of the injury to his daughter and the death of his wife. We do not have a clear indication of the relationship of his discovery of this information to any mental distress and physical injury he sustained. We cannot say, as matter of law, that, within the scope of the allegations of the complaint concerning Mr. Dziokonski, there are no circumstances which could conceivably justify recovery. Consequently, we conclude that neither of the complaints should be dismissed for failure to state a claim.\nJudgments reversed.\nThe counts against Pelletier and Kroll allege that Norma was a minor at the time of the accident (October 24, 1973), although her age is not alleged. No similar allegation is made in the counts against Babineau, although Norma’s minority may be inferable from the allegation that she had alighted from a school bus. Since January 1,1974, the age of majority has been eighteen. G. L. c. 4, § 7, Fifty-first, inserted by St. 1973, c. 925, § 1, effective January 1, 1974, by St. 1973, c. 925, § 84.\nNeither complaint involves any claim on behalf of Norma for her own injuries. We do not know whether an action has been brought by or on behalf of Norma, nor whether the circumstances are such that under the no-fault law (St. 1970, c. 670), she has no enforceable claim against any defendant. G. L. c. 231, § 6D. See Pinnick v. Cleary, 360 Mass. 1, 8-9 (1971).\nWe also reserved the question, which we need not answer here, whether there could be liability for negligently caused distress without resulting bodily injury. Id.\nWe left open the question of liability for mental anguish or emotional distress without physical injuries in McDonough v. Whalen, 365 Mass. 506, 516-518 (1974), where the plaintiff’s claim was based on negligent conduct (in construction of a septic system) and not, as in the George and Agís cases, on intentional or reckless conduct. We concluded that, even if there were liability for negligent conduct causing emotional distress without physical injuries, evidence that the plaintiff suffered gagging sensations and “got a little nervous and uptight . . .” (id. at 517), was insufficient evidence of emotional distress to justify recovery. Id. at 517-518. Because the appeals before us involve emotionally based physical injuries, again, we need not decide the question left open in the McDonough and George cases.\nMany injuries caused by negligence are the result of the operation of motor vehicles. General Laws c. 231, § 6D, inserted as part of our “no-fault” law (St. 1970, c. 670, § 5), permits recovery of “damages for pain and suffering, including mental suffering associated with . . . [bodily] injury” arising out of the operation or use of a motor vehicle within the Commonwealth only if certain physical injuries (including death) are involved or if certain reasonable and necessary medical and other expenses exceed $500. It may be that by its terms G. L. c. 231, § 6D, imposes its own restraints on fraudulent, frivolous, or minor motor vehicle tort claims where there is no impact. Even if it should not be read as imposing a limitation on recovery for emotionally based physical injuries, it may provide a reasonable guide in determining whether a physical injury is sufficiently substantial so as to justify recovery for negligently caused, emotionally based physical harm.\nMr. Dziokonski’s injuries are alleged to be the product of his distress over learning of his daughter’s injuries and of the death of his wife.\nIn Krouse v. Graham, 19 Cal. 3d 59, 76 (1977), the California Supreme Court accepted the view of the Archibald case, saying “We confirm the propriety of the expression in Archibald, supra, that the Dillon requirement of ‘sensory and contemporaneous observance of the accident’ does not require a visual perception of the impact causing the death or injury” (emphasis in original).\nKeating, J., dissenting alone in Tobin v. Grossman, supra at 620-621, urged that there was no reason to place any restraints on reasonable foreseeability where there was “stringent evidence of causation and of actual injury.”\nThe Supreme Court of Hawaii may be read to have gone further than other courts. However, that court has denied recovery to one who was not located a reasonable distance from the scene of the accident. Kelley v. Kokua Sales & Supply, Ltd., 56 Haw. 204 (1975). That result is expressed in part on the ground that the consequences were not reasonably foreseeable (death in California following word of the death in Hawaii of the deceased’s daughter and granddaughter). That court also states, however, that no duty of care applies to one who was not located within a reasonable distance from the scene of the accident.\nIn each of these cases, however, the plaintiff witnessed the accident."", ""type"": ""majority"", ""author"": ""Wilkins, J.""}, {""text"": ""Quirico, J.\n(dissenting). Although I am in full agreement with the court in its conclusion that Spade v. Lynn & Boston R.R., 168 Mass. 285 (1897), should be overruled, I do not believe that liability should be extended to the degree described by the court in its opinion here. Therefore, I dissent from the reversal of the dismissal of the complaints of the two plaintiffs.\nIt is my view that liability for negligently causing emotional distress that results in physical injury should be extended as far as would be allowed by the rule of the Restatement (Second) of Torts § 313 (1965). That section, while allowing recovery under some circumstances, provides that no recovery may be had for “illness or bodily harm of another which is caused by emotional distress arising solely from harm or peril to a third person, unless the negligence of the actor has otherwise created an unreasonable risk of bodily harm to the other.” I would agree also that if, contrary to the facts in the present cases, a parent had been present at the time of the alleged negligent conduct which caused the injury, and such parent had suffered emotional distress and resulting physical injury, then he or she should recover regardless of whether they were within the zone of risk of bodily harm created by the negligent act. See, e.g., Dillon v. Legg, 68 Cal. 2d 728, 730-731 (1968); D’Ambra v. United States, 114 R.I. 643, 657-658 (1975); W. Prosser, Torts § 54, at 334-335 (4th ed. 1971). I do not believe, however, that liability should be extended further to allow recovery by a parent who comes on the scene of an accident after an injury has occurred to the child but before the child is removed. It is my opinion that we should not prescribe rules that allow or deny recovery by the parent on the basis of the speed and efficiency of an ambulance team in responding to an accident call, or on the haste with which a parent can be notified and rushed to the accident scene.\nThe Restatement of Torts § 313 (1934) specifically proposed no rule regarding recovery for emotional distress and resulting physical injury by a parent or spouse who witnessed the injury-causing negligent act. That section provided in part: “ Caveat: The Institute expresses no opinion as to whether an actor whose conduct is negligent as involving an unreasonable risk of causing bodily harm to a child or spouse is liable for an illness or other bodily harm caused to the parent or spouse who witnesses the peril or harm of the child or spouse and thereby suffers anxiety or shock which is the legal cause of the parent’s or spouse’s illness or other bodily harm.” Id. at 851.\nAlthough a parent was involved in the present cases, I believe the rule should apply similarly if a spouse or other close relative witnessed negligent conduct and injury.\nThis was also apparently the view of a significant number of members of the American Law Institute who participated in the drafting of the Restatement (Second) of Torts (1965), since the Reporter’s notes to § 313 state that “the feeling of a number of those present at the Institute meeting, [was] that the situation of a mother who sees her child negligently killed before her eyes is one in which recovery would be justified.” Restatement (Second) of Torts Appendix § 313, Reporter’s notes at 11 (1966). The narrower position actually taken by the Institute in § 313 was in accordance with what it believed to be the “heavy weight of authority” at the time. Id."", ""type"": ""dissent"", ""author"": ""Quirico, J.""}], ""attorneys"": [""T. Philip Leader for the plaintiffs."", ""Eugene L. Rubin for Ola Babineau."", ""Douglas Q. Meystre for Walter Pelletier & another.""], ""corrections"": """", ""head_matter"": ""Gail F. Dziokonski, administratrix, vs. Ola Babineau & others (and a companion case).\nWorcester.\nDecember 8, 1977.\nJune 30, 1978.\nPresent: Hennessey, C.J., Quirico, Braucher, Kaplan, Wilkins, Liacos, & Abrams, JJ.\nNegligence, Motor vehicle, Emotional distress. Emotional Distress, Physical injuries to another. Actionable Tort.\nReview of authorities pertaining to recovery for physical injury resulting from fright or emotional distress. [558-562]\nAllegations in a complaint concerning a parent who sustains substantial physical harm as a result of severe mental distress over some peril or harm to his minor child caused by the defendant’s negligence state a claim for which relief might be granted where the parent either witnesses the accident or soon comes on the scene while the child is still there. [562-569] Quirico, J., dissenting.\nNeither a complaint alleging that the mother of a child who was injured as a result of the defendants’ negligence suffered an emotional distress when finding her child seriously injured resulting in the mother’s death nor a complaint alleging that the father of the child died as a result of emotional distress over the injury to his daughter and the death of his wife should have been dismissed for failure to state a claim. [569] Quirico, J., dissenting.\nCivil actions commenced in the Superior Court on October 23, 1975.\nThe cases were heard by Meagher, J., on motions to dismiss.\nAfter review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.\nT. Philip Leader for the plaintiffs.\nEugene L. Rubin for Ola Babineau.\nDouglas Q. Meystre for Walter Pelletier & another.\nGail F. Dziokonski is suing as administratrix of the estate of Lorraine Dziokonski.\nThe other defendants are Walter Pelletier and Sylvester Kroll.\nThe companion action is brought by Gail F. Dziokonski, as administratrix of the estate of Anthony Dziokonski, against the same defendants.""}, ""cites_to"": [{""cite"": ""56 Haw. 204"", ""year"": 1975, ""case_ids"": [8828228], ""category"": ""reporters:state"", ""reporter"": ""Haw."", ""case_paths"": [""/haw/56/0204-01""], ""opinion_index"": 0}, {""cite"": ""19 Cal. 3d 59"", ""year"": 1977, ""case_ids"": [2291112], ""category"": ""reporters:state"", ""reporter"": ""Cal. 3d"", ""pin_cites"": [{""page"": ""76""}], ""case_paths"": [""/cal-3d/19/0059-01""], ""opinion_index"": 0}, {""cite"": ""365 Mass. 506"", ""year"": 1974, ""weight"": 2, ""case_ids"": [292019], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""516-518""}, {""page"": ""517-518""}], ""case_paths"": [""/mass/365/0506-01""], ""opinion_index"": 0}, {""cite"": ""360 Mass. 1"", ""year"": 1971, ""weight"": 2, ""case_ids"": [317497], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""8-9""}], ""case_paths"": [""/mass/360/0001-01""], ""opinion_index"": 0}, {""cite"": ""368 Mass. 354"", ""year"": 1975, ""weight"": 2, ""case_ids"": [307061], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""365"", ""parenthetical"": ""Braucher, J., dissenting""}], ""case_paths"": [""/mass/368/0354-01""], ""opinion_index"": 0}, {""cite"": ""369 Mass. 350"", ""year"": 1975, ""case_ids"": [309806], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""363-365"", ""parenthetical"": ""parental immunity in motor vehicle torts abrogated""}], ""case_paths"": [""/mass/369/0350-01""], ""opinion_index"": 0}, {""cite"": ""370 Mass. 619"", ""year"": 1976, ""case_ids"": [312607], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""622-623"", ""parenthetical"": ""interspousal immunity in motor vehicle torts abrogated""}], ""case_paths"": [""/mass/370/0619-01""], ""opinion_index"": 0}, {""cite"": ""80 Wash. 2d 91"", ""year"": 1971, ""case_ids"": [1067097], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/80/0091-01""], ""opinion_index"": 0}, {""cite"": ""45 Mich. App. 647"", ""year"": 1973, ""case_ids"": [2113185], ""category"": ""reporters:state"", ""reporter"": ""Mich. App."", ""case_paths"": [""/mich-app/45/0647-01""], ""opinion_index"": 0}, {""cite"": ""55 Haw. 398"", ""year"": 1974, ""weight"": 2, ""case_ids"": [1470084], ""category"": ""reporters:state"", ""reporter"": ""Haw."", ""pin_cites"": [{""page"": ""399""}], ""case_paths"": [""/haw/55/0398-01""], ""opinion_index"": 0}, {""cite"": ""114 R.I. 643"", ""year"": 1975, ""weight"": 2, ""case_ids"": [5526033], ""category"": ""reporters:state"", ""reporter"": ""R.I."", ""case_paths"": [""/ri/114/0643-01""], ""opinion_index"": 0}, {""cite"": ""275 Cal. App. 2d 253"", ""year"": 1969, ""weight"": 3, ""case_ids"": [2234472], ""category"": ""reporters:state"", ""reporter"": ""Cal. App. 2d"", ""pin_cites"": [{""page"": ""256""}], ""case_paths"": [""/cal-app-2d/275/0253-01""], ""opinion_index"": 0}, {""cite"": ""68 Cal. 2d 728"", ""year"": 1968, ""weight"": 3, ""case_ids"": [2306138], ""category"": ""reporters:state"", ""reporter"": ""Cal. 2d"", ""pin_cites"": [{""page"": ""740-741""}], ""case_paths"": [""/cal-2d/68/0728-01""], ""opinion_index"": 0}, {""cite"": ""216 Wis. 603"", ""year"": 1935, ""weight"": 3, ""case_ids"": [8695848], ""category"": ""reporters:state"", ""reporter"": ""Wis."", ""case_paths"": [""/wis/216/0603-01""], ""opinion_index"": 0}, {""cite"": ""108 N.H. 471"", ""year"": 1968, ""case_ids"": [4462569], ""category"": ""reporters:state"", ""reporter"": ""N.H."", ""case_paths"": [""/nh/108/0471-01""], ""opinion_index"": 0}, {""cite"": ""59 Cal. 2d 295"", ""year"": 1963, ""weight"": 2, ""case_ids"": [4392465], ""category"": ""reporters:state"", ""reporter"": ""Cal. 2d"", ""case_paths"": [""/cal-2d/59/0295-01""], ""opinion_index"": 0}, {""cite"": 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{""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T17:02:07.251886+00:00"", ""decision_date"": ""1978-06-30"", ""docket_number"": """", ""last_page_order"": 585, ""first_page_order"": 569, ""name_abbreviation"": ""Dziokonski v. 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+332012,"{""id"": 332012, ""name"": ""James N. Heller & another vs. Silverbranch Construction Corporation & others"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""37e5f0156ae73f1c7e5308c596b9a4e3c66160bdad9621c8ff44ace364c1abab"", ""simhash"": ""1:836cbc8232ca4e5a"", ""pagerank"": {""raw"": 0.0000029361758847284514, ""percentile"": 0.9973386479288947}, ""char_count"": 21776, ""word_count"": 3611, ""cardinality"": 1005, ""ocr_confidence"": 0.807}, ""casebody"": {""judges"": [], ""parties"": [""James N. Heller & another vs. Silverbranch Construction Corporation & others.""], ""opinions"": [{""text"": ""Hennessey, C.J.\nThe plaintiffs, James and Ileen Heller, brought this action under G. L. c. 93A, §§ 2, 9, against Silverbranch Construction Corporation (Silverbranch) and Gordon and Lena Earle, doing business as Earle and Earle Realty (brokers). The complaint alleged defects in a parcel of real property sold by Silverbranch to the plaintiffs and misrepresentations made by the brokers and Silverbranch which induced the plaintiffs to purchase the property. After trial without a jury, the trial judge entered judgment for the brokers as against the plaintiffs and for the plaintiffs as against Silverbranch in the amount of $11,080, plus $1,000 attorney’s fees, interest, and cost.\nSilverbranch appeals, arguing (1) that it cannot be held liable under G. L. c. 93A for defects in the lot conveyed when the buyers have accepted a deed in full satisfaction of a purchase and sale agreement, when Silverbranch has committed no fraud, and when there is insufficient evidence to support a finding of negligence; (2) that, even if Silverbranch is liable, it is not liable for multiple damages under c. 93A, § 9 (3); and (3) that the judge erred in awarding attorney’s fees in the absence of evidence concerning the amount of time expended by the attorney and the rate and reasonableness of his charge. This court, on its own motion, ordered direct appellate review. We find no merit in the contentions Silverbranch sets forth on appeal. Accordingly, we affirm the lower court’s judgment.\nWe summarize the facts as found by the judge. The Hellers came to Massachusetts from Illinois in the summer of 1973 for the purpose of purchasing a home. Someone referred them to a real estate firm known as Earle and Earle Realty. Their contact with the firm was supposedly through a Mrs. Glazer, whose position with the firm, if any, the evidence did not disclose. Mrs. Glazer escorted the Hellers through several different communities and showed them various houses which were being offered for sale. On arriving at one site, the Hellers observed running water on the property and informed Mrs. Glazer that they were not interested in property that had any water on it whatsoever.\nThe next piece of property that the Hellers visited is the subject matter of the present suit. The property was owned, and the house had been constructed, by Silver-branch. The Hellers’ first visit to the property took place in late August of 1973, at which time the property was dry. Within a few days, they decided to enter into a purchase and sale agreement. Immediately before signing the agreement, Mrs. Heller asked Robert Silberzweig, president of the defendant corporation, if there was good drainage on the land. He replied that there was. After executing the agreement, the Hellers returned to Illinois.\nOn October 3, 1973, James Heller returned to Massachusetts for the purpose of closing the transaction. Prior to attending the closing, he visited the property to see if everything was in order. As far as he could determine, the property was dry and appeared “pretty much the same” as it had in late August.\nOn December 10, 1973, the Hellers moved to Massachusetts. On their arrival, they noticed standing water beginning approximately twenty feet from the rear of the house and extending the length between the sidelines of their lot. The diameter of the water varied between twenty and thirty feet, its deepest portion being approximately one foot. The Hellers immediately called Silberzweig for an explanation. He came to the property, acknowledged that there was a drainage problem, and informed the Hellers that he did not intend to do anything about it as they had already purchased the property. When asked why he did not mention the water at the time that the agreement was signed, he expressed his unwillingness to discuss the matter further and left. The Hellers attempted to contact him sometime later, but again he refused to talk.\nThere was no evidence to suggest that Mrs. Glazer was aware of the drainage problem until told of it by the plaintiffs on December 10, 1973. Nor was there any evidence that the brokers knew of the problem. However, Silberzweig had been aware that water was not draining from the property since at least the early part of 1973. At that time, he spoke with one Vincent Mirabile, a contractor, concerning the work that would be necessary to correct the problem and the cost that the correction would entail.\nEarly in 1974, the Hellers contacted Mirabile. His familiarity with what needed to be done stemmed not only from his prior conversation with Silberzweig, but from his having filled in the lot before the house was constructed. The Hellers retained Mirabile to install the requisite drainage pipes. The fair value of his services is $5,540.\nThe Hellers sent written demands for relief to both Silverbranch and the brokers pursuant to G. L. c. 93A, § 9 (3). The letters described the unfair acts and practices relied on by the Hellers and the damages they suffered. Silverbranch admitted at trial that it made no offer or counteroffer of settlement. Sometime thirty days after their demands were sent, the Hellers brought the instant action.\n1. Silverbranch’s Liability under c. 93A.\nChapter 93 A of the General Laws is a statute of broad impact whose basic policy is to ensure an equitable relationship between consumers and persons engaged in business. Dodd v. Commercial Union Ins. Co., 373 Mass. 72 (1977). Commonwealth v. DeCotis, 366 Mass. 234 (1974). Section 2, the substantive heart of c. 93A, makes \""unfair or deceptive acts or practices in the conduct of any trade or commerce” unlawful. G. L. c. 93A, § 2 (a), inserted by St. 1967, c. 813, § 1. The Legislature directed courts of this Commonwealth to two sources for guidance in interpreting this language: first, Federal Trade Commission (FTC) and Federal court interpretations of § 5 (a) (1) of the Federal Trade Commission Act (FTCA), 15 U.S.C. § 45(a) (1) (1970); and, second, rules and regulations promulgated by the Attorney General of this Commonwealth, which are consistent with FTC and Federal court interpretations of the FTCA. G. L. c. 93A, § 2 (6) and (c).\nSilverbranch contends, at the outset of its argument, that c. 93A should not automatically render a buyer’s disappointment the source of an enforceable legal right. Noting the Legislature’s intention to have c. 93A interpreted in a manner consistent with the FTCA, Silver-branch relies on dicta in FTC v. Sinclair Ref. Co., 261 U.S. 463 (1923), to support its contention. In that case, the Supreme Court stated that the Federal statute gives \""no general authority to compel competitors to a common level, to interfere with ordinary business methods or to prescribe arbitrary standards for those engaged in the conflict for advantage called competition.” Id. at 475-476. Although we feel compelled to point out that Sinclair is a fifty-five year old opinion having nothing to do with the case before us,* we do not necessarily dispute its broad observations. However, we are unpersuaded by the defendant’s suggestion that affording the Hellers relief in the instant case would render c. 93A a repository of legal rights arising from no more than disappointment of consumers.\nThe defendant’s entire theory of nonliability is predicated on arguments relevant exclusively to the common law. As a result, the defendant points out that it committed no fraud, violated no warranties, is free from contractual liability because of a \""waiver by acceptance of deed” clause in the purchase and sale agreement, and cannot be found negligent because there is no evidence to support such a finding. However, whether Silverbranch would be liable under any of these theories is not the question before this court. The plaintiffs claim a violation of c. 93A and, in directing its attention solely to common law theories, Silverbranch has ignored years of precedent pertinent and unfavorable to its present appeal. Both this court and the Supreme Court have consistently held that consumer protection statutes created new substantive rights by making conduct unlawful which was not previously unlawful under the common law or any prior statute. The statutory language is not dependent on traditional tort or contract law concepts for its definition. See Dodd v. Commercial Union Ins. Co., supra; Slaney v. Westwood Auto, Inc., 366 Mass. 688 (1975); Commonwealth v. DeCotis, supra; Reilly v. Pinkus, 338 U.S. 269 (1949); FTC v. Algoma Lumber Co., 291 U.S. 67 (1934). Thus, our determinations are not aided by the defendant’s review of the various common law theories under which it might have escaped liability. Rather, the existence of unfair or deceptive acts or practices must be determined in light of the policy surrounding c. 93A and from the circumstances inhering in each case. With this in mind, we now turn to the relevant issues before us.\nThe judge concluded that Silberzweig was authorized by Silverbranch to enter into an agreement with the Hellers for the sale of the property in question and to make representations concerning that'property. The judge also concluded that Silberzweig’s failure to disclose the drainage problem violated par. XV of the Attorney General’s Rules and Regulations, 20 Code Mass. Regs., Part 5, at 39-40, and G. L. c. 93A, § 2. We have reviewed the record and find ample support for the judge’s conclusions. Consequently, we affirm the judgment concerning Silver-branch’s general liability.\n2. The Award of Multiple Damages.\nUnder G. L. c. 93A, § 9 (3), a demand letter describing the specific unfair practices claimed and listing the damages suffered is a prerequisite to suit and must be alleged and proved. Entrialgo v. Twin City Dodge, Inc., 368 Mass. 812 (1975). Any person receiving a demand letter may make a written offer of settlement within thirty days, thereby limiting his damages to the relief tendered, if the court finds the tender to have been reasonable. The Hellers sent such a demand for relief. However, Silverbranch made no offer of settlement. In such circumstances, c. 93A, § 9 (3), authorizes the judge to award up to three, but not less than two, times the amount of actual damages if he finds a wilful or knowing violation of c. 93A, § 2, or that the refusal to grant relief on demand was made in bad faith with knowledge or reason to know that the practice complained of violated § 2.\nThe first of these preconditions requires little explanation. It is directed against callous and intentional violations of the law and permits recovery of multiple damages on a showing that the defendant wilfully or knowingly employed an unfair or deceptive practice. See Rice, New Private Remedies for Consumers: The Amendment of Chapter 93A, 54 Mass. L.Q. 307,318 (1969).* ** The second is an attempt to promote prelitigation settlements by making it unprofitable for the defendant either to ignore the plaintiff’s request for relief or to bargain with the plaintiff with respect to such relief in bad faith. The knowledge or reason to know is that which exists after receipt of the complaint and not at the time of the alleged violation. The standard is objective and requires the defendant to investigate the facts and consider the legal precedents. Thus, the consumer should be prepared to offer as evidence of reason to know the existence of relevant precedents or rules and regulations. See Rice, supra at 319.\nThe judge in the instant case concluded that Silver-branch’s nondisclosure was a wilful and knowing violation of § 2. He also concluded that Silverbranch’s refusal to grant relief on demand was made in bad faith with knowledge or reason to know that the practice complained of violated § 2. Our review of the record reveals ample support for the judge’s latter finding. The plaintiffs’ complaint and demand letter specifically set out the text of § 2 and par. XV of the Attorney General’s Rules and Regulations. Moreover, the plaintiffs explained in great detail exactly how the defendant corporation, through the actions of its president, violated those provisions. In light of the judge’s findings of fact, findings which we as an appellate court are not inclined to disturb, we conclude that Silverbranch forced the plaintiffs to litigate their claim when it not only had reason to know but had actual knowledge of the unlawfulness of its acts. Such conduct is precisely the type that § 9 (3) was designed to deter, and the judge’s award of multiple damages was the appropriate punishment.\nBecause the requirements of § 9 (3) are framed in the disjunctive, and because we agree with the judge’s conclusions regarding the defendant’s bad faith in refusing to settle, we do not reach the issue whether there was a wilful and knowing violation.\n3. The Award of Attorney’s Fees.\nSilverbranch’s final argument challenges the validity of the judge’s award of attorney’s fees in the absence of independent proof as to the amount of time expended by the attorney and the rate and reasonableness of his charge.* *** Silverbranch cites two cases, Cummings v. National Shawmut Bank, 284 Mass. 563 (1933), and McLaughlin v. Old Colony Trust Co., 313 Mass. 329 (1943), in support of its contention. It is our opinion that the cases cited are inapposite and that the argument lacks merit.\nGeneral Laws c. 93A, § 9 (4), directs the trial judge in a § 9 action to award reasonable attorney’s fees and costs to the plaintiff if the judge finds in the plaintiffs favor. In such circumstances, where the award is provided for by statute and is assessed against the party having no contractual relationship with the attorney involved, the standard of reasonableness depends not on what the attorney usually charges but, rather, on what his services were objectively worth. See Dillon’s Case, 324 Mass. 102, 113 (1949). Absent specific direction from the Legislature, the crucial factors in making such a determination are (1) how long the trial lasted, (2) the difficulty of the legal and factual isáues involved, and (3) the degree of competence demonstrated by the attorney. See Hayden v. Hayden, 326 Mass. 587 (1950). Cf. G. L. c. 149, § 29, discussed at note 7 infra. A judge presiding over the action for which the plaintiff seeks reasonable attorney’s fees has ample opportunity to acquire firsthand knowledge of all these factors. He thus can discern, from his own experience as a judge and expertise as a lawyer, the amount that the attorney should be paid. Indeed, even this court has reviewed such awards on the basis of a sufficiently informative record and reversed or revised when the amount is clearly incommensurate with an objective evaluation of the services performed. See Hayden v. Hayden, supra; Dillon’s Case, supra. Cf. Smith v. Smith, 361 Mass. 733 (1972); Bailey v. Smith, 214 Mass. 114 (1913).\nThe awards at issue in both Cummings and McLaughlin, the two cases cited by Silverbranch, did not arise in the circumstances described above. Cummings involved a suit for fees brought by an attorney under the common law. McLaughlin involved a suit for fees brought by an attorney under G. L. c. 215, § 39, which provides an alternative to suit at common law when the defendant in the action is an executor of an estate for whom the attorney has worked. There are two reasons for requiring a separate evidentiary hearing or trial in cases such as those. First, they very often involve parties who allegedly have entered into a contractual relationship. Consequently, the validity and terms of their purported contracts must be ascertained. Second, the actions are typically brought before a judge who had nothing to do with the initial suit or services for which payment is claimed. As a result, without a separate hearing or trial, he would have no way of intelligently deciding the appropriate amount to award. See Boynton v. Tarbell, 272 Mass. 142 (1930). Cf. Serlin v. Rotman, 371 Mass. 449 (1976).\nThe circumstances of the instant case distinguish it from those in which the necessity for an evidentiary hearing or trial has arisen. In directing the judge to award reasonable attorney’s fees in a c. 93A, § 9, action, the Legislature listed no specific facts requiring independent proof. From this, we conclude that the judge is to rely on his firsthand knowledge of the services performed before him. Thus, we conclude that the judge in the instant case acted properly in awarding the Hellers attorney’s fees, notwithstanding the absence of evidence concerning time spent and the attorney’s usual charge. Moreover, our reading of the record reveals no arbitrariness or injustice in the amount of the award.\nJudgment affirmed.\nSection 2 makes \""[ujnfair methods of competition” unlawful as well. However, that language of the statute is inapposite to the instant suit.\nSinclair involved unfair methods of business competition and was written before the FTCA was amended in 1938 to include \""unfair or deceptive acts or practices.”\nParagraph XV provides in part: \""Without limiting the scope of any other rule, regulation or statute, an act or practice is a violation of Chapter 93A, Section 2 if: A. It is oppressive or otherwise unconscionable in any respect; or B. Any person or other legal entity subject to this act fails to disclose to a buyer or prospective buyer any fact, the disclosure of which may have influenced the buyer or prospective buyer not to enter into the transaction____”\nDavid A. Rice was the principal draftsman of § 9 of c. 93A.\nThe judge awarded $1,000 for \""attorney’s fees ..., interest and costs.” Since the record discloses no specific amount of costs or interest calculated, or even the legal basis on which interest could be assessed, we have assumed here that the entire amount of $1,000 was assessed as attorney’s fees.\nThere is one exception to this general rule. Section 9 (4), inserted by St. 1969, c. 690, provides that \""the court shall deny recovery of attorney’s fees and costs which are incurred after the rejection of a reasonable written offer of settlement made within thirty days of the mailing or delivery of the written demand for relief required by this section.” Given that Silverbranch made no offer of settlement at all, this exception has no relevance to the present case.\nFor a statute that does require the judge to consider specific factors, beyond those that he can ascertain from observing the trial conducted before him, see G. L. c. 149, § 29. That statute, as amended through St. 1972, c. 774, § 5, reads in part as follows: \""A decree in favor of any claimant under this section shall include reasonable legal fees based upon the time spent and the results accomplished as approved by the court and such legal fees shall not in any event be less than published rate of any recommended fee schedule of a state-wide bar association or of a bar association in which the office of counsel for claimant is located, whichever is higher.” Because .the Legislature specifically delineated the items to be taken into account in establishing the reasonableness of attorney’s fees under § 29, and because those items are necessarily beyond the judge’s personal knowledge, this court has held that a defendant in a § 29 action who makes a proper request is entitled to an evidentiary hearing on the matter. See Manganaro Drywall, Inc. v. White Constr. Co., 372 Mass. 661, 666 (1977). In Manganaro, the defendant failed to make such a request, and the plaintiff filed sufficient substantiating material by way of affidavit and records for the judge to conclude that the fee requested was reasonable. Thus, this court upheld the award."", ""type"": ""majority"", ""author"": ""Hennessey, C.J.""}], ""attorneys"": [""The case was submitted on briefs."", ""Robert D. Epstein for the plaintiffs."", ""Frederick T. Iddings, Jr., for Silverbranch Construction Corporation.""], ""corrections"": """", ""head_matter"": ""James N. Heller & another vs. Silverbranch Construction Corporation & others.\nNorfolk.\nSeptember 15, 1978.\nNovember 14, 1978.\nPresent: Hennessey, C.J., Quirico, Braucher, Kaplan, & Liacos, JJ.\nConsumer Protection Act, Unfair act or practice, Damages, Attorney’s fees. Damages, Attorney’s fees, Consumer protection case.\nIn an action brought pursuant to G. L. c. 93A, alleging defects in a parcel of real property sold by a construction company to the plaintiffs and misrepresentations made by the company which induced the plaintiffs to purchase the property, the judge’s findings that the president of the corporation was authorized to enter into an agreement with the plaintiffs for the sale of the property and to make representations concerning the property and that his failure to disclose a drainage problem violated par. XV of the Attorney General’s Rules and Regulations, 20 Code Mass. Regs., Part 5, at 39-40, and c. 93A, § 2, were amply supported by the record. [624-627]\nIn an action brought pursuant to G. L. c. 93A, alleging defects in a parcel of real property sold by a construction company to the plaintiffs and misrepresentations made by the company which induced the plaintiffs to purchase the property, there was ample evidence to support the judge’s finding that the company’s refusal to grant relief on demand was made in bad faith with knowledge or reason to know that the practice complained of violated c. 93A, § 2, and it was therefore appropriate for the judge to award the plaintiffs multiple damages pursuant to § 9 (3). [627-628]\nIn awarding attorney’s fees pursuant to G. L. c. 93A, § 9 (4), a judge was not required to take evidence as to the amount of time expended by the attorney or the attorney’s usual charge. [628-631]\nCivil action commenced in the Superior Court on May 22, 1975.\nThe action was heard by Byron, J., a District Court judge sitting under statutory authority.\nAfter review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.\nThe case was submitted on briefs.\nRobert D. Epstein for the plaintiffs.\nFrederick T. Iddings, Jr., for Silverbranch Construction Corporation.""}, ""cites_to"": [{""cite"": ""372 Mass. 661"", ""year"": 1977, ""case_ids"": [4030845], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""666""}], ""case_paths"": [""/mass/372/0661-01""], ""opinion_index"": 0}, {""cite"": ""371 Mass. 449"", ""year"": 1976, ""case_ids"": [320414], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/371/0449-01""], ""opinion_index"": 0}, {""cite"": ""272 Mass. 142"", ""year"": 1930, ""case_ids"": [3827128], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/272/0142-01""], ""opinion_index"": 0}, {""cite"": ""214 Mass. 114"", ""year"": 1913, ""case_ids"": [81307], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/214/0114-01""], ""opinion_index"": 0}, {""cite"": ""361 Mass. 733"", ""year"": 1972, ""case_ids"": [3868899], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/361/0733-01""], ""opinion_index"": 0}, {""cite"": ""326 Mass. 587"", ""year"": 1950, ""weight"": 2, ""case_ids"": [508666], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/326/0587-01""], ""opinion_index"": 0}, {""cite"": ""324 Mass. 102"", ""year"": 1949, ""weight"": 2, ""case_ids"": [510336], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""113""}], ""case_paths"": [""/mass/324/0102-01""], ""opinion_index"": 0}, {""cite"": ""313 Mass. 329"", ""year"": 1943, ""case_ids"": [484649], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/313/0329-01""], ""opinion_index"": 0}, {""cite"": ""284 Mass. 563"", ""year"": 1933, ""case_ids"": [3835118], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/284/0563-01""], ""opinion_index"": 0}, {""cite"": ""368 Mass. 812"", ""year"": 1975, ""case_ids"": [307081], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/368/0812-01""], ""opinion_index"": 0}, {""cite"": ""291 U.S. 67"", ""year"": 1934, ""case_ids"": [1498108], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/291/0067-01""], ""opinion_index"": 0}, {""cite"": ""338 U.S. 269"", ""year"": 1949, ""case_ids"": [3938114], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/338/0269-01""], ""opinion_index"": 0}, {""cite"": ""366 Mass. 688"", ""year"": 1975, ""case_ids"": [314547], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/366/0688-01""], ""opinion_index"": 0}, {""cite"": ""261 U.S. 463"", ""year"": 1923, ""weight"": 2, ""case_ids"": [6142910], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""page"": ""475-476""}], ""case_paths"": [""/us/261/0463-01""], ""opinion_index"": 0}, {""cite"": ""15 U.S.C. § 45"", ""category"": ""laws:leg_statute"", ""reporter"": ""U.S.C."", ""pin_cites"": [{""page"": ""(a)""}], ""opinion_index"": 0}, {""cite"": ""366 Mass. 234"", ""year"": 1974, ""weight"": 2, ""case_ids"": [314521], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/366/0234-01""], ""opinion_index"": 0}, {""cite"": ""373 Mass. 72"", ""year"": 1977, ""case_ids"": [323857], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/373/0072-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""376 Mass. 621"", ""type"": ""official""}], ""file_name"": ""0621-01"", ""last_page"": ""631"", ""first_page"": ""621"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T17:02:46.098610+00:00"", ""decision_date"": ""1978-11-14"", ""docket_number"": """", ""last_page_order"": 645, ""first_page_order"": 635, ""name_abbreviation"": ""Heller v. Silverbranch Construction 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+334138,"{""id"": 334138, ""name"": ""Richard H. Crowell vs. Frederick McCaffrey"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""460f7cb1b0804d67570fbd2b24de63c00477792466c4c6fa8dce0bcf80606b18"", ""simhash"": ""1:4205c5dbfeae73d8"", ""pagerank"": {""raw"": 0.0000004365831496217027, ""percentile"": 0.9187985477145578}, ""char_count"": 21726, ""word_count"": 3692, ""cardinality"": 896, ""ocr_confidence"": 0.842}, ""casebody"": {""judges"": [], ""parties"": [""Richard H. Crowell vs. Frederick McCaffrey.""], ""opinions"": [{""text"": ""Braucher, J.\nThe plaintiff was the tenant of the third-floor apartment in a three-family house in Dorchester owned by the defendant. He sued for damages suffered when the railing of the third-floor porch gave way. At the close of the plaintiffs case, the judge directed verdicts for the defendant. The plaintiff appealed from the resulting judgment, we allowed his application for direct appellate review, and we now reverse. We hold that there was a case for the jury on the theory that the defendant was negligent in maintaining an area left in his control. Alternatively, the«jury could find that the porch was part of the rented premises, and that there was a breach of the landlord’s warranty of compliance with minimum standards prescribed by the State Building Code and the State Sanitary Code. On either theory, the relevant provisions of those codes should have been placed before the jury.\nThere was evidence of the following facts. The porch in question could only be reached by opening a window across the third-floor hallway from the door to the third-floor apartment. The plaintiff rented the apartment, but not the porch, beginning November 1, 1975. When he rented the apartment he told the defendant he might use the porch in the summertime, and the defendant made no reply. The railing looked old and weather-beaten and needed painting. On the night of December 31,1975, the plaintiff held a New Year’s Eve party at the apartment. Shortly after midnight he went out on the porch to get some air. When he put his hands on the railing it gave way, and he fell to the ground. After the accident the defendant boarded up the window leading to the porch. Photographs showed corroding, rusted nails in the porch railing. The defendant, called as a witness by the plaintiff, testified that the third-floor porch belonged to the third-floor tenant.\nThe judge excluded from evidence provisions of the State Building Code and the State Sanitary Code. He ruled that the porch was part of the premises rented to the plaintiff, that there was no evidence from which the jury could find that the porch remained under the control of the defendant, that there was no notice of defect or evidence that the defendant was aware of the defect, and that the porch could not be found to be a common area.\n1. The Hemingway case and its progeny. Beginning with Boston Hous. Auth. v. Hemingway, 363 Mass. 184 (1973), this court has reconsidered a number of common law rules relating to the obligations of landowners and particularly landlords. Like courts in other States, we have to some extent departed from the concept of a lease as a conveyance accompanied by independent covenants and subject to the principle, \""Let the buyer beware.” See Restatement (Second) of Property, Landlord & Tenant c. 17, Introductory Note and Reporter’s Note (1977); Love, Landlord’s Liability for Defective Premises: Caveat Lessee, Negligence, or Strict Liability?, 1975 Wis. L. Rev. 19. In part we have relied on statutory developments, in part on the general law of contracts and the law governing the sale of goods, which long ago abandoned the caveat emptor principle. In Javins v. First Nat’l Realty Corp., 428 F.2d 1071, 1075 (D.C. Cir.), cert. denied, 400 U.S. 925 (1970), cited in the Hemingway opinion, the court drew on the analogy of the warranties of fitness implied in sales of goods. See G. L. c. 106, §§ 2-314, 2-315. Cf. McDonough v. Whalen, 365 Mass. 506, 511-513 (1974), where we found \""no sound reason to treat a builder of houses or other realty structures differently from a manufacturer of chattels.”\nIn the Hemingway case this court held \""that in a rental of any premises for dwelling purposes, under a written or oral lease, for a specified time or at will, there is an implied warranty that the premises are fit for human occupation.” 363 Mass. at 199. The case concerned defenses in actions for eviction and rent, and we did not consider the effect of this \""warranty of habitability” on the landlord’s liability for injuries. Id. at 200 n.13. Three Justices, concurring in the result, thought the Hemingway opinion went beyond the necessities of the case. Id. at 206 (Quirico, J., concurring in part and dissenting in part). They were willing, however, to find an implied agreement by the landlord, with respect to minimum standards prescribed by laws and regulations such as the State Sanitary Code, \""(i) that the rented unit complies with such standards at the time of the renting, and (ii) that he will do whatever such laws, regulations or codes require a landlord to do for compliance with such standards during the term of the renting.” Id. at 218.\nLater cases expanded the liability of a landowner for personal injuries. In Mounsey v. Ellard, 363 Mass. 693, 707 (1973), we announced a new rule that occupiers of land owe a duty of reasonable care to all lawful visitors without regard to the previous distinction between licensees and invitees. Cf. Pridgen v. Boston Hous. Auth., 364 Mass. 696, 711-713 (1974) (liability to trespasser). In Bouchard v. DeGagne, 368 Mass. 45 (1975), we held that the rule of the Mounsey case was to be applied retroactively to cases arising before that decision. Cf. Poirier v. Plymouth, 374 Mass. 206, 221-223 (1978) (liability of landowner to employee of independent contractor).\nMore directly relevant here are recent cases dealing with the liability of a landlord for injuries caused by defects in common areas. See King v. G&M Realty Corp., 373 Mass. 658, 660-662 (1977), and cases cited. In those cases we held that a landlord has a general obligation to exercise reasonable care in keeping safe the common areas of an apartment building or similar structure for use by his tenants and their visitors, and that the duty is not defined by the safety conditions that existed at the commencement of the tenancy. We also held that violation of a statute or building code provision related to safety was evidence of the landlord’s negligence. Lindsey v. Massios, 372 Mass. 79, 83-84 (1977). Perry v. Medeiros, 369 Mass. 836, 841 (1976). Those cases arose before the effective dates of G. L. c. 186, §§ 15E and 19, but in the King case we suggested that § 19 was an indication of legislative policy consistent with our ruling. 373 Mass. at 663 n.9. We also noted that the New Hampshire court, \""instead of continuing to reformulate the landlord’s tort liability by successive steps, has now indicated that ordinary principles of tort liability ought to apply to landlords as to other persons. Sargent v. Ross, 113 N.H. 388 (1973) (Kenison, C.J.).” Id. at 661 n.5.\nIn two cases involving defects in rented premises, we upheld the liability of the landlord under traditional principles. Markarian v. Simonian, 373 Mass. 669, 675-676 (1977) (negligent repairs under agreement, injury to tenant’s child). DiMarzo v. S. & P. Realty Corp., 364 Mass. 510, 514 (1974) (same, injury to tenant’s employee). In each case we found it unnecessary to consider the impact of the decisions stemming from the Hemingway case. But in the DiMarzo case we said: \""We might well be inclined toward a reconsideration of the rules of tort liability of lessors under a tenancy at will if the decision in this case required it.”\n2. Negligence. Our recent cases on \""common areas” have in effect eliminated any distinction between such areas and other areas in the landlord’s control. \""Where no 'common passageway’ is involved, the rule is that a person in control of a building, or of a part thereof, is required to exercise reasonable care to keep it in such condition that others will not be injured in their persons or property.” Regan v. Nelson, 345 Mass. 678, 680 (1963), and cases cited. Thus we need not consider whether the porch in the present case should be treated like a common passageway.\nIf the landlord retained control of the porch, he was under a duty to exercise reasonable care to keep it in such condition that others would not be injured. Under King v. G & M Realty Corp., supra, if a breach of that duty caused injury to a tenant, it made no difference whether the porch was a common area, whether the defect existed at the time of the letting of the property, or whether the defect was a violation of the building code of the city. Cf. G. L. c. 186, § 15E (see note 2, supra), which is more limited in scope. We think the evidence, as we have summarized it, warranted findings that the tenant suffered physical harm caused by a dangerous condition on the porch, and that \""the landlord by the exercise of reasonable care could have: (1) discovered the condition and the unreasonable risk involved therein; and (2) made the condition safe.” Restatement (Second) of Property, Landlord & Tenant § 17.3 (1977).\nIf the landlord retained control, therefore, it was error to direct a verdict for the defendant on the negligence count in the complaint. Moreover, the evidence would have warranted a finding that there were violations of the State Building Code and the State Sanitary Code (see note 1, supra). Such violations would have been evidence of negligence, and the relevant provisions should have been placed before the jury.\n3. The landlord’s control. The question remains whether the landlord retained control of the porch. We think the evidence warranted a jury finding that he did. The plaintiff testified that he did not rent the porch, although he planned to use it and did use it. After the accident the landlord exercised control by boarding up the window leading to the porch. Finn v. Peters, 340 Mass. 622, 624-625 (1960). His contrary testimony that the porch belonged to the tenant was of course not conclusive. The porch was not part of the means of access leading exclusively to the tenant’s apartment, as in Sanford v. Belemyessi, 362 Mass. 123, 125 (1972), and Minkkinen v. Nyman, 325 Mass. 92, 94 (1949).\nThe defendant relies heavily on Ludden v. Schwartz, 291 Mass. 320, 322 (1935). There the third-floor tenant fell from the second-floor porch of a three-family house. At the time of the letting to the third-floor tenant, the landlord said the second-floor tenant and the third-floor tenant could use the porch together, and the second-floor tenant agreed. We thought it was plain that either the two tenants were tenants of the porch in common or the third-floor tenant was a licensee of the use of a right appurtaining to the second-floor apartment. There was no similar arrangement in the present case.\nAlthough the evidence warranted a finding that the landlord retained control of the porch, it did not compel such a finding. The landlord’s testimony that the porch belonged to the third-floor tenant was reinforced by the absence of any evidence that anyone else used the porch. If the porch was part of the rented premises, our cases prior to the Hemingway decision negated any implied covenant that the premises were fit for habitation. Stumpf v. Leland, 242 Mass. 168, 171 (1922). Moreover, in the absence of any agreement to keep the premises in repair, there was no liability for failure to repair. See Markarian v. Simonian, 373 Mass. 669, 672 (1977), and cases cited. We must therefore consider how far those rules survive the Hemingway decision.\n4. Warranty. The parties have argued the plaintiffs warranty claim in terms of the scope of the implied warranty of habitability recognized in the opinion of the court in the Hemingway case. The defendant argues (1) that breach of the warranty should not give rise to tort damages, (2) that the warranty is limited to defects in facilities vital to the use of the premises as a dwelling, and that the porch was not such a facility, (3) that there was no showing that the defendant had notice of the defect and an opportunity to correct it, and (4) that any rule imposing liability on the landlord with respect to premises in the tenant’s control should be limited to prospective application. We reject each of these arguments.\nFirst, the Hemingway opinion referred to Ingalls v. Hobbs, 156 Mass. 348, 350 (1892), where a warranty of fitness was implied in the leasing of a furnished house or room for a short term. We said that in an urban industrial society that exception \""must now become the rule.” 363 Mass, at 196. In the Ingalls case as in the Hemingway case, we did not consider the effect of the warranty of fitness on a landlord’s liability for personal injuries. Later cases, however, imposed such liability for breach of the warranty. Horton v. Marston, 352 Mass. 322, 325 (1967). Ackarey v. Carbonaro, 320 Mass. 537, 539-540 (1946) (defective porch railing). Hacker v. Nitschke, 310 Mass. 754, 756-757 (1942). Thus extension of the warranty to the ordinary residential tenancy at will, in accordance with the Hemingway decision, logically carries with it liability for personal injuries caused by a breach.\nSecond, it is true that the Hemingway opinion dealt with defects in \""facilities vital to the use of the premises for residential purposes.” 363 Mass, at 199. But the more limited rule advocated in the concurring and dissenting opinion in the Hemingway case is not confined to such \""vital” facilities. 363 Mass. at 218, quoted above. See 363 Mass. at 200 n.16; Uniform Residential Landlord and Tenant Act, §§ 2.104(a)(1), 4.101(b) (1972). For present purposes we need not go beyond the more limited rule. We therefore do not consider the scope of the broader warranty of habitability, or the extent to which the porch in the present case was a \""vital” facility. We now find in the rental of a dwelling unit, without regard to length of term or presence or absence of furniture, an implied agreement by the landlord that the rented unit complies with the minimum standards prescribed by building and sanitary codes and that he will do whatever those codes require for compliance during the term of the renting. That agreement extended to the porch if the porch was part of the rented unit.\nThird, we need not now consider such matters as notice to the landlord of code violations arising after the letting and the time permitted the landlord to correct the violations. See 363 Mass, at 219. See G. L. c. 186, § 19, and Restatement (Second) of Property, Landlord & Tenant § 17.6 (1977), which prescribe a negligence standard. There was evidence warranting findings that the porch was part of the rented premises, and that at the time of the letting there were violations of the building and sanitary codes. There is no suggestion that repairs were made during the two months between the rental and the accident. The relevant provisions of the codes should have been placed before the jury. If that had been done, we think the jury would have been warranted in finding that the landlord, by the exercise of reasonable care, could have discovered whatever violations of the codes the jury found to have existed and could have brought the premises into compliance. We do not pass on the question whether such a finding is essential to liability.\nFourth, we think that in view of the opinions in the Hemingway case, decided in 1973, our present decision is neither novel nor surprising. No sufficient reason is shown for refusing to carry out the logic of the Hemingway opinions in deciding a case which arose in 1976. See McIntyre v. Associates Financial Servs. Co. of Mass., Inc., 367 Mass. 708, 712 (1975).\nOne feature of the present case departs from the personal property analogy. In sales of personal property, implied warranties of fitness have only limited application to persons who are not merchants. G. L. c. 106, §§ 2-314, 2-315. In Lantner v. Carson, 374 Mass. 606, 612 (1978), we found a similar limitation in G. L. c. 93A, the Consumer Protection Act, and refused to apply that Act to the sale of a residence by an individual homeowner. Perhaps the exception for \""an owner-occupied two-or three-family dwelling” in G. L. c. 186, § 19, can be read to reflect a similar policy. Cf. Trovato v. Walsh, 363 Mass. 533, 535 (1973) (exception of owner-occupied two-family house from rent control). But no similar policy is reflected in the building and sanitary codes. If such a policy is to be followed with respect to those codes, we think it needs legislative sanction and definition.\n5. Disposition. The judgment is reversed and the case is remanded to the Superior Court for further proceedings consistent with this opinion.\nSo ordered.\nNotice was given under Mass. R. Civ. P. 44.1, 365 Mass. 809 (1974), that the plaintiff intended to rely on cited provisions of these Codes relating to the maintenance of porches.\nInserted by St. 1972, c. 157, and amended by St. 1974, c. 192, § 3: \""Section 15E. An owner of a building shall be precluded from raising as a defense in an action brought by a lessee, tenant or occupant of said building who has sustained an injury caused by a defect in a common area that said defect existed at the time of the letting of the property, if said defect is at the time of the injury a violation of the building code of the city or town wherein the property is situated. Any waiver of this provision in any lease or other rental agreement shall be void and unenforceable.”\nInserted by St. 1972, c. 665: \""Section 19. A landlord or lessor of any real estate except an owner-occupied two-or three-family dwelling shall, within a reasonable time following receipt of a written notice from a tenant forwarded by registered or certified mail of an unsafe condition, not caused by the tenant, his invitee, or any one occupying through or under the tenant, exercise reasonable care to correct the unsafe condition described in said notice except that such notice need not be given for unsafe conditions in that portion of the premises not under control of the tenant. The tenant or any person rightfully on said premises injured as a result of the failure to correct said unsafe condition within a reasonable time shall have a right of action in tort against the landlord or lessor for damages. Any waiver of this provision in any lease or other rental agreement shall be void and unenforceable. The notice requirement of this section shall be satisfied by a notice from a board of health or other code enforcement agency to a landlord or lessor of residential premises not exempted by the provisions of this section of a violation of the state sanitary code or other applicable by-laws, ordinances, rules or regulations.”"", ""type"": ""majority"", ""author"": ""Braucher, J.""}], ""attorneys"": [""William H. Shaughnessy for the plaintiff."", ""Richard H. Pettingell for the defendant.""], ""corrections"": """", ""head_matter"": ""Richard H. Crowell vs. Frederick McCaffrey.\nSuffolk.\nJanuary 2, 1979.\nMarch 6, 1979.\nPresent: Hennessey, C.J., Quirico, Braucher, Wilkins, & Liacos, JJ.\nLandlord and Tenant, Repairs, Habitability, Safety requirements, Landlord’s liability to tenant or one having his rights, Control of premises, Porch. Negligence, One owning or controlling real estate.\nReview of cases, beginning with Boston Hous. Auth. v. Hemingway, 363 Mass. 184 (1973), in which this court has reconsidered a number of common law rules relating to the obligations of landowners and particularly of landlords. [445-448]\nIn an action against a landlord by a tenant of a third-floor apartment with a porch outside, evidence that the porch’s railing needed painting and contained corroding and rusted nails, and that the railing gave way when the tenant put his hands on it causing him to fall to the ground, together with evidence of violations of the State Building Code and the State Sanitary Code, warranted findings that the dangerous condition on the porch caused the tenant’s injuries, that the landlord could have discovered such condition and the unreasonable risk, and could have made the condition safe; if the landlord retained control of the porch, it was error to direct a verdict for him on a count for negligence. [448-449]\nIn an action against a landlord by a tenant of a third-floor apartment with a porch outside entered only through a window across the hallway from the apartment door, testimony by the tenant that he did not rent the porch, and evidence that after he fell from it when its railing gave way the landlord boarded up the window warranted a finding that the landlord retained control of the porch [449-450]; but such a finding was not compelled, since the landlord’s testimony that the porch belonged to the tenant was reinforced by the absence of any evidence that anyone else used it, and by the lack of evidence of any agreement by the landlord to keep the premises in repair [450].\nExtension of the warranty of fitness by a landlord to the ordinary residential tenancy at will logically carries with it liability for personal injuries caused by a breach. [450-451]\nIn the rental of a dwelling unit, there is an implied agreement by the landlord that the rented unit complies with the minimum standards prescribed by building and sanitary codes and that he will do whatever these codes require for compliance during the term of the renting; such agreement extended to a porch outside an apartment if the porch was part of the rented unit. [451]\nIn an action against a landlord by a tenant of a third-floor apartment with a porch outside from which in 1976 the tenant fell and was injured when its railing gave way, evidence warranted findings that the porch was part of the rented premises, and that at the time of the letting there were violations of the building and sanitary codes; this court held on appeal that the relevant provisions thereof, which had been excluded, should have been placed before the jury. [452]\nCivil action commenced in the Superior Court on January 8, 1976.\nThe case was tried before Donelan, J., a District Court judge sitting under statutory authority.\nThe Supreme Judicial Court granted a request for direct appellate review.\nWilliam H. Shaughnessy for the plaintiff.\nRichard H. Pettingell for the defendant.""}, ""cites_to"": [{""cite"": ""363 Mass. 184"", ""year"": 1973, ""case_ids"": [287373], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/363/0184-01""], ""opinion_index"": -1}, {""cite"": ""365 Mass. 809"", ""year"": 1974, ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""opinion_index"": 0}, {""cite"": ""363 Mass. 533"", ""year"": 1973, ""case_ids"": [288018], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""535"", ""parenthetical"": ""exception of owner-occupied two-family house from rent control""}], ""case_paths"": [""/mass/363/0533-01""], ""opinion_index"": 0}, {""cite"": ""374 Mass. 606"", ""year"": 1978, ""case_ids"": [3872100], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""612""}], ""case_paths"": [""/mass/374/0606-01""], ""opinion_index"": 0}, {""cite"": ""367 Mass. 708"", ""year"": 1975, ""case_ids"": [3869212], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""712""}], ""case_paths"": [""/mass/367/0708-01""], ""opinion_index"": 0}, {""cite"": ""310 Mass. 754"", ""year"": 1942, ""case_ids"": [3841278], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""756-757""}], ""case_paths"": [""/mass/310/0754-01""], ""opinion_index"": 0}, {""cite"": ""320 Mass. 537"", ""year"": 1946, ""case_ids"": [498277], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""539-540"", ""parenthetical"": ""defective porch railing""}], ""case_paths"": [""/mass/320/0537-01""], ""opinion_index"": 0}, {""cite"": ""352 Mass. 322"", ""year"": 1967, ""case_ids"": [304899], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""325""}], ""case_paths"": [""/mass/352/0322-01""], ""opinion_index"": 0}, {""cite"": ""156 Mass. 348"", ""year"": 1892, ""case_ids"": [810900], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""350""}], ""case_paths"": [""/mass/156/0348-01""], ""opinion_index"": 0}, {""cite"": ""242 Mass. 168"", ""year"": 1922, ""case_ids"": [3811481], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""171""}], ""case_paths"": [""/mass/242/0168-01""], ""opinion_index"": 0}, {""cite"": ""291 Mass. 320"", ""year"": 1935, ""case_ids"": [495016], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""322""}], ""case_paths"": [""/mass/291/0320-01""], ""opinion_index"": 0}, {""cite"": ""325 Mass. 92"", ""year"": 1949, ""case_ids"": [506420], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""94""}], ""case_paths"": [""/mass/325/0092-01""], ""opinion_index"": 0}, {""cite"": ""362 Mass. 123"", ""year"": 1972, ""case_ids"": [43893], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""125""}], ""case_paths"": [""/mass/362/0123-01""], ""opinion_index"": 0}, {""cite"": ""340 Mass. 622"", ""year"": 1960, ""case_ids"": [3853485], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""624-625""}], ""case_paths"": [""/mass/340/0622-01""], ""opinion_index"": 0}, {""cite"": ""345 Mass. 678"", ""year"": 1963, ""case_ids"": [48040], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""680""}], ""case_paths"": [""/mass/345/0678-01""], ""opinion_index"": 0}, {""cite"": ""364 Mass. 510"", ""year"": 1974, ""case_ids"": [289689], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""514"", ""parenthetical"": ""same, injury to tenant's employee""}], ""case_paths"": [""/mass/364/0510-01""], ""opinion_index"": 0}, {""cite"": ""373 Mass. 669"", ""year"": 1977, ""weight"": 2, ""case_ids"": [323800], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""675-676"", ""parenthetical"": ""negligent repairs under agreement, injury to tenant's child""}, {""page"": ""672""}], ""case_paths"": [""/mass/373/0669-01""], ""opinion_index"": 0}, {""cite"": ""113 N.H. 388"", ""year"": 1973, ""weight"": 2, ""case_ids"": [4437660], ""category"": ""reporters:state"", ""reporter"": ""N.H."", ""pin_cites"": [{""parenthetical"": ""Kenison, C.J.""}], ""case_paths"": [""/nh/113/0388-01""], ""opinion_index"": 0}, {""cite"": ""369 Mass. 836"", ""year"": 1976, ""case_ids"": [309786], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""841""}], ""case_paths"": [""/mass/369/0836-01""], ""opinion_index"": 0}, {""cite"": ""372 Mass. 79"", ""year"": 1977, ""case_ids"": [4030988], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""83-84""}], ""case_paths"": [""/mass/372/0079-01""], ""opinion_index"": 0}, {""cite"": ""373 Mass. 658"", ""year"": 1977, ""weight"": 2, ""case_ids"": [323975], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""660-662""}], ""case_paths"": [""/mass/373/0658-01""], ""opinion_index"": 0}, {""cite"": ""374 Mass. 206"", ""year"": 1978, ""case_ids"": [3872303], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""221-223"", ""parenthetical"": ""liability of landowner to employee of independent contractor""}], ""case_paths"": [""/mass/374/0206-01""], ""opinion_index"": 0}, {""cite"": ""368 Mass. 45"", ""year"": 1975, ""case_ids"": [307106], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/368/0045-01""], ""opinion_index"": 0}, {""cite"": ""364 Mass. 696"", ""year"": 1974, ""case_ids"": [289764], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""711-713"", ""parenthetical"": ""liability to trespasser""}], ""case_paths"": [""/mass/364/0696-01""], ""opinion_index"": 0}, {""cite"": ""363 Mass. 693"", ""year"": 1973, ""case_ids"": [288164], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""707""}], ""case_paths"": [""/mass/363/0693-01""], ""opinion_index"": 0}, {""cite"": ""365 Mass. 506"", ""year"": 1974, ""case_ids"": [292019], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""511-513""}], ""case_paths"": [""/mass/365/0506-01""], ""opinion_index"": 0}, {""cite"": ""400 U.S. 925"", ""year"": 1970, ""case_ids"": [12101633, 12101606, 12101387, 12101484, 12101521, 12101460, 12101563], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/400/0925-07"", ""/us/400/0925-06"", ""/us/400/0925-01"", ""/us/400/0925-03"", ""/us/400/0925-04"", ""/us/400/0925-02"", ""/us/400/0925-05""], ""opinion_index"": 0}, {""cite"": ""428 F.2d 1071"", ""case_ids"": [2239886], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""1075""}], ""case_paths"": [""/f2d/428/1071-01""], ""opinion_index"": 0}, {""cite"": ""1975 Wis. 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+337383,"{""id"": 337383, ""name"": ""Gretchen Darmetko vs. Boston Housing Authority"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""aa18120b588a6e909f9c1a8b70ee014f7cc826ef9f47c5efa047e9728e2c5bdf"", ""simhash"": ""1:67789433b91a1fd8"", ""pagerank"": {""raw"": 0.000000702452674926961, ""percentile"": 0.9660117250079059}, ""char_count"": 16667, ""word_count"": 2813, ""cardinality"": 801, ""ocr_confidence"": 0.868}, ""casebody"": {""judges"": [], ""parties"": [""Gretchen Darmetko vs. Boston Housing Authority.""], ""opinions"": [{""text"": ""Wilkins, J.\nThis appeal by the Boston Housing Authority (BHA) challenges the amount of damages awarded to the plaintiff as a consequence of certain defects in premises she leased from the BHA and further challenges the fact of, and the amount of, the award of attorney’s fees to the plaintiffs counsel, the Boston University Legal Aid Program. We agree that a judge of the Housing Court of the City of Boston improperly determined the damages to which the plaintiff was entitled. An award of counsel fees to the Boston University Legal Aid Program was proper, but we remand the case for reconsideration of the appropriate amount of those fees in light of principles set forth in this opinion.\nThe plaintiff has been a tenant of the BHA since May 15, 1973. For the first year of her tenancy, there were defects in the kitchen and living room floors which the judge ruled constituted a breach of the BHA’s implied warranty of habitability. In addition, from May 15,1973, until at least July 20, 1976, the plaintiffs roof leaked, causing water to enter a closet and to accumulate in the plaintiffs living room. The judge ruled that the leaks also constituted a breach of the BHA’s implied warranty of habitability. The judge awarded the plaintiff $793.50 as the measure of the reduced value of the leased premises due to the defective floors and the leaky roof and $415.00 as \""consequential” damages for water damage to her personal property. The judge found that a claim of emotional distress due to the BHA’s failure to repair the premises had not been proved.\nThe judge further ruled that the leaks in the roof (but not the defective floors) interfered with the plaintiffs quiet enjoyment of the leased premises. Because of this interference, and based on his reading of G. L. c. 186, § 14, the judge ruled that the plaintiff was entitled to an additional $5,358, three times her monthly rent obligation ($47) for each month during which the leaky roof was unrepaired (from May 15, 1973, to July 20, 1976).\nPrior to the trial, the judge had fined the BHA $3,150 for contempt of court for failure to repair the leaks and had ordered that the money be paid to the plaintiff. The $3,150 represented a fine of $50 a day for the period from July 21,1976, to September 21,1976. At trial, the judge did not award any damages for the period after July 20, 1976, because, in his view, the contempt award had adequately compensated the plaintiff for the period from July 21, 1976, to September 21, 1976, the date already determined to be the date on which the leaks in the roof were repaired.\nThe judge allowed $3,400 in attorney’s fees to the plaintiffs counsel, the Boston University Legal Aid Program, none of which was to be paid to “legal interns.” The services were performed by two law students and by a member of the bar, an instructor at Boston University Law School, whose responsibilities were to supervise law students placed through a clinical program in the East Boston office of Greater Boston Legal Services, Inc. The two law students were representing the plaintiff pursuant to rule 3:11 of this court (366 Mass. 867 [1975]) which, among other things, authorizes a senior law student to appear \""without compensation” on behalf of an indigent party in civil proceedings in a Housing Court, provided that a member of the bar employed by a law school clinical instruction program generally supervises the conduct of the case.\n1. Damages. The damages awarded to the plaintiff were determined incorrectly.\nThe BHA does not challenge the judge’s conclusion that its failures to repair the leaky roof and the defective floors were breaches of its implied warranty of habitability or his determination that the leaky roof interfered with the plaintiff’s quiet enjoyment of the leased premises. We see no reason, however, for the plaintiff to recover cumulatively for a breach of the implied warranty of habitability and for interference with her quiet enjoyment of the premises. In the absence of any statute authorizing recovery beyond her actual loss, she may not recover for the same wrong under each theory.\nThe judge’s conclusion that, under G. L. c. 186, § 14, as amended by St. 1974, c. 192, § 1, the plaintiff could recover three times her monthly rental obligation for. each month during which the leaks remained unrepaired is incorrect. Section 14 provides that a lessor who commits any act in violation of that section (including interference \""with the quiet enjoyment of any residential premises”) shall \""be liable for actual and consequential damages or three months’ rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee.” Nowhere is there any indication in § 14 that each rental period should be considered separately in determining damages. Section 14 allows a minimum recovery of three months’ rent as an incentive to the pursuit of relief where the actual and consequential damages are slight or are difficult to prove. When the actual damages exceed three months’ rent, however, § 14 plainly states that actual damages should be the measure of recovery.\nIt is clear that the plaintiffs actual damages exceeded three times her monthly rent of $47. Her actual damages included the diminution of the value of the leasehold due to the breach of the implied warranty of habitability, as well as the damage to her personal property. Damages for the breach were $793.50, and damage to her personal property was $415.\nThe BHA argues that its payment of $3,150 to the plaintiff, as ordered by the court following the determination of contempt, adequately compensated the plaintiff for any violation of her rights for the entire period during which the floors and roof remained unrepaired. We assume that a civil contempt order issued in the course of a proceeding may be challenged on an appeal from a final judgment. The record, which does not include a transcript of the contempt proceedings, fails to disclose the basis on which the amount of the award was determined. The contempt order was confined to a period of time after the period for which the damages discussed earlier in this opinion were awarded. Of course, an award to a litigant in a civil contempt proceeding must be compensatory or remedial. See Grunberg v. Louison, 343 Mass. 729, 736 (1962). On this record, however, we cannot say that the amount awarded was excessive or based on a misapplication of proper principles of law. Nor can we say that in measuring the period of the contempt the judge was plainly wrong in finding that the roof was not repaired until September 21, 1976.\n2. The award of attorney’s fees. We reject the BHA’s argument that attorney’s fees should not be allowed to the plaintiffs counsel because the services furnished by the Boston University Legal Aid Program were free. The payment of attorney’s fees is authorized explicitly by G. L. c. 186, § 14. An unsuccessful defendant is liable for \""the costs of the action, including a reasonable attorney’s fee.” No exception is made where counsel is a legal services organization nor where the defendant is a public entity such as the BHA. We said recently that \""when attorney’s fees are statutorily authorized legal service organizations are entitled to receive such awards.” Lincoln St. Realty Co. v. Green, 374 Mass. 630, 631 (1978). There is a wealth of authority in support of awarding attorney’s fees to a legal services organization where an award is authorized by statute. See, e.g., Perez v. Rodriguez Bou, 575 F.2d 21, 24 (1st Cir. 1978); Rodriguez v. Taylor, 569 F.2d 1231, 1244 (3d Cir. 1977), cert. denied, 436 U.S. 913 (1978); Torres v. Sachs, 538 F.2d 10, 12-13 (2d Cir. 1976); Gregory v. Sauser, 574 P.2d 445 (Alas. 1978); Winters v. Security Pac. Natl Bank, 49 Cal. App. 3d 510, 515 (1975).\nThe amount of a reasonable attorney’s fee lies largely in the discretion of the judge. Our cases have noted the factors to be considered. See Heller v. Silverbranch Constr. Corp., 376 Mass. 621, 629-630 (1978); First Nat’l Bank v. Brink, 372 Mass. 257, 265-267 (1977); Cummings v. National Shawmut Bank, 284 Mass. 563, 569 (1933). See also S.J.C. Rule 3:22, DR 2-106, 359 Mass. 807 (1972). Federal courts reviewing an award of statutorily authorized attorney’s fees have adopted similar standards. See Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (5th Cir. 1974), approved in Souza v. Southworth, 564 F.2d 609, 612 (1st Cir. 1977).\nWe see no reason why the fee should be discounted simply because counsel is a legal services organization. Nor does the fact that certain services were performed by uncompensated law students require that the value of those services be ignored. Of course, the value of those services must be carefully assessed because the students’ efforts may have been unproductive or may have been duplicated in the work of the supervising attorney. On the record before us, however, we find no showing of a duplication of effort that would make the judge’s determination clearly improper.\nThe plaintiff argued below that the degree of success was a factor in determining the amount of a reasonable attorney’s fee. Of course, success in establishing a statutory violation was a precondition to entitlement to an attorney’s fee. Here, we do not know how much weight the judge placed on the degree of the plaintiffs success. The judge gave no explanation as to how he arrived at the amount of the fee. Although it has been substantially reduced through this appeal, the plaintiffs success was considerable. After obtaining $3,150 as a contempt award, the plaintiff, whose monthly rent was $47, was granted over $5,300 in (erroneously determined) statutory damages and over $1,200 in actual damages. Because we have ruled that the damages awarded were excessive, a new determination of attorney’s fees should be made, which may include attorney’s fees on this appeal.\n3. The judgment is reversed. The case is remanded for the entry of a judgment awarding damages and counsel fees in accordance with this opinion.\nSo ordered.\nThe BHA also has argued that a class action, known as the Perez case, barred the maintenance of this action. See Perez v. Boston Hous. Auth., 368 Mass. 333, appeal dismissed sub nom. Perez v. Bateman, 423 U.S. 1009 (1975). The record fails to disclose any reason why that case bars the maintenance of this one.\nWe are unable to calculate how the judge arrived at the figure of $793.50 from the per diem damages determined by him, but neither party has objected to the figure. Perhaps the BHA’s liability indicated by the subsidiary findings was offset by unpaid rent.\nThe fine of $50 a day had been proposed in an order entered by another judge of the Housing Court who found the BHA in contempt for failure to repair the leaks as directed. That order gave the BHA seven days to repair the leaks with the threat of a fine thereafter of $50 for each day that the leaks were not repaired.\nDamages for breach of the covenant of quiet enjoyment where the tenant remains in possession of the premises are measured by the difference between the value of what the lessee should have received and the value of what he did receive. Charles E. Burt, Inc. v. Seven Grand Corp., 340 Mass. 124, 130 (1959). Damages for breach of the implied warranty of habitability are measured by \""the difference between the value of the dwelling as warranted (the rent agreed on may be evidence of this value) and the value of the dwelling as it exists in its defective condition.” Boston Hous. Auth. v. Hemingway, 363 Mass. 184, 203 (1973) (footnote omitted). These remedies are \""quite similar.” Id. at n.21.\nSection 14 of G. L. c. 186 expands the measure of damages to include all \""actual and consequential damages” where, as here, there has been a breach of the covenant of quiet enjoyment.\nIn its brief, the BHA cites cases in which the other judge of the Housing Court of the City of Boston has interpreted § 14 as we have in this opinion.\nA contempt order issued during the course of a proceeding has been held not to be a final order appealable by a party. See, e.g., Securities & Exch. Comm’n v. Sloan, 535 F.2d 679, 680 (2d Cir. 1976), cert. denied, 430 U.S. 966 (1977); Cromaglass Corp. v. Ferm, 500 F.2d 601, 604 (3d Cir. 1974), and cases cited; Hughes v. Sharp, 476 F.2d 975, 975 (9th Cir. 1973); Hodgson v. Mahoney, 460 F.2d 326, 328 (1st Cir.), cert. denied, 409 U.S. 1039 (1972). A civil contempt proceeding has been said to be reviewable in connection with an appeal from a final judgment in the main action. See 9 Moore’s Federal Practice par. 110.13 [4], at 167-168 (2d ed. 1975); 15 C. A. Wright, A. R. Miller & E. H. Cooper, Federal Practice and Procedure § 3917, at 620-621 (1976); Wright, Byrne, Haakh, Westbrook & Wheat, Civil and Criminal Contempt in the Federal Courts, 17 F.R.D. 167, 176 (1955).\nA fine for civil contempt should include only fair compensation for losses suffered because of disobedience of the court’s order. Lyon v. Bloomfield, 355 Mass. 738, 744 (1969). Grunberg v. Louison, 343 Mass. 729, 736 (1962). Godard v. Babson-Dow Mfg. Co., 319 Mass. 345, 349 (1946). Those losses, which need not be measured with undue precision (Department of Pub. Health v. Cumberland Cattle Co., 361 Mass. 817, 832 [1972]), include pecuniary injury caused by the act of disobedience, any taxable costs of the suit, the expense of counsel fees and other disbursements in enforcing the plaintiffs rights (Coyne Indus. Laundry of Schenectady, Inc. v. Gould, 359 Mass. 269, 277 [1971]).\nOnce the date of the repair of the roof was determined for purposes of the contempt order, the BHA had no right to insist that the repair date be redetermined in the course of subsequent proceedings in the case.\nCases relied on by the BHA not involving any statute are irrelevant. In its brief, the BHA fails to face the explicit, mandatory language of G. L. c. 186, § 14.\nThere is nothing in S.J.C. Rule 3:11 (366 Mass. 867 [1975]) that bars a legal services organization employing a law student from receiving a statutorily authorized fee. The prohibition against a law student’s receiving compensation was originally included in rule 3:11 to assure that no law student representing an indigent criminal defendant could receive compensation from public funds. That reference to service \""without compensation” has been preserved in the course of subsequent, expansive amendments of rule 3:11.\nThis court recently amended its order implementing rule 3:11 to make it clear that a law student may receive compensation from the legal services organization for which he works."", ""type"": ""majority"", ""author"": ""Wilkins, J.""}], ""attorneys"": [""George F. Mahoney for the defendant."", ""James Henry Wexler for the plaintiff.""], ""corrections"": """", ""head_matter"": ""Gretchen Darmetko vs. Boston Housing Authority.\nSuffolk.\nMay 9, 1979.\nAugust 14, 1979.\nPresent: Hennessey, C.J., Kaplan, Wilkins, & Abrams, JJ.\nDamages, Breach of implied warranty of habitability, Counsel fees. Contempt. Landlord and Tenant, Habitability. Legal Service Organization.\nIn an action by a tenant to recover damages resulting from certain defects in premises she leased, the judge erred in awarding damages both for the breach of the implied warranty of habitability and for breach of the covenant of quiet enjoyment. [761]\nIn an action by a tenant for breach of the covenant of quiet enjoyment, the judge erred in awarding the plaintiff as damages, under G. L. c. 186, § 14, three times her monthly rental obligation for each month during which defects in the premises remained unrepaired; where the plaintiffs actual damages exceeded three times her monthly rent, actual damages were the proper measure of recovery under § 14.. [761-762]\nIn an action by a tenant to recover damages resulting from certain defects in premises she leased, there was no support in the record for the defendant’s contention that its payment of $3,150 to the tenant, as ordered by the court following a determination of contempt, adequately compensated the tenant for the entire period the defects remained unrepaired. [762-763]\nA legal services organization was entitled to an award of attorney’s fees under G. L. c. 186, § 14, despite the fact that certain work was performed by law students under the direction of a supervising attorney; however, where this court found on appeal that damages awarded the plaintiff in her action under § 14 were excessive, the case was remanded for a new determination of attorney’s fees. [763-765]\nCivil action commenced in the Housing Court of the City of Boston on December 19, 1975.\nThe case was heard by Daher, C.J.\nAfter review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.\nGeorge F. Mahoney for the defendant.\nJames Henry Wexler for the plaintiff.""}, ""cites_to"": [{""cite"": ""359 Mass. 269"", ""case_ids"": [294621], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""277""}], ""case_paths"": [""/mass/359/0269-01""], ""opinion_index"": 0}, {""cite"": ""361 Mass. 817"", ""case_ids"": [3867931], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""832""}], ""case_paths"": [""/mass/361/0817-01""], ""opinion_index"": 0}, {""cite"": ""319 Mass. 345"", ""year"": 1946, ""case_ids"": [497466], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""349""}], ""case_paths"": [""/mass/319/0345-01""], ""opinion_index"": 0}, {""cite"": ""355 Mass. 738"", ""year"": 1969, ""case_ids"": [302555], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""744""}], ""case_paths"": [""/mass/355/0738-01""], ""opinion_index"": 0}, {""cite"": ""17 F.R.D. 167"", ""year"": 1955, ""category"": ""reporters:specialty"", ""reporter"": ""F.R.D."", ""pin_cites"": [{""page"": ""176""}], ""opinion_index"": 0}, {""cite"": ""409 U.S. 1039"", ""year"": 1972, ""case_ids"": [6460227, 6460548, 6460646, 6460809, 6460907, 6461079, 6460729, 6460345, 6460988, 6460447], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/409/1039-01"", ""/us/409/1039-04"", ""/us/409/1039-05"", ""/us/409/1039-07"", ""/us/409/1039-08"", ""/us/409/1039-10"", ""/us/409/1039-06"", ""/us/409/1039-02"", ""/us/409/1039-09"", ""/us/409/1039-03""], ""opinion_index"": 0}, {""cite"": ""460 F.2d 326"", ""case_ids"": [1326304], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""328""}], ""case_paths"": [""/f2d/460/0326-01""], ""opinion_index"": 0}, {""cite"": ""476 F.2d 975"", ""year"": 1973, ""case_ids"": [2262063], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""975""}], ""case_paths"": [""/f2d/476/0975-01""], ""opinion_index"": 0}, {""cite"": ""500 F.2d 601"", ""year"": 1974, ""case_ids"": [2258265], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""604""}], ""case_paths"": [""/f2d/500/0601-01""], ""opinion_index"": 0}, {""cite"": ""430 U.S. 966"", ""year"": 1977, ""case_ids"": [12161696, 12161732, 12161639, 12161655, 12161673, 12161642, 12161707, 12161649, 12161746, 12161685, 12161719, 12161663], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/430/0966-08"", ""/us/430/0966-11"", ""/us/430/0966-01"", ""/us/430/0966-04"", ""/us/430/0966-06"", ""/us/430/0966-02"", ""/us/430/0966-09"", ""/us/430/0966-03"", ""/us/430/0966-12"", ""/us/430/0966-07"", ""/us/430/0966-10"", ""/us/430/0966-05""], ""opinion_index"": 0}, {""cite"": ""535 F.2d 679"", ""year"": 1976, ""case_ids"": [1062291], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""680""}], ""case_paths"": [""/f2d/535/0679-01""], ""opinion_index"": 0}, {""cite"": ""363 Mass. 184"", ""year"": 1973, ""case_ids"": [287373], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""203"", ""parenthetical"": ""footnote omitted""}], ""case_paths"": [""/mass/363/0184-01""], ""opinion_index"": 0}, {""cite"": ""340 Mass. 124"", ""year"": 1959, ""case_ids"": [3851696], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""130""}], ""case_paths"": [""/mass/340/0124-01""], ""opinion_index"": 0}, {""cite"": ""423 U.S. 1009"", ""year"": 1975, ""case_ids"": [6454274, 6453988, 6454535, 6454411, 6454104, 6454170, 6454653], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/423/1009-04"", ""/us/423/1009-01"", ""/us/423/1009-06"", ""/us/423/1009-05"", ""/us/423/1009-02"", ""/us/423/1009-03"", ""/us/423/1009-07""], ""opinion_index"": 0}, {""cite"": ""368 Mass. 333"", ""year"": 1975, ""case_ids"": [307098], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/368/0333-01""], ""opinion_index"": 0}, {""cite"": ""564 F.2d 609"", ""year"": 1977, ""case_ids"": [894074], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""612""}], ""case_paths"": [""/f2d/564/0609-01""], ""opinion_index"": 0}, {""cite"": ""488 F.2d 714"", ""year"": 1974, ""case_ids"": [213570], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""717-719""}], ""case_paths"": [""/f2d/488/0714-01""], ""opinion_index"": 0}, {""cite"": ""359 Mass. 807"", ""year"": 1972, ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""opinion_index"": 0}, {""cite"": ""284 Mass. 563"", ""year"": 1933, ""case_ids"": [3835118], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""569""}], ""case_paths"": [""/mass/284/0563-01""], ""opinion_index"": 0}, {""cite"": ""372 Mass. 257"", ""year"": 1977, ""case_ids"": [4029324], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""265-267""}], ""case_paths"": [""/mass/372/0257-01""], ""opinion_index"": 0}, {""cite"": ""376 Mass. 621"", ""year"": 1978, ""case_ids"": [332012], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""629-630""}], ""case_paths"": [""/mass/376/0621-01""], ""opinion_index"": 0}, {""cite"": ""49 Cal. App. 3d 510"", ""year"": 1975, ""case_ids"": [4458763], ""category"": ""reporters:state"", ""reporter"": ""Cal. 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Boston Housing 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+337434,"{""id"": 337434, ""name"": ""Dolores Ann Boyle vs. John H. Wenk"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""12ce5abb376193ea4857ad268f18fafe5e392cf75292dba70b5ff8610b86687b"", ""simhash"": ""1:9203a9e005169850"", ""pagerank"": {""raw"": 0.0000008309848728880535, ""percentile"": 0.9753528101445297}, ""char_count"": 12773, ""word_count"": 2070, ""cardinality"": 744, ""ocr_confidence"": 0.882}, ""casebody"": {""judges"": [], ""parties"": [""Dolores Ann Boyle vs. John H. Wenk.""], ""opinions"": [{""text"": ""Abrams, J.\nThe sole issue raised by this appeal is the sufficiency of the evidence in an action for the intentional or reckless infliction of emotional distress. The defendant, John H. Wenk, asserts that it was error for the judge to deny his motion for a directed verdict, and after the verdict to deny his motion for a judgment notwithstanding the verdict. See Mass. R. Civ. P. 50, 365 Mass. 814 (1974). Wenk claims that his conduct, while rude and clumsy, was neither “extreme and outrageous” nor was it “beyond all possible bounds of decency.” Hence he concludes it was error to submit Dolores Boyle’s claim for the intentional infliction of emotional distress to a jury. We find no error; therefore, we affirm the judgment.\nIn reviewing the denial of Wenk’s motion for a directed verdict, we view the evidence most favorable to Boyle. See Uloth v. City Tank Corp., 376 Mass. 874, 876 (1978). Moreover, we must determine “whether ’anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff.’ ” Poirier v. Plymouth, 374 Mass. 206, 212 (1978), quoting from Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972).\nWenk was employed by Consulting Investigators, Inc., to do private investigative work. Wenk was asked to investigate the health and capacity for work of one John Walsh.\nWalsh is the plaintiffs brother-in-law; he and his wife live in an apartment upstairs from the Boyles’ home. In the course of his investigation Wenk called the Boyle home and began asking personal questions about Walsh. The plaintiff suggested to Wenk that he call Walsh directly; she also asked Wenk not to call again as she had just been discharged from the hospital.\nIn spite of the plaintiffs request, the next week Wenk called the plaintiffs home at 1 a.m. The plaintiff was alone with her children, and she was disquieted by the late hour of the call. She told Wenk not to call again and hung up. After the call the plaintiff was fearful, upset, and unable to sleep. The next week Wenk appeared at the Walsh apartment; Mrs. Walsh invited Boyle upstairs. When asked, Wenk admitted that he had been calling Boyle. The plaintiff told Wenk that he \""had [her] terrified.”\nThen Wenk asked Walsh what he did for a living, and Walsh answered that he \""robbed banks.” In Boyle’s presence, Wenk retorted that he had been \""in prison too for rape.” The police were summoned.\nWhen two police detectives arrived, the police observed that Boyle was crying and agitated. The detectives asked Wenk to identify himself, and Wenk responded, \""I’m a police officer.” When challenged, Wenk admitted he was engaged in private investigative work.\nBoyle, Wenk, the Walshes, and the detectives went to the police station. Boyle was weeping. At the police station she became weak and sick due to hemorrhaging. Blood was observed on Boyle’s chair after she left the station to seek medical assistance.\nBoyle was under a physician’s care for an extended period of time after these events. Boyle also sought the assistance of a psychiatrist. There was ample medical evidence as to Boyle’s injuries, as well as evidence of a causal relationship between Boyle’s emotional condition and the phone calls from Wenk.\nWenk asserts that as a matter of law these facts do not evidence the \""extreme and outrageous” conduct necessary to support a claim for intentional or reckless infliction of emotional distress. See George v. Jordan Marsh Co., 359 Mass. 244, 255 (1971). He emphasizes that recovery is barred unless his conduct was \""beyond all possible bounds of decency,” and \""utterly intolerable in a civilized community.” George, supra at 254-255. Agis v. Howard Johnson Co., 371 Mass. 140, 145 (1976). Restatement (Second) of Torts § 46, Comment d (1965). Further, Wenk claims, hurt feelings resulting from bad manners, or relatively minor annoyances do not justify recovery for intentional or reckless infliction of emotional distress. See George, supra at 253-254. See Restatement (Second) of Torts § 46, Comment d (1965). See generally Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 Harv. L. Rev. 1033, 1053-1064 (1936). We do not quarrel with Wenk’s statement of the applicable principles.\nHowever, in our view, Wenk did engage in a pattern of conduct which a jury could find was extreme and outrageous, exceeding mere insult or minor annoyance. Wenk’s conduct may reasonably be viewed as an attempt to intentionally shock and harm a person’s \""peace of mind” by invading the person’s mental or emotional tranquility.\nThe flaw in Wenk’s argument is that he isolates each individual incident and ignores the fact that the jury are entitled to draw reasonable inferences from the totality of circumstances. See Poirier v. Plymouth, 374 Mass. 206, 212 (1978). Repeated harassment, such as that engaged in by Wenk, may compound the outrageousness of incidents which, taken individually, might not be sufficiently extreme to warrant liability for infliction of emotional distress. See George, supra at 246; Duty v. General Fin. Co., 154 Tex. 16, 18 (1954); Samms v. Eccles, 11 Utah 2d 289, 290 (1961); Prosser, Insult and Outrage, 44 Calif. L. Rev. 40,48-49 (1956). Contrast Public Fin. Corp. v. Davis, 66 Ill. 2d 85, 92-93 (1976).\nSignificantly, Wenk’s conduct continued even after Dolores Boyle, in the first call, had told him not to call again. See George, supra at 245-246; Dawson v. Associates Fin. Servs. Co. of Kansas, Inc., 215 Kan. 814, 817, 825 (1974). The issue whether Wenk’s conduct was extreme and outrageous is raised by his continued harassment of Boyle after he knew that she had just returned from the hospital. Conduct otherwise reasonable may become tortious when directed at an individual known to be particularly susceptible to infliction of emotional distress. Restatement (Second) of Torts § 46, Comment f, Illustrations 9-11 (1965).\nThough there is no evidence that Wenk knew the precise nature of Mrs. Boyle’s physical susceptibility, his knowledge that she had just returned from the hospital put him on notice that she might be more vulnerable to harassment or verbal abuse. See Dawson v. Associates Fin. Servs. Co. of Kansas, Inc., 215 Kan. 814, 825 (1974) (victim with multiple sclerosis); Delta Fin. Co. v. Ganabas, 93 Ga. App. 297, 298-299, 300 (1956) (victim was child aged eleven years). Prosser, 44 Calif. L. Rev. 50. Martin, A Creditor’s Liability for Unreasonable Collection Efforts: The Evolution of a Tort in Texas, 9 S. Tex. L.J. 127, 138-140 (1967). Yet Wenk persisted in intentional conduct which caused Boyle to suffer serious physical and emotional damage. It is for the jury in such instances to decide whether Wenk’s conduct was \""rude and clumsy” or \""extreme and outrageous.”\nWe are mindful of the need for limits on recovery for intentional or reckless infliction of emotional distress: \""No pressing social need requires that every abusive outburst be converted into a tort; upon the contrary, it would be unfortunate if the law closed all the safety valves through which irascible tempers might legally blow off steam.” Magruder, supra at 1053. Moreover, the courts must be particularly wary in this area to avoid fictitious claims. Agis, supra at 143. Hochman, \""Outrageousness” and Privilege in the Law of Emotional Distress — A Suggestion, 47 Cornell L.Q. 61, 63 (1961).\nHowever, where a person engages in intentional conduct which is designed to, and actually does, result in severe emotional and physical damage, the possibility of trivial or fictitious claims does not justify denial of recovery to the victim. Agis, supra at 143-145. State Rubbish Collectors Ass’n v. Siliznoff, 38 Cal. 2d 330, 338-339 (1952). Samms v. Eccles, 11 Utah 2d 289, 291 (1961). W. Prosser, Torts 50-51 (4th ed. 1971). There is an issue for the jury if reasonable people could differ on whether the conduct is \""extreme and outrageous.” Agis, supra at 145-146.\nFinally, Wenk argues that the judge mistakenly believed that \""it was the sole prerogative of the jury” to determine liability in a case alleging infliction of emotional distress. This contention is not supported by the record.\nThe judge did express doubts concerning the sufficiency of the evidence and indicated that he might grant a motion for judgment notwithstanding the verdict if the jury found for Dolores Boyle. The judge’s comments indicate that he carefully scrutinized the evidence before ruling on Wenk’s motions. Ultimately the judge concluded that the evidence was sufficient to permit the jury to consider whether Wenk’s conduct was in fact extreme and outrageous. See Restatement (Second) of Torts § 46, Comment h (1965); Womack v. Eldridge, 215 Va. 338, 342 (1974). We find no error in the judge’s conclusion.\nJudgment affirmed.\nWe transferred Wenk’s appeal to this court from the Appeals Court on our own motion.\nLiberty Mutual Insurance Company hired Consulting Investigators, Inc., who in turn hired Wenk, to investigate John Walsh’s health and capacity for employment. Boyle listed Liberty Mutual as a defendant in her amended complaint, but subsequently voluntarily dismissed that claim.\nBoyle had been discharged from the hospital two days earlier after giving birth to her second child.\nBoyle’s husband was working a night shift.\nWenk is not challenging the sufficiency of the medical evidence.\nDue to Boyle’s physical injuries, this case is analogous to George v. Jordan Marsh Co., 359 Mass. 244, 255 (1971). Cf. Agis v. Howard Johnson Co., 371 Mass. 140,146-147 (1976). Boyle did not allege a cause of action for negligent infliction of emotional distress. See Dziokonski v. Babineau, 375 Mass. 555, 558-562 (1978).\nWe note that the Legislature has labeled unreasonable attempts to collect personal or family debts by communication at an unreasonable hour, or with unreasonable frequency, or by use of offensive language. G. L. c. 93, § 49.\nWenk’s conduct seems to have been more than a spontaneous outburst. His conduct appears to have been a calculated tactic designed to pressure reluctant persons to reveal information useful to his investigation. See Wade, Tort Liability for Abusive and Insulting Language, 4 Vand. L. Rev. 63, 72 (1950).\nIn Agis, we allowed recovery for intentional or reckless infliction of emotional distress, absent resulting physical injury. Where, as with Dolores Boyle, the complained of conduct results in severe physical injury, there may be less likelihood of a fictitious claim. See W. Prosser, Torts at 60 (4th ed. 1971). Prosser, Insult and Outrage, 44 Calif. L. Rev. 40, 53 (1956).\nWenk argues that in a case alleging infliction of emotional distress, a two-step process is required — first the judge must determine whether the conduct may reasonably be viewed as extreme and outrageous, and second, that the jury must determine whether the conduct was in fact extreme and outrageous. This is precisely the test outlined in Restatement (Second) of Torts § 46, Comment h (1965). See Golden v. Dungan, 20 Cal. App. 3d 295, 308 (1971). There is no indication in the record that the judge misunderstood or misapplied this test, which is the same test applied whenever a party to a civil proceeding makes a motion for directed verdict or judgment notwithstanding the verdict."", ""type"": ""majority"", ""author"": ""Abrams, J.""}], ""attorneys"": [""John L. Mason, Jr., for the defendant."", ""Joseph M. Orlando for the plaintiff.""], ""corrections"": """", ""head_matter"": ""Dolores Ann Boyle vs. John H. Wenk.\nSuffolk.\nApril 5, 1979.\nAugust 1, 1979.\nPresent: Hennessey, C.J., Quirico, Kaplan, Liacos, & Abrams, JJ.\nPractice, Civil, Directed verdict. Emotional Distress. Actionable Tort.\nIn an action to recover damages for the intentional or reckless infliction of emotional distress, evidence that the defendant repeatedly harassed the plaintiff after she told him not to call and informed him that she had recently been discharged from a hospital and that, as a result of the defendant’s conduct, the plaintiff suffered emotional and physical damage was sufficient to warrant the denial of the defendant’s motions for a directed verdict and for judgment notwithstanding the verdict. [595-598]\nTort. Writ in the Superior Court dated August 12, 1971.\nThe action was tried before Dimond, J.\nAfter review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.\nJohn L. Mason, Jr., for the defendant.\nJoseph M. Orlando for the plaintiff.\nThe complaint named Dolores Boyle and her husband William as plaintiffs, and Wenk and his employer Martin B. Krebs and Consulting Investigators, Inc., as defendants. William Boyle dismissed his claims against all defendants. Dolores Boyle dismissed her claim against Krebs. The jury returned verdicts for Boyle against both Wenk and Consulting Investigators, Inc., in the amount of $7,500. Consulting Investigators, Inc., did not appeal.""}, ""cites_to"": [{""cite"": ""20 Cal. App. 3d 295"", ""year"": 1971, ""case_ids"": [2347900], ""category"": ""reporters:state"", ""reporter"": ""Cal. App. 3d"", ""pin_cites"": [{""page"": ""308""}], ""case_paths"": [""/cal-app-3d/20/0295-01""], ""opinion_index"": 0}, {""cite"": ""4 Vand. L. Rev. 63"", ""year"": 1950, ""category"": ""journals:journal"", ""reporter"": ""Vand. L. Rev."", ""pin_cites"": [{""page"": ""72""}], ""opinion_index"": 0}, {""cite"": ""375 Mass. 555"", ""year"": 1978, ""case_ids"": [330456], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""558-562""}], ""case_paths"": [""/mass/375/0555-01""], ""opinion_index"": 0}, {""cite"": ""215 Va. 338"", ""year"": 1974, ""case_ids"": [2123160], ""category"": ""reporters:state"", ""reporter"": ""Va."", ""pin_cites"": [{""page"": ""342""}], ""case_paths"": [""/va/215/0338-01""], ""opinion_index"": 0}, {""cite"": ""38 Cal. 2d 330"", ""year"": 1952, ""case_ids"": [4405446], ""category"": ""reporters:state"", ""reporter"": ""Cal. 2d"", ""pin_cites"": [{""page"": ""338-339""}], ""case_paths"": [""/cal-2d/38/0330-01""], ""opinion_index"": 0}, {""cite"": ""44 Calif. L. Rev. 50"", ""category"": ""journals:journal"", ""reporter"": ""Calif. L. Rev."", ""opinion_index"": 0}, {""cite"": ""93 Ga. App. 297"", ""year"": 1956, ""case_ids"": [1572527], ""category"": ""reporters:state"", ""reporter"": ""Ga. App."", ""pin_cites"": [{""page"": ""298-299, 300"", ""parenthetical"": ""victim was child aged eleven years""}], ""case_paths"": [""/ga-app/93/0297-01""], ""opinion_index"": 0}, {""cite"": ""215 Kan. 814"", ""year"": 1974, ""weight"": 2, ""case_ids"": [528182], ""category"": ""reporters:state"", ""reporter"": ""Kan."", ""pin_cites"": [{""page"": ""817, 825""}, {""page"": ""825"", ""parenthetical"": ""victim with multiple sclerosis""}], ""case_paths"": [""/kan/215/0814-01""], ""opinion_index"": 0}, {""cite"": ""66 Ill. 2d 85"", ""year"": 1976, ""case_ids"": [5463121], ""category"": ""reporters:state"", ""reporter"": ""Ill. 2d"", ""pin_cites"": [{""page"": ""92-93""}], ""case_paths"": [""/ill-2d/66/0085-01""], ""opinion_index"": 0}, {""cite"": ""44 Calif. L. Rev. 40"", ""year"": 1956, ""weight"": 2, ""category"": ""journals:journal"", ""reporter"": ""Calif. L. Rev."", ""pin_cites"": [{""page"": ""48-49""}, {""page"": ""53""}], ""opinion_index"": 0}, {""cite"": ""11 Utah 2d 289"", ""year"": 1961, ""weight"": 2, ""case_ids"": [8864302], ""category"": ""reporters:state"", ""reporter"": ""Utah 2d"", ""pin_cites"": [{""page"": ""290""}, {""page"": ""291""}], ""case_paths"": [""/utah-2d/11/0289-01""], ""opinion_index"": 0}, {""cite"": ""154 Tex. 16"", ""year"": 1954, ""case_ids"": [2249237], ""category"": ""reporters:state"", ""reporter"": ""Tex."", ""pin_cites"": [{""page"": ""18""}], ""case_paths"": [""/tex/154/0016-01""], ""opinion_index"": 0}, {""cite"": ""49 Harv. L. Rev. 1033"", ""year"": 1936, ""category"": ""journals:journal"", ""reporter"": ""Harv. L. 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+3638519,"{""id"": 3638519, ""name"": ""MERCANTILE TRUST COMPANY v. HENSEY"", ""court"": {""id"": 9009, ""name"": ""Supreme Court of the United States"", ""name_abbreviation"": ""U.S.""}, ""analysis"": {""sha256"": ""e62ef93b5ae01882aec23f7461a1cd391216a3d8481440638ca500fd2bd6c5f0"", ""simhash"": ""1:b0fbe4490e4ca260"", ""pagerank"": {""raw"": 0.0000015801179254572314, ""percentile"": 0.9924806426938404}, ""char_count"": 24133, ""word_count"": 4130, ""cardinality"": 781, ""ocr_confidence"": 0.606}, ""casebody"": {""judges"": [""Mr. Justice Brewer took no part in the decision of this case.'""], ""parties"": [""MERCANTILE TRUST COMPANY v. HENSEY.""], ""opinions"": [{""text"": ""Mr. Justice Peckham,\nafter making the foregoing statement, delivered the opinion of the court.\nAfter even more than the usual number of pleas, additional pleas, replications, rejoinders and demurrers, which are to be found in the pleadings in this District, the parties came to trial on the issues of fact, and the plaintiff recovered a verdict as stated. The judgment entered 'on the verdict was affirmed by the Court of Appeals. 27 App. D. C. 210.\nThe grounds submitted in this court for the reversal of the judgment are reduced to two, set forth in the brief for the plaintiff in error, as follows:\n“First, that the testimony of all the plaintiff’s witnesses who testified in respect of deficiencies in construction being as to the total damage sustained by the plaintiff as the result of structural defects, defective materials and omissions, and the trial court having ruled that the jury should consider omissions alone, there was no basis upon which the jury could segregate damages caused by defective materials and damages caused by omissions so as to reach a verdict in accordance with the court’s ruling.\n“ Second, that under the building agreement, the architect’s certificate of completion should have been held to be final and conclusive of such completion, there being no evidence of fraud or bad faith on his part.”\nIn regard to this first ground of reversal, the record is at first sight somewhat confused. The plaintiff in error asserts that there was no evidence given segregating the items upon which thé sum total of the damage was arrived at; that the evidence given on the part of the plaintiff, was that the houses were each worth between two and three thousand dollars less on account of the failure of plaintiff in .error to fulfill the conditions of the contract, but that it is impossible to discover from that evidence what amount of the damage was due to omissions, what amount to structural defects and what amount to defective material; and, as the court instructed the jury that in considering the question of structural defects -they were not' at liberty to consider anything but omissions, and were not entitled to consider substitutions of material or modifications of construction made with the approval of the architect under his interpretation of the plans and specifications, there was in reality no evidence before the jury upon which they could have estimated the damages under the instruction given them by the court; that all the witnesses testified simply as to the total diminution in value, as a résult of the three items mentioned-—omissions, structural defects and defective material—while the court charged, agreeably to the twelfth request of the plaintiff in error, that they were at liberty only to consider damages resulting from omissions.\nThe twelfth prayer of the plaintiff in error, which its counsel asserts was granted by the court, is as follows:\n“The jury are instructed that, in considering the question of structural defects, they are not at liberty to consider anything but omissions, if any they find, and are not entitled to consider substitutions of materials or modifications of construction made with the approval of the architect, under his interpretation of the plans and specifications.”\nThere are several answers to the first -ground urged by the plaintiff in' error for á reversal of this judgment.\n(1) It does not appear that there is any basis in the record for the assertion of the plaintiff in error, that there was no evidence given showing the amount of damage sustained from each of the breaches of the contract,' but only a state-, ment of the sum total sustained by reason of all the breaches. The bill of exceptions does not purport to set forth all the evidence given upon the trial of the case. There is a general statement that the plaintiff in error gave evidence by several witnesses that the houses were not completed according to the plans and specifications in the contract, in the particulars set forth in the assignment of breaches, and that the value, by reason of the omissions, structural defect's and defective-materials, was from two to three thousand dollars less on each house than it would have been had they been completed according to the contract, plans and specifications. This is not at all equivalent to saying that there is no evidence except as to the total damage. It is much more probable that on the trial such evidence was given, and that the .s't'atement in the .bill is simply a summary of the total amount of damage, which the evidence showed in detail had been sustained from each particular breach. It does not mean that there was no evidence of the amount of the damage caused from each breach that was proved. It is very improbable that the case was tried in any such manner. The amount of damage on account of each breach.that was proved would most naturally have also been proved as part of the case.\nIt is part of the duty of a plaintiff in error, affirmatively to show that error was committed. It is not to be presumed, and will not be inferred from a doubtful statement in the record. We think in this case the record fails to show the absence of thp evidence as argued by the plaintiff in error.\n(2) If, however, we assume that there was no such evidence in detail and only a conclusion given’ as to the total amount of damage, and if we further assume that the twelfth request of the plaintiff in error was charged by the court, and the right of recovery was thereby limited as stated, it does not appear that the plaintiff in error made any point on the trial of the absence of the evidence of damage in detail, or that the court was asked to direct a verdict for the defendant on account of its absence. If there were no evidence of the amount of damage caused by each particular breach, but only of the total amount sustained, and the plaintiff in error desired to avail itself of that objection to a recovery for the particular damage permitted, counsel should have called the attention of the court to the point, and requested a direction of a verdict for the defendant on that ground. No such request was made, and nothing was said which would show that counsel for the plaintiff in error had any such objection' in mind, and he cannot argue an objection here which was never taken in the trial court.\n(3) In truth the court did not limit the recovery of damages, as is set forth in the above-mentioned twelfth request to charge, but permitted a recovery for the total sum of the various items- proved.\nThe defendant in error insists that the twelfth request, instead of being charged, was in fact refused by the court. We think that in this assertion the defendant in error is perfectly right. Some little confusion at first appears on looking in the record, caused by a mistaken reference to the request which was charged, but. a more careful perusal of all that appears regarding the charge of the court, and the requests and refusals to charge, brings us to the conclusion that there is not the slightest doubt that the court refused the twelfth request, instead of charging it. In such case there was no occasion for segregating .the items of damage proved.\nThis leaves the argument of the plaintiff in error upon the first ground wholly without merit.\nThe other ground taken for a reversal in this case is that the architect’s certificate of July 29, 1901, was conclusive between the parties and was a bar to the maintenance of this action.\nMr. Palmer, in his letter or certificate, reported the completion of the buildings according to his interpretation of the plans and .specifications, and that where deviations had been made from them it was where the same were inconsistent and ambiguous, and in all cases of inconsistency and ambiguity the work had been done according to the interpretation most beneficial to the houses.\nWe do not think this certificate was conclusive, and it did not, therefore, bar the maintenance of this action. The language of the contract, upon which the claim is based, is set out in the foregoing statement, and while it provides that the work shah be completed agreeably to the drawings and specifications made by M. D. Hensey, architect, in a good, workmanlike and substantial manner, to the satisfaction and under the direction of Bates Warren, or the architect placed in charge by him, to be testified by writing or certificate under the hand of Bates Warren, or the architect placed in charge by him, it omits any provision that the certificate shall be final and conclusive between the parties. In other words, the contract provides that before the builder can claim payment at all he must obtain the certificate of the architect; but after such certificate has been given, there is no provision which bars the plaintiff from showing a violation of the contract in material parts, by which he has sustained damage. A contract which provides for the work on a building to be performed in the best manner and the materials of the best quality, subject to the acceptance or rejection of an architect, all to be done in strict accordance with the plans and specifications; does not make the acceptance by the architect final and conclusive, and will not bind the owner or relieve the contractor from the agreement to perform according to plans and specifications. Glacius v. Black, 50 N. Y. 145; Fontano v. Robbins, 22 App. D. C. 253.\nThere is also in the contract the provision already mentioned in the statement of facts in regard to payments as the work progressed, which showed that a certificate was to be obtained from and signed by the architect in charge, before the contractor was entitled to payment, but it was provided that the certificate should “in no way lessen the total and final responsibility of the contractor; neither shall it exempt the contractor from liability to replace work, if it be after-wards discovered to have been done ill, or not according to the drawings and specifications either in execution or materials.” There is the further positive agreement of the contractor to execute and complete all the work as set forth in the specifications in the best and most workmanlike manner, and also that final payment is to be made only when the houses are completed in accordance with the agreement and the plans and specifications prepared therefor.\nThe whole contract shows, in our opinion, that the certificate that the houses had been completed according to the contract and its plans and specifications was not to be conclusive of the question, and the plaintiff was' not thereby precluded from showing that in fact the contractor had not complied with his contract, and the plaintiff had thereby sustained damage. The cases cited in the opinion of the court below, Fontana v. Robbins, 22 App. D. C. 253; Bond v. Newark, 19 N. J. Eq. 576; Memphis &c. R. R. Co. v. Wilcox, 48 Pa. St. 161; Adlard v. Muldoon, 45 Illinois, 193, are in substance to this effect. To make such a certificate conclusive requires plain language in the contract. It is not to be implied. Central Trust Co. v. Louisville &c. R. R. Co., 70 Fed. Rep. 282, 284. The cases of Sweeney v. United States, 109 U. S. 618; Martinsburg &c. Railroad Co. v. March, 114 U. S. 549; Chicago &c. Railroad Co. v. Price, 138 U. S. 185; Sheffield &c. R. R. Co. v. Gordon, 151 U. S. 285, were all cases in which the contract itself provided that the certificate should be final and conclusive between the parties.\nThe only case in which the certificate of the- architect or his decision was by the contract made final was in case of doubt as to the meaning of drawings, in which case reference was to be made to the architect in charge, whose decision was to be final.\nBoth grounds urged by the plaintiff in error in this court for reversal of the judgment are untenable, and it must therefore be\nAffirmed.\nMr. Justice Brewer took no part in the decision of this case.'"", ""type"": ""majority"", ""author"": ""Mr. Justice Peckham,""}], ""attorneys"": [""Mr. Hayden Johnson and Mr. John Ridout, for plaintiff , in error, submitted:"", ""Mr. Arthur A. Bimey¡and Mr. Henry F. Woodard, for defendant in error, submitted:""], ""corrections"": """", ""head_matter"": ""MERCANTILE TRUST COMPANY v. HENSEY.\nERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.\nNo. 245.\nSubmitted March 15, 1907.\nDecided April 8, 1907.\nIt is for the plaintiff in error to show affirmatively that error was committed, it is not to be presumed and will not be inferred from a doubtful statement in the record.\nWhere there is no evidence of the amount of damage caused by each particular breach but only of the total amount sustained, the attention of the trial court should have been called to the plaintiff’s objection to a recovery of particular damage permitted, and a request made foy direction of verdict,- and in the absence thereof the objection cannot be argued here.\nAlthough Under a building contract the builder, to be entitled to payment, must- first obtain the certificate of the architect, in the absence of a provision-in plain language to that effect, the certificate is not conclusive ■ as to. the amount due nor a bar to the owner, showing a violation of the contract, in material parts, by .which he has sustained damage.\n27 App.- D- C. 210, affirmed..\n■The Mercantile Trust Company, by this-writ of error, seeks to review a judgment of the Court of Appeals of the District of Columbia, affirming, a judgment against it of the Supreme Court of the District for the sum of $8,468. The action was brought upon a bond for fifty- thousand dollars, executed January 24, 1900, by the company as surety for one Jones, for 'the performance by him of a written contract entered into on the--same date between him and the defendant in. error, who was thé plaintiff below, relative to the completion by Jones for the. defendant in error of certain houses already in process of construction0 in the city of Washington. The condition of the bond was, in substance, that if the principal, Jones, should duly and faithfully perform and fulfill all the conditions of the contract entered into between him and the defendant--in error the bond was to be void, otherwise to remain in force.\nThe contract provided that Jones, for the\"" consideration ■mentioned therein, would within seven months from the date thereof well and sufficiently erect and replace all. defective work and finish the twenty-one brick dwelling houses mentioned “ agreeably to the drawings and specifications made by Melville D. Hensey, architect, and which plans'and specifications are signed by the said parties hereto and hereunto annexed within the time aforesaid in a good, workmanlike and substantial manner, to the satisfaction and under the direction of Bates Warren, or the architect placed in charge by him, to be testified by writing or certificate under the hand of Bates • Warren, or the architect placed in charge by him, and also shall and will find and provide such good; proper and sufficient material of all kinds whatsoever as shall be proper and sufficient for the completing and finishing all of said twenty-one houses and .other works of the said buildings mentioned in the said specifications for the sum of eighty-nine thousand two hundred and fifty dollars, to be paid as set out in the, schedule of payments hereto annexed and signed by the parties hereto and made a part hereof.” Hensey, “in consideration ' of the covenants and agreements being strictly performed and kept by the said party of the second part as specified,” agreed to pay the contractor the above-named sum “as the work progresses in the manner and at the time set out in the schedule of payments hereto annexed and signed by the parties hereto and made a part of this agreement; provided that in each of the said cases a certificate shall be obtained from and signed by the architect in charge .that the contractor is entitled to payment, said certificate, however, in no way lessening the total and final responsibility of the contractor; neither shall it exempt the contractor from liability to replace work if it be afterwards discovered to'have been ill done or not according to the drawings and specifications either in execution or materials; and, further, that the party of the second part shall furnish, if required, satisfactory evidence that no lien does or can exist upon the work.”' The last payment provided for in the contract was to be made, “ when the houses are fully completed in accordance with the said agreement and the plans and specifications prepared therefor.”\nAll the materials were to be new and of the best quality, and the contractor was to “execute and complete all the work as set forth in the specifications and drawings in the best and most workmanlike manner.” It was agreed that “ in all cases of doubt as to the meaning of the drawings reference is to be made to the architect in charge, whose decision will be final.”\nAlthough this contract was entered into in January, 1900, and under it the houses were to be completed in seven months, yet, for some reason, Bates Warren, the person named in the contract, did not appoint an architect until April, 1901, when he appointed Mr. W. J. Palmer. The evidence given on the part of the plaintiff tended to prove that the contractor, Jone§, abandoned the work on the houses early in the fall of 1900, leaving them uncompleted, and the work was otherwise carried on during the following winter, but that there was no architect in charge until Mr. Palmer's appointment. From that time Mr. Palmer seems to have in some degree superintended the work, and on the twenty-ninth of July, 1901, reported in writing to Mr. Warren the completion of the houses in question. In his letter Mr. Palmer said: “The work has been done according to my interpretation of the plans and specifications, and where deviations have been made from the plans and specifications it has been where the same were inconsistent and ambiguous, and in all cases of inconsistency and ambiguity the work has been done according to the interpretation most beneficial to the houses.”\nThis action ’ was subsequently commenced for the purpose of recovering the damages which the plaintiff Hensey alleged he had sustained by reason of the failure of Jones to fulfill and carry out the contract. Issue being duly joined between the parties, the plaintiff gave evidence tending to prove that the houses were not completed within the contract time, nor according to the plans and specifications in the particulars stated, and that the value of the houses was between two and three thousand dollars less on each house than it would have been had they been completed according to the contract, plans and specifications. The defendant duly objected to such evidence and took exceptions to its admission.\nA verdict was rendered in favor of the plaintiff in the sum of $8,468, after allowing the defendant’s claim of set-off of $29,032.\nMr. Hayden Johnson and Mr. John Ridout, for plaintiff , in error, submitted:\nThe testimony of all the. plaintiff’s witnesses who testified in respect of deficiencies in construction being as to the total, damage sustained by the plaintiff, as the result of structural defects, defective materials and omissions, and the trial court having ruled' that the jury should consider omissions , alone, there was no basis upon which the jury could segregate damages caused by defective materials and damages caused by omissions so as to reach a verdict in accordance with the court’s rulings.\nAll the witnesses who were produced by the plaintiff testified, in proof of the damage sustained by the plaintiff, that the difference in the value of the houses by reason of the omissions, structural defects and defective materials was\"" from $2,000 to $3,000 less on each house than it would have been had they been completed according to the witness’s interpretation of the contract, plans and specifications. No witness was interrogated in respect of the difference in. the value of the houses by reason of omissions alone. No witness undertook to segregate the items assigned as breaches, and give the damage arising from each alleged defect.\n, Under the rulings of the court, therefore, the case was submitted to the jury for them to assess .damages only for omissions, if any they should find, and they were expressly instructed not to assess damages for. substitutions of material or modification of construction made with the approval of the architect under his interpretation of the plans and specifications. This necessarily requires, in view of the testimony of the architect, that what “substitutions of material and modifications of construction were made with his approval and according to his interpretation of the plans and specifications, that the jury segregate the damage arising from omissions from the damages resulting from substitutions of material and modifications of construction. Unless from the testimony they can do this, the charge given them in the twelfth prayer, and its explanation by the court, becomes idle and useless. And yet all the testimony in the case, as far as the money estimate for damage is concerned, lumps omission, structural defects and defective materials, and furnishes no basis whatever upon which they can be segregated. Even though all of the substitution of materials and modifications of construction were not made with the consent of the architect, it is conceded that some of them were, so this segregation is none the less essential in giving the jury a basis upon which to assess damages.\nUnder the building agreement, the architect’s certificate of completion should have been held to be final and conclusive of such completion, there being no evidence of fraud or bad .faith on his part.\nTaking into consideration that there is not one word in the record from which fraud or bad faith on' the part of either Warren or Palmer could be inferred, it is believed that they, having been made the arbitrators by Hensey as to the .proper construction of the work, and the Trust Company having acted under their directions, their decision is final and binding upon Hensey.\nThe law upon' the'subject is entirely settled. Boettler v. Tendick, 73 Texas, 494; Crane Elevator Co. v. Clark, 80 Fed. Rep. 705; Railway Co. v. Gordon, 151 U. S. 285; Railroad Co. v. Price, 138 U. S. 188; Sweeney v. United States, 109 U. S. 618.\nMr. Arthur A. Bimey¡and Mr. Henry F. Woodard, for defendant in error, submitted:\nWhile it is competent for parties to agree that the certificate of an engineer, architect or other person shall be final and conclusive, and that in such case, and “in the absence of fraud, or such gross mistake'as to necessarily imply bad faith, or failure to exercise an honest judgment, the action of the architect would be final,” this attribute of finality attaches only where the parties have so agreed, either in terms or by' necessary implication, is clear from the decisions.\nCases of such express agreement for conclusiveness which are cited by the other side, are Boettler v. Tendick, 5 L. R. A. 270; Sweeney v. United States, 109 U. S. 618; Railroad Co. v. March, 114 U. S. 549; Railroad Co. v. Price, 138 U. S. 185; Sheffield R. R. Co. v. Gordon, 151 U. S. 287; while Kihlberg v. United States, 97 U. S. 400, is a case of necessary implication,, treated by the court as an express agreement.\nThese cases and others are reviewed in Central Trust Co. v. Louisville &c. Ry. Co., 70 Fed. Rep. 282, where, after pointing out that the provision for finality is found in the contracts in those cases where the certificate was held conclusive, the court says that the court should not imply such an agreement but should require clear and express language, because it is contracting away the right of the party to appeal to the courts of justice in case of a controversy.\nBut however it may be in other cases where the architect, agent of the owner, accepts' and certifies work as doné according to the contract, in this case the certificate, cannot bind, because the right of the owner, 'notwithstanding a certificate, to claim for bad work and inferior materials is expressly reserved to him; and the certificate is so clearly wrong as to prove either fraud or such mistake by the architect as. necessarily to imply bad faith, and for this reason is not binding. Kihlberg v. United States, 97 U. S. 402.""}, ""cites_to"": [{""cite"": ""97 U. S. 402"", ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""opinion_index"": -1}, {""cite"": ""70 Fed. Rep. 282"", ""case_ids"": [6721156], ""category"": ""reporters:federal"", ""reporter"": ""F."", ""case_paths"": [""/f/70/0282-01""], ""opinion_index"": -1}, {""cite"": ""97 U. S. 400"", ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""opinion_index"": -1}, {""cite"": ""151 U. S. 287"", ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""opinion_index"": -1}, {""cite"": ""138 U. S. 185"", ""case_ids"": [3550227], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/138/0185-01""], ""opinion_index"": -1}, {""cite"": ""114 U. S. 549"", ""case_ids"": [11295172], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/114/0549-01""], ""opinion_index"": -1}, {""cite"": ""5 L. R. A. 270"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A."", ""opinion_index"": -1}, {""cite"": ""109 U. S. 618"", ""weight"": 2, ""case_ids"": [8194], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/109/0618-01""], ""opinion_index"": -1}, {""cite"": ""138 U. S. 188"", ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""opinion_index"": -1}, {""cite"": ""151 U. S. 285"", ""case_ids"": [8298733], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/151/0285-01""], ""opinion_index"": -1}, {""cite"": ""80 Fed. Rep. 705"", ""case_ids"": [1640571], ""category"": ""reporters:federal"", ""reporter"": ""F."", ""case_paths"": [""/f/80/0705-01""], ""opinion_index"": -1}, {""cite"": ""27 App.- D- C. 210"", ""case_ids"": [1337279], ""category"": ""reporters:state"", ""reporter"": ""App. D.C."", ""case_paths"": [""/app-dc/27/0210-01""], ""opinion_index"": -1}, {""cite"": ""48 Pa. St. 161"", ""case_ids"": [422194], ""category"": ""reporters:state"", ""reporter"": ""Pa."", ""case_paths"": [""/pa/48/0161-01""], ""opinion_index"": 0}, {""cite"": ""19 N. J. Eq. 576"", ""category"": ""reporters:state"", ""reporter"": ""N.J. Eq."", ""opinion_index"": 0}, {""cite"": ""22 App. D. C. 253"", ""weight"": 2, ""case_ids"": [1344665], ""category"": ""reporters:state"", ""reporter"": ""App. D.C."", ""case_paths"": [""/app-dc/22/0253-01""], ""opinion_index"": 0}, {""cite"": ""50 N. Y. 145"", ""case_ids"": [2059699], ""category"": ""reporters:state"", ""reporter"": ""N.Y."", ""case_paths"": [""/ny/50/0145-01""], ""opinion_index"": 0}, {""cite"": ""70 Fed. Rep. 282"", ""case_ids"": [6721156], ""category"": ""reporters:federal"", ""reporter"": ""F."", ""pin_cites"": [{""page"": ""284""}], ""case_paths"": [""/f/70/0282-01""], ""opinion_index"": 0}, {""cite"": ""138 U. 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+3667625,"{""id"": 3667625, ""name"": ""ETTOR v. CITY OF TACOMA; HOWARD v. SAME"", ""court"": {""id"": 9009, ""name"": ""Supreme Court of the United States"", ""name_abbreviation"": ""U.S.""}, ""analysis"": {""sha256"": ""bf40a1be6ef7f4083ee683a50565ffd29dbf79bb914d011c43259a5ed373fde3"", ""simhash"": ""1:2803133a124cc2f6"", ""pagerank"": {""raw"": 0.0000008822162024608487, ""percentile"": 0.9779989103611832}, ""char_count"": 18926, ""word_count"": 3274, ""cardinality"": 788, ""ocr_confidence"": 0.569}, ""casebody"": {""judges"": [], ""parties"": [""ETTOR v. CITY OF TACOMA. HOWARD v. SAME.""], ""opinions"": [{""text"": ""Mr. Justice Lurton\ndelivered the opinion of the court.\nThese were actions to recover for damage inflicted upon abutting property in consequence of an original street grading done by the railroad company under authority and direction of the city of Tacoma.\nAt the time the grading was done there was in force an act of the Washington legislature which required the city to make compensation for cóñsequential damages due to an original street grading. Pending these suits and while théy were actually being heard, the provision of the act referred to which expressly required the city to provide for or make compensation for all such damage, was amended’so as to provide that the act should not apply to the original grading of any street. Laws of Washington, 1907, c. 153, p. 316, and Laws of 1909, c. 80, p. 151. When the attention of the trial court was called to this repealing act, it directed a verdict for the city upon the theory that the right of action was statutory and fell with the statute, there being no saving clause. This judgment, upon the same ground, was affirmed by the Supreme Court of the State.\nFor the plaintiffs in error the contention shortly stated is, that the act of 1907 was the sole legislative authority of the city for making the cuts and .fills in front of their premises upon the public street, and that that act expressly required the city to make provision for compensating an owner so damaged; and that their right to such compensation having accrued while the act was in force cannot be destroyed by subsequent legislation without a violation of the rights guaranteed by the Fourteenth Amendment.\nIn the absence of legislation requiring compensation for such damage the general rule of law is that a municipality in making, grading and improving streets is the agent of the State, exercising in the performance of such work a governmental power, and is not liable for consequential injuries to property abutting, if it keep within the street and use reasonable care and skill in doing the work. 4 Dillon Municipal Corporations, 5th ed., §§ 1674, 1677; Smith v. Corporation of Washington, 20 How. 135; Transportation Co. v. Chicago, 99 U. S. 635, 641; Humes v. Knoxville, 1 Humph. (Tenn.) 403. This was the general law as announced by the Supreme Court of Washington in its first opinion in the case of Fletcher v. City of Seattle 43 Washington, 627, and is the general law of the State as announced by the court’s opinion in the instant case. Where the benefits equalled the injury, there was, of course, no injustice in the application of the general rule. But where the damage exceeded the benefits there was an apparent injustice in casting upon such an owner an undue share of the cost of an improvement for the public benefit. This was. recognized in Transportation Co. v. Chicago, supra, where municipal non-liability was said to be due to the fact that in improving its highways the municipality was but the agent of the State, and that as the State could not be sued, its agents were equally immune for improvements authorized by the law of the State, without the consent of the State. But this equity which exists when the benefits are less than the damage affords a strong foundation for legislation requiring compensation in such circumstances. This consideration doubtless led to the legislation of the State requiring compensation for such damage, under which the rights of the plaintiffs in error are asserted.\nWhatever may have been the authority of the City of Tacoma under its- charter or the general law of the State to take or damage property for the purpose of opening, making, improving or grading its public streets, and its immunity from liability for consequential damages in making an original grading, prior to the legislation found in the two acts of 1893 and 1907, Laws of Washington, 1893, c. 84, p. 189, and. Laws of 1907, p. 316, it is plain that the acts in question cover the whole subject of its authority and its liability for taking private property or “damaging” it, in either making, grading or regrading its public streets. The two acts referred to are identical in every essential. The latter is a mere reenactment of the first, by which its provisions are extended to a larger class of municipal corporations.\nThe act of 1893 was construed and applied by the Supreme Court of the State in Fletcher v. Seattle, 43 Washington, 627. The action was by the owner of premises which had sustained damage while the act was in forcé, in consequence of an original grading. He recovered a judgment, which, upon a first hearing, was reversed by the Supreme Court, that court holding that consequential damages arising from an original grading when the work had been done with due care, was neither a taking nor a damaging of private property within the meaning of the constitution of the State requiring compensation for taking or damaging private property for public purposes; Bqt, upon a rehearing, the attention of the court was for the first time called to the act of 1893, and the contention advanced that the only authority of the city to take or damage the property of the plaintiff for the purpose of grading the street was under that act, and that, by its terms, the city was required to make compensation for darnage arising from an original grading. The construction of that act upon facts like those in the present case was thereby directly involved. It was urged that the forty-seventh section did not require compensation for consequential damages, but in answer to this, the court said (p. 633):\n“We think the word ‘damages’ used in the section (the 47th) has the same significance and meaning that it has in other sections of the same act, and that it was used in its broad sense and includes consequential damages. We see no reason why this provision of the law should be segregated from the other provisions, and a different Construction placed upon it, or why the provisions of the act in relation to the assessment of the damages should not apply to it as it does to the other sections, and if it does the right of compensation is equally granted.\n“It was said that the title of the act shows that it is legislation concerning the exercise of the right of eminent domain, but we think the title is sufficient to cover the section objected to equally as well as the other sections in the act, and it was evidently the intention of the legislature to pass an act covering the whole subject of opening streets, and of providing methods of making compensation for damages where damages followed. The title not only provides for the exercise of the right of eminent domain, but, also, the taking and damaging of land and property for public purposes, and section 1 of the act empowers the city to condemn and also empowers it to damage any land or other property for the purpose of opening streets. Section 2 says, when the corporation authorities of any such city shall desire to condemn land or other property or damage the same for any purpose authorized by this act such city shall provide, etc. In this case the city had the power to damage respondents’ land, and it was found that it did damage it and it damaged it in a way that it was authorized by § 47 of this act; namely, by establishing a grade on the street upon which their property abutted. And this idea is manifested' throughout the act. That the section does not contemplate such damages as are caused by an encroachment or actual trespass upon the lands of the owner, as is suggested by the appellant, is manifest from the language of the section itself which evidently contemplates that the work will be upon the street and not upon the abutting property.\n“Wé are unable to find any more ambiguity in this section than in any other provision of the act, and under its provisions the plaintiffs are entitled to such damages as they can show they have suffered. The question of public policy and expense to the city-are questions which are purely legislative.”\nThe judgment of the lower court was thereupon affirmed.\nThe opinion so construing the act of 1893 was filed in September, 1906. In March, 1907, the act of 1893, then in force, was extended to a larger class of cities and reenacted, without any change in any material respect, the first, second and forty-seventh sections being reenacted, the forty-seventh section becoming in the later act § 48. While this act of 1907 was in force, the city directed the grading in question and made or caused the railroad company to make cuts and fills in the street in front of the premises of the plaintiffs in error which resulted in large injury to their property. The city did not provide for compensation for the damage so done by any special assessment upon the property benefited. This brought into effect the . provision of the second section requiring the payment of such damage to be made out of the general funds of the city. Payment not having been made as required, the plaintiffs in error brought these actions to recover compensation.\nThe defense of the city that it was but the agent of the State in improving the highways of the city, and therefore immune, because the State was immune, vanishes in the face, of the fact that the State had absolutely coupled authority in the matter with an obligation to make compensation. The city had no authority save that which came from the very act which imposed an obligation. It would seem to need no argument to establish the contention that the obligation to make compensation to these plaintiffs in error could not be destroyed by subsequent legislation.\nNeither of the acts provided any remedy for the enforcement of the obligation to make compensation. Both provided that the city might by ordinance arrange for the ascertainment of the damages, and for their collection by special assessment on the property benefited, or within a special assessment district. But the plain requirement of the first and second sections of both acts is that if the city does not so provide for special assessments, that it should make the compensation out of its general treasury. The repealing clause of the act of 1909 does not touch the general features of the law beyond the provision, that the forty-eighth section of the act, which extended the obligation of compensation to original gradings, should not apply to damage arising from such gradings. It is a mistake to say that the act of 1907 gave a remedy where none existed before. What it did was to impose an obligation to compensate abutters injured by an original grading, an obligation which, however meritorious, had no sanction in positive law. The remedy, if the city disregarded the obligation, was that afforded by the common law for the breach of any valid contractual or statutory duty. That was the remedy which was enforced by the Washington court in Fletcher v. City of Seattle, supra.\nStatutes concerning remedies are such as relate to the course and mode of procedure to enforce or defend a substantive right. Matters which belong to the remedy are subject to change and alteration, and even repeal, provided the legislation does not operate to impair a contract or deprive one of a vested property right. If the changing or repealing statute leaves the parties a substantial remedy, the legislature does not exceed its authority. Rights and remedies shade one into the other so that it is sometimes difficult to say that a particular act creates a right or merely gives a remedy. So also a statute, under the form of taking away or changing a particular remedy, may take away an existing property right, or impair; the obligation of a contract. That the state court has.treated the act of 1907 as merely giving a remedy where none existed before, and the act of 1909 as merely repealing the remedy so given, is plain.\nThe court below gave a retrospective effect tó the amendatory and repealing act by holding that the effect of the repeal was to destroy the right to compensation which had accrued while the act was in force. The obligation of the city was fixed- The plaintiffs in error had a claim which the city was as much under obligation to pay as for the labor employed to do the grading. It was a claim assignable and enforceable by a common-law action for a breach of the statutory obligation.\nThe necessary effect of the repealing act, as construed and applied by the court below, was to deprive the plaintiffs in error of any remedy to enforce the fixed liability of the city to make compensation. This was tc deprive the plaintiffs in error of a right which had vested before the repealing act, a right which was in every sense a property right. Nothing remained to be done to complete the plaintiffs’ right to compensation except the ascertainment of the amount of damage to their property. The right of the plaintiffs in error was fixed by the law in force when their property was damaged for public purposes, and the right so vested cannot be defeated by subsequent legislation. City of Elgin v. Eaton, 83 Illinois, 535; Healey v. City of New Haven, 49 Connecticut, 394; Harrington v. Berkshire, 22 Pick. (Mass.) 263; People v. Supervisors, 4 Barb. (N. Y.) 64, are cases arising under street or highway statutes. The principle has been applied in reference to rights accruing under a variety of statutes when affected by a subsequent change of the law: Steamship Company v. Joliffe, 2 Wall. 450; Miller v. Union Mills, 45 Washington, 199; Grey v. Mobile Trade Co., 55 Alabama, 387; Stephens v. Marshall, 3 Pinney (Wis.), 203; Gorman v. McArdle, 74 S. C. Rep. (N. Y.) 484; Westervelt v. Gregg, 12 N. Y. 202; Creighton v. Pragg, 21 California, 115; State Trust Company v. Railroad Company, 115 Fed. Rep. 367.\nCertain cases have been cited in support of the action of the state court, among them Yeaton v. United States, 5 Cranch, 281. But that was a case of a forfeiture to the United States. The repeal of the statute was held to end the proceeding, although a sentence had been pronounced and was pending upon appeal when the act under which it had been entered was repealed. No private right had vested, and the Government could abandon its own proceeding if it saw fit at any stage. Another case cited is Salt Company v. East Saginaw, 13 Wall. 373. For the purpose of encouraging the manufacture of salt the State of Michigan, by a general, statute addressed to no particular person or corporation, offered a bounty upon salt produced and exempted from taxation the property engaged in the business. After a time the act was repealed. The claim was that the exemption constituted a contract, and that it could not be repealed without impairing the obligation of the contract. But this court said that the exemption did hot constitute a contract and was nothing more nor less thah a law dictated by public policy for the encouragement of an industry. So long as the law was in force the State promised the exemption and bounty, but there was no pledge that it should not be repealed at any time. In Wisconsin & Michigan Ry. v. Powers, 191 U. S. 379, 385, 387, the case was said to point out the distinction between “an exemption in a special charter and general encouragement to all persons to engage in a certain enterprise,” and the same principle was applied to an act which provided an exemption to any corporation building a line of railroad north of certain lines of latitude. The court held that it was addressed to no one in particular and constituted a mere announcement of policy not constituting a contract, and was therefore subject to repeal at any time. The case of Louisiana v. New Orleans, 109 U. S. 285, has been cited. That case merely held that a judgment against the city under a statute for damage to private property inflicted by a mob did not constitute a contract, the obligation of which had been impaired by the repeal of a statute under which the city might have been compelled to levy a special tax for its- satisfaction. The case turned upon the distinction between liability for a tort and liability under a contract.\nIn the instant case the action is neither for a tort, nor for a penalty, nor for a forfeiture, but for injury to property actually accomplished before the repeal of the law under which the street was graded which required compensation to be made. The right to-compensation was. a vested property right.\nThe judgments must be reversed and the cases remanded for further proceedings not inconsistent with this opinion."", ""type"": ""majority"", ""author"": ""Mr. Justice Lurton""}], ""attorneys"": [""Mr. Stanton Warburton, with whom Mr. John M. Boyle, Mr. E. B. Brockway and Mr. C. M. Boyle were on the brief, for plaintiffs in error."", ""Mr. Heman H. Field, with whom Mr. George W. Korte and Mr. T. L. Stiles were on the brief, for defendant in error.""], ""corrections"": """", ""head_matter"": ""ETTOR v. CITY OF TACOMA. HOWARD v. SAME.\nERROR TO THE SUPREME COURT OP THE STATE OP. WASHINGTON.\nNos. 68, 69.\nArgued December 6, 1912.\nDecided April 7, 1913.\nIn the absence of legislation requiring compensation to be made for damages to abutting owners by change of grade of street, the municipality, being an agent of the State and exercising a governmental power, is not liable for consequential injuries provided it keep within the street and use reasonable care and skill in doing the work.\nUnder the statutes of the State of Washington as construed by the courts of that State this general rule was superseded by legislation which required municipalities to compensate for consequential damages.\nA municipality cannot defend a suit for consequential damages on the ground that as the agent of the State it is immune, when its only authority to act is that given by the State coupled- with an obligation to make compensation.\nA state statute giving compensation for consequential damages caused by change of grades of streets does not merely provide a remedy but creates a property right; to repeal such a statute so as to affect rights actually obtained thereunder is a deprivation of property without due process of law as guaranteed by the Fourteenth Amendment.\nThe statute of Washington repealing the former statute which gave a right to consequential damages from change of grade, as construed by the state courts as destroying rights to compensation which had accrued while the earlier act was in effect, amounts to a deprivation of property without due process of law.\nWhere no private rights have vested, a statute giving benefits under certain conditions may be repealed without violating the contract or due process provisions of the Federal Constitution, but the case is different when the right to compensation has actually accrued. Salt Co. v. East Saginaw, 13 Wall. 373, and Wisconsin ábe. Bailway v. Powers, 191 U. S. 375, distinguished.\n57 Washington, 50, 698 reversed.\nThe facts, which involve the constitutionality under the Fourteenth Amendment of a statute of Washington in regard to damages for changing grade of streets, are stated in the opinion.\nMr. Stanton Warburton, with whom Mr. John M. Boyle, Mr. E. B. Brockway and Mr. C. M. Boyle were on the brief, for plaintiffs in error.\nMr. Heman H. Field, with whom Mr. George W. Korte and Mr. T. L. Stiles were on the brief, for defendant in error.""}, ""cites_to"": [{""cite"": ""191 U. S. 375"", ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""opinion_index"": -1}, {""cite"": ""13 Wall. 373"", ""case_ids"": [1134217], ""category"": ""reporters:scotus_early"", ""reporter"": ""Wall."", ""case_paths"": [""/us/80/0373-01""], ""opinion_index"": -1}, {""cite"": ""109 U. S. 285"", ""case_ids"": [8168], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/109/0285-01""], ""opinion_index"": 0}, {""cite"": ""191 U. S. 379"", ""case_ids"": [3621056], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""page"": ""385, 387""}], ""case_paths"": [""/us/191/0379-01""], ""opinion_index"": 0}, {""cite"": ""5 Cranch, 281"", ""case_ids"": [1446260], ""category"": ""reporters:scotus_early"", ""reporter"": ""Cranch,"", ""case_paths"": [""/us/9/0281-01""], ""opinion_index"": 0}, {""cite"": ""115 Fed. Rep. 367"", ""case_ids"": [3706355], ""category"": ""reporters:federal"", ""reporter"": ""F."", ""case_paths"": [""/f/115/0367-01""], ""opinion_index"": 0}, {""cite"": ""12 N. Y. 202"", ""case_ids"": [2016205], ""category"": ""reporters:state"", ""reporter"": ""N.Y."", ""case_paths"": [""/ny/12/0202-01""], ""opinion_index"": 0}, {""cite"": ""2 Wall. 450"", ""case_ids"": [8300249], ""category"": ""reporters:scotus_early"", ""reporter"": ""Wall."", ""case_paths"": [""/us/69/0450-01""], ""opinion_index"": 0}, {""cite"": ""22 Pick. (Mass.) 263"", ""case_ids"": [2045826], ""category"": ""reporters:state"", ""reporter"": ""Pick."", ""case_paths"": [""/mass/39/0263-01""], ""opinion_index"": 0}, {""cite"": ""99 U. S. 635"", ""weight"": 2, ""case_ids"": [3373676], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""page"": ""641""}], ""case_paths"": [""/us/99/0635-01""], ""opinion_index"": 0}, {""cite"": ""20 How. 135"", ""case_ids"": [5680677], ""category"": ""reporters:scotus_early"", ""reporter"": ""How."", ""case_paths"": [""/us/61/0135-01""], ""opinion_index"": 0}, {""cite"": ""13 Wall. 373"", ""case_ids"": [1134217], ""category"": ""reporters:scotus_early"", ""reporter"": ""Wall."", ""case_paths"": [""/us/80/0373-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""228 U.S. 148"", ""type"": ""official""}, {""cite"": ""57 L. Ed. 773"", ""type"": ""parallel""}, {""cite"": ""33 S. Ct. 428"", ""type"": ""parallel""}, {""cite"": ""1913 U.S. LEXIS 2359"", ""type"": ""vendor""}, {""cite"": ""SCDB 1912-150"", ""type"": ""vendor""}], ""file_name"": ""0148-01"", ""last_page"": ""158"", ""first_page"": ""148"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 39, ""name"": ""U.S."", ""name_long"": ""United States""}, ""last_updated"": ""2024-02-27T17:34:29.308720+00:00"", ""decision_date"": ""1913-04-07"", ""docket_number"": ""Nos. 68, 69"", ""last_page_order"": 192, ""first_page_order"": 182, ""name_abbreviation"": ""Ettor v. 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+369481,"{""id"": 369481, ""name"": ""Citation Insurance Company vs. Brenda Gomez & others; ISU Anderson and Baker Insurance Services, Inc., third-party defendant"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""1ba58ce88e8dfa3dd7ef3db4429ebee287268b9f31ffd6217df0d61373136b90"", ""simhash"": ""1:1957cb710c9d3bcf"", ""pagerank"": {""raw"": 0.0000013968606659781795, ""percentile"": 0.9906498409752846}, ""char_count"": 8273, ""word_count"": 1354, ""cardinality"": 500, ""ocr_confidence"": 0.882}, ""casebody"": {""judges"": [], ""parties"": [""Citation Insurance Company vs. Brenda Gomez & others; ISU Anderson and Baker Insurance Services, Inc., third-party defendant.""], ""opinions"": [{""text"": ""Abrams, J.\nThe plaintiff, Citation Insurance Company (Citation), filed a complaint in the Superior Court seeking a declaration that it has no duty to defend and indemnify its insureds, the defendants Brenda and Roger Gomez, for losses asserted by a minor who was injured while playing on an abandoned structure on the Gomezes’ land. See G. L. c. 231 A. On cross motions for summary judgment the Superior Court judge allowed the Gomezes’ motion for summary judgment and denied Citation’s cross motion, declaring that the insurance policy was ambiguous and therefore must be construed against Citation, the insurer. We allowed Citation’s application for direct appellate review. We conclude that the Gomez land was not vacant and therefore the policy does not cover the subject property. We reverse.\nThe facts are not in dispute. Brenda Gomez has owned the subject property, consisting of about 175,000 square feet of land in Swampscott, since her mother’s death in 1992. At one time, Brenda Gomez’s father built on the property a small concrete bunker with a radio tower for use in his trucking business. The area of the bunker is about one hundred square feet. The property, including the bunker and tower, had been abandoned and unused since the late 1960s.\nIn March, 1995, a minor was injured while playing on the subject property. She put her left index finger through a padlock hole on the door to the bunker. Her friend suddenly pushed the door open, severing the finger. Through her father, she sued the friend and Brenda and Roger Gomez in the Superior Court in Essex County. That lawsuit is still pending. Citation has been defending the Gomezes under a reservation of rights.\nThe Gomezes hold a homeowner’s policy, issued by Citation, for the period from October 16, 1994, through October 16, 1995. That policy provides liability coverage for injuries arising out of an “[ijnsured location,” which is defined in the policy to include, among other things not relevant here, “[vjacant land, other than farm land, owned by or rented to an ‘insured.’ ” The term “vacant” is not defined in the policy. If the land is vacant within the meaning of the policy, it is an insured location and Citation has a duty to defend and indemnify the Gomezes in the minor’s lawsuit and to indemnify them if they are found liable. Otherwise, Citation has no such duty.\nIn deciding the cross motions for summary judgment, the motion judge determined that reasonably intelligent persons could differ as to the meaning of the term “vacant land.” Relying on dictionary definitions and case law from several jurisdictions, the judge reasoned that “vacant land” could mean either land that has no structures or improvements, or land that is unoccupied or unused. Because the latter definition, which includes the subject property, was more favorable to the insureds, the judge concluded that it was the proper one and that the subject property was an insured location. The judge therefore allowed the Gomezes’ motion for summary judgment, denied Citation’s cross motion, and declared that Citation had a duty to defend and indemnify the Gomezes.\nInterpretation of an insurance policy is no different from interpretation of any other contract. Hakim v. Massachusetts Insurers’ Insolvency Fund, 424 Mass. 275, 280 (1997). If there is no ambiguity, we “construe the words of the policy in their usual and ordinary sense.” Id., citing Cody v. Connecticut Gen. Life Ins. Co., 387 Mass. 142, 146 (1982). When the language of an insurance contract is ambiguous, we interpret it in the way most favorable to the insured. Hakim, supra at 281-282. “However, an ambiguity is not created simply because a controversy exists between the parties, each favoring an interpretation contrary to the other.” Lumbermens Mut. Cas. Co. v. Offices Unlimited, Inc., 419 Mass. 462, 466 (1995), citing Jefferson Ins. Co. v. Holyoke, 23 Mass. App. Ct. 472, 475 (1987). Nor does the mere existence of multiple dictionary definitions of a word, without more, suffice to create an ambiguity, for most words have multiple definitions. A term is ambiguous only if it is susceptible of more than one meaning and reasonably intelligent persons would differ as to which meaning is the proper one. Jefferson Ins. Co., supra at 474-475, citing Ober v. National Cas. Co., 318 Mass. 27, 30 (1945).\nThe term at issue in this policy is “vacant land.” The Gomezes argue that, because the term could refer to land that is unoccupied or unused, as well as land without a structure, the judge correctly allowed their motion for summary judgment. We do not agree. Although this may be the meaning of “vacant” in some contexts, when land is described as vacant, this ordinarily means that there is no structure or building on it. A reasonably intelligent person would understand the term “vacant land” to mean land that is free of permanently affixed structures and would conclude that a lot of land with an abandoned building on it is not vacant. A majority of jurisdictions interpreting the term “vacant land” in an insurance policy have adopted this view. See Cotton States Mut. Ins. Co. v. Smelcer, 212 Ga. App. 376, 377-378 (1994) (land containing a permanently affixed abandoned structure not vacant); Foret v. Louisiana Farm Bureau Cas. Ins. Co., 582 So. 2d 989, 990 (La. Ct. App. 1991) (“ ‘[vjacant’ is . . . not synonymous with ‘uninhabited’ ”); Dawson v. Dawson, 841 P.2d 749, 751 (Utah Ct. App. 1992) (land is not vacant where it has structures that do not appear naturally). See also Bianchi v. Westfield Ins. Co., 191 Cal. App. 3d 287, 293 (1987) (“beneficial use or improvement of untenanted land renders it nonvacant, particularly if the use has accompanied the introduction of artificial structures” [emphasis added]).\nA policy that excludes land with an abandoned structure represents reasonable risk assessment and management by an insurer. As the incident underlying this case shows, an abandoned structure may present serious risks that unimproved land does not. A rational insurer could therefore decide to exclude abandoned structures from a homeowner’s policy or to insure such structures by charging an additional premium. See Cotton States Mut. Ins. Co., supra at 377.\nWe conclude that the subject property is not “vacant land” within the meaning of the policy. Therefore it is not an “insured location” within the meaning of the policy. Citation therefore has no duty to defend and indemnify the Gomezes in the minor’s lawsuit. This matter is remanded to the Superior Court for entry of a judgment declaring that Citation has no duty to defend and indemnify the Gomezes.\nSo ordered.\nThe cases cited by the Gomezes to support their contention are not to the contrary. In DeLisa v. Amica Mut. Ins. Co., 59 A.D.2d 380 (N.Y. 1977), the property contained a naturally occurring cave with a gate at its entrance and a platform and ladder inside. In Fort Worth Lloyds v. Garza, 527 S.W.2d 195 (Tex. Civ. App. 1975), the land contained an irrigation pump. In neither case was there a building on the land. We are aware of no case holding that land with a building on it is vacant within the meaning of an insurance policy."", ""type"": ""majority"", ""author"": ""Abrams, J.""}], ""attorneys"": [""John G. Ryan (Edward M. Joyce, Jr., with him) for the plaintiff."", ""Thomas J. Delaney for Brenda Gomez & others.""], ""corrections"": """", ""head_matter"": ""Citation Insurance Company vs. Brenda Gomez & others; ISU Anderson and Baker Insurance Services, Inc., third-party defendant.\nEssex.\nDecember 2, 1997. -\nJanuary 6, 1998.\nPresent: Wilkins, C.J., Abrams, Lynch, Greanhy, Fried. Marshall, & Ireland, JJ.\nInsurance, Homeowner’s insurance, Construction of policy, Insurer’s obligation to defend. Contract, Insurance. Words, “Vacant land.”\nCertain real property on which stood abandoned structures was not “vacant land” within the meaning of a policy of liability insurance, with the result that it was not an “insured location” under the policy. [381-382]\nCivil action commenced in the Superior Court Department on August 28, 1995.\nThe case was heard by Judith Fabricant, J., on motions for summary judgment, and entry of separate and final judgment was ordered by Peter F. Brady, J.\nThe Supreme Judicial Court granted an application for direct appellate review.\nJohn G. Ryan (Edward M. Joyce, Jr., with him) for the plaintiff.\nThomas J. Delaney for Brenda Gomez & others.\nRoger Gomez and John Provencher, father and next friend of Kristine Provencher.""}, ""cites_to"": [{""cite"": ""527 S.W.2d 195"", ""year"": 1975, ""case_ids"": [10121611], ""category"": ""reporters:state_regional"", ""reporter"": ""S.W.2d"", ""case_paths"": [""/sw2d/527/0195-01""], ""opinion_index"": 0}, {""cite"": ""59 A.D.2d 380"", ""year"": 1977, ""case_ids"": [3042993], ""category"": ""reporters:state"", ""reporter"": ""A.D.2d"", ""case_paths"": [""/ad2d/59/0380-01""], ""opinion_index"": 0}, {""cite"": ""191 Cal. App. 3d 287"", ""year"": 1987, ""case_ids"": [2210942], ""category"": ""reporters:state"", ""reporter"": ""Cal. App. 3d"", ""pin_cites"": [{""page"": ""293"", ""parenthetical"": ""\""beneficial use or improvement of untenanted land renders it nonvacant, particularly if the use has accompanied the introduction of artificial structures\"" [emphasis added]""}], ""case_paths"": [""/cal-app-3d/191/0287-01""], ""opinion_index"": 0}, {""cite"": ""841 P.2d 749"", ""year"": 1992, ""case_ids"": [10373490], ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""pin_cites"": [{""page"": ""751"", ""parenthetical"": ""land is not vacant where it has structures that do not appear naturally""}], ""case_paths"": [""/p2d/841/0749-01""], ""opinion_index"": 0}, {""cite"": ""582 So. 2d 989"", ""year"": 1991, ""case_ids"": [7518835], ""category"": ""reporters:state_regional"", ""reporter"": ""So. 2d"", ""pin_cites"": [{""page"": ""990"", ""parenthetical"": ""\"" '[vjacant' is . . . not synonymous with 'uninhabited' \""""}], ""case_paths"": [""/so2d/582/0989-01""], ""opinion_index"": 0}, {""cite"": ""212 Ga. App. 376"", ""year"": 1994, ""case_ids"": [836136], ""category"": ""reporters:state"", ""reporter"": ""Ga. App."", ""pin_cites"": [{""page"": ""377-378"", ""parenthetical"": ""land containing a permanently affixed abandoned structure not vacant""}], ""case_paths"": [""/ga-app/212/0376-01""], ""opinion_index"": 0}, {""cite"": ""318 Mass. 27"", ""year"": 1945, ""case_ids"": [929780], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""30""}], ""case_paths"": [""/mass/318/0027-01""], ""opinion_index"": 0}, {""cite"": ""23 Mass. App. Ct. 472"", ""year"": 1987, ""case_ids"": [3993550], ""category"": ""reporters:state"", ""reporter"": ""Mass. 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+3788675,"{""id"": 3788675, ""name"": ""Michael D. Bank & others, trustees, vs. Thermo Elemental Inc., & others"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""ddf0f9924b98e3a85ea1ea792b96ab6db78bf5171ebe377b0d826147d11c02f2"", ""simhash"": ""1:7db7a5b18040b20d"", ""pagerank"": {""raw"": 0.0000007448578182802261, ""percentile"": 0.9696109695970692}, ""char_count"": 83944, ""word_count"": 13792, ""cardinality"": 2118, ""ocr_confidence"": 0.916}, ""casebody"": {""judges"": [], ""parties"": [""Michael D. Bank & others, trustees, vs. Thermo Elemental Inc., & others.""], ""opinions"": [{""text"": ""Botsford, J.\nAfter trichloroethylene (TCE) was found in the groundwater beneath their property in Waltham, the plaintiff trustees of the Lincoln Street Trust (trustees; trust; the words are used interchangeably) undertook a response action pursuant to the Massachusetts Oil and Hazardous Material Release Prevention Act, G. L. c. 21E, eventually spending more than $800,000 in the effort. At issue in this case is the trustees’ endeavor to recover the costs incurred in carrying out this response from the several entities that successively leased the property between 1963 and 1988, as well as from corporate parents of some of those entities. The trustees commenced this action in the Superior Court to accomplish the cost recovery; their claims under G. L. c. 21E, § 4, as well as a contract-based claim, were tried to a jury, and the trial judge thereafter tried jury-waived the various parties’ claims to attorney’s fees and costs under G. L. c. 21E, §§ 4A and 15. We conclude that, pursuant to the jury’s verdict, the trustees are entitled to recover their response costs under G. L. c. 21E, § 4, and also in connection with their contract claim; and that they are entitled to attorney’s fees under c. 21E, § 15. We also conclude that none of the defendants is entitled to recover its litigation-related attorney’s fees and costs under c. 21E, § 4A (/). We affirm in part and reverse in part the judgment entered in the Superior Court.\n1. Background. What follows is a brief summary of the factual background of the case and the proceedings in the Superior Court; further details concerning the facts and prior proceedings are discussed in connection with particular issues raised.\nThe trust is the owner of an eleven-acre property on Lincoln Street in Waltham (the site, or the property). The entire beneficial interest of the trust is owned by the Middlesex Mutual Building Trust (MMBT). The trust leased the property seriatim to a number of different entities between 1963 and 1988 under the same lease agreement, which was dated August 2, 1963 (lease). At the outset of the lease term, the trustees built a two-story manufacturing facility on the site in accordance with the specifications of the original tenant, the Jarrell Ash Company (JAC), and during the twenty-five years the lease was in effect, the successive lessees manufactured scientific instruments on the site. The lease included a provision requiring the lessee to indemnify the trust from liabilities arising from the lessee’s use of or activities on the property.\na. Corporate history. The various entities that operated on the site present a complicated corporate history. The first tenant, JAC, occupied and used the site from the commencement of the lease in August, 1963, to some time in 1968. In that year, JAC sold some of its assets to Fisher Scientific Company, a Pennsylvania corporation (Fisher Pennsylvania). Fisher Pennsylvania assumed the lease pursuant to a written assignment, and took over manufacturing at the site. In 1981, Fisher Pennsylvania was acquired by Allied Corporation (Allied). Allied formed a Delaware subsidiary and merged Fisher Pennsylvania into it, and the subsidiary then changed its name to Fisher Scientific Company (Fisher Delaware). In 1984, Fisher Delaware merged with Instrumentation Laboratory Inc. (IL Inc.). The new combined entity was renamed Allied Health & Scientific Products Company (AHSPC), and it remained a subsidiary of Allied. AHSPC continued to manufacture scientific equipment on the site.\nIn 1986, AHSPC sold its Jarrell Ash scientific instrumentation manufacturing business to Thermo Jarrell Ash Corporation (TJA), a subsidiary of Thermo Electron Corporation (Thermo Electron) that was created for purposes of completing the sale. AHSPC then assigned its interest in the 1963 lease to TJA. The asset purchase and closing agreement between AHSPC and TJA included an indemnification provision that allowed TJA to pass on to AHSPC any liability resulting from AHSPC’s tenancy on the site. Shortly after the asset sale between AHSPC and TJA took place, AHSPC changed its name to Fisher Scientific Company (Fisher Delaware II), which remained a subsidiary of Allied.\nIn 1988, TJA signed a lease termination agreement (1988 agreement, or agreement) with the trustees that contained an indemnification provision in favor of the trustees. In the same year, TCE was discovered on the site. In 1991, Fisher Delaware II formed a subsidiary called Instrumentation Laboratory Company (IL Co.), which was sold later that year. Before the sale, Fisher Delaware II (formerly AHSPC) assigned to IL Co. the indemnity obligation that it owed to TJA under the 1986 asset sale agreement between AHSPC and TJA.\nb. Discovery of TCE and ensuing response action. In 1985, the trust’s beneficial owner, MMBT, commissioned an environmental consulting firm, Haley & Aldrich, to conduct a preliminary site investigation at the property. The investigation revealed some broken sewer lines, as well as past discharges of chemicals into the floor drains, but it did not uncover any evidence of a discharge of chemicals into the ground. In 1987, MMBT commissioned Haley & Aldrich to conduct an additional investigation of the site, and the 1988 report of that work concluded that TCE was present in groundwater at the site in concentrations above recommended levels. As the owners of the property and therefore a hable party under G. L. c. 21E, § 5 (a) (2), the trustees undertook a response action on the site pursuant to G. L. c. 2 IE, § 4. The response was not completed until 2000. The twelve-year effort spanned both the promulgation of the Massachusetts Contingency Plan in October, 1988, see 310 Code Mass. Regs. § 40.006 (1988), and its revision in 1993, see 310 Code Mass. Regs. § 40.0005 (1995). The trust eventually spent more than $800,000 in consultant fees, drilling, and laboratory costs, including approximately $90,000 for response-related work conducted by the trust’s attorneys. At the conclusion of the work, the Department of Environmental Protection (department) approved the trustees’ conclusion that the amount of TCE on the site was sufficiently small that it did not need to be contained or removed.\nThe trustees believed that TJA was liable for the response costs under the indemnity provision in the 1988 agreement. Accordingly, beginning in 1989, Thomas M. Dusel, one of the trustees, kept Earl R. Lewis, then TJA’s senior vice-president and later president, informed of the progress of the response action. In a 1989 letter, TJA informed Fisher Delaware II of the contamination found at the site and invoked Fisher Delaware EEs obligation to indemnify TJA for any liability TJA had for the cleanup costs. The parties met at least twice to discuss the response costs, once in 1991 and once in 1992. In December, 1995, the trustees sent a letter setting out a formal demand for reimbursement of response costs under G. L. c. 21E, § 4A. The letter was sent to JAC, Fisher Delaware H, Allied, EL Ene., AHSPC, TJA, and Thermo Electron. The recipients responded within the time required by § 4A (a), and a meeting was held in April, 1996, to discuss the trustees’ demand. The parties did not reach an agreement at the meeting, and no subsequent meeting was ever arranged. The trustees commenced this action in the Superior Court in June, 1996.\nc. Procedural history. The trustees’ original complaint named the eight recipients of the § 4A demand letter as defendants, and in an amended complaint filed in November, 1996, added EL Co. as a ninth defendant. The trustees included in their complaint claims against all defendants under G. L. c. 21E, §§ 4, 4A, 5, and 15, a request for declaratory relief to resolve liability for future response costs, and a breach of contract claim against TJA based on the indemnification provision in the lease termination agreement. In 1998, a judge in the Superior Court denied cross motions for partial summary judgment filed by TJA and the trustees on the breach of contract claim, ruling that the language of the indemnification provision in the lease termination agreement was ambiguous and a trial was required to establish its meaning. In 2000, a different Superior Court judge granted partial summary judgment with respect to some of the trustees’ remaining claims under G. L. c. 2IE. The judge ruled that all claims under G. L. c. 21E for response costs paid by the trustees before July 1, 1989, as well as the trustees’ claims under c. 21E, § 5, were barred by the applicable statutes of limitations.\nThe case was tried by a third Superior Court judge in two parts in 2002. In September, 2002, the trustees’ claims to recover response costs pursuant to § 4 and to recover on the indemnity provision in the 1988 agreement were tried to a jury. The jury found that the trust did not cause or contribute to the release of TCE at the site, that Fisher Delaware II should bear a one hundred per cent equitable share of the response costs — which were determined to be $719,484.20 — and that the trust should bear a zero per cent equitable share. The jury also found that under the 1988 agreement TJA had agreed to indemnify the trust for the release of hazardous material that occurred during the full term of the lease; the total damages awarded by the jury on this contract claim were $796,612.82. Finally, based on the jury’s allocation of response costs to the years they were incurred, the judge determined the amount of prejudgment interest to be paid by Fisher Delaware II on the response costs for which it was responsible under § 4, and to be paid by TJA on the response costs for which it was responsible under the contract claim. Following the entry of judgment in accordance with the jury’s verdict, the judge granted TJA’s motion for judgment notwithstanding the verdict (judgment n.o.v.) on the contract claim.\nIn October, 2002, the same judge conducted a jury-waived trial to determine the trustees’ entitlement to attorney’s fees under G. L. c. 21E, § 4A (d), and the claims of several defendants for attorney’s fees under § 4A (f). The judge found that the trustees were entitled to attorney’s fees under § 4A (d), to be paid by Fisher Delaware II; and that Thermo Electron, but none of the other defendants, was entitled to attorney’s fees under § 4A if). The judge later amended his judgment to conclude that none of the defendants was entitled to attorney’s fees under § 4A (/). The judge also awarded fees to the trustees under § 15, to be paid by Fisher Delaware II. Both the trustees and the defendants have appealed. We granted Thermo Elemental’s application for direct appellate review.\n2. Breach of contract claim. The trustees appeal from the allowance of TJA’s motion for entry of judgment n.o.v. on their contract claim for indemnification under their 1988 agreement with TJA.\na. Background In March of 1986, AHSPC was the lessee under the lease with the trust. On March 28, 1986, TJA, a subsidiary of Thermo Electron, purchased AHSPC’s scientific instrument manufacturing business operated on the property. AHSPC and TJA also executed an assignment of the lease, to which the trustees assented. TJA thus assumed all the lessee’s rights, duties, and liabilities as defined in the lease.\nThe lease, with its commencement date of August 2, 1963, had been extended once pursuant to one of two extension options, and was set to expire on April 1, 1989, if not extended for an additional five years under the second extension option. In 1987, TJA decided to move all its manufacturing operations to Franklin, and thus no longer intended to use the property in Waltham that was the subject of the lease. At some point in late 1987 or early 1988, representatives of TJA approached the trustees to suggest an early termination of the lease, an occurrence that would also benefit the trust because of the fixed rental amounts prescribed in the 1963 lease. The parties then negotiated an agreement to end the lease. Thomas Dusel was the principal negotiator for the trust, and Earl Lewis served as the primary negotiator for TJA. Dusel and Lewis worked out the substantive business terms of the agreement, but the actual drafting was left to lawyers representing the respective parties: Thomas Taylor, of the law firm of Hill & Barlow, for the trust, and for TJA, Sandra Lambert, an in-house counsel for Thermo Electron. The parties executed the agreement on March 30, 1988.\nThe agreement recites that it is made between the trustees as lessor and TJA as lessee. It further recites that the parties, or their predecessors in interest, “entered into a certain lease dated August 2,1963 (the ‘Lease’) respecting the premises now known as 590 Lincoln Street. . . (the ‘Premises’),” and that the parties wish to terminate the lease “prior to the expiration of its stated term.” The indemnification provision relating to the release of hazardous materials, set out as a separate paragraph of the agreement, reads as follows:\n“3. Lessee shall save Lessor harmless and indemnify (and shall defend Lessor with counsel reasonably approved by Lessor) against any claim, loss or cost arising out of any release of hazardous materials arising out of Lessee’s use or activities of Lessee, its employees and agents on the Premises during the term of the Lease in violation of [certain Federal and State environmental protection statutes and regulations, including G. L. c. 21E]. This provision shall not impose any requirement on Lessee with respect to activities off the Premises that result in a violation of any of [the listed environmental statutes or regulations] on or under the Premises without any involvement of Lessee, its employees or agents or with respect to conditions existing on, under or around the Premises prior to the Lease commencement date.”\nThe trustees’ position is that this provision, read as a whole, commits TJA to indemnify the trust with respect to any release of hazardous material resulting from a lessee’s activities on the property at any point during the lease term — that is, at any time between the commencement of the lease in 1963 up to its termination in 1988. TJA, on the other hand, contends that (1) the provision restricts the proffered indemnification solely to releases resulting from TJA’s activities on the site during the two years of its tenancy, 1986 to 1988; and (2) because there was no evidence that TJA’s operations on the site during this time caused any release of TCE or any other hazardous material to-occur, the indemnity provision was not triggered. By their verdict in favor of the trustees on the contract claim, it is clear that the jury accepted the broader interpretation of the indemnity provision advanced by the trustees; by granting TJA’s motion for judgment n.o.v., the judge sided with TJA’s more narrow view.\nIn his decision allowing the motion, the judge concluded that the words of the agreement were unambiguous. He began his analysis by a review of some evidence presented at the trial concerning the negotiations over the agreement. After reciting the evidence presented through TJA’s lawyer Sandra Lambert about her purpose in proposing language that the indemnification was to be for releases of hazardous materials “arising out of Lessee’s use or activities of Lessee, its employees or agents on the Premises” — language that appears in the executed version of the agreement — the judge concluded that the plain meaning of this phrase was, as Lambert had testified, to restrict the scope of the indemnification to releases occurring during TJA’s own tenancy. In accordance with that conclusion, the judge opined that the reference, in the same sentence of the indemnity provision, to the “term of the Lease,” as well as the later exception for hazardous waste conditions existing on the property “prior to the Lease commencement date,” represented “surplusage” and “excess verbiage” that needed to yield to the true intention of the parties as evidenced by. a review of the contract as a whole, which, in his view, was to confine the indemnity to releases caused by TJA’s own activities on the premises.\nb. Discussion. The issue presented by the trustees’ appeal, in the first instance, is whether the indemnity provision in the agreement is ambiguous. Determining the existence of a contract ambiguity presents a question of law for the court; when a trial judge undertakes the interpretation of an unambiguous contract, the judge’s ruling is subject to plenary review on appeal. See, e.g., President & Fellows of Harvard College v. PECO Energy Co., 57 Mass. App. Ct. 888, 891 (2003). See also Berkowitz v. President & Fellows of Harvard College, 58 Mass. App. Ct. 262, 270 (2003). To answer the ambiguity question, the court must first examine the language of the contract by itself, independent of extrinsic evidence concerning the drafting history or the intention of the parties. See General Convention of the New Jerusalem in the U.S., Inc. v. MacKenzie, 449 Mass. 832, 835-836, 838 (2007). “Contract language is ambiguous ‘where the phraseology can support a reasonable difference of opinion as to the meaning of the words employed and the obligations undertaken.’ ” President & Fellows of Harvard College v. PECO Energy Co., supra at 896, quoting Suffolk Constr. Co. v. Lanco Scaffolding Co., 47 Mass. App. Ct. 726, 729 (1999). See In re Navigation Tech. Corp., 880 F.2d 1491, 1495 (1st Cir. 1989).\nIn the present case, an examination of the language used in the agreement’s indemnity provision indicates the existence of an ambiguity. The indemnity provision begins by stating that “Lessee” is to hold “Lessor” harmless “against any claim, loss or cost arising out of any release of hazardous materials arising out of Lessee’s use or activities of Lessee, its employees and agents on the Premises during the term of the Lease” (emphasis supplied). Given that TJA is identified in the first paragraph of the agreement as “Lessee,” and further that TJA was lessee only from 1986 to the lease termination date in 1988, the first part of this sentence appears at first blush to limit the promised indemnification to TJA’s use of and activities on the premises during the two years of its own tenancy. However, the inclusion of the phrase “during the term of the Lease” in the same sentence suggests a period of time going back to 1963, when the “Lease” — a defined term in the agreement referring to the “certain lease dated August 2, 1963” — began. The quoted sentence taken as a whole, therefore, at least raises the possibility that the indemnification being granted by TJA was to cover releases of hazardous materials caused by any lessee’s activities on, and uses of, the leased premises during the entire lease term.\nThat this possibility is indeed what the sentence was intended to convey finds support in the final sentence of the indemnity provision, which explicitly carves out two exceptions from the scope of the indemnification. The first exception is for activities taking place off the leased premises resulting in the release of hazardous wastes on or under those premises; the second, and the one of particular relevance here, is for “conditions existing on, under or around the Premises prior to the Lease commencement date” (emphasis supplied). The “Lease commencement date” again appears to be a reference to August 2, 1963, the commencement date of the defined term “Lease.” As the trustees point out, if indeed the earlier sentence in the indemnity provision that concerns the “Lessee’s use or activities of the Lessee ... on the Premises” was meant to limit the indemnification to TJA’s own activities while it was the lessee, there would be no need to carve out this second exception for activities occurring prior to 1963 — more than twenty years before TJA’s tenancy began.\nBy considering the language against the backdrop of a portion of the trial evidence, the judge relied, at least in part, on extrinsic evidence to conclude that there was no ambiguity in the contract to begin with. But extrinsic evidence may be used as an interpretive guide only after the judge or the court determines that the contract is ambiguous on its face or as applied. See General Convention of the New Jerusalem in the U.S., Inc. v. MacKenzie, 449 Mass. at 835-836. It is not to be used as the basis for concluding in the first instance that a contract is unambiguous as matter of law. See id. at 836.\nThe indemnity provision unquestionably contains language that supports an interpretation restricting the indemnity to releases caused only by TJA. Moreover, as the judge pointed out, the agreement identifies TJA as the “Lessee” in its first paragraph, uses the term “Lessee” over twenty times, and in all sections of the agreement other than the indemnity provision, the “Lessee” being referred to is clearly only TJA. Accordingly, the trustees’ argument that in certain portions of this provision, the parties used the term “Lessee” to include not only TJA but the earlier lessees as well, appears at first blush to be quixotic. However, the trustees are correct that the term “Lessee” is not formally defined in the agreement, in contrast to terms such as “Lease,” “Premises,” and “Termination Date,” and although “words used in one undoubted sense in one place [in a will, contract, or statute] may be presumed to be used in the same meaning in another place in the writing,” Clark v. State St. Trust Co., 270 Mass. 140, 151 (1930), this rule itself “is an aid and not an end. It is generally to be followed but it is not inflexible. It yields to the main purpose, which is to find out what the writing means as a whole.” Id. Accord Chapman v. Katz, 448 Mass. 519, 528 n.20 (2007). In this case, the indemnification provision “as a whole” contains some language that suggests the indemnification was intended to cover hazardous material releases by any of the lessees. In the circumstances, it was error for the judge to rule as matter of law that the agreement unambiguously restricted the indemnification provision to TJA’s activities alone. The meaning of this provision, and the scope of the indemnity being provided in particular, presented a question of fact to be decided by the fact finder ■— in this case, the jury. See Seaco Ins. Co. v. Barbosa, 435 Mass. 772, 779, 781 (2002).\nNear the end of his ruling, the judge turned briefly to a review of the sufficiency of the trial evidence. He determined that the only reasonable conclusion this evidence permitted was that the indemnity provided by the agreement covered solely TJA’s activities on the site during its two-year tenancy. If the judge’s determination was correct, then the error concerning the agreement’s non-ambiguity would be immaterial. See Suffolk Constr. Co. v. Lanco Scaffolding Co., 47 Mass. App. Ct. 726, 731 (1999) (where trial evidence on meaning of arguably ambiguous contract language was insufficient to support interpretation chosen by jury, judgment n.o.v. should have been granted). However, the judge was not correct.\nOur standard for reviewing a motion for judgment n.o.v. is “whether, ‘anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the [other party].’ ” Masingill v. EMC Corp., 449 Mass. 532, 543 (2007), quoting Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972). It is true that Sandra Lambert’s testimony about her conversations with the trustees’ attorney, Thomas Taylor, concerning the limiting language she proposed for the indemnification provision was not “controverted,” because Taylor did not testify at trial. Nevertheless, the jury were not obliged to accept what Lambert said, in whole or in part. See, e.g., Calderone v. Wright, 360 Mass. 174, 176 (1971); Lydon v. Boston Elevated Ry., 309 Mass. 205, 206 (1941). Countervailing evidence certainly was before the jury. In particular, there was evidence presented by both Thomas Dusel, the trustee who had negotiated the business terms of the agreement for the trust, and Earl Lewis, Dusel’s TJA counterpart negotiator, that when the two men discussed the business terms of the agreement before it was drafted, Dusel made it clear that he wanted an indemnification provision covering any release of hazardous material by any of the lessees during the entire term of the 1963 lease, and that he and Lewis specifically agreed to this extended indemnity because TJA itself was indemnified by one of the preceding lessees, AHSPC. Lewis further testified that he was certain that before any drafting, he talked to Lambert about what the terms of his agreement with Dusel were — “what I thought we were agreeing to.\"" In this regard, he also stated that he must have said to Lambert that the trustees wanted a broad indemnity and that he had explained to Dusel the fact that TJA itself was indemnified by AHSPC. The jury were free to credit this testimony (as well as other supporting evidence presented), and ultimately to resolve the ambiguities in the indemnification provision in a way that was consistent with the business terms testified to by Dusel and Lewis: the indemnification being provided by TJA as the “Lessee” extended back through the entire “term of the Lease,” but did not reach “conditions existing on, under or around the Premises prior to the Lease commencement date.” TJA’s motion for judgment n.o.v. should not have been allowed.\n3. Trustees’ compliance with the Massachusetts Contingency Plan. The defendants appeal from the judgment entered against Fisher Delaware II on the trustees’ claim under G. L. c. 21E, § 4. They begin with a claim that judgment cannot stand because the undisputed evidence shows the trustees did not comply fully with all requirements of the Massachusetts Contingency Plan (MCP).\nGeneral Laws c. 21E imposes liability for the release of hazardous material on a number of parties, including the owner of the property on which the release occurs, and anyone who caused the release. G. L. c. 21E, § 5 (a). Liable property owners are encouraged to undertake their own “response actions” to assess, contain, and remove any hazardous materials on affected property. G. L. c. 2 IE, § 4. Failure to do so may result in liability for any later response actions conducted by the Commonwealth, as well as treble damages. G. L. c. 21E, § 5 (a), (e). Any private party who undertakes such a response action may then seek contribution from other potentially liable parties. G. L. c. 21E, §§ 4, 4A.\n“Simply put, G. L. c. 21E was drafted in a comprehensive fashion to compel the prompt and efficient cleanup of hazardous material and to ensure that costs and damages are borne by the appropriate responsible parties. To that end, the department has promulgated extensive regulations, known collectively as the Massachusetts Contingency Plan ... for purposes of implementing, administering, and enforcing G. L. c. 21E.” Taygeta Corp. v. Varian Assocs., 436 Mass. 217, 223 (2002). The purpose of the MCP is, among other things, to “provide for the protection of health, safety, public welfare and the environment” by encouraging “persons responsible for releases . . . of . . . hazardous material to undertake necessary and appropriate response actions in a timely way.” 310 Code Mass. Regs. § 40.0002 (1995).\nThe defendants argue that the private right of action created in § 4 requires strict compliance with the MCP. In support of this position, the defendants cite the provision, found in G. L. c. 21E, § 4:\n“Nothing in this section shall preclude assessment, containment and removal by any person threatened or damaged by such release or threat of release, provided such assessment, containment and removal is conducted in accordance with the Massachusetts contingency plan and consistently with the assessment, containment and removal actions conducted by the department.”\nG. L. c. 2IE, § 4, second par. They argue that because the trustees failed to comply strictly with the requirements of the MCP, they are completely barred from recovery of response costs under § 4.\nThe defendants identify two respects in which the trust’s response action failed to conform to the requirements of the MCP. The first concerns an assessment report prepared for the trust in 1991 by Haley & Aldrich, entitled, “Phase II — Comprehensive Site Assessment.” The 1988 MCP required all phase II comprehensive site assessments to include a section called a “scope of work,” 310 Code Mass. Regs. § 40.545(l)(b) (1988), that was supposed to contain, among other things, a schedule for implementation of the phase II comprehensive site assessment, a sampling plan and analytical protocols, a quality assurance control plan, and a health and safety plan. See 310 Code Mass. Regs. § 40.545(2) (1988). According to the defendants, the comprehensive site assessment report prepared for the trust did not include a scope of work section, in violation of the provisions in the MCP then in effect.\nThe second claimed violation concerned work done at the site after the expiration of a “Waiver of Approvals.” Under the 1988 version of the MCP, in an attempt to streamline G. L. c. 21E’s cleanup process, the department began granting waivers to low-risk cleanup operations, allowing them to proceed through the multiple cleanup phases outlined in the MCP without obtaining the required department approval for each successive phase. 310 Code Mass. Regs. §§ 40.536, 40.537 (1988). As a low-risk site, the trust received such a waiver in 1989. The waiver expired on February 28, 1994, but the response action continued after that date. The department informed the trust that the response actions taken after the expiration of the waiver were “conducted in non-compliance” with G. L. c. 21E and the MCP.\nThe defendants assert that these two violations of the MCP preclude the trust from recovering any response costs incurred after October 3, 1988, when the MCP first went into effect.\nGeneral Laws c. 21E, § 4, speaks to the performance of response actions to assess, contain, or remove a release of hazardous material. In the first paragraph, the department is “authorized” to undertake or arrange for “such response actions as it reasonably deems necessary ... by reference to the [MCP].” The second paragraph focuses on private parties, providing that “[n]othing in this section shall preclude assessment, containment and removal by any person threatened or damaged by [a] release” of oil or hazardous material to undertake an “assessment, containment and removal” of the contamination, “provided such assessment, containment and removal is conducted in accordance with the [MCP] and consistently with assessment, containment and removal actions conducted by the department.” The third paragraph of § 4 then provides in relevant part:\n“Any person who undertakes a necessary and appropriate response action regarding the release or threat of release of oil or hazardous material shall be entitled to reimbursement from any other person liable for such release or threat of release for the reasonable costs of such response action. . . . All claims and actions for contribution, reimbursement or equitable share by persons other than the commonwealth pursuant to this paragraph, except those pending in court on the effective date of section four A shall be subject to, and brought in accordance with, the procedures set forth in section 4A.”\nWe have consistently and specifically identified this third paragraph of § 4 as the statutory authorization for the type of pri-vote response cost recovery lawsuit that the trustees have brought here. See, e.g., Commonwealth v. Boston Edison Co., 444 Mass. 324, 343 (2005); Mailman’s Steam Carpet Cleaning Corp. v. Lizotte, 415 Mass. 865, 874 (1993). The only condition this paragraph imposes on a private party’s recovery of such costs is that the response action undertaken be “necessary and appropriate,” that the costs be “reasonable,” and that the private party follow the presuit notice and settlement procedures set out in § 4A. Compliance with the MCP is not mentioned. That does not mean that the MCP is irrelevant. When the second paragraph of § 4 is read together with the third — as rules of statutory construction propose they should be, see, e.g., Wolfe v. Gormally, 440 Mass. 699, 704 (2004); Negron v. Gordon, 373 Mass. 199, 201 (1977) — the reasonable conclusion is that the MCP helps to define the contours of “a necessary and appropriate response action” described in the third paragraph of § 4. But looking to the MCP for assistance in determining what is “necessary and appropriate” in terms of a response to the release of hazardous material does not mean that exact compliance with every detail of the MCP operates as a condition precedent to recovery of any response costs. If the Legislature had wanted to make strict adherence to the MCP such a condition, it could have done so; the reference to the MCP in the second paragraph of § 4, its absence in the third paragraph, and the use of the phrase “necessary and appropriate” instead, indicates that the Legislature did not have this intent. See, e.g., Fontaine v. Ebtec Corp., 415 Mass. 309, 321 (1993), quoting Hartford Ins. Co. v. Hertz Corp., 410 Mass. 279, 283 (1991) (“As a general rule, when the Legislature has employed specific language in one part of a statute, but not in another part which deals with the same topic, the earlier language should not be implied where it is not present”). See also Mystic Landing, LLC v. Pharmacia Corp., 443 F. Supp. 2d 97, 107 (D. Mass. 2006) (“There is no indication that full compliance with the MCP is a statutory condition precedent to recovery of response costs under Chapter 21E, § 4”).\nFor support of their claim, the defendants cite Black v. Coastal Oil New England, Inc., 45 Mass. App. Ct. 461, 462 n.3 (1998) (Black I), S.C., 57 Mass. App. Ct. 696, 697 n.2 (2003) (Black II), a case involving a claim by property owners to recover from the defendant oil company for both response costs under G. L. c. 21E, § 4, and damage to their personal property under c. 21E, § 5. Black I, supra at 462. The issues before the Appeals Court concerned a judge’s damage award under § 5 for diminution of the property’s market value and the award of attorney’s fees under c. 2IE, § 15. Black II, supra at 697. In each Black decision, the Appeals Court noted in a footnote that with respect to the § 4 response costs, the judge had determined that the plaintiffs had incurred costs but had failed to comply with the MCP, which went into effect during the time they were carrying out the response action, and the judge had limited the plaintiffs’ response recovery to response costs incurred before the effective date of the MCP. Black II, supra at 697 n.2. Black I, supra at 462 n.3. However, the Black plaintiffs apparently did not challenge the judge’s limitation of their § 4 recovery, as there is no substantive discussion in either of the Appeals Court’s opinions concerning the issue, and no mention of what the MCP violations were. Nothing in either opinion suggests that every violation of the MCP results in forfeiture of the right to recover all response costs. The Black decisions do not aid the defendants’ argument in any material respect.\nFurthermore, although the failure of a response action to comply with the MCP might, in some circumstances, tend to show that it was not necessary or appropriate, or that the costs incurred were not reasonable, this case does not present such a circumstance. The defendants do not point to any way in which the claimed MCP violations compromised or negatively affected their response to the TCE contamination. The question whether the response action was necessary and appropriate, with reasonable costs, was a factual one properly left to the jury in this case. The jury heard the evidence presented at trial of the MCP violations, yet still found that the trust’s response action met the necessary and appropriate standard.\nThe defendants also challenge the judge’s jury instruction on this issue. The judge instructed the jury that the trustees’ response action must be reasonable, and incurred for services that were “necessary and appropriate.” He went on to define “necessary and appropriate” as conducted “in accordance with the MCP,” and explained that “[tjhe burden is on the plaintiff to show by a preponderance of the evidence that its response action was conducted in accordance with the MCP.” The judge explained that to be conducted “in accordance” with the MCP does not require “strict compliance or perfection.” He further explained:\n“An immaterial or insubstantial deviation from the MCP would not mean that the response action was not conducted in accordance with the MCP.\n“The question for you on this point is whether the trust deviated in some material way from the MCP as to any part of its response action. If the answer is yes, then it will be up to you to determine what effect that should have on the trust’s claim for response costs. If you have found that there was a deviation which increased the cost of the response action, for example, because non-compliant work was done and charged for that otherwise would not have been done and charged for, or because additional work was required to correct any non-compliant portion of the trust action — those are just examples — then any such additional costs should be deducted from the trust’s claim for response costs because they were not pursuant to a necessary and appropriate response action.”\nThe defendants argue that this instruction allowed the trustees to recover for even material deviations from the MCP. The defendants misinterpret the instruction. The import of the judge’s words were that over-all, substantial compliance with the MCP was required in order to demonstrate that the trust had conducted a response action that was “in accordance with the MCP.” This instruction expresses accurately the thrust of the authorizing language in the third paragraph of § 4, and if anything, is more favorable to the defendants than the statute required, insofar as it expressly defines a “necessary and appropriate” response action in terms of substantial compliance with the MCP, rather than presenting such compliance as one, albeit highly significant, criterion to consider. There was no error.\n4. Attorney’s fees as response costs. The defendants also challenge the allowance, as a type of permissible response costs, of fees paid by the trust to its attorneys for work on the response action. Under G. L. c. 21E, § 4, one who undertakes a “necessary and appropriate response action” is “entitled to reimbursement from any other person hable for such release ... for the reasonable costs of such response action.” A “response action” is defined to include assessment, containment, and removal, and “assessment” is defined to include, “without limitation, studies, services and investigations to plan, manage and direct assessment, containment and removal actions, to determine and recover the costs thereof, and to otherwise accomplish the purposes of this chapter.” G. L. c. 2IE, § 2.\nThe jury awarded the trustees $90,214 for work undertaken by their attorneys, Hill & Barlow, to manage the response action. The judge instructed the jury that “[sjervices provided by a lawyer in connection with an environmental case may or may not qualify as response costs. To be recoverable as response costs, attorney’s fees must be for services that are closely tied to the response action . . . .”\nThis instruction accurately reflected the requirements of G. L. c. 21E. There is nothing in the statute to exclude otherwise legitimate response costs simply because they relate to services provided by an attorney. As with any other response cost, attorney’s fees must be reasonable, necessary, and appropriate to be recoverable under G. L. c. 21E, § 4, and the judge properly instructed the jury on this point. The judge further directed the jury to include only those attorney’s fees that were “closely tied to the response action,” and to deduct any Hill & Barlow fees for litigation-related activity. These instructions ensured that the only attorney’s fees included in the § 4 award would be legitimate response costs, not litigation costs that could only be recovered, if at all, under G. L. c. 21E, § 4A (d) or 15.\nThe United States Supreme Court has interpreted the analogous provision in the Federal Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9607 (2000), in much the same manner, holding that “some lawyers’ work that is closely tied to the actual cleanup may constitute a necessary cost of response.” Key Tronic Corp. v. United States, 511 U.S. 809, 820 (1994). See Martignetti v. Haigh-Farr, Inc., 425 Mass. 294, 301 n.12 (1997) (“To the extent that there are similarities in language and structure [between G. L. c. 21E and CERCLA], it is desirable to arrive at similar interpretations . . .”).\nThe defendants argue that, according to this court’s decision in Sanitoy, Inc. v. Ilco Unican Corp., 413 Mass. 627, 630 (1992), the judge’s instruction was in error because no attorney’s fees may be recovered as part of § 4’s response costs. The defendants’ argument is without merit. The court in Sanitoy held that § 4 contains “no provision for the recovery of attorneys’ or expert witness fees by parties seeking reimbursement.” Id. That holding concerns only attorney’s fees related to the conduct of the litigation, and is limited to a prohibition on recovery of those fees under § 4. The court in that case had no occasion to, and did not, consider attorney’s fees as one type of response costs.\nThe defendants also object to the specific items represented on Hill & Barlow’s billing records, arguing that even if some attorney’s fees might be recoverable as response costs, the objected-to fees were clearly neither necessary nor appropriate, and the jury’s conclusion to the contrary requires reversal. Whether any individual charge was related to litigation or to response costs was a factual question for the jury to decide. The disputed billing records include entries such as “Telephone conference with T. Dusel re: Therm Meeting,” and “Attention to Therm claim; review CERCLA cases, chronology of events and corporation transactions, and 21E amendments.” According to the defendants, these entries could relate only to the indemnity claim the trustees intended to litigate, and could not be considered as necessary and appropriate management costs of the response action. The defendants read the entries too narrowly. The jury would have been warranted to conclude that a 1991 discussion with Thermo Electron, the parent of a former tenant of the site, at a time when the source of the contamination was still uncertain, was related to the response action. Similarly, the jury could have concluded that research into G. L. c. 21E and CERCLA was related to the response action itself and not the subsequent litigation. Furthermore, the jury also heard expert testimony that the work done by Hill & Barlow was necessary and appropriate, closely tied to the response action, and typical of response work carried out by attorneys in situations such as this one. There was sufficient evidence in the record to support the jury’s conclusions regarding Hill & Barlow’s fees.\n5. Prejudgment interest. The judge ordered Fisher Delaware II to pay prejudgment interest on the jury’s awards of response cost damages against it. To calculate the amount of interest owed, the judge instructed the jury to allocate the trust’s response costs, as evidenced in more than 180 invoices, to the calendar year in which the particular work was done. At trial, Dusel testified that MMBT (the sole beneficiary of the trust) received the trust’s response-related bills and paid them within ninety days of receiving each invoice. MMBT later charged those costs back to the trust’s account through subsequent bookkeeping entries. The judge assessed interest as of December 31 of each year to which the jury had assigned costs. The defendants argue that the judge’s calculation of interest was error because the evidence presented at trial established only the date the debts were incurred and MMBT’s practice of paying the bills within ninety days. According to the defendants, prejudgment interest must be measured from the date a bill was paid by the trust, not the date a debt was incurred by it or paid by MMBT, and there was no evidence presented at trial concerning when the response costs were eventually charged against the trust’s account. Therefore, the defendants argue, the awards of prejudgment interest must be reversed.\nAn award of prejudgment interest is made “so that a person wrongfully deprived of the use of money” is “made whole for his loss.” See Sterilite Corp. v. Continental Cas. Co., 397 Mass. 837, 841 (1986), quoting Perkins Schs. for the Blind v. Rate Setting Comm’n, 383 Mass. 825, 835 (1981). When applying G. L. c. 231, §§ 6B and 6C, “the fact that no loss was incurred until after an action was commenced should be recognized, as a matter of fairness, in order to avoid giving a party an undeserved windfall.” St. Paul Surplus Lines Ins. Co. v. Feingold & Fein-gold Ins. Agency, Inc., 427 Mass. 372, 377 (1998). Thus, when expenses incurred as a result of a contract breach are not paid by a plaintiff until after the breach has occurred, the interest is calculated not from the date of the breach or even the date the action was commenced, as the plain language of the statute would require, but from the date or dates on which the plaintiff made such payments. See Sterilite Corp. v. Continental Cas. Co., supra at 841-842. This avoids the windfall that would otherwise be created for the plaintiff were courts to allow interest to accrue from the date of breach even when the plaintiff does not lose the use of funds until much later. See id.\nThe facts of this case present a similar dilemma. An application of the plain language of the statute would allow interest to accrue “from the date of commencement of the action” or “from the date of the breach,” G. L. c. 231, §§ 6B and 6C, but most costs were not paid by the trust until much later. The judge recognized the potential windfall for the trust, and avoided that result by calculating interest from the last day of the year in which each bill was paid by MMBT. This approximation avoided using the more than 180 different dates of accrual that would have been required for a more precise calculation based on the actual dates the invoices were paid. See O’Malley v. O’Malley, 419 Mass. 377, 381 (1995) (calculating § 6C interest owed over multi-year period as of each year’s end). The approximation would also almost certainly undercharge Fisher Delaware II, because there was testimony that all bills were paid within ninety days of receipt of an invoice, and most were paid within thirty days. As to the defendants’ contention that prejudgment interest could only run from the dates that MMBT charged back the response costs to the trust, and not when they were paid by MMBT, we conclude that in the circumstances of this case, where MMBT owned the entire beneficial interest of the trust, and also managed the books and accounts for the trust, the approximation employed by the judge fairly reflected the legislative purpose of G. L. c. 231, §§ 6B and 6C.\n6. The defendants’ litigation fees. The defendants challenge the judge’s denial of attorney’s fee awards to any of them under G. L. c. 21E, § 4A (/). Section § 4A (/) provides:\n“If the court finds that (1) the plaintiff did not participate in negotiations or dispute resolution in good faith; (2) the plaintiff had no reasonable basis for asserting that the defendant was liable, or (3) the plaintiff’s position with respect to the amount of the defendant’s liability pursuant to the provisions of this chapter was unreasonable, it shall award litigation costs and reasonable attorneys’ fees to the defendant.”\nIn their response to the trustees’ § 4A demand letter, Thermo Electron and TJA asserted their intention of seeking attorney’s fees under § 4A (/). Similarly, in their answer to the trustees’ original complaint, Thermo Electron and TJA included a counterclaim alleging entitlement to attorney’s fees under § 4A (f) on the grounds that the trustees did not negotiate in good faith and there was no reasonable basis for claiming liability on the part of Thermo Electron and TJA under G. L. c. 21E. However, in their answer to the trustees’ amended complaint, Thermo Electron and TJA, this time joined by Fisher Delaware II, Allied, Allied-Signal, and EL Co., did not include any counterclaim requesting relief under § 4A (/), or otherwise refer to attorney’s fees recoverable under that section. Rather, the defendants only made a generic request for “their costs of defending this action.” Following the jury trial, the judge tried without a jury both the trustees’ claim against Fisher Delaware II for litigation costs and attorney’s fees under G. L. c. 2IE, § 4A (d), and the defendants’ corresponding claims for such costs and fees under § 4A (/). He reserved, however, the threshold question whether some of the defendants’ § 4A (f) claims were waived because the defendants had not asserted the claims by way of a counterclaim or otherwise in their answers. In his decision following the trial, the judge ruled that all of the defendants, with the exception of Thermo Electron and TJA, were precluded from recovering litigation costs and attorney’s fees under § 4A (/) because they had not included any counterclaim seeking such relief. He then went on to reach the merits of the § 4A (f) claims raised by Thermo Electron and TJA. He ruled that TJA had failed to establish that the trustees had no reasonable basis to allege liability on its part and therefore TJA was not entitled to an award under § 4A (/), but that Thermo Electron was entitled to the award because it was unreasonable for the trustees to assert a claim against it based solely on its status as a parent company. Thereafter, however, the trustees pointed out in a posttrial motion that the answer to the trustees’ amended complaint, filed on behalf of all the defendants (including Thermo Electron) in fact did not include such a § 4A (f) counterclaim. The trustees’ contention was that like the other defendants, Thermo Electron was not entitled to costs and fees under § 4A (/) because of a failure to plead. In his memorandum and order on the posttrial motions, the judge agreed, and reversed his ruling in favor of Thermo Electron. Therefore, the judge’s ultimate determination was that none of the defendants was entitled to an award of costs and attorney’s fees under § 4A (/). We agree with the judge’s ultimate ruling.\nUnquestionably, the defendants’ claim to recover litigation costs and attorney’s fees represents a claim for relief in the form of a monetary award. Under the Massachusetts Rules of Civil Procedure, a claim for relief is to be set forth in a pleading that contains “(1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled.” Mass. R. Civ. P. 8 (a), 365 Mass. 749 (1974). One purpose of this requirement is to give fair notice of the claim to the parties. See Lazzaro v. Holladay, 15 Mass. App. Ct. 108, 110-111 (1983). As the judge pointed out, by the failure to include the § 4A (f) claim for litigation costs and attorney’s fees in their answer, the defendants “deprived [the trust] of the opportunity to do discovery or other pretrial preparation or motion practice on any factual or legal issues that such a pleading might have raised.”\nThe defendants argue that the denial of their § 4A (/) claims solely for a failure to plead “exalted form over substance” and constituted legal error because the plain language of § 4A (/) does not require a defendant affirmatively to plead such a claim; in the defendants’ view, the judge was adding requirements to the statute that the Legislature had not seen fit to include. The argument lacks merit.\nWe fail to understand the significance of the fact that § 4A (/) contains no explicit direction to a defendant to plead a claim under that section as a prerequisite for obtaining relief. As a general rule, statutes that authorize or direct the award of attorney’s fees do not contain any such language. See, e.g., G. L. c. 12, § 111 (civil rights act); G. L. c. 21E, § 15 (citizen enforcement of environmental protection statute); G. L. c. 93A, §§ 9, 11 (consumer protection act); G. L. c. 151B, § 9 (antidiscrimination statute); G. L. c. 231, § 59H (“anti-SLAPP” statute). Nonetheless, parties seeking such fees are to include the request in their pleadings. See, e.g., Fabre v. Walton, 436 Mass. 517, 525 (2002), S.C., 441 Mass. 9 (2004) (in reversing denial of defendant’s special motion to dismiss under anti-SLAPP statute, which requires award of costs and attorney’s fees if granted, court specifically noted that defendant had included request for costs and attorney’s fees in her motion and would be entitled to award of such fees and costs on remand).\nMoreover, there is a particular reason for requiring a party seeking an award of litigation costs and attorney’s fees under § 4A — whether § 4A (/) or § 4A (d) — to set out its claim in a pleading. Under most statutory fee-shifting provisions (and all the statutory provisions cited in the previous paragraph), the party bringing the substantive claim may receive an award of costs and attorney’s fees directly as a consequence of prevailing on the merits of that claim; the entitlement or authorization is not contingent on proof of any other condition or fact. In contrast, § 4A (/) and (d) condition an award of litigation costs and attorney’s fees on a factual showing, and a resulting finding by the judge, that the party against whom the award of costs and fees is sought has acted in at least one of several specified ways that are deleterious to settlement of the underlying response action. Contrary to the defendants’ claim that an award of costs and fees under § 4A (f) is “self-effectuating,” the requirement that the judge make factual findings as a prerequisite to such an award leads inexorably to the conclusion that one of the parties to the litigation present the court with evidence on which such findings could be based. Because the defendant is the party seeking the award, it follows that the defendant should bear the burden of producing the necessary evidence. Basic rules of civil pleading and practice require, however, that in such circumstances, the opposing party receive fair notice of the nature of the defendant’s claim and the evidence that supports it. The fundamental way that such notice is initiated is through pleadings. Cf. Anthony’s Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 471 (1991) (failure to plead affirmative defense results in waiver of that defense).\nThe defendants also contend that by permitting the trustees to avoid a fee award against them based only on a “procedural technicality,” the judge contravened the section’s underlying legislative intent to sanction “opprobrious” conduct on the part of response action plaintiffs. The argument mixes apples and oranges. There is little doubt that § 4A (/) (and also § 4A [d\\) reflects a legislative intent to use fee-shifting awards as a sanction for misconduct, in order to encourage parties to negotiate and implement resolutions of environmental cleanup actions without costly and time-consuming htigation. But requiring those parties to abide by generally applicable rules of pleading and procedure when they seek to enforce the sanction does not conflict with this legislative purpose.,\n7. The litigation fees. The trust was awarded litigation fees and costs under G. L. c. 21E, § 15. Section 15 allows a court to award reasonable attorney’s fees and expert witness fees to any party “who advances the purposes of this chapter.” This provision authorizes a judge to award attorney’s fees and costs to a party that brings suit under G. L. c. 21E, § 4, for reimbursement of response costs as long as that party has not caused or contributed to the release of hazardous materials necessitating its response action. Martignetti v. Haigh-Farr, Inc., 425 Mass. 294, 319-321 (1997). Because the jury found that the trust did not cause or contribute to the contamination, the judge’s award under § 15 was warranted.\nFisher Delaware II argues that the trustees did not advance the purposes of the statute because they (1) pursued claims against a number of defendants against which they knew they had no reasonable claim and relied on facts which they knew to be false; (2) rejected settlement offers made during litigation; and (3) conducted a response action that was unreasonably delayed and that violated the MCP. Fisher’s argument is without merit. All that G. L. c. 21E, § 15, requires is that a plaintiff has sought reimbursement under G. L. c. 2 IE, § 4, and has not contributed to the hazardous waste release. Martignetti v. Haigh-Farr, Inc., supra at 321, 323-324. The statutory prerequisites for recovery under § 4 are that the plaintiff give sufficient notice to the defendants, § 4A (a); participate in negotiations in good faith, § 4A (b); and conduct a necessary and appropriate response action in accordance with the MCP, § 4, second and third pars.\nThe jury’s findings in this case established that the trustees conducted a necessary and appropriate response action in accordance with the MCP, and that the trust was not responsible for causing the contamination. None of the alleged defects cited by Fisher Delaware II would result in a violation of the two remaining prerequisites of notice and good faith negotiation. The allegedly false statement cited by Fisher Delaware II, found in the trustees’ § 4A letter, indicated that it was the trustees’ understanding “that [TCE] was used on the site from 1964-1988.” During his testimony Richard Rudman, the lawyer responsible for drafting the letter, admitted that the dates were a drafting error, and that the letter should have said “1964-1986.” Although the error suggested that the release of TCE might have occurred during TJA’s tenancy, it does not amount to bad faith negotiation or insufficient notice. Fisher Delaware II also argues that the trustees pursued manifestly unreasonable theories of corporate parent liability against EL Co., Thermo Electron, and Allied. Yet even if such theories were unreasonable with respect to EL Co., Thermo Electron, or Allied, they could have had no harmful effect on Fisher Delaware n. Fisher Delaware El’s last argument is that the final offer made during litigation, for $917,000, was for $200,000 more than the jury’s verdict, and the trustees’ failure to accept that offer means that Fisher Delaware II should not bear any costs of litigation incurred after that offer was made. The offer in question was made during litigation, and thus cannot contribute to a finding of bad faith in the pretrial negotiation process required by § 4A. The trastees “advanced the purposes of the statute,” and therefore the judge’s award was justified.\n8. Jurisdiction. The defendants argue that the trustees’ failure to propose an equitable share of the response costs, together with the alleged false or misleading statements made in the § 4A letter, deprived the Superior Court of jurisdiction over the trustees’ claims. The defendants cite § 4A (c), which provides that a party may commence a civil action under § 4A “[ojnly after notice has been given and after the procedures described in this section have been carried out. . . .” G. L. c. 21E, § 4A (c). Those procedures include the requirement that the § 4A letter state each recipient’s “proposed contribution, reimbursement or equitable share” of liability. G. L. c. 21E, § 4A (a). The alleged defects cited by the defendants do not deprive the Superior Court of jurisdiction. Minor inaccuracies, omissions, and errors in the contents of the § 4A letter cannot bar jurisdiction when all other procedural requirements of § 4A are complied with. See Rudnick v. Hospital Mtge. Group, Inc., 951 F. Supp. 7, 9 (D. Mass. 1996) (“when a party gives . . . actual notice, section 4A [a] is not a jurisdictional bar to commencement of an action”).\n9. Environmental report. The defendants’ final argument is that an environmental report commissioned by the trust was erroneously admitted in evidence over the defendants’ objections. The report contained a speculative assertion that an above-ground storage tank was the probable source of the TCE contamination. Fisher Delaware II contends that the report suggested that it was responsible for the contamination because it was Fisher Delaware II (and its corporate predecessors) that operated the aboveground storage tank. According to this argument, the report was highly prejudicial, should not have been admitted for any purpose, and its admission was an error requiring a new trial. “Relevant evidence is admissible unless unduly prejudicial, and, ‘[i]n weighing the probative value of evidence against any prejudicial effect it might have on a jury, we afford trial judges great latitude and discretion, and we uphold a judge’s decision in this area unless it is palpably wrong.’ ” Commonwealth v. Arroyo, 442 Mass. 135, 144 (2004), quoting Commonwealth v. Sicari, 434 Mass. 732, 752 (2001), cert. denied, 534 U.S. 1142 (2002). Here, the report was relevant to show that the trust was complying with the MCP, as well as to establish the amount of the response costs sought by the trustees. It was admitted with a limiting instruction that it was to be considered not for the truth of the matters asserted within it, but rather to show that it had been prepared and that the trustees were notified of its contents. That decision was well within the judge’s discretion.\n10. Conclusion. That portion of the amended judgment relating to the trustees’ claims under G. L. c. 2IE, §§ 4 and 15, is affirmed. The entry of judgment n.o.v. on the trustees’ contract claim is vacated and the case is remanded for the entry of a judgment based on the jury’s verdict on that claim.\nSo ordered.\nTrichloroethylene (TCE) is a type of industrial solvent used to clean and degrease metals and glass. The parties do not dispute that TCE qualifies as a “[hjazardous material” as defined in G. L. c. 21E, § 2.\nWe therefore vacate the trial judge’s allowance of the motion for judgment notwithstanding the verdict on the contract claim.\nWe acknowledge the receipt of amicus briefs filed by the Commonwealth, the LSP Association, Inc., and the Real Estate Bar Association for Massachusetts and the Abstract Club.\nThe jury trial in this case lasted three weeks, followed by a shorter trial on nonjury claims before the same trial judge. Thereafter, the parties filed extensive posttrial motions. The record reflects the very careful, thorough, and thought-fui work of the judge throughout the trial and posttrial proceedings.\nAfter a 1985 merger between Allied Corporation and the Signal Companies, Allied-Signal, Inc., was formed. We shall refer to both companies as “Allied.”\nThermo Jarrell Ash Corporation (TJA), the last lessee under the August 2, 1963, lease (lease), has no formal corporate relationship with the Jarrell Ash Company (JAC), the first lessee under the lease. Some time after the trial TJA changed its name to Thermo Elemental Inc. The companies involved on the site reused the names “Jarrell Ash,” “Fisher,” and “Instrumentation Laboratory,” apparently because those names were thought to be good brand names. As the judge noted, “The result is a confusing (to the outsider) assemblage of corporate entities, with similar and sometimes identical names.”\nThe letter was sent to both Allied Corp. and Allied-Signal, Inc.\nIL Co. was not itself a recipient of this demand letter, but was aware of its indemnification obligations to several of the recipients.\nJAC had long since been dissolved and did not respond to the demand letter.\nThe trustees did not appeal from this decision. Accordingly, there is no claim before us concerning response costs paid before July 1, 1989, or relating to alleged property damage under G. L. c. 21E, § 5.\nThe G. L. c. 21E, § 4, claims were tried against JAG, TJA, and Fisher Delaware II; the trustees dismissed their § 4 claims against EL Co., Thermo Electron, Allied, and Allied-Signal before trial began. At the close of the trustees’ case, the trial judge directed verdicts in favor of JAG and TJA on the § 4 claims.\nThe amounts awarded by the jury against Fisher Delaware II under § 4 (Count II of the amended complaint) covered the same response costs that were awarded against TJA under the contract claim based on the indemnity provision in the 1988 agreement (Count IV of the amended complaint). The latter amounts were larger than the former because some of the response costs claimed against Fisher Delaware II were barred by the statute of limitations applicable to § 4 claims, but this limitations period did not affect the contract claim against TJA. The final judgment specified that there was to be no double recovery by the trustees.\nAs mentioned, at the close of the trustees’ evidence at trial, the judge directed a verdict in favor of TJA on the trustees’ claim that TJA was responsible for any release of TCE. The trustees have not appealed from this determination.\nThe judge acknowledged that in reaching this decision he came to a result contrary to one reached before trial, when another judge had ruled that the language of the agreement’s indemnification provision was ambiguous, and had accordingly denied the parties’ cross motions for summary judgment on the contract claim.\nSee, however, note 19, infra.\nMoreover, it is at least possible to read the language of the indemnity provision in a way that does restrict the meaning of the word “Lessee” to TJA, but nonetheless supports the view that the proffered indemnity covers contamination caused by earlier lessees. The indemnity provision states that the obligation to indemnify applies to any hazardous material release “arising out of Lessee’s use or activities of Lessee, its employees and agents on the Premises during the term of the Lease” (emphasis supplied). It also states that no requirement to indemnify is imposed “on Lessee with respect to activities off the Premises that result in [a hazardous material release] without any involvement of Lessee, its employees or agents” (emphasis supplied). These are the only two references to the “Lessee, its employees or agents” — as opposed to simply the “Lessee” — in the entire agreement. In light of the series of interconnected corporate mergers, asset purchases, and name changes among the various lessees of the property, and evidence that to some extent, the employees on the site did not change despite the corporate changes, it would not be unreasonable to construe the phrase “Lessee, its employees and agents” as referring to TJA and its predecessor lessees, rather than just TJA. Given such a reading, all the words of the indemnity provision can be read consistently to mean that TJA, as the “Lessee” in the agreement, is obligated to indemnify the trustees for releases arising from its own use of the property and also from activities conducted by the earlier lessees. Such a reading does “no violence to the language” of the agreement as a whole. Chapman v. Katz, 448 Mass. 519, 528 n.20 (2007).\nAt trial, Lewis’s deposition testimony was read to the jury; Lewis did not testify as a live witness. The deposition had been taken October 30, 1998.\nFor example, there was evidence that when they were negotiating the terms to govern the agreement, Dusel and Lewis both understood that the 1963 lease contained an indemnification provision covering releases by all lessees. The jury also heard from Dusel that he discussed a draft of the agreement with the trustees’ attorney Taylor, and Dusel understood that the final version of the agreement, the one he signed, did indeed provide indemnification for releases going back to the beginning of the lease: the language “during the term of the Lease” that appeared in the indemnification provision of the agreement meant just that. Lewis, on the other hand, testified that he did not remember reviewing or discussing with Lambert any written drafts of the agreement or the final written version before he signed it. There was also evidence — again proffered by both Dusel and Lewis — that for the period of time extending from the signing of the agreement in the spring of 1988 up until 1992 (when a different lawyer for TJA became involved), TJA responded to the trustees’ requests for payment of remediation costs not by denying any responsibility, but instead by referring to the indemnification that AHSPC had provided to TJA — in other words, in a manner consistent with Lewis’ position that TJA could offer a broad indemnity to the trastees because TJA was in turn indemnified by AHSPC. In seeking to interpret the scope of the agreement’s indemnity provision, the jury were entitled to consider this evidence concerning the parties’ conduct following execution of the agreement. See, e.g., Keating v. Stadium Mgt.Corp., 24 Mass. App. Ct. 246, 251-252 (1987).\nThis language is quoted from the Massachusetts Contingency Plan (MCP) in effect after 1993. The MCP was substantially revised in 1993. See 310 Code Mass. Regs. § 40.0005 (1995). One of the trust’s alleged violations of the MCP occurred before 1993 and one occurred after. The purpose of the earlier version of the MCP was limited to establishing “requirements and procedures for the discovery, notification, assessment of, and response to, releases and threats of release of oil or hazardous materials,” and to identifying the “roles and responsibilities” of potentially responsible parties, government agencies, and the public in response actions. 310 Code Mass. Regs. § 40.002 (1989). The 1993 revisions maintained this purpose, but added many more, including the language quoted above.\nIn this respect, § 4 differs from G. L. c. 21E’s Federal analogue, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), which specifically allows a private party to recover response costs incurred that are “consistent with the national contingency plan.” 42 U.S.C. § 9607(a)(4)(B) (2000).\nIt bears noting that § 4’s second paragraph itself does not use the terms “strict compliance” or “exact compliance” with the MCR\nAs the trustees and the Commonwealth point out, acceptance of the defendants’ interpretation of § 4 could serve to discourage private parties from undertaking cleanup actions on their own in response to hazardous material contamination, because any mistake or misstep in meeting the MCP’s requirements, no matter how insignificant or immaterial, would preclude the parties from obtaining any reimbursement or cost-sharing from other private parties who were responsible in whole or in part for the contamination. As noted, two of the purposes of G. L. c. 21E are to “compel the prompt and efficient cleanup of hazardous material and to ensure that costs and damages are borne by the appropriate responsible parties.” Taygeta Corp. v. Varian Assocs., 436 Mass. 217, 223 (2002). See Sanitoy, Inc. v. Ilco Unican Corp., 413 Mass. 627, 629-630 (1992). Reading § 4 as the defendants propose would run contrary to both these goals.\nFor example, the defendants do not cite any deficiencies or expenses in the response action that would have been prevented if a scope of work had been prepared. And as to the “waiver” violation, it is significant that even after the department learned of this violation, the department chose to do nothing about it.\nCERCLA includes a somewhat broader definition of a “response action,” including not only removal and remedial action, but also “enforcement activities related thereto.” 42 U.S.C. § 9601(25). However, the United States Supreme Court in Key Tronic did not rely on the broader “enforcement activities” language to support its conclusion that some attorney’s fees may be recoverable under § 9607 of CERCLA. Key Tronic Corp. v. United States, 511 U.S. 809, 820 (1994). See Neumann v. Carlson Envtl., Inc., 429 F. Supp. 2d 946, 959-960 (N.D. Ill. 2006); Nutrasweet Co. v. X-L Eng’g Corp., 926 F. Supp. 767, 771 (N.D. Ill. 1996).\nThe defendants further argue that the records were improperly admitted hearsay because, having been redacted in preparation for litigation, they were not created in the ordinary course of business and therefore failed to conform to the requirements of the business records exception. See G. L. c. 233, § 78. The defendants’ argument fails because, as the judge determined, the records themselves were ordinary invoices plainly prepared in the ordinary course of business. Redacting a business record in preparation for litigation does not change the fact that the record was originally prepared in the ordinary course of business.\nRichard Rudman, the Hill & Barlow attorney primarily responsible for providing the legal response action services at issue, testified at length concerning the response-related work he performed, and the defendants had an opportunity to question him about the specific bills they now challenge.\nGeneral Laws c. 231, § 6B, provides for prejudgment interest in tort actions, and G. L. c. 231, § 6C, provides the same in relation to contract actions. The same principles govern the calculation of prejudgment interest under both statutes. See St. Paul Surplus Lines Ins. Co. v. Feingold & Feingold Ins. Agency, Inc., 427 Mass. 372, 377 (1998) (calculation of prejudgment interest on tort claim under G. L. c. 231, § 6B); Sterilite Corp. v. Continental Cas. Co., 397 Mass. 837, 841-842 (same in connection with contract claim under G.L. c. 231, § 6C).\nThis method of calculating interest is equally applicable to the trustees’ contract claim.\nIn this connection, the judge noted that while he had heard evidence on the merits of the defendants’ G. L. c. 21E, § 4A (f), claims, they were “not tried by consent. . . : [the trustees] timely made [their] objection to my hearing the claims.” On their part, the trustees had specifically set out their corresponding claim against the defendants under § 4A (d) for litigation costs and attorney’s fees in a separate count of both their original and amended complaints.\nThe trustees’ claim for attorney’s fees and costs under G. L. c. 21E, § 15, is discussed infra. The trustees included a specific request for such fees in their amended complaint.\nIn a related vein, we have held that where a party seeks the award of appellate attorney’s fees and costs in a case where a statute has authorized the award of such fees and costs to the prevailing party at the trial level, the party seeking the fees must include the request in the appellate brief. Fabre v. Walton, 441 Mass. 9, 10 (2004). See Yorke Mgt. v. Castro, 406 Mass. 17, 20 (1989).\nThus, G. L. c. 21E, § 4A (f), at issue here, directs that the court shall award costs and fees to the defendant on a specific finding “that (1) the plaintiff did not participate in negotiations or dispute resolution in good faith; (2) the plaintiff had no reasonable basis for asserting that the defendant was liable, or (3) the plaintiff’s position with respect to the amount of the defendant’s liability . . . was unreasonable.”\nAs has been stated, the judge denied TJA’s § 4A (/) claim on the merits. On appeal, TJA argues the judge committed error in doing so. We do not need to reach TJA’s argument, however, because it is clear that TJA’s claim would properly have been denied on the same ground as Thermo Electron’s and the other defendants’, namely, that TJA failed to plead it.\nThe defendants’ final point about their § 4A (/) claims is that at least Thermo Electron and TJA adequately put the trustees on notice that they were seeking costs and fees under the section, by referencing the claim in their response to the plaintiffs’ § 4A demand letter, and later by including a specific counterclaim for costs and fees under § 4A (/) in their answer to the original complaint. In the circumstances, they contend, the judge’s denial of their § 4A (f) claims for lack of pleading is particularly unjustified. We disagree. The inclusion of a § 4A (f) counterclaim in these two defendants’ original answer, followed by an answer to the amended complaint that includes no such counterclaim and no reference to § 4A (/) — all occurring while these defendants were represented by competent and sophisticated counsel — might reasonably be interpreted as an intentional abandonment or waiver of the § 4A (/) claim.\nThe judge also awarded litigation costs and attorney’s fees to the trust under G. L. c. 21E, § 4A (d). Because we conclude that the trustees are entitled to the fees awarded by the judge under § 15, we need not decide whether they are entitled to the identical fees under § 4A (d).\nBecause Fisher Delaware II was the only party found responsible under G. L. c. 21E, § 4 (/), it is the only party required to pay under § 15.\nWhile the jury eventually awarded the trustees $719,484.20 on the § 4 claim, that amount did not include interest or litigation fees, and $600,000 of which was to be paid over time without security. With interest, the jury award totaled $1,245,887.80, with fees and costs added in, the award is obviously much higher. (See note 41, infra.)\nThere is no question raised about the amount of fees awarded to the trust: the parties commendably stipulated to the reasonableness of the amount, while reserving arguments about the propriety of making an award. The fees awarded to the trustees were $1,100,000.\nThe trustees have requested an award of attorney’s fees and costs related to this appeal, pursuant to G. L. c. 21E, § 15. They are authorized to seek such an award by filing with the court a request for fees and costs within fourteen days of the issuance of the rescript from this court, in accordance with the procedure set forth in Fabre v. Walton, 441 Mass. 9, 10-11 (2004). Fisher Delaware II will be given fourteen days thereafter to respond."", ""type"": ""majority"", ""author"": ""Botsford, J.""}], ""attorneys"": [""C. Dylan Sanders & Lisa C. Goodheart for the plaintiffs."", ""Jonathan Sablone (Marcus E. Cohn & J. Christopher Allen, Jr., with him) for the defendants."", ""The following submitted briefs for amici curiae:"", ""Martha Coakley, Attorney General, & Seth Schofield, Assistant Attorney General, for the Commonwealth."", ""Stephen D. Anderson, Arthur P. Kreiger, & Douglas H. Wilkins for Real Estate Bar Association for Massachusetts & another."", ""Michelle N. O’Brien for LSP Association, Inc.""], ""corrections"": """", ""head_matter"": ""Michael D. Bank & others, trustees, vs. Thermo Elemental Inc., & others.\nMiddlesex.\nFebruary 7, 2008.\nJune 16, 2008.\nPresent: Greaney, Ireland, Spina, Cowin, Cordy, & Botsford, JJ.\nHazardous Materials. Massachusetts Oil and Hazardous Material Release Prevention Act. Comprehensive Environmental Response Compensation and Liability Act. Real Property, Environmental damage. Contract, Indemnity, Construction of contract. Practice, Civil, Judgment notwithstanding verdict, Costs, Attorney’s fees, Interest. Statute, Construction. Evidence, Relevancy and materiality. Jurisdiction, Superior Court.\nIn a civil action involving the interpretation of a lease agreement, the judge erred in ruling as a matter of law that the agreement unambiguously restricted an indemnification provision to the activities of a particular tenant alone, where the meaning of that provision, and the scope of the indemnity being provided in particular, presented a question of fact to be decided by the jury. [648-651]\nA Superior Court judge erred in allowing a motion for judgment notwithstanding the verdict brought by a defendant on the plaintiffs’ contract-based claim, where the evidence allowed the jury to draw a reasonable inference in favor of the plaintiffs. [651-652]\nIn a civil action brought pursuant to G. L. c. 21E by trustees of a certain real estate trust seeking to recover reasonable costs necessitated by its appropriate response to the release of hazardous material by the defendants, corporate lessees of trust property, judgment properly entered against the defendants, where the private right of action created in § 4 of that statute did not establish strict compliance with the Massachusetts Contingency Plan as a condition precedent to recovery of any response costs [652-658]; further, there was no error in the judge’s instruction to the jury on this issue [658-659].\nIn a civil action brought pursuant to G. L. c. 21E by trustees of a certain real estate trust seeking to recover reasonable costs necessitated by its appropriate response to the release of hazardous material by the defendants, corporate lessees of trust property, attorney’s fees were properly included in the award of response costs, where there was nothing in the statute to exclude otherwise legitimate response costs simply because they related to services provided by an attorney; moreover, the judge properly instructed the jury that only reasonable, necessary, and appropriate response costs, not litigation costs, could be included in the award under § 4 of the statute, and there was sufficient evidence in the record to support the jury’s conclusions regarding the attorney’s fees assessed, notwithstanding the defendants’ objections to specific items represented on the trust’s law firm’s billing records. [659-661]\nThe judge in a civil action properly calculated an award of prejudgment interest, where the approximation he employed fairly reflected the legislative purpose of G. L. c. 231, §§ 6B and 6C. [662-663]\nThe judge in a civil action properly determined that none of the defendants was entitled to an award of costs and attorney’s fees under G. L. c. 21E, § 4A(/), where such request was not made in a pleading. [663-667]\nIn a civil action pursuant to G. L. c. 2 IE by trustees of a certain real estate trust seeking to recover reasonable costs necessitated by its appropriate response to the release of hazardous material by the defendants, corporate lessees of trust property, the judge properly awarded the trust litigation fees and costs under § 15 of that statute, where the jury found that the trust did not cause or contribute to the contamination of the groundwater under its property. [667-669]\nMinor inaccuracies, omissions, and errors in the contents of a letter issued pursuant to § 4A of the Massachusetts Oil and Hazardous Material Release Prevention Act, G. L. c. 21E, did not bar jurisdiction over a claim under that statute, when all other procedural requirements of § 4A were complied with. [669-670]\nIn a civil action pursuant to the Massachusetts Oil and Hazardous Material Release Prevention Act, G. L. c. 21E, it was well within the judge’s discretion to admit in evidence an environmental report commissioned by the plaintiff trust, where the report was relevant to the trust’s compliance with the Massachusetts Contingency Plan, as well as to establish the amount of the response costs sought by the trustees, and was admitted with an appropriate limiting instruction. [670-671]\nCivil action commenced in the Superior Court Department on June 18, 1996.\nMotions for summary judgment were heard by Regina L. Quinlan, J., and Diane M. Kottmyer, J., and the case was tried in two parts before Thomas R Billings, J.\nThe Supreme Judicial Court granted an application for direct appellate review.\nC. Dylan Sanders & Lisa C. Goodheart for the plaintiffs.\nJonathan Sablone (Marcus E. Cohn & J. Christopher Allen, Jr., with him) for the defendants.\nThe following submitted briefs for amici curiae:\nMartha Coakley, Attorney General, & Seth Schofield, Assistant Attorney General, for the Commonwealth.\nStephen D. Anderson, Arthur P. Kreiger, & Douglas H. Wilkins for Real Estate Bar Association for Massachusetts & another.\nMichelle N. O’Brien for LSP Association, Inc.\nRobert J.M. O’Hare, Jr., and Thomas M. Dusel.\nOf the Lincoln Street Trust.\nThermo Electron Corporation, Fisher Scientific Company, Instrumentation Laboratory Company, Allied Corporation, and Allied-Signal Corporation.""}, ""cites_to"": [{""cite"": ""406 Mass. 17"", ""year"": 1989, ""case_ids"": [3884413], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""20""}], ""case_paths"": [""/mass/406/0017-01""], ""opinion_index"": 0}, {""cite"": ""926 F. Supp. 767"", ""year"": 1996, ""case_ids"": [10878], ""category"": ""reporters:federal"", ""reporter"": ""F. Supp."", ""pin_cites"": [{""page"": ""771""}], ""case_paths"": [""/f-supp/926/0767-01""], ""opinion_index"": 0}, {""cite"": ""429 F. Supp. 2d 946"", ""year"": 2006, ""case_ids"": [2968313], ""category"": ""reporters:federal"", ""reporter"": ""F. Supp. 2d"", ""pin_cites"": [{""page"": ""959-960""}], ""case_paths"": [""/f-supp-2d/429/0946-01""], ""opinion_index"": 0}, {""cite"": ""42 U.S.C. § 9601"", ""category"": ""laws:leg_statute"", ""reporter"": ""U.S.C."", ""pin_cites"": [{""page"": ""(25)""}], ""opinion_index"": 0}, {""cite"": ""24 Mass. App. Ct. 246"", ""year"": 1987, ""case_ids"": [3993337], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""251-252""}], ""case_paths"": [""/mass-app-ct/24/0246-01""], ""opinion_index"": 0}, {""cite"": ""534 U.S. 1142"", ""year"": 2002, ""case_ids"": [9253984, 9253668, 9253700, 9253933, 9253838, 9253551, 9253519, 9253777, 9253587, 9253752, 9253723, 9253884, 9254040, 9253627], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/534/1142-13"", ""/us/534/1142-05"", ""/us/534/1142-06"", ""/us/534/1142-12"", ""/us/534/1142-10"", ""/us/534/1142-02"", ""/us/534/1142-01"", ""/us/534/1142-09"", ""/us/534/1142-03"", ""/us/534/1142-08"", ""/us/534/1142-07"", ""/us/534/1142-11"", ""/us/534/1142-14"", ""/us/534/1142-04""], ""opinion_index"": 0}, {""cite"": ""434 Mass. 732"", ""year"": 2001, ""case_ids"": [1080021], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""752""}], ""case_paths"": [""/mass/434/0732-01""], ""opinion_index"": 0}, {""cite"": ""442 Mass. 135"", ""year"": 2004, ""case_ids"": [1183106], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""144""}], ""case_paths"": [""/mass/442/0135-01""], ""opinion_index"": 0}, {""cite"": ""951 F. Supp. 7"", ""year"": 1996, ""case_ids"": [7745829], ""category"": ""reporters:federal"", ""reporter"": ""F. Supp."", ""pin_cites"": [{""page"": ""9"", ""parenthetical"": ""\""when a party gives . . . actual notice, section 4A [a] is not a jurisdictional bar to commencement of an action\""""}], ""case_paths"": [""/f-supp/951/0007-01""], ""opinion_index"": 0}, {""cite"": ""411 Mass. 451"", ""year"": 1991, ""case_ids"": [3898058], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""471"", ""parenthetical"": ""failure to plead affirmative defense results in waiver of that defense""}], ""case_paths"": [""/mass/411/0451-01""], ""opinion_index"": 0}, {""cite"": ""441 Mass. 9"", ""year"": 2004, ""weight"": 3, ""case_ids"": [411763], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""10""}, {""page"": ""10-11""}], ""case_paths"": [""/mass/441/0009-01""], ""opinion_index"": 0}, {""cite"": ""436 Mass. 517"", ""year"": 2002, ""case_ids"": [1178199], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""525""}], ""case_paths"": [""/mass/436/0517-01""], ""opinion_index"": 0}, {""cite"": ""15 Mass. App. Ct. 108"", ""year"": 1983, ""case_ids"": [5739156], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""110-111""}], ""case_paths"": [""/mass-app-ct/15/0108-01""], ""opinion_index"": 0}, {""cite"": ""365 Mass. 749"", ""year"": 1974, ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""opinion_index"": 0}, {""cite"": ""419 Mass. 377"", ""year"": 1995, ""case_ids"": [823725], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""381"", ""parenthetical"": ""calculating § 6C interest owed over multi-year period as of each year's end""}], ""case_paths"": [""/mass/419/0377-01""], ""opinion_index"": 0}, {""cite"": ""427 Mass. 372"", ""year"": 1998, ""weight"": 2, ""case_ids"": [310266], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""377""}, {""page"": ""377"", ""parenthetical"": ""calculation of prejudgment interest on tort claim under G. L. c. 231, § 6B""}], ""case_paths"": [""/mass/427/0372-01""], ""opinion_index"": 0}, {""cite"": ""383 Mass. 825"", ""year"": 1981, ""case_ids"": [813448], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""835""}], ""case_paths"": [""/mass/383/0825-01""], ""opinion_index"": 0}, {""cite"": ""397 Mass. 837"", ""year"": 1986, ""weight"": 2, ""case_ids"": [874710], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""841""}, {""page"": ""841-842""}], ""case_paths"": [""/mass/397/0837-01""], ""opinion_index"": 0}, {""cite"": ""413 Mass. 627"", ""year"": 1992, ""weight"": 3, ""case_ids"": [3902597], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""630""}, {""page"": ""629-630""}], ""case_paths"": [""/mass/413/0627-01""], ""opinion_index"": 0}, {""cite"": ""425 Mass. 294"", ""year"": 1997, ""weight"": 2, ""case_ids"": [274580], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""parenthetical"": ""\""To the extent that there are similarities in language and structure [between G. L. c. 21E and CERCLA], it is desirable to arrive at similar interpretations . . .\""""}, {""page"": ""319-321""}], ""case_paths"": [""/mass/425/0294-01""], ""opinion_index"": 0}, {""cite"": ""511 U.S. 809"", ""year"": 1994, ""weight"": 2, ""case_ids"": [1146879], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""page"": ""820""}, {""page"": ""820""}], ""case_paths"": [""/us/511/0809-01""], ""opinion_index"": 0}, {""cite"": ""42 U.S.C. § 9607"", ""year"": 2000, ""weight"": 2, ""category"": ""laws:leg_statute"", ""reporter"": ""U.S.C."", ""pin_cites"": [{""page"": ""(a)(4)(B)""}], ""opinion_index"": 0}, {""cite"": ""57 Mass. App. Ct. 696"", ""year"": 2003, ""case_ids"": [1250628], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""parenthetical"": ""Black II""}], ""case_paths"": [""/mass-app-ct/57/0696-01""], ""opinion_index"": 0}, {""cite"": ""45 Mass. App. Ct. 461"", ""year"": 1998, ""case_ids"": [1707060], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""parenthetical"": ""Black I""}], ""case_paths"": [""/mass-app-ct/45/0461-01""], ""opinion_index"": 0}, {""cite"": ""443 F. Supp. 2d 97"", ""year"": 2006, ""case_ids"": [3667081], ""category"": ""reporters:federal"", ""reporter"": ""F. 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+3816605,"{""id"": 3816605, ""name"": ""Thomas McGregor vs. Allamerica Insurance Company"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""bab8aba62e15b231ec99a62d5772a387b2a6a0e220434b4070f93fbfa703c4e5"", ""simhash"": ""1:9f01858101198cf9"", ""pagerank"": {""raw"": 0.00000043392398427524347, ""percentile"": 0.9179589234739168}, ""char_count"": 11633, ""word_count"": 1860, ""cardinality"": 660, ""ocr_confidence"": 0.909}, ""casebody"": {""judges"": [], ""parties"": [""Thomas McGregor vs. Allamerica Insurance Company.""], ""opinions"": [{""text"": ""Ireland, J.\nThis case involves whether a spill of home heating oil falls within the scope of a pollution exclusion in a commercial general liability policy. The plaintiff, Thomas McGregor, doing business as McGregor Heating & Air Conditioning, seeks to invoke the duty of the defendant, Allamerica Insurance Company (Allamerica), to defend him in a suit stemming from work done for Peter and Susan Staecker. In that underlying suit, the Staeckers, and their insurers as subrogees, allege that an oil leak on the Staeckers’ property was caused by McGregor’s negligence. They seek to recover the costs of the remediation work required to clean up the spill, and the rent lost during the remediation work. Allamerica claims that the oil leak is excluded by the pollution exclusion in McGregor’s commercial general liability policy, and that it has no duty to defend or indemnify him with regard to the Staeckers’ claims. A judge in the Superior Court granted McGregor’s motion for summary judgment. Allamerica appealed from that decision, and we granted its application for direct appellate review. We reverse the order of the Superior Court granting McGregor’s motion for summary judgment, and grant summary judgment for Allamerica.\nBackground. The material facts of this case are undisputed. In December of 1994, McGregor installed a new furnace in a single-family residence owned by the Staeckers. In February, 2001,'six years after McGregor had completed his work, a leak in the supply line allowed oil from the tank to drain into the ground below the house. In the underlying case, the Staeckers claim that Mc-Gregor negligently failed to replace or repair the supply line running from the oil supply tank to the newly installed oil burner when he replaced the furnace, and that his negligence caused the oil spill. The Department of Environmental Protection (department) issued a notice of responsibility to the Staeckers directing them to remediate any environmental contamination caused by the oil that had been released on their property. The Staeckers’ suit seeks to recover the costs of the State-ordered cleanup and the lost rental income from the property during the cleanup.\nMcGregor’s business was insured by Allamerica under a commercial general liability policy. He notified Allamerica of the Staeckers’ claims and attempted to invoke its duty to defend him. Allamerica denied coverage, taking the position that the suit brought by the Staeckers was excluded by the “total pollution exclusion” in McGregor’s policy, which read in pertinent part:\n“This insurance does not apply to:\nit\n“1) ‘Bodily injury’ or ‘property damage’ arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of ‘pollutants’\n“2) Any loss, cost, or expense arising out of any:\na) Request, demand, order or statutory or regulatory requirement that any insured or others test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to, or assess the effects of, ‘pollutants’ . . . .”\n“Pollutants” are defined in the policy as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.” Mc-Gregor filed a complaint in May, 2004, seeking a judgment declaring that his policy with Allamerica covered the Staeckers’ claims, and claiming that Allamerica’s refusal to defend him constituted a breach of contract and a violation of G. L. c. 176D. On cross motions for summary judgment, the judge granted McGregor’s motion for summary judgment, holding that the oil spill was not a “pollutant” as that word was used in the policy.\nDiscussion. “The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). Because there is no factual dispute in this case, the only issue is the interpretation of the language in the pollution exclusion, an issue that is purely a question of law. See Herbert A. Sullivan, Inc. v. Utica Mut. Ins. Co., 439 Mass. 387, 394 (2003). When interpreting an insurance contract, we “consider what an objectively reasonable insured, reading the relevant policy language, would expect to be covered.” Hazen Paper Co. v. United States Fid. & Guar. Co., 407 Mass. 689, 700 (1990). Unambiguous terms are construed in their usual and ordinary sense. Hakim v. Massachusetts Insurers’ Insolvency Fund, 424 Mass. 275, 281 (1997). “[A]mbiguous words or provisions are to be resolved against the insurer.” City Fuel Corp. v. National Fire Ins. Co., 446 Mass. 638, 640 (2006).\nWith this standard in mind, we conclude that Allamerica had no obligation to defend or indemnify McGregor for the claims brought against him by the Staeckers. Other courts have held that the costs associated with discharges of oil, gasoline, or other petroleum products are excluded by pollution exclusion clauses nearly identical to the one in McGregor’s policy. See, e.g., Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 122 (2d Cir. 1990); Union Mut. Fire Ins. Co. v. Hatch, 835 F. Supp. 59, 66 (D.N.H. 1993). Although no Massachusetts appellate court has addressed the question directly, Massachusetts courts have treated spilled oil as a pollutant when considering pollution exclusions. See Jussim v. Massachusetts Bay Ins. Co., 415 Mass. 24, 29-30 (1993); Shapiro v. Public Serv. Mut. Ins. Co., 19 Mass. App. Ct. 648, 651 (1985). A policyholder reading McGregor’s policy could reasonably expect that oil leaking into the ground constitutes a pollutant within the meaning of the policy. The Staeckers’ claims allege just such a circumstance, and therefore unambiguously fit within the pollution exclusion of McGregor’s policy.\nConsideration of the statute under which the department ordered the Staeckers to clean up the oil lends strength to our interpretation of the spilled oil as a pollutant. The remediation costs for the Staeckers’ property were incurred pursuant to a notice of responsibility issued by the department under the Massachusetts Oil and Hazardous Material Release Prevention and Response Act, G. L. c. 21E, § 5. One of the principal objectives of that statute is “to compel the prompt and efficient cleanup of hazardous material.” Taygeta Corp. v. Varian Assocs., 436 Mass. 217, 223 (2002). A reasonable insured would expect that oil that the Staeckers were required to clean up pursuant to an order from the department under G. L. c. 21E is a pollutant.\nMcGregor argues that Atlantic Mut. Ins. Co. v. McFadden, 413 Mass. 90 (1992), and Western Alliance Ins. Co. v. Gill, 426 Mass. 115 (1997), limit pollution exclusions to the improper handling of hazardous waste, or other pollution occurring in an industrial setting. McGregor misreads the holdings of those cases. In the Gill case, we held that carbon monoxide from a restaurant oven was not a pollutant within the meaning of a pollution exclusion clause. Western Alliance Ins. Co. v. Gill, supra at 120. In the McFadden case, we held that lead paint in a residential rental unit was not a pollutant within the meaning of a pollution exclusion clause. Atlantic Mut. Ins. Co. v. McFadden, supra at 92. The result in each case rested primarily on the observation that the harm at issue was not caused by the kind of release that an ordinary insured would understand as pollution. By contrast, spilled oil is a classic example of pollution, and a reasonable insured would understand oil leaking into the ground to be a pollutant. The location of an oil spill at a residence, rather than an industrial or manufacturing site, does not automatically alter the classification of spilled oil as a pollutant.\nMcGregor also argues that to interpret the pollution exclusion to foreclose coverage in this case would “effectively eviscerate[]” his policy because any mishap in his business is likely to include a discharge of oil, soot, or smoke. This overstates the scope of the pollution exclusion. It applies only to harms “arising out of” a discharge of pollutants. Accidents are not excluded from coverage merely because oil or soot is incidentally discharged in the course of an otherwise covered event. Furthermore, not all potential mishaps in McGregor’s business will involve oil or other pollutants. As long as an insurance policy provides coverage for some acts, it is not illusory simply because it contains a broad exclusion. See Bagley v. Monticello Ins. Co., 430 Mass. 454, 459-460 (1999). Costs associated with spilled oil are no less excluded by pollution exclusions merely because the insured regularly works with oil as part of his ordinary business activities. That the pollution exclusion limits the value of the policy is no reason to depart from the plain meaning of that exclusion.\nWe reverse the order granting McGregor’s motion for summary judgment and remand the case for the entry of summary judgment for Allamerica.\nSo ordered.\nThe Staeckers’ insurers are Merrimack Mutual Fire Insurance Company and Liberty Mutual Insurance Company. Collectively, we refer to the Staeckers and their insurers as “the Staeckers.”\nMcGregor has provided no argument for analyzing the exclusion of lost rental income differently from the exclusion of remediation costs. Accordingly, we consider both claims together, as did the judge, in determining whether they involve pollutants.\nMcGregor also argues that his work was so separated by the passage of time, and that the nature of his work was so far removed from the circumstances of the leak, that he could not reasonably be expected to know that the policy would not cover the resulting suit. This argument primarily concerns the cause and foreseeability of the oil leak, issues that we need not address to determine whether the Staeckers’ claims fall within the pollution exclusion.\nMcGregor’s complaint also included a claim that Allamerica’s failure to provide coverage is an unfair and deceptive settlement practice under G. L. c. 176D, § 3 (9). It is not clear how the Superior Court judge decided this claim. However, given our conclusion that the Staeckers’ claims are excluded from coverage, we need not address it."", ""type"": ""majority"", ""author"": ""Ireland, J.""}], ""attorneys"": [""John P. Graceffa (Richard W. Jensen with him) for the defendant."", ""David M. Nickless for the plaintiff."", ""Scott J. Nathan, for Commerce Insurance Company, amicus curiae, was present but did not argue."", ""Laura A. Foggan & John C. Yang, of the District of Columbia, Richard Riley, & William Mekrut, for Complex Insurance Claims Litigation Association, amicus curiae, submitted a brief.""], ""corrections"": """", ""head_matter"": ""Thomas McGregor vs. Allamerica Insurance Company.\nWorcester.\nApril 3, 2007.\nJuly 10, 2007.\nPresent: Marshall, C.J., Greanby, Ireland, Spina, Cowin, & Cordy, JJ.\nInsurance, Pollution exclusion clause, General liability insurance, Insurer’s obligation to defend. Oil and Gas.\nIn an action seeking a judgment declaring that the defendant insurer was obligated under a commercial general liability policy to defend or indemnify the plaintiff in the underlying action arising from a spill of home heating oil, the judge erred in granting summary judgment in favor of the plaintiff, where the oil was a pollutant within the meaning of the policy’s pollution exclusion provision. [402-405]\nCivil action commenced in the Superior Court Department on May 24, 2004.\nThe case was heard by Leila R. Kern, J., on motions for summary judgment.\nThe Supreme Judicial Court granted an application for direct appellate review.\nJohn P. Graceffa (Richard W. Jensen with him) for the defendant.\nDavid M. Nickless for the plaintiff.\nScott J. Nathan, for Commerce Insurance Company, amicus curiae, was present but did not argue.\nLaura A. Foggan & John C. Yang, of the District of Columbia, Richard Riley, & William Mekrut, for Complex Insurance Claims Litigation Association, amicus curiae, submitted a brief.""}, ""cites_to"": [{""cite"": ""430 Mass. 454"", ""year"": 1999, ""case_ids"": [1157262], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""459-460""}], ""case_paths"": [""/mass/430/0454-01""], ""opinion_index"": 0}, {""cite"": ""426 Mass. 115"", ""year"": 1997, ""weight"": 2, ""case_ids"": [369453], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""120""}], ""case_paths"": [""/mass/426/0115-01""], ""opinion_index"": 0}, {""cite"": ""413 Mass. 90"", ""year"": 1992, ""weight"": 2, ""case_ids"": [3901443], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""92""}], ""case_paths"": [""/mass/413/0090-01""], ""opinion_index"": 0}, {""cite"": ""436 Mass. 217"", ""year"": 2002, ""case_ids"": [1178212], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""223""}], ""case_paths"": [""/mass/436/0217-01""], ""opinion_index"": 0}, {""cite"": ""19 Mass. App. Ct. 648"", ""year"": 1985, ""case_ids"": [5743884], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""651""}], ""case_paths"": [""/mass-app-ct/19/0648-01""], ""opinion_index"": 0}, {""cite"": ""415 Mass. 24"", ""year"": 1993, ""case_ids"": [3905656], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""29-30""}], ""case_paths"": [""/mass/415/0024-01""], ""opinion_index"": 0}, {""cite"": ""835 F. Supp. 59"", ""year"": 1993, ""case_ids"": [3867130], ""category"": ""reporters:federal"", ""reporter"": ""F. Supp."", ""pin_cites"": [{""page"": ""66""}], ""case_paths"": [""/f-supp/835/0059-01""], ""opinion_index"": 0}, {""cite"": ""922 F.2d 118"", ""year"": 1990, ""case_ids"": [10542029], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""122""}], ""case_paths"": [""/f2d/922/0118-01""], ""opinion_index"": 0}, {""cite"": ""446 Mass. 638"", ""year"": 2006, ""case_ids"": [3783612], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""640""}], ""case_paths"": [""/mass/446/0638-01""], ""opinion_index"": 0}, {""cite"": ""424 Mass. 275"", ""year"": 1997, ""case_ids"": [117678], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""281""}], ""case_paths"": [""/mass/424/0275-01""], ""opinion_index"": 0}, {""cite"": ""407 Mass. 689"", ""year"": 1990, ""case_ids"": [3885987], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""700""}], ""case_paths"": [""/mass/407/0689-01""], ""opinion_index"": 0}, {""cite"": ""439 Mass. 387"", ""year"": 2003, ""case_ids"": [47236], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""394""}], ""case_paths"": [""/mass/439/0387-01""], ""opinion_index"": 0}, {""cite"": ""410 Mass. 117"", ""year"": 1991, ""case_ids"": [3895508], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""120""}], ""case_paths"": [""/mass/410/0117-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""449 Mass. 400"", ""type"": ""official""}], ""file_name"": ""0400-01"", ""last_page"": ""405"", ""first_page"": ""400"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T17:48:37.961791+00:00"", ""decision_date"": ""2007-07-10"", ""docket_number"": """", ""last_page_order"": 427, ""first_page_order"": 422, ""name_abbreviation"": ""McGregor v. 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+3839558,"{""id"": 3839558, ""name"": ""Martha S. Plumer vs. Matthew Luce, Junior, & another"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""4517d8df1fdb3a0f3405c8656320e4703d77926212476470ae32a2f21aef9be4"", ""simhash"": ""1:92af02372ac2b889"", ""pagerank"": {""raw"": 0.00000036697683710249753, ""percentile"": 0.8908967279559542}, ""char_count"": 35971, ""word_count"": 6370, ""cardinality"": 1114, ""ocr_confidence"": 0.584}, ""casebody"": {""judges"": [], ""parties"": [""Martha S. Plumer vs. Matthew Luce, Junior, & another.""], ""opinions"": [{""text"": ""Cox, J.\nThe plaintiff in this bill in equity seeks to rescind a transaction with the defendant Luce, hereinafter referred to as the defendant, and to have him account for property that he received from her in that transaction on the ground that she was fraudulently induced by him to enter into it. She prays, among other things, that the “document,” hereinafter referred to, signed by her on January 13, 1939, be decreed to be null and void. The evidence is reported, and the trial judge made a voluntary report of material facts. The defendant appealed from the final decree by which the note, hereinafter referred to, and the “contract or other arrangement between the parties arising from the letter of January 12, 1939 are declared void,” and other relief was given to the plaintiff. In the circumstances, it is for this court to review fact as well as law, but weight must be given to the judge’s findings, and one question to be decided is whether it can rightly be said that the findings made by the judge who saw the witnesses and heard them testify are plainly wrong. Boston v. San- tosuosso, 307 Mass. 302, 331, 332, and cases cited. The report is “of all material facts upon which the order for decree is based.” In the circumstances, there is no room for any implication of findings beyond those contained in the judge’s report. Birnbaum v. Pamoukis, 301 Mass. 559, 561-562.\nThe report is as follows: “This is a bill in equity seeking the cancellation of a note given by the defendant to the plaintiff and an accounting between the parties, arising out of transactions hereinafter referred to. The plaintiff is a widow, her husband having died in 1933 and leaving her with considerable personal property consisting of securities, and from 1933 on the plaintiff did considerable business with brokers in the purchase and sales of securities. The defendant was formerly a customers’ man, so-called, for J. H. Goddard & Company, dealer and broker in investment securities, and by some way, which did not appear in evidence, the defendant knew of the plaintiff and called upon her in March of 1937, secured her confidence and was allowed by her to act as broker in various transactions relative to the securities then owned by the plaintiff. These ’ dealings and transactions went on until the latter part of 1938, when the defendant suggested to the plaintiff that he could deal more efficiently with the securities and could take advantage of a possible rise in the market value thereof if the same were placed in his name so that he could deal with them from time to time without conferring with the plaintiff. He first suggested that a corporation be formed to handle the business relative to the securities; this the plaintiff refused to do, but did finally agree to turn over to the defendant such securities as were then available having approximately a market value of $17,000. The defendant suggested that the arrangements should be reduced to writing, and to that end he consulted counsel who drafted a letter addressed to the plaintiff and signed by the defendant, a copy of which appears in the bill and bears a date of January 12, 1939. The original was sent to the plaintiff by mail and on the next day, January 13, 1939, she signed the postscript thereto setting forth that she had read the letter and understood fully its terms. On the same day she turned over to the defendant securities at an approximate market value of $17,000.00. After the securities were delivered to the defendant he sold the same within two or three days through the brokerage office of J. P. Marto & Company, checks for the proceeds thereof being made out by J. P. Marto & Company in the name of the plaintiff. These checks were delivered to the plaintiff by the defendant and she then endorsed the same so that the defendant could cash them, the proceeds of the sale of the securities amounted to $16,401. On February 1, 1939 the defendant delivered to the plaintiff his unsecured note of that date in the principal sum of $16,401, providing for the payment of principal in three years with interest at the rate of six per cent. The defendant then traded therein on margin with Spencer Trask & Company, investment brokers in Boston, and lost in such transactions, $2,877. Of the proceeds of the securities there was approximately $1,000 on a checking account in a bank, which is under attachment in this suit. Of the balance of the proceeds of the securities the defendant has spent the entire amount thereof in living expenses. If material, I find that the plaintiff, notwithstanding her acceptance of the letter of January 12th by signing the postscript thereto, did not understand nor intend to deliver the securities referred to to the defendant to do with as he pleased. She understood the arrangement was to the effect that the defendant would take the securities, deal with them on the market, confer with her monthly as to the status of her account, pay her interest monthly at the rate of six per cent and, at the end of three years upon her demand, would return such securities to her as the defendant had purchased for her account. I make this finding in view of that sentence in the letter, as follows: 'It is my intention, as you know, to use the monies received from you in return for my note in the purchase and sale of stock.’ The defendant paid the plaintiff interest monthly at the rate of six per cent; payments of interest since the suit was brought were made by check and have not been cashed by the plaintiff as the account upon which the checks were drawn was attached in this action. I find that, at the time the arrangement was made between the defendant and plaintiff, as above set forth, the defendant intended to use the proceeds of the securities for his own benefit. I find that the plaintiff was a woman of little or no business experience notwithstanding the fact that for two or three years prior to her dealings with the defendant she had her brokers act for her in the purchase and sale of securities. It was obvious that she did not know the difference between the proceeds of a coupon and a dividend, and in general had to rely upon the advice of others in all business matters. This the defendant well knew, and he also knew that she had great confidence in his honesty, business ability, his skill and experience in investments, that she trusted him, that he had influence with her in advising her as to investments, that he was friendly to her and interested in helping her. He expected and invited her to have absolute confidence in him and gave her to understand that she might safely apply to him for advice and counsel as to investments. The defendant also knew that the plaintiff, in relying upon him as she did, as hereinbefore set forth, sought no independent legal or other advice from another. These facts, together with the further fact that at the time the plaintiff signed the postscript to the letter of January 12th the defendant had the secret intention of converting the securities turned over to him or the proceeds thereof to his own use, make applicable to the situation thus disclosed the principle set forth in Israel v. Sommer, 292 Mass. 113, and in consequence thereof a decree may be entered declaring void the note given by the defendant to the plaintiff, the contract or other arrangement between the parties arising from the letter of January 12, 1939, declaring that the proceeds of the securities turned over to the defendant by the plaintiff are held by him in trust for her, and determining that the indebtedness of the defendant to the plaintiff is $17,385.07.”\nThe “letter” or “document,” hereinbefore referred to, is as follows: “Boston, Massachusetts January 12, 1939 Mrs. Martha S. Plumer 25 Sargent Street Melrose Highlands, Massachusetts Dear Madam: Before you consent to accept my note for three years in consideration of the loan of $17,000 I want to be sure that you fully understand the implications of the transaction and for this reason it seems wise to state them clearly in a letter so that you may be able to weigh the matter impartially before you commit yourself to the transaction. It is my intention, as you know, to use the moneys received from you in return for my note in the purchase and sale of stock. You must understand, however, that in the event that you decide to accept my note I shall be under no obligation so to do and if I do you will have no claim upon the stock itself but your sole claim will be against me personally for the repayment of the money which you loan me. In other words this transaction amounts to nothing more than a loan by you to me and my obligation to you created by this note will be solely a contractual relation. I want it further understood in the event that you decide to make me the loan that you are relying upon no representations other than are herein stated. Take time, therefore, to consider the matter and to take advice from others. If you decide to do it please sign the postscript [sic] herewith and return the letter to me, keeping for your own files the signed copy which I am enclosing herewith. Very truly yours, Matthew Luce Jr Melrose, January 13, 1939. I have read the foregoing letter and understand fully the terms thereof and I affix my signature hereto without reliance upon anything not expressed in the letter. Martha S. Plumer.”\nSubject to the defendant’s exception evidence was admitted as to the plaintiff’s understanding of the agreement. But in any event, the plaintiff’s understanding of whatever agreement was made is not material in the absence of a fiduciary relationship. Costello v. Hayes, 249 Mass. 349, 352. Darling-Singer Lumber Co. v. Commonwealth, 290 Mass. 488, 492.\nThe material findings are: (1) that at the time the “arrangement” was made, “as above set forth,” the defendant intended to use the proceeds of the securities for his own benefit; (2) the defendant was a' fiduciary. It is not entirely clear from the findings what the “arrangement” is “as above set forth.” The judge found that the plaintiff finally agreed to turn over her securities to the defendant after he had suggested that he could deal more efficiently with them if they were placed in his name so that he could deal with them from time to time without conferring with the plaintiff, and that the plaintiff signed the letter in question. The “contract or other arrangement . . . arising from the letter of January 12, 1939” is ordered to be declared “void,” as well as the note. We are of opinion that the judge, as did the parties, treated the letter in question as the contract. In so far as the material findings are concerned, we think they are to be considered as amounting to this: (1) the letter constituted the contract; (2) the defendant was a fiduciary; (3) the defendant had a secret intention which he was in duty bound to disclose.\n1. We are of opinion that the finding of a fiduciary relationship is wrong. Apparently it does not take into account the testimony of the plaintiff, by which she is bound, that when the defendant first came to see her in 1937 she gave him a list of her securities, and that thereafter she received a “Memorandum” typed upon sheets headed with the name “J. H. Goddard & Co. Investment Securities,” brokers by whom she knew the defendant was employed. This memorandum appears to contain an analysis of her securities, together with suggested changes by way of sales and purchases. The plaintiff testified that after several conversations with the defendant she gave him some of her savings bank books and securities, and it appears that from time to time Goddard & Company bought and sold securities for her account. She testified that she knew she was dealing with Goddard & Company; that she knew it was their advice she was receiving; that she knew the defendant was employed by, and knew, or presumed, that he was receiving pay from Goddard & Company for the services he rendered in securing her account, and that “that was the relation that existed between . . . [them] down until about 1939”; that as to the analysis of her securities that she received from Goddard & Company, she knew that this was their written opinion and advice and not the defendant’s personal advice. She received receipts from Goddard & Company for securities she turned over. Her account with that company is balanced as of November 29, 1937. The transactions that are shown thereafter, apart from a delivery of some shares that were exchanged for new stock of the same company in December, 1937, commence on August 24, 1938, and end on December 6, 1938. They consist of the receipt of four blocks of stock from the plaintiff which apparently Goddard & Company sold for her account, and for which four checks were given to her finally to balance the account. We think it follows that the relation between Goddard & Company and the plaintiff was that of debtor and creditor, and not a fiduciary one, and there are no special circumstances disclosed that permit a contrary conclusion. Furber v. Dane, 204 Mass. 412, 416. In the circumstances, the finding of the judge that the plaintiff allowed the defendant to act as her broker is not warranted. There is nothing in the record to indicate that either Goddard & Company or the defendant, so long as the plaintiff was dealing with that company, did, or refrained from doing, anything of which the plaintiff can complain, and at the trial her counsel expressly disavowed making any contention with regard to the defendant’s responsibility for the securities or money that was turned over to him in the spring of 1937.\nIn any event, the plaintiff’s relations with Goddard & Company finally came to an end, but not before she had opened two other accounts with brokers, with one of whom she had an account at the time of the trial. She went to see one of these brokers and talked things over with him. He suggested a few changes in her securities to which she was agreeable, and in every instance where securities were bought or sold by these two brokers, she personally gave the order. It is true that it could have been found that the defendant, when he took the securities to the broker for sale after the letter of January 12, 1939, was signed, was asked as to his capacity, and that he said he acted in a “fiduciary capacity sort of”; that he did a lot of business with the plaintiff, and had done a lot of business with her over a period of years. We are of opinion, however, that this does not control the other evidence in the case that shows a business relationship between Goddard & Company and the plaintiff while the defendant was its employee and thereafter. See Tully v. Mandell, 269 Mass. 307, 309; Hyland v. Hyland, 278 Mass. 112, 119, 120.\nIn the fall of 1938 conversations began between the plaintiff and defendant relative to the latter having the plaintiff’s securities in his name. There were several conversations and the plaintiff “was just thinking it over.” Eventually she “decided he could look after it better than . . . [she], and said . . . [she] would let him have the money.” It is to be observed that in this she did not refer to letting the defendant have the securities. From the inception of these conversations down to the time when the letter was signed, there was nothing in them relating in any way to any transactions then in hand. On the contrary, they were with reference to some sort of any agreement that the defendant was suggesting. The defendant apparently had stepped out of his position as an employee of Goddard & Company, at least in so far as his relation with the plaintiff was concerned, and it is apparent that he was attempting to accomplish something for himself. It is true that during this period the plaintiff told him that she was not a business woman; that she trusted him to do the best he could for her and thought he was going to. She rejected his suggestion that a corporation be formed, although he told her it was all to benefit, to help, her. She gave the matter thought and eventually decided he “could look after it better than . . . [she]” and told him that she would let him have the “money.”\nThe judge found that the plaintiff was a woman of little or no “business experience notwithstanding the fact that for two or three years prior to her dealings with the defendant she had her brokers act for her in the purchase and sale of securities.” Just what is meant by the words “business experience” does not appear, but the evidence discloses that the plaintiff became the owner of a house at the time of the death of her husband, frotn whom she also inherited between $60,000 and $70,000, all of which consisted of stocks and bank accounts; that she had some money of her own; “Not much.” Her securities were rearranged upon the advice of a broker shortly after her husband’s death, and thereafter it appears that there was a considerable number of stock transactions in regard to which she received advice and in almost all of which instances she reserved the right to make, and made, the final decision. The judge also found that it was obvious that the plaintiff did not know the difference between the proceeds of a coupon and a dividend, and, in general, had to rely upon the advice of others in all business matters. She did know that a coupon was something cut from “whatever it is- — I don’t know what it is; that is a bond, isn’t it.” She knew that a dividend is “what you make in stocks, if the company pays or if they make money, they pay you a dividend”; that dividends are paid out of earnings of a company and that they represent earnings. It is true that she testified that she did not know that the interest derived from bonds comes ahead of dividends. It appears that among the securities turned over by her to Goddard & Company there were at least eleven bonds, and that in the analysis of her securities at least eight of these bonds are discussed at length. Although she may not have known the precise difference between the “proceeds of a coupon and a dividend,” beyond question she owned not only bonds but also stocks before she ever met the defendant. We are of opinion that it does not appear that she “had” to rely upon the advice of others in all business matters. On the contrary, she testified that she did seek and obtain advice from other brokers, but as a rule she made her own decisions. When she and the defendant were discussing the formation of a corporation, it is apparent that she evinced a not inconsiderable amount of business intelligence.\nAs was said in Comstock v. Livingston, 210 Mass. 581, at page 584: “Mere respect for the judgment of another otrust in his character is not enough to constitute ... a relation [of trust]. ... If the relation is a business one, the existence of the mutual respect and confidence does not make it fiduciary.” We are of opinion that the case at bar is like Snow v. Merchants National Bank of New Bedford, 309 Mass. 354, 360-361, and that it is distinguishable from Hawkes v. Lackey, 207 Mass. 424, 431-433, and Birch v. Arnold & Sears, Inc. 288 Mass. 125, 129. In the case of Fardy v. Buckley, 231 Mass. 377, 381, the relation of trust and confidence was expressly admitted by the defendants. In Israel v. Sommer, 292 Mass. 113, the plaintiff was an attorney and the defendant’s intestate was his client.\nThe “letter” in question was signed by the plaintiff on January 13, 1939. The defendant testified that he purchased stocks upon a margin account with the money obtained from the sale of the securities that the plaintiff gave him, and it appears from the “bought” and “sold” statements of a brokerage firm that on January 24 and 30, 1939, the defendant bought shares of General Electric Company and Richfield Oil Corporation stock for which his account was charged $17,565, and that on April 6,1939, these shares of stock were sold and his account credited with $14,688.70. It is true that on January 13, 1939, the plaintiff gave the defendant seventy-five shares of General Electric Company stock. These shares, with others, were delivered by the defendant to a broker whose account with the plaintiff showed their receipt by him. The defendant testified that he sold these seventy-five shares and although it does not clearly appear from the record the parties have assumed that they were sold by the broker, and that the proceeds of the sale were included in one of the checks that the broker made payable to the plaintiff which she indorsed over to the defendant, and were also included in the amount of the note that the defendant gave the plaintiff. The defendant was asked about a loan of $1,500 that he said he made from the money derived from the sale of the stocks, and he testified that the loan was repaid. He was asked: “What became of that money?” He replied: “I don’t know what became of that; it was used in living expenses.” But he had already been asked how much of the money he had left and had testi-fled that there was a little over $1,000 and that all he lost on his margin account was $2,677. It seems to have been assumed, however, at the trial, that apart from what he lost on the margin account and the $1,000 he had left, he had spent the balance for his living expenses. It seems that the trial of this suit was in January, 1941. There is nothing to show when the defendant began to use any of the money for living expenses. It is true that there was no evidence of any dealings in the stock market by the defendant after April 6,1939. Apart from the “bought” and “sold” transactions with his brokers, there was no evidence of his account with them.\n2. It is true that an inference is permissible that a state of affairs, including a state of mind proved to exist, has existed for some time, Conroy v. Fall River Herald News Publishing Co. 306 Mass. 488, 493, and cases cited; see Flynn v. Growers Outlet, Inc. 307 Mass. 373, 377, and that the intent and disposition of a person can be ascertained only from his acts and declarations. Thayer v. Thayer, 101 Mass. 111, 113. We are of opinion that, in the case at bar, the evidence did not warrant an inference that the defendant, at the time the letter was signed, intended to use the proceeds of the securities for his own benefit or use, in the sense that such use was in violation of any agreement that he had made. It is to be observed in this connection that the trial judge did not find that at the time in question the defendant intended to use the money for living expenses. His findings go only to the extent that he intended to use the proceeds “for his own benefit ... to his own use.” If the transaction between the parties was a loan, as evidenced by the letter, variously referred to by the parties as the agreement or contract, the defendant had a right to use the proceeds derived from the sale of the securities that were turned over to him as anyone would have to use money that he had borrowed, in the absence of some agreement to the contrary, if there was no fraud that would render the transaction voidable. It well may be that, as matters have turned out, the defendant, in so far as the evidence discloses, by using the money for living expenses, has, for the time being, made it impossible for the plaintiff to recover if the note she received could be sued upon, having in mind that, according to its terms, it is not due until February 1, 1942. But that fact, if it is a fact, in and of itself does not constitute a good reason why the plaintiff can recover against the defendant in some other form of action.\nIn the opinion of a majority of the court the decree cannot be supported by the findings of the trial judge. In the last analysis, however, it is the duty of this court to decide the case according to its judgment as to the facts, even though it is determined that the judge’s decision was plainly wrong. Berman v. Coakley, 257 Mass. 159, 162.\n3. There is no suggestion in the judge’s findings that there was any fraud practised by the defendant at the precise time that the “letter” was signed by the plaintiff, and she makes no contention that there was. Over her signature she stated that she fully understood its terms and that she signed it without reliance on anything not expressed therein. The plaintiff’s bill states that “after the letter had been read to her by the defendant but without taking time to consider the matter or to consult others, [she] signed” it. In the circumstances, apart from the question whether there are actionable fraudulent representations, she is bound by what she signed. Nutt v. Aldrich, 267 Mass. 193, 195. Strong v. Boston Mutual Life Ins. Co. 283 Mass. 88, 90-91. Darling-Singer Lumber Co. v. Commonwealth, 290 Mass. 488, 492.\n4. The plaintiff contends that the case at bar comes within the rule stated in Bates v. Southgate, 308 Mass. 170, where it was held that a provision in a contract attempting to protect a party against the consequences of his own fraud in inducing the contract is against public policy, is void, and that it is immaterial whether the fraud is antecedent to the contract or entered into its making. That case does not change in any particular the rules of law as to what constitutes the elements of actionable fraud and its consequences, nor is there anything said in it that limits or alters the effect of the paroi evidence rule (page 183). The test to be applied to determine whether the plaintiff is to be relieved of her contract by reason of any fraudulent misrepresentation is the same as that applied in actions of tort for deceit. Harris v. Delco Products, Inc. 305 Mass. 362, 364.\nThe plaintiff contends that the fraudulent misrepresentation was that the defendant told her that the proposed transaction involved a transfer of her securities to him as her representative to deal with them on the market, and that he represented that his intention was to buy and sell stocks to invest for the plaintiff when, in fact, he intended to use the proceeds of the securities for living expenses.\nIn the fall of 1938 when the defendant first spoke to the plaintiff about handling her securities personally, he said to her that it would be easier if he had the stocks in his hands; that he could buy and sell them without asking her; that it would be easier for her to depend on a sure amount instead of a lot one month and a little another month, “to have the same amount every month.” He suggested that a corporation be formed, but she “vetoed” this plan. The plaintiff testified that she told the defendant she wanted to arrange her affairs so that she would know what she could depend upon, and that they talked only of “this corporation, and this agreement that . . . [they] made, those two.” After several conversations in the fall of 1938, there was another one early in 1939. In answer to the question as to what the defendant said at that time, the plaintiff replied: “That was when I decided he could look after it better than I, and said I would let him have the money.” She also testified that the defendant was to have his “commission and whatever was right for him to have.” Something was said about drawing up an agreement, the defendant stating that he would have his lawyer do it so that both he and she would feel better about it, and she testified that she “agreed as to that.” In answer to a question on direct examination as to whether prior to the time when the “agreement” was signed the defendant had said anything to her about when the securities or money would be returned to her, she inquired of her counsel: “You mean the length of time it was supposed to run?” When informed that that was the question, she testified: “He said I could have it run one, two or three years,” and that she told him “it was a good thing, I would have it run three years.” Reverting to the conversations in the latter part of 1938, the plaintiff testified that the defendant told her he was going to buy stocks “with the money”; that he was to give her statements of what he bought and sold every two weeks; that whenever he sold she was to know about it and that he was to pay her interest every month at the rate of six per cent. Nowhere in the plaintiff’s testimony as to these conversations is there any reference to a note.\nAfter the conversation in 1939 about having an agreement drawn, the plaintiff was asked if she received a letter from the defendant in regard to the “agreement,” and she replied that she had; that it came by mail and that the defendant came to her house “right after the mail” and asked her if “it” had come. She told him that it had. In answer to a question whether she had some conversation with him, she replied: “Why, I just signed it, that was all.” She did not read it, but he read it to her and asked her to sign. When asked where they went after the defendant had read the agreement to her, she replied “Well, we had to get those securities for him.” They went to the bank where she got certain securities which she gave to him. Among them were some shares of telephone stock which she “rather objected to his changing”; she wanted to keep that stock, but he thought it was better not to. She put a copy of the letter that she had signed in her safe deposit box.\nThe defendant took the securities to an investment broker who sold them for the plaintiff’s account. The broker testified that the defendant asked that the checks for the proceeds be made payable to him, except in one instance. The checks, however, were made payable to the plaintiff, one of which bears the indorsement of the plaintiff and the defendant, and the other is indorsed by the plaintiff to the defendant.\nThe plaintiff testified that she knew that the buying and selling of securities in the market was more or less of a hazardous enterprise; that she knew a transaction would sometimes show a profit and sometimes a loss; that she knew the defendant was not guaranteeing infallibility in the stock market; that it seemed to her that their talk was different from the agreement; that ever since she had really looked at the agreement and knew what it said it seemed that their talk was different from it; that there was nothing unintelligible in the sentence to the effect that the transaction amounted to nothing more than a loan as she sees it \""now”; that she knows the meaning of the words “loan” and \""interest”; that there is nothing in the letter that is not perfectly plain and intelligible to her; that she knew the note was given to her in pursuance of the agreement of January 13; that she knew it represented a debt, and knew that he owed her the amount stated in the note; that she took the defendant’s note payable in three years and dated nineteen days after the \""agreement” was signed. On June 8 the defendant paid the plaintiff $1,900, and she testified that she knew at- that time that he was paying her on account of the principal of the note. At that time she signed a receipt acknowledging payment “on account of the principal” of the note in question \""in consideration of which payment said note is hereby ratified and confirmed.” She testified that she knows what the words “ratify” and “confirm” mean. The plaintiff also testified that she received checks for the interest; that each month since March, 1939, she had received a check from the defendant for the interest, even down to the date of the trial, the last of which cashed by her was for September, 1939; and that after the $1,900 was paid, the interest payments were diminished accordingly.\nWhen we refer to the letter that the plaintiff signed, it is true that the defendant stated his intention to use the money received from the plaintiff in return for his note in the purchase and sale of stock. But that is immediately followed by the statement that he is under no obligation to do so and that this \""transaction” amounts to nothing more than a loan by her to him. When the letter was read to her, the first sentence of which begins \""Before you consent to accept my note for three years in consideration of the loan of $17,000 . . .” she said nothing about the reference to the note or as to any other terms of the agreement. We may well assume that the agreement that she signed was different from the “ arrangement ” that she and the defendant had been discussing. In our opinion, the contention of the plaintiff as to the alleged misrepresentation comes down to this: that she is now seeking to turn one of the terms of a proposed “arrangement” into a misrepresentation of material facts upon which she had a right to rely, and did rely to her damage, so that she may have voided an entirely different contract that she made. The agreement that she signed may not read very much like what she says the proposed arrangement was, but where, as here, it is not open to her to contend that she was induced to sign the agreement by fraud, we are of opinion that she cannot rightly contend that one of the terms of a proposed agreement that never came into existence can be used as a basis upon which to bring the case at bar within the case of Bates v. Southgate, 308 Mass. 170. Her subsequent conduct has a strong tendency to show that she continued to regard the agreement that she signed as in force and effect, and that she looked to the defendant’s note as the basis of any claim that she had against him at least until she asked the defendant to terminate the “arrangement” which seems to have been sometime after June 8, 1939.\nUpon consideration of all the evidence, a majority of the court is of opinion that the plaintiff is not entitled to relief. The decree must be reversed and her bill be dismissed.\nOrdered accordingly."", ""type"": ""majority"", ""author"": ""Cox, J.""}], ""attorneys"": [""J. C. Johnston, for the defendants."", ""E. C. Park, (C. C. Worth with him,) for the plaintiff.""], ""corrections"": """", ""head_matter"": ""Martha S. Plumer vs. Matthew Luce, Junior, & another.\nSuffolk.\nOctober 7, 1941.\nFebruary 14, 1942.\nPresent: Field, C.J., Donahue, Qua, Cox, & Ronan, JJ.\nFiduciary. Fraud. Contract, Validity. Equity Pleading and Practice, Findings by judge.\nUpon a voluntary report by the trial judge “of all material facts upon which the order for decree is based” in a suit in equity, no further findings were to be implied.\nIn a suit in equity to rescind a certain transaction between the defendant and the plaintiff, a widow, a finding of a fiduciary relation between the parties was not justified where the plaintiff's testimony showed that she was not without business intelligence and that she had been accustomed generally to make the final decisions in matters respecting her securities, although previous to such transaction the defendant had procured her account for a stockbroking firm of which he was an employee and with which she had dealt for some time, and she had confidence in Iris honesty and ability.\nA contract in writing between a defendant and a woman of considerable business intelligence, toward whom he was not a fiduciary, signed by her under a recital that she understood its terms \""fully” and in signing did not rely “upon anything not expressed therein,” and plainly stating that a transaction whereby he was to receive \""moneys ” from her and in fact did receive the proceeds of sales of securities of hers, was a loan to him to be evidenced by a note, which he gave her and which she subsequently in writing “ratified and confirmed” as such, could not be avoided by her, nor could the defendant be held accountable for such proceeds, which he had u§ed for his own benefit, merely because negotiations with her a short time before the contract was signed looked toward an arrangement whereby he would take her securities and deal with them on the market for her account, paying her interest periodically, and she might have thought that such was the nature of the transaction finally effected.\nBill in equity, filed in the Superior Court on September 14, 1939, and afterwards amended.\nThe suit was heard by Morton, J., and final decree was entered by order of Broadhurst, J.\nJ. C. Johnston, for the defendants.\nE. C. Park, (C. C. 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+3839694,"{""id"": 3839694, ""name"": ""Commissioners of Public Works vs. Cities Service Oil Company"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""a44697525a69c7a9d4a755bc5504ccf674a790da380ec2b8c1df3097eb76f901"", ""simhash"": ""1:f86ab43d3a3002fc"", ""pagerank"": {""raw"": 0.0000003247601185628735, ""percentile"": 0.8686983295165085}, ""char_count"": 38947, ""word_count"": 6779, ""cardinality"": 1110, ""ocr_confidence"": 0.626}, ""casebody"": {""judges"": [], ""parties"": [""Commissioners of Public Works vs. Cities Service Oil Company.""], ""opinions"": [{""text"": ""Cox, J.\nThis is a bill in equity in which the plaintiffs ask that the defendant be ordered to remove certain structures erected by it or its predecessors upon land of the Commonwealth and to quit and make no further use of the premises. In effect, what is sought is the revocation of a license issued by the department of public works, division of waterways and public lands (see St. 1919, c. 350, §§ 111, 113; G. L. [Ter. Ed.] c. 91), to a predecessor of the defendant, under which the structures were erected. The case was tried upon a statement of agreed facts, and documentary evidence relating thereto. The plaintiffs are the commissioner and associate commissioners of public works of the Commonwealth in control and supervision of the department of public works. (G. L. [Ter. Ed.] c. 16, § 2.) The defendant is the owner of a parcel of land that adjoins the premises in question, title to which was acquired from the Commonwealth by mesne conveyances.\nIn 1917, a predecessor of the department of public works, by virtue of statutory authority (St. 1911, c. 748, as amended), took, by eminent domain, certain lands and flats in Boston Harbor, including the parcel now owned by the defendant which was conveyed in 1919 to one of its predecessors in title. The taking by eminent domain was \""for the purpose of constructing, or securing the constructing or utilizing of, piers, and, in connection therewith, highways, waterways, railroad connections, storage yards and sites for warehouses and industrial establishments.”\nOn June 7, 1920, the defendant’s predecessor, to whom the parcel hereinbefore referred to had been conveyed, petitioned the department of public works, setting forth that it desired “to build dolphins and mooring piles for a temporary berth in and over the tide-waters of Haywards Creek on Weymouth Fore River in the Town of Braintree,” and asking that a license be granted to build and maintain the structure in accordance with the plans filed with the petition, “subject to the provisions of Revised Laws, c. 96, and St. 1911, c. 748, and of all laws which were or might be in force applicable thereto.” On June 21, 1920, the petitioner was given license No. 51, by the terms of which it was authorized and licensed, “subject to the provisions of . . . [R. L. c. 96], chapter 748 of the Acts of 1911, and of all laws which are or may be in force applicable thereto, to build a temporary pile pier and dolphins in Haywards Creek ... for the purpose of providing a berth for vessels, in conformity with the accompanying plan . . . . ” The area allotted for the temporary pier is defined in the license and shown upon the plan. It is further provided that the “license is granted with the consent of the Commonwealth of Massachusetts as owner of the flats on which the larger part of said pile pier and said dolphins are to be constructed, and subject to the laws of the United States. It is a condition of this license that the said pile pier and dolphins and mooring pile are for temporary use only and shall be removed to the satisfaction of this Department upon notice in writing.” The licensee- erected the pier and dolphins “in good faith in accordance with License #51 and the plan attached to it . . . and large sums of money were expended thereon and in connection therewith. They were constructed by the licensee with the upland approach on its own land. The pier was built partly upon the land of the Commonwealth and partly upon land of the . . . [licensee] ... As contemplated by License #51, the 'larger part' was built upon the land of the Commonwealth.” The pier has been allowed to remain as built since 1921 and is in substantially the same condition as when first erected at a cost of approximately $10,000, and “the pier and structures were when built and still remain useful and valuable structures.”\nThe Commonwealth has never received any revenue by way of rent or compensation from the defendant or its predecessors in title for the use of the wharf or pier under said license. The defendant and its predecessors in title leased no land from the Commonwealth, and, under the provisions of R. L. c. 96, § 24 (see G. L. [Ter. Ed.] c. 91, § 22), the Governor and Council did not require that the original licensee should pay any compensation for the rights given, and none, in fact, was paid.\nOn December 31, 1936, in consequence of a vote of the department of public works, the defendant was notified to remove the structures from tide water, but it did not do so. On July 13, 1938, in consequence of another vote, the defendant was notified to remove from the flats of the Commonwealth at Haywards Creek the structures built under said license No. 51, \""in accordance with the terms and conditions thereof.” The defendant did not comply with this notice, and the structure is now held and maintained by it. The defendant and its predecessors in title have used the structure continuously “as a means of access and egress to and from the navigable waters of Haywards Creek and Weymouth Fore River.”\n\""If the . . . [defendant] has riparian rights at the locus of the wharf and if such rights embrace the privileges hereinafter stated in this paragraph or any of them, and is denied access to the navigable waters in Haywards Creek from its land, such riparian rights will be substantially injured by having its main artery of approach to and contact with vessels cut off on the northerly water front; by losing the right of swift and convenient unloading of tankers by pipe lines from the northerly water front, and by losing the right to have cargoes delivered at Haywards Creek immediately adjacent to its receiving tanks. The pier built and maintained under License #51 is not an obstruction to navigation.”\nThe findings of the trial judge, the opinion of this court, the rescript and final decree in the case of Scullin v. Cities Service Oil Co. 304 Mass. 75, are referred to, and may “be given such force and effect as they by law are entitled to have.”\nIn the case at bar the trial judge found the facts as stated, and ruled that the license was revocable and that it had been revoked. The defendant appealed from a final decree assented to as to form, adjudging that the license is revocable and has been revoked, and in effect, ordering that the defendant quit so much of the premises of the Commonwealth as are occupied by the structures in question and remove them within a stated time if it desires to do so.\nPrior to St. 1869, c. 432, legislative enactments conferring authority to erect and maintain structures in Boston Harbor as far as the harbor line established in 1840 were held to operate as grants and not merely as revocable licenses. See St. 1841, c. 35, Fitchburg Railroad v. Boston & Maine Railroad, 3 Cush. 58, 87; St. 1851, c. 26, Bradford v. McQuesten, 182 Mass. 80, 81, 82; St. 1855, c. 481, Treasurer & Receiver General v. Revere Sugar Refinery, 247 Mass. 483, 489. In the Bradford case it was said, at page 82: “Hundreds of similar acts [such as St. 1851, c. 26] had been passed before the St. of 1869, c, 432, was enacted declaring that any authority thereafter given to build on or enclose ground in tide waters should be construed as a revocable license, and it has been the common understanding, we think, that they operated as grants, and wharves have been built and improvements made on that footing. •. . . In the present case there is nothing in the circumstances disclosed tending to show that the act was not intended to operate, and should not be construed as operating as a grant. The interests of the Commonwealth in navigation are carefully protected by limiting the extension to the harbor line, and by requiring that below low water the wharf shall be built on piles which shall be certain distances apart. It would seem plain that the Commonwealth intended to part with all its rights except so far as contained in the conditions on which the grant was made.”\nSt. 1869, c. 432, provided that all authority or license that had been granted during that session of the Legislature, or that might be thereafter granted by the Commonwealth to any person or corporation to build any structure upon ground over which the tide ebbs and flows, or to fill up or inclose the same, whether such ground be above or below low water mark, or within or outside of one hundred rods from high water mark, or whether it be private property or the property of the Commonwealth, should be subject to the following conditions, whether they were expressed in the act or resolve granting the same or not, namely: such license or authority should be revocable at any time, “at the discretion of the legislature, and shall expire at the end of five years from its date, except where and so far as valuable structures, fillings or in closures, as provided in the act or resolve, shall have been actually and in good faith built or made under the same.” All things done under such license or authority were made subject to the determination and approval of the harbor commissioners as provided in § 4 of St. 1866, c. 149. Said § 4 provided, among other things, that all persons authorized by the Legislature to build structures over tide waters, or to fill any flats, should, before beginning the work, give written notice to the harbor commissioners, who constituted the board established by said c. 149, § 1, of the work they intended to do, and submit plans of any proposed structures and of the flats to be filled, and of the mode in which the work was to be performed; and no such work was to be commenced until the plans and mode of performing the same had been approved in writing by a majority of the commissioners. They were empowered to alter these plans at their discretion, and to prescribe the direction, limits and mode of building the structures “to any extent that does not dimmish or control the legislative grant,” and all such works were to be executed under their supervision. See R. L. c. 96, §§ 21, 24. Until 1869 the Legislature appears to have been content with the construction that the court had placed upon the grant of authority to erect structures in tide waters, but by said St. 1869, c. 432, \""the legislative intent was declared that thereafter any such authority should be construed as a,revocable license, and not a grant. See Bradford v. McQuesten, 182 Mass. 80, 82. The provision in said c. 432 that any authority or license should be subject to the conditions therein provided, “whether they be expressed in the act or resolve granting the same or not,” cannot be construed as a curtailment of the power of succeeding Legislatures to grant licenses subject to other conditions as to expiration or revocation. C. 1, § 1, art. 4, of the Constitution of the Commonwealth. Opinion of the Justices, 302 Mass. 605, 610-611.\nSt. 1872, c. 236, accomplished a marked departure from the methods by which authority had been granted in relation to the erection of structures in tide waters. It provided in § 1 that any person might build or extend a wharf, or construct a pier or other structure, fill land or flats, or drive piles in and over tidewater below high water mark, within the line of riparian ownership, on any shore, and within whatever harbor lines there might be at the time established by law along such shore, “provided, the license of the board of harbor commissioners is first obtained in a manner provided by . . . [St. 1866, c. 149, § 4].” Section 2 provided that the board might license such construction or work below high water mark and beyond the line of riparian ownership “upon such terms as they prescribe: provided, however, that no such license beyond the line of riparian ownership shall be valid unless approved by the governor and council; and provided, further, that no such license on any shore shall have any effect beyond such line of riparian ownership, except where a harbor line has been established by law along such shore; and no such license shall have effect beyond such harbor line, except in relation to a structure authorized by law outside such line.” Section 3 provided, among other things, that every license granted should set forth the “terms of the same, and specify by metes, bounds and otherwise, so as to identify and define, the location, dimensions, limits and mode of performing whatever is authorized by said license.” By § 4, licenses granted under the authority conferred were made subject to the provisions of St. 1866, c. 149, and St. 1869, c. 432, “so far as applicable and not inconsistent with this act.” See R. L. c. 96, §§ 17,-19.\nSt. 1874, c. 284, entitled “An Act to secure to the Commonwealth the value of its property in lands flowed by tide-water,” provided that whenever any authority or license was thereafter granted by the Legislature or by the board of harbor commissioners with the approval of the Governor and Council, to build any wharf or other structure or to fill or otherwise occupy land in tidewater lying below the line of low water mark not exceeding one hundred rods from high water mark, the person or corporation so authorized should pay to the Commonwealth, before the .work authorized or licensed was begun, “such compensation for the rights and privileges granted in such land as shall be determined by the governor and council to be just and equitable besides making compensation for tide-water displaced when required” under St. 1866, c. 149. It also provided that when such compensation had been paid for any such rights and privileges, “the same shall not, under the provisions of . . . [St. 1869, c. 432] terminate in five years and shall not be revocable unless provision is made in such revocation for the repayment by the Commonwealth to the holder of such rights and privileges, of the amount Of such compensation.” See B. L. c. 96, § 24.\nSt. 1874, c. 347, among other things, empowered the board of harbor commissioners to license any person to build structures or to fill land or flats below high water mark and beyond the line of riparian ownership in and over tidewater along the shore of which no “ commissioners' ” or harbor line had been established by law, “provided, however, that no such license shall have any validity beyond the line of riparian ownership unless approved by the governor and council.” Every license so granted was made subject to the provisions of St. 1872, c. 236, §§ 3 and 4. See R. L. c. 96, §§ 17, 19. By various statutory enactments, culminating in St. 1919, c. 350, § 111, the rights, powers, duties and obligations of the board of harbor commissioners, and of the succeeding boards, became vested in the department of public works. (See now G. L. [Ter. Ed.] c. 91.)\nThe license in question was granted on June 21, 1920, by virtue of the provisions contained in R. L. c. 96. (See St. 1911, c. 748.) Section 8 provided, among other things, that the board of harbor and land commissioners should have general care and supervision of the harbors and tidewaters within the Commonwealth, of the flats and lands flowed thereby, and of all structures therein, in order, among other things, \""to protect and develop the rights and property of the commonwealth in such flats and lands.” By § 17 the board was authorized to license and \""prescribe the terms for the construction or extension of . . . [structures], or for the filling of land or flats, or the driving of piles in tide water below high water mark, but not, except as to a structure authorized by law, beyond any established harbor line, nor, unless with the approval of the governor and council, beyond the line of riparian ownership.” Section 19 provided, among other things, that every license under the provisions of said c. 96 \""shall state the terms upon which it is granted and shall specify by metes, bounds and otherwise the location, dimensions and limits and the mode of performing the work authorized thereby.” Section 21 provided that every authority or license granted since 1868, \""or hereafter granted by the commonwealth ... to build a structure . . . upon ground over which the tide ebbs and flows, . . . whether such ground is above or below low water mark, or within or beyond one hundred rods from high water mark, or whether it is private property or the property of the commonwealth, shall be subject to the following conditions, whether they are expressed in the act, resolve or license granting the same or not: such authority or license shall be revocable at the discretion of the general court, and shall expire in five years from its date, except as to valuable structures . . . actually and in good faith built or made under the authority or license during the term thereof; but if compensation has been paid to the commonwealth under the provisions of section twenty-four or under any similar provision of law, the rights and privileges for which it has been paid shall not so terminate or be revoked unless provision is made for repayment of such compensation.” Section 22 provided, among other things, that no license or other authority to build structures or to fill up or enclose any such ground “shall be construed to interfere with or impair the right of any person affected thereby to equal proportional privileges of approaching low water mark or one hundred rods from high water mark, or harbor hues established by law, or to impair the right to obtain a license or authority so to approach of persons having interests in lands or flats which may be affected thereby, or to impair the legal rights of any person. All things done under such license or authority shall be subject to the approval of said board.” Section 24 provided that if authority or a license was granted to build structures upon land in tide water, such compensation as shall be determined by the Governor and Council shall be paid to the Commonwealth for the rights granted “in any land the title to which is in the commonwealth.”\nThe defendant contends that the phrase “prescribe the terms” in R. L. c. 96, § 17 (see, now, G. L. [Ter. Ed.] c. 91, §§ 14-18), related only to the terms for the construction of structures, and that it had nothing to do with the duration of the license or the tenure of the structures after they had been erected. It is to be noted that § 19 of said chapter required that every license not only should state the “terms upon which it is granted,” but also should specify the “location, dimensions and limits and the mode of performing the work authorized thereby.” When by St. 1872, c. 236, the Legislature departed from its policy as the sole licensing authority, it had already, by St. 1866, c. 149, delegated to the harbor commissioners full power to alter plans and to prescribe the direction, limits and mode of building the structures authorized by legislative authority to any extent that did not diminish or control the legislative grant. This authority of the board was reaffirmed by St. 1869, c. 432. But St. 1872, c. 236, as already pointed out, went further and gave the board authority to grant the license itself. By the provision of' § 1 of said c. 236, that the license of the board should be obtained in the manner provided by St. 1866, c. 149, § 4, the Legislature must have intended that the procedure there provided should be followed, as, in fact, it was required that it be followed where the authority was granted by the Legislature itself. By § 2 of said c. 236; the board might license the construction or work “upon such terms as they prescribe,” subject to two provisos, herein-before stated, relating to licenses beyond the line of riparian ownership and the harbor line. By § 3 of said c. 236, every license was required to set forth “the terms of the same,” and something more, that is, the location, dimensions, limits and mode of performing the work. But the board, since 1866, had been required to approve plans for the work, which it could alter at its discretion, and also had been empowered to prescribe the direction, limits and mode of building the structures. The new provisions, that it could grant licenses for the work “upon such terms as they prescribe” and that the licenses should set forth the “terms of the same,” are not without significance. It is true that by § 4 of said c. 236, licenses were made subject to the provisions of St. 1866, c. 149, and St. 1869, c. 432, “so far as applicable and not inconsistent with this act.” But we are of opinion that the construction of the words “upon such terms as they prescribe,” as it is to be pointed out, is not that for which the defendant must be held to contend.\nIn the revision of the statutes appearing in Pub. Sts. (1882), it was provided by c. 19, § 9, that the board might grant licenses “upon such terms as they shall prescribe,” and § 10 of said chapter contained provisions as to what the license should set forth, identical with those contained in St. 1872, c. 236, § 3, except in a minor change of phraseology which is of no consequence. When the next revision of the statutes came, R. L. (1902), a change was made in the phraseology of Pub. Sts. c. 19, § 9. As already pointed out, § 17 of R. L. c. 96 was made to read that the board might license and “prescribe the terms for the construction” of structures in tide water. The commissioners who were appointed to consolidate and arrange the public statutes were not authorized to make substantive changes. Resolves of 1896, c. 87. Paine v. Newton Street Railway, 192 Mass. 90, 93. There is nothing in the report of the commissioners or in the act of the Legislature in adopting the report to indicate any purpose, intention or suggestion that the substance of the law, as contained in Pub. Sts. c. 19, § 9, was to be changed, and it is a familiar rule that in such circumstances verbal changes in the revision of a statute do not alter its meaning and are construed as a continuation of preexisting laws. Derinza’s Case, 229 Mass. 435, 442. Mackintosh, petitioner, 246 Mass. 482, 484-485. Medford Trust Co. v. McKnight, 292 Mass. 1, 28. We are of opinion, therefore, that R. L. c. 96, §§17 and 19 contain no substantive change in the provisions in question that were first enacted by St. 1872, c. 236, §§ 1, 2 and 3. In our opinion the legislative intent appears under R. L. c. 96, §§ 17 and 19, that there are three matters that are the subject matter of the license : (1) the “terms” of the license itself; (2) the location within or upon which it is to be exercised; and (3) the mode of performing the work authorized.\nIt is a familiar canon of statutory interpretation that every word of a legislative enactment is to be given force and effect so far as reasonably practicable. No part is to be treated as immaterial or superfluous unless no other rational course is open. Libby v. New York, New Haven & Hartford Railroad, 273 Mass. 522, 526. Opinion of the Justices, 275 Mass. 575, 578. “The words of a statute are the main source for the ascertainment of a legislative purpose. They are to be construed according to their natural import in common and approved usage. . . . Statutes are to be interpreted, not alone according to their simple, literal or strict verbal meaning, but in connection with their development, their progression through the legislative body, the history of the times, prior legislation, contemporary customs and conditions and the system of positive law of which they are part, and in the light of the Constitution and of the common law, to the end that they be held to cover the subjects presumably within the vision of the Legislature and, on the one hand, be not unduly constricted so as to exclude matters fairly within their scope, and, on the other hand, be not stretched by enlargement of signification to comprehend matters not within the principle and purview on which they were founded when originally framed and their words chosen. General expressions may be restrained by relevant circumstances showing a legislative intent that they be narrowed and used in a particular sense.” Commonwealth v. Welosky, 276 Mass. 398, 401-402. It has been said that the word “terms” generally relates to conditions. Hurd v. Whitsett, 4 Colo. 77, 89-90. People v. J. O. Beekman & Co. Inc. 347 Ill. 92, 96. In West Virginia & Pennsylvania Railroad v. Harrison County Court, 47 W. Va. 273, 279, in construing a statutory provision that, when the people had voted a subscription to aid the construction of a railroad, it should be made on such terms as the county court deemed advisable, it was held that it was proper for the court, within the meaning of the word “terms,” to impose a reasonable limitation in time for the completion of the work.\nWe are of opinion that the word “terms,” as used in R. L. c. 96, §§17 and 19, comprehends the imposition of conditions other than those relating to the precise manner of construcr tian, if they are not unreasonable and do not contravene the statute as a whole. Crease v. Babcock, 23 Pick. 334, 342. It is of some consequence that § 16 of said c. 96, relating to persons who are authorized “by the general court” to build over tide waters, provided that no such work should be commenced until written notice had been given to the board and plans submitted, “of any proposed structure . . . and of the mode in which the work is to be performed, and the same has been approved in writing by said board, which may alter such plans and prescribe any direction, limits and mode of doing the work consistent with the legislative grant.” Under § 16, the authority was to be granted by the Legislature, and we have no doubt that it could limit the duration of the authority and establish the location. But as to the nature of the structures to be erected, and the mode of doing the work, it was for the board to determine “consistent with the legislative grant.” Under §§ 17 and 19 of said c. 96, when the board granted a license it was to be on such terms as it should prescribe, the location was to be defined, and also the mode of performing the work was to be specified. We are of opinion that, in the case at bar, under the authority to prescribe the terms of a license, the board could limit it as to time.\nThe court has not been called upon heretofore to construe the provisions of the statute under consideration for the purpose of determining the extent of the power of the governmental agency to revoke a license that it had issued. In 1927, however, the Attorney General gave an opinion to the commissioner of public .works relative to the matter. In discussing the provisions of St. 1869, c. 432, as amended, it was said, among other things, that, in effect, all licenses granted after 1868, “irrespective of other terms and conditions, were made subject in any event to forfeiture for nonuser of the rights granted, with the exception in case compensation had been paid. . . . Manifestly it could not and was not intended to curtail the power of future legislatures to grant licenses subject to other conditions as to expiration or revocation.” 8 Op. Atty. Gen. 216, 220-221. The question was considered whether the department of public works could prescribe as a term of a license that it should be revocable and that structures built thereunder should be removed upon revocation, if under the circumstances of the particular case, such requirement was reasonable. It was stated that information was at hand that, since 1872, it had been the practice of the harbor commissioners and their successors to grant licenses for the erection of temporary structures upon condition that they should be removed at the request of the board, that licenses so granted might be revoked or modified, and that many such licenses had been issued. Reference was made to the report of a former Attorney General in an opinion rendered January 15, 1906, to the effect that the board had the right, in granting the license, to reserve expressly the right to revoke it for some reasonable cause, and that the provisions of R. L. c. 96, § 21, were not in conflict (pages 221-222). In the opinion rendered in 1906 it was said that in the license under consideration there was an express reservation of the right to revoke; that “The word ‘terms’ as here used means conditions rather than time, as when used in the phrases, ‘terms for life,’ ‘terms for years’ etc. Conditions as to the time which the license shall run, are, however, not necessarily excluded from the class of terms which may be prescribed by the board. . . . That which the grantee gets is much less than an absolute license. ... He knows that he may be required to cease to act under the license at any time, and by accepting it with such a condition he may fairly be said to agree to the condition.” The Attorney General, in 1927, was of the opinion that the licensing board had the power to prescribe as a term of a license that it should be revocable and that structures built thereunder should be removed upon such revocation, if, under the circumstance of the particular case, such requirement is a reasonable one. It was pointed out, however, that it would not be within the power of the board to prescribe as a term of a license for which compensation had been paid, that it should terminate or be revocable without making adequate provision for the repayment of such compensation, but that where a revocable license was given, no right in land of the Commonwealth was granted, and accordingly, no compensation was required to be paid. In conclusion it was said: “Statutory provisions for the regulation of structures and works in tidewater have remained substantially unaltered for fifty years. In several important respects the power of the Division [[department of public works] to grant licenses, to prescribe their terms and to supervise works in tidewater needs definition and, it may be, enlargement.” (Page 226.)\nBut the defendant contends, inasmuch as the original licensee erected structures “in good faith,” in accordance with the license, which are still “useful and valuable structures,” that by virtue of the statute in question the license operated as a legislative grant: Reliance is placed upon § 21 of said c. 96 wherein it is provided, among other things, that every authority or license granted after 1868 shall be subject to the conditions, whether expressed or not, that “such authority or license shall be revocable at the discretion of the general court, and shall expire in five years from its date, except as to valuable structures . . . actually and in good faith built or made under the authority or license during the term thereof.” It is contended that, by this provision, the power of revocation first provided for by St. 1869, c. 432, could not be exercised if valuable structures had been built in good faith during the term of the authority or license. We are of opinion, however, that the provisions of said § 21, just quoted, are to the effect that the exception as to valuable structures does not apply in the event that the General Court, in the exercise of its discretion, sees fit to revoke the authority or license, but, on the contrary, that it is an exception relating to the provi- ' sion that the authority or license shall expire in five years from its date. Any other construction of the statute would, as a practical matter, render the right of revocation of little, if any, value except in cases where a licensee had failed to erect valuable structures within five years. That it was within the contemplation of the General Court that it might continue to authorize the erection of structures in tidewater is apparent from the provisions of St. 1866, c. 149, § 4 (R. L. c. 96, § 16). It hardly seems that it was the intention, in providing that an authority or license should be revocable at its discretion, to limit this power of revocation to cases where valuable structures had not been erected. In that event, the license would expire by its very limitation. It is to be observed that by said § 21, it is provided that if compensation has been paid to the Commonwealth for the rights granted in any land, the title to which is in the Commonwealth, such compensation having been determined by the Governor and Council, the rights and privileges for which it has been paid “shall not so terminate or be revoked” unless provision is made for repayment of such compensation. In at least one instance, prior to 1869, the Legislature, in authorizing the erection of a wharf, provided expressly that “this grant” should not extend beyond a date which made the term of the authority approximately five years. See St. 1856, c. 193. We are not called upon to determine what the rights of the defendant would be if the license in question had been revoked by the General Court.\nIt is assumed that the defendant acquired rights under the license that was granted. In the application for the license, the petitioner stated that it desired to build óértain structures “for a temporary berth in and over the tide-waters . . . that the land above low-water mark which would be covered or occupied by said structure ... is owned by . . . [the petitioner] and The Commonwéalth,” and it asked that a license be granted to build and maintain the structure in accordance with the plans submitted, subject to the provisions of B. L. c. 96, St. 1911, c. 748 (the statute providing for the creation of the board to be known as the directors of the port of Boston), and “of all laws which are or may be in force applicable thereto.” The license recited that the applicant had applied for it “to build a temporary pile pier and dolphins,” and it was given upon condition “that the said pile pier and dolphins and mooring pile are for temporary use only and shall be removed to the satisfaction of this Department upon notice in writing.” The larger part of the structure was upon flats owned by the Commonwealth. We are of opinion that the petitioner obtained that for which it asked. There is nothing in the statement of agreed facts, even by way of implication, to show that it objected to any of the provisions of the license, and we must assume that it accepted them and that whatever was done under the license was with a full understanding of, and acquiescence in, its provisions. In fact, it appears in the statement that the licensee erected the pier and dolphins “in good faith in accordance with License #51 and the plan attached to it.” The Commonwealth received nothing by way of rent or compensation for the use of the wharf or pier, and the Governor and Council did not require that the licensee should pay any rent or compensation “for the rights given, and none was in fact paid,” notwithstanding the provisions of § 24 of said c. 96, hereinbefore referred to. In our opinion the fact that the licensee erected the structure “in good faith in accordance with [[the] License” is to be considered with the further fact that the license was for the erection of a temporary structure, upon condition that it was for temporary use only and should be removed to the satisfaction of the department upon notice in writing, which notice, admittedly, it received.\nThe authority of the licensing board is commensurate with the provisions of the statute clothing it with its power. Lowell v. Archambault, 189 Mass. 70, 73. The broad power conferred by the Legislature to grant licenses upon such terms as the board shall prescribe, in the absence of statutory limitations, must be construed as authorizing it to impose terms that are not unreasonable.. There was an express statutory provision that if compensation had been paid to the Commonwealth, as none was, the rights and privileges for which it had been paid, should not terminate or be revoked unless provision was made for repayment of such compensation. R. L. c. 96, § 21. The defendant contends that it has valuable rights, by virtue of the license, in the very land of the Commonwealth, although it does not appear that any attempt was made to comply with § 24 of said c. 96 under which the compensation referred to in § 21 was to be determined. It may be that the opinion of the Attorney General, already referred to, was followed, to the effect that when a revocable license was granted, no right in the land was granted, and accordingly, no compensation was required to be paid.\nWe are of opinion, in the circumstances, that the licensee must be held to have accepted the license for the erection of structures “for temporary use only,” and, if in accordance with the terms of the license any such were erected, that, upon notice to remove them, it would be afforded, as it was, an opportunity to do so. In effect, the notice amounted to a revocation of the license. The decree that was entered, in so far as it relates to removal, requires this only “if the respondent so desires.” This provision in the decree affords the defendant the opportunity of removing its property. The erection of the structures for temporary use and upon condition that their removal could be required cannot be said to have given the defendant, in the circumstances, rights that would ripen into a permanency, so that the consequences of an order for removal of the structures amount to their destruction'or a taking of the defendant’s property without due process of law. See Crease v. Babcock, 23 Pick. 334, 342; Granara v. Italian Catholic Cemetery Association, 218 Mass. 387, 391; Opinion of the Justices, 300 Mass. 607; Greenwood v. Freight Co. 105 U. S. 13, 21-22; Detroit United Railway v. Detroit, 229 U. S. 39, 45-46.\nThe defendant contends that it is a riparian owner and has a property right of access by means of a pier to navigable waters. It is not necessary to consider this question. The erection of the structures in question was not under any such claim. On the contrary, they were erected by virtue of and in accordance with the license that was granted under the requirements of it. L. c. 96.\nDecree affirmed with costs."", ""type"": ""majority"", ""author"": ""Cox, J.""}], ""attorneys"": [""F. H. Stewart, (A. F. Ray & F. X. Daly with him,) for the defendant. -"", ""E. O. Proctor, Assistant Attorney General, for the plaintiffs.""], ""corrections"": """", ""head_matter"": ""Commissioners of Public Works vs. Cities Service Oil Company.\nSuffolk.\nOctober 11, 1940.\nFebruary 25, 1941.\nPresent: Field, C.J., Donahue, Dolan, & Cox, JJ.\nLicense. Department of Public Works. Tidewaters. Harbors. Words, “Terms.”\nThe department of public works, in granting a license under R. L. c. 96, §§ 17, 19, for the erection of structures upon tidewater property owned by the Commonwealth, no compensation therefor being required or paid under § 24, might validly make the license subject to the condition in substance that the structures “are for temporary use only and shall be removed . . . upon notice” by the department, notwithstanding that the structures erected and used by the licensee were valuable and erected in good faith within § 21.\nBill in equity, filed in- the Superior Court on September 29, 1938.\nThe defendant appealed from a final decree entered by order of Brogna, J.\nF. H. Stewart, (A. F. Ray & F. X. Daly with him,) for the defendant. -\nE. O. Proctor, Assistant Attorney General, for the plaintiffs.""}, ""cites_to"": [{""cite"": ""229 U. S. 39"", ""case_ids"": [3666154], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""page"": ""45-46""}], ""case_paths"": [""/us/229/0039-01""], ""opinion_index"": 0}, {""cite"": ""105 U. S. 13"", ""case_ids"": [3495173], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""page"": ""21-22""}], ""case_paths"": [""/us/105/0013-01""], ""opinion_index"": 0}, {""cite"": ""300 Mass. 607"", ""case_ids"": [864400], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/300/0607-01""], ""opinion_index"": 0}, {""cite"": ""218 Mass. 387"", ""case_ids"": [91766], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""391""}], ""case_paths"": [""/mass/218/0387-01""], ""opinion_index"": 0}, {""cite"": ""189 Mass. 70"", ""case_ids"": [461628], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""73""}], ""case_paths"": [""/mass/189/0070-01""], ""opinion_index"": 0}, {""cite"": ""23 Pick. 334"", ""weight"": 2, ""case_ids"": [2044329], ""category"": ""reporters:state"", ""reporter"": ""Pick."", ""pin_cites"": [{""page"": ""342""}, {""page"": ""342""}], ""case_paths"": [""/mass/40/0334-01""], ""opinion_index"": 0}, {""cite"": ""47 W. 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Va."", ""pin_cites"": [{""page"": ""279""}], ""case_paths"": [""/w-va/47/0273-01""], ""opinion_index"": 0}, {""cite"": ""347 Ill. 92"", ""case_ids"": [5270642], ""category"": ""reporters:state"", ""reporter"": ""Ill."", ""pin_cites"": [{""page"": ""96""}], ""case_paths"": [""/ill/347/0092-01""], ""opinion_index"": 0}, {""cite"": ""4 Colo. 77"", ""case_ids"": [5288374], ""category"": ""reporters:state"", ""reporter"": ""Colo."", ""pin_cites"": [{""page"": ""89-90""}], ""case_paths"": [""/colo/4/0077-01""], ""opinion_index"": 0}, {""cite"": ""276 Mass. 398"", ""case_ids"": [3830520], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""401-402""}], ""case_paths"": [""/mass/276/0398-01""], ""opinion_index"": 0}, {""cite"": ""275 Mass. 575"", ""case_ids"": [3829355], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""578""}], ""case_paths"": [""/mass/275/0575-01""], ""opinion_index"": 0}, {""cite"": ""273 Mass. 522"", ""case_ids"": [3827901], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""526""}], ""case_paths"": [""/mass/273/0522-01""], ""opinion_index"": 0}, {""cite"": ""292 Mass. 1"", ""case_ids"": [3837069], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""28""}], ""case_paths"": [""/mass/292/0001-01""], ""opinion_index"": 0}, {""cite"": ""246 Mass. 482"", ""case_ids"": [752342], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""484-485""}], ""case_paths"": [""/mass/246/0482-01""], ""opinion_index"": 0}, {""cite"": ""229 Mass. 435"", ""case_ids"": [3456868], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""442""}], ""case_paths"": [""/mass/229/0435-01""], ""opinion_index"": 0}, {""cite"": ""192 Mass. 90"", ""case_ids"": [463632], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""93""}], ""case_paths"": [""/mass/192/0090-01""], ""opinion_index"": 0}, {""cite"": ""302 Mass. 605"", ""case_ids"": [867827], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""610-611""}], ""case_paths"": [""/mass/302/0605-01""], ""opinion_index"": 0}, {""cite"": ""247 Mass. 483"", ""case_ids"": [749053], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""489""}], ""case_paths"": [""/mass/247/0483-01""], ""opinion_index"": 0}, {""cite"": ""182 Mass. 80"", ""weight"": 2, ""case_ids"": [828858], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""81, 82""}, {""page"": ""82""}], ""case_paths"": [""/mass/182/0080-01""], ""opinion_index"": 0}, {""cite"": ""3 Cush. 58"", ""case_ids"": [1984051], ""category"": ""reporters:state"", ""reporter"": ""Cush."", ""pin_cites"": [{""page"": ""87""}], ""case_paths"": [""/mass/57/0058-01""], ""opinion_index"": 0}, {""cite"": ""304 Mass. 75"", ""case_ids"": [873588], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/304/0075-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""308 Mass. 349"", ""type"": ""official""}], ""file_name"": ""0349-01"", ""last_page"": ""367"", ""first_page"": ""349"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T16:20:21.753998+00:00"", ""decision_date"": ""1941-02-25"", ""docket_number"": """", ""last_page_order"": 407, ""first_page_order"": 389, ""name_abbreviation"": ""Commissioners of Public Works v. 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+3842358,"{""id"": 3842358, ""name"": ""Cecilia Davis vs. Vermont Transit Company (and a companion case)"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""91ad2f10f1ef3687893a07820d6574a9544927b894f149ad80c49b55d18ebb04"", ""simhash"": ""1:801195564e44ef0c"", ""pagerank"": {""raw"": 0.00000007004566623927949, ""percentile"": 0.42316463237818114}, ""char_count"": 7365, ""word_count"": 1270, ""cardinality"": 444, ""ocr_confidence"": 0.57}, ""casebody"": {""judges"": [], ""parties"": [""Cecilia Davis vs. Vermont Transit Company (and a companion case).""], ""opinions"": [{""text"": ""Counihan, J.\nThese are actions of tort which were tried together before a jury. The plaintiff seeks to recover damages for personal injuries sustained while riding in a bus owned and operated by an agent of the defendants or one of them. At the close of the evidence on motion the judge directed the jury to return a verdict for New England Greyhound Lines, Incorporated, hereinafter called New England. He submitted the action against Vermont Transit Company, hereinafter called Vermont, to the jury who returned a verdict for the defendant.\nThe actions come here upon a consolidated bill of exceptions of the plaintiff, alleging error in the direction of a verdict for New England and in the denial of a request for instruction in the action against Vermont. There was no error.\nThe actions were pre-tried together and the following order was entered: “It is agreed the bus in which the plaintiff, Cecilia Davis, was riding was owned by the Vermont Transit Co. and operated by its agent, and she brings suit against the defendants, New England Greyhound Lines, Inc., and Vermont Transit Co.” “It is agreed that the accident happened on private property, the Pittsfield bus terminal.” “It is agreed there is no question as to license or registration.”\nThe evidence most favorable to the plaintiff in the action against New England may be summarized as follows: The plaintiff on March 24, 1950, purchased a bus ticket of Vermont at Bennington, Vermont, for transportation from Bennington to Waterbury, Connecticut. She boarded a bus and sat in an aisle seat on the right side of the bus about in the center of it. She noticed a suitcase lying lengthwise on the overhead luggage rack which extended about six inches over the edge of the rack. As the bus made a turn to go into the Pittsfield bus terminal it went over a curb and tipped the right side of the bus up about one and a half feet off the ground. The tipping was a “sudden jolt.” “The next thing she knew was that the suitcase which she described had fallen on her head and she looked down and observed it on her lap.” She sustained injury. She got off the bus and when she returned to it she noticed that the driver had on a Greyhound uniform. She continued on the bus to Torrington, Connecticut, where she transferred to another bus which took her to Waterbury. There was other evidence in both actions which contradicted this evidence.\nDuring the trial the plaintiff introduced two regulations of the interstate commerce commission, under which she alleged the defendants operated. They read as follows: “2.094 Loading Of Busses. — All baggage, freight, or express carried in any bus shall be so loaded as not to interfere with the free and ready entering or leaving such bus, and shall be so stowed as to prevent falling onto or against any passenger.” “2.16 Vehicle Must Be In Proper Position For Making Turns. — ... In all cases turns shall be made with due caution, having due regard to the length of the motor vehicle and any load thereon, the width of the roadway, and other traffic.” The judge instructed the jury as to the effect of regulation numbered 2.094 but refused to charge expressly as to regulation numbered 2.16.\nThe exception of the plaintiff to the refusal of the judge to charge as requested presents the only question before us in the action against Vermont. Another exception was taken by the plaintiff in that action, but because not argued in the plaintiff’s brief we do not pass upon it. Rule 13 of the Rules for the Regulation of Practice before the Full Court (1952), 328 Mass. 698.\n1. We first consider the exception of the plaintiff to the direction of a verdict for New England. The judge was correct. His action was governed by the terms of the pretrial order above referred to. “This was a ‘stipulation’ under Rule 57A of the Superior Court (adopted April 9, 1938), which bound the parties.” Abbott v. Link-Belt Co. 324 Mass. 673, 677. The rule of the Superior Court referred to provides that the pre-trial judge “shall make an appropriate order which will control the subsequent conduct of the case unless modified at the trial to prevent manifest injustice.” It has also been said that the pre-trial report, “which neither party so far as appears sought to amend, governed the trial of the action.” Doherty v. Shea, 320 Mass. 173, 174-175.\nThe pre-trial report is in the record and, although it does not appear that it was offered in evidence or directly referred to at the trial, there is nothing in the record to show that the action was not tried in accordance with the pretrial report. “It must be taken that the case was tried in accordance therewith (Eckstein v. Scoffi, 299 Mass. 573, 576), and that the matters therein conceded or admitted were established as true.” Silver v. Cushner, 300 Mass. 583, 585.\nIn the pre-trial report in the cases at bar, it was agreed that “the bus in which the plaintiff . . . was riding was owned by the Vermont Transit Co. and operated by its agent . . . .” This concession was enough to reheve New England from any liability for this accident. Moreover there was no evidence to controvert the report on this aspect of the action against New England.\n2. There was no error in the failure of the judge to instruct the jury in the exact terms requested by the plaintiff in the action against Vermont. Regulation numbered 2.16 only means that the operator of the bus must make all turns without negligence. The negligence of the operator from whatever cause was the only real issue before the jury. The judge’s charge is not reported. It must be assumed, however, that he instructed the jury as to the issues involved and especially that he pointed out that unless negligence of the defendant (Vermont) caused the plaintiff’s injury there could be no recovery. Goltz v. Besarick, 313 Mass. 14, 16.\nExceptions overruled.\nNow Rule 58 of the Superior Court (1954)."", ""type"": ""majority"", ""author"": ""Counihan, J.""}], ""attorneys"": [""In this court the cases were submitted on briefs."", ""William H. Taylor, for the plaintiff."", ""John D. Boss, John D. Boss, Jr., & George W. Leary, for the defendants.""], ""corrections"": """", ""head_matter"": ""Cecilia Davis vs. Vermont Transit Company (and a companion case).\nHampden.\nApril 3, 1956. —\nJune 1, 1956.\nPresent: Qua, C.J., Wilkins, Williams, Counihan, & Whittemobe, JJ.\nPractice, Civil, Pre-trial procedure; Stipulation; Requests, rulings and instructions; Exceptions: whether error shown. Error, Whether error shown. Motor Vehicle, Bus, Operation.\nIn actions against two bus companies by a passenger in a bus for personal injuries shown by evidence to have been sustained when a suitcase fell on the plaintiff from an overhead rack as the bus made a turn and jolted over a curb, it was proper to order a verdict for one of the defendants by reason of a pre-trial report in the actions stating that it was agreed that the bus was owned by and operated by an agent of the other defendant. [251]\nError in an action against a bus company in a refusal to charge the jury expressly as to the effect of a certain regulation requiring “due caution” in turning buses on the issue of negligence of a bus operator of the defendant was not shown where the record did not contain the judge's charge. [251-252]\nTwo actions of tort. Writs in the Superior Court dated March 15, 1951.\nThe actions were tried before Hurley, J.\nIn this court the cases were submitted on briefs.\nWilliam H. Taylor, for the plaintiff.\nJohn D. Boss, John D. Boss, Jr., & George W. Leary, for the defendants.\nThe companion case is by the same plaintiff against New England Greyhound Lines, Incorporated.""}, ""cites_to"": [{""cite"": ""313 Mass. 14"", ""case_ids"": [484671], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""16""}], ""case_paths"": [""/mass/313/0014-01""], ""opinion_index"": 0}, {""cite"": ""300 Mass. 583"", ""case_ids"": [864332], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""585""}], ""case_paths"": [""/mass/300/0583-01""], ""opinion_index"": 0}, {""cite"": ""299 Mass. 573"", ""case_ids"": [12255120], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""576""}], ""case_paths"": [""/mass/299/0573-01""], ""opinion_index"": 0}, {""cite"": ""320 Mass. 173"", ""case_ids"": [498296], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""174-175""}], ""case_paths"": [""/mass/320/0173-01""], ""opinion_index"": 0}, {""cite"": ""324 Mass. 673"", ""case_ids"": [510295], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""677""}], ""case_paths"": [""/mass/324/0673-01""], ""opinion_index"": 0}, {""cite"": ""328 Mass. 698"", ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""opinion_index"": 0}], ""citations"": [{""cite"": ""334 Mass. 248"", ""type"": ""official""}], ""file_name"": ""0248-01"", ""last_page"": ""252"", ""first_page"": ""248"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T16:36:09.548562+00:00"", ""decision_date"": ""1956-06-01"", ""docket_number"": """", ""last_page_order"": 286, ""first_page_order"": 282, ""name_abbreviation"": ""Davis v. Vermont Transit 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+3844082,"{""id"": 3844082, ""name"": ""James H. Deyo & another vs. Athol Housing Authority (and a companion case)"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""b0c38e152a95e1a6330837524495341d5c290513495dca8d5bf0662241debf12"", ""simhash"": ""1:3ff25d6d832126b1"", ""pagerank"": {""raw"": 0.0000003178048800617657, ""percentile"": 0.8643426701711181}, ""char_count"": 8931, ""word_count"": 1535, ""cardinality"": 551, ""ocr_confidence"": 0.633}, ""casebody"": {""judges"": [], ""parties"": [""James H. Deyo & another vs. Athol Housing Authority (and a companion case).""], ""opinions"": [{""text"": ""Williams, J.\nIn each of these cases the plaintiffs seek to recover for damage to their property caused by the discharge upon their land of water from the adjoining land of Athol Housing Authority and the adjacent land of the town of Athol. The cases were consolidated for trial and referred to an auditor whose findings of fact were to be final.\nHe designated certain portions of his report as “Preface,” “Facts,” and “Conclusion and Finding.” Under the heading “Facts” it was stated that the plaintiffs are husband and wife and own as tenants by the entirety a parcel of land on the northerly side of Wilson Avenue in Athol, approximately rectangular in shape, with boundaries measuring about sixty feet in front and back and about one hundred forty feet on the sides. There is a house and a garage on the property. On January 23, 1950, Athol Housing Authority acquired the adjoining land on the north and west by an order of taking. In the spring and summer of that year it constructed a macadam surface road called Burma Road running north from Wilson Avenue adjacent to the westerly boundary of the plaintiffs’ land. This road was presented to and was accepted by the town as a public way. The authority retained title to a sidewalk and a three foot strip of grass along its easterly side between it and the plaintiffs’ westerly property line. The land of the authority north and northeast of the plaintiffs’ land was in large part “spongy and swampy” and sloped generally from the southeast to the northwest. At the time Burma Road was built the authority dug a drainage trench three or four feet deep and four or five feet wide running in a southwesterly direction from the northeast corner of its land to a catch basin installed twelve feet from the plaintiffs’ northern boundary. From this catch basin it laid an underground pipe parallel to and about twelve feet from the plaintiffs’ boundary for a distance of about eighty feet to a catch basin at the curb in Burma Road, where the pipe connected with a sanitary sewer running from there to Wilson Avenue. From October, 1950, to May, 1951, particularly after rainy weather, water from the trench, carrying silt and dirt, overflowed the catch basin at the end of the trench and ran toward Burma Road over the ground between the catch basin at the end of the trench and the catch basin at Burma Road. It “collected on the westerly side of the plaintiffs’ property.” During this period water at different times collected in the plaintiffs’ cellar to heights varying from four to twenty inches causing substantial damage. Previous to the construction of Burma Road the land on which it was built was lower than the plaintiffs’ land and water drained from pipes on the plaintiffs’ land westerly across the lot where Burma Road is now located. This medium of drainage was blocked by the fill used in Burma Road and resulted in a “further retaining of water in the plaintiffs’ cellar, and ... a retarding of the flow of water from the plaintiffs’ property and raised the water table.”\nUnder the heading “Conclusion and Finding” the auditor reported that “permanent injury to the plaintiffs’ property was caused by a situation created by both defendants,” and that the total damage sustained by the plaintiffs was $2,250. He assessed damages in that amount against each defendant with interest from July 12, 1951, the date of each writ. In each case judgment was ordered for the defendant and the plaintiffs appealed.\nA landowner may collect surface water upon his land for a lawful purpose but he is liable if he discharges it on his neighbor’s land by means of a definite artificial channel. Smith v. Faxon, 156 Mass. 589, 596. Fitzpatrick v. Welch, 174 Mass. 486. Nye v. Swift, 190 Mass. 143, 146-147. Mahoney v. Barrows, 240 Mass. 378, 379. Manning v. Woodlawn Cemetery Corp. 245 Mass. 250, 251-252. He is also liable if surface water so channelled is artificially retained so that by its retention it is deflected or backed up upon another’s land. Bates v. Westborough, 151 Mass. 174, 181. It is immaterial whether injury from water so collected or retained results from the flow of surface water or from subsurface percolation. Ball v. Nye, 99 Mass. 582, 584. Wilson v. New Bedford, 108 Mass. 261, 266. See Kennison v. Beverly, 146 Mass. 467, 469; Belkus v. Brockton, 282 Mass. 285, 288.\nIt appears that the plaintiffs’ damage was caused not only by water discharged from land of the authority but also by the natural accumulation of water on their own land which was prevented from draining through the lower land to the west by the obstruction imposed by Burma Road. Neither the town nor the authority can rightly be held liable for the damage caused by the maintenance of this obstruction in the absence of a finding of a right in the plaintiffs to drain over the land where the road and sidewalk are maintained. See Luther v. Winnisimmet Co. 9 Cush. 171. Compare Bates v. Westborough, 151 Mass. 174, 181.\n“[W]here there is no watercourse by grant or prescription, and no stipulation exists between conterminous proprietors of land concerning the mode in which their respective parcels shall be occupied and improved, no right to regulate or control the surface drainage of water can be asserted by the owner of one lot over that of his neighbor. . . . The obstruction of surface water or an alteration in the flow of it affords no cause of action in behalf of a person who may suffer loss or detriment therefrom against one who does no act inconsistent with the due exercise of dominion over his own soil.” Gannon v. Hargadon, 10 Allen, 106, 109-110. Franklin v. Fisk, 13 Allen, 211, 212. Bates v. Smith, 100 Mass. 181, 182. Maddock v. Springfield, 281 Mass. 103, 104-105. Fulton v. Belmont, 333 Mass. 64. The same rule applies to the subsurface percolation of water from a higher to a lower level. See Olney v. Culluloo Park Co. 182 App. Div. (N. Y.) 560, 566; White River Chair Co. v. Connecticut River Power Co. of New Hampshire, 105 Vt. 24, 48-52; Am. Law of Property, § 28.68, and cases cited.\nThe conclusion of the auditor that both defendants are equally hable for the entire damage to the plaintiffs’ property is not supported by his subsidiary findings. The town does not appear to be liable for any of the damage nor the authority for the damage resulting from the obstruction of the drainage. We are, however, doubtful as to the correct interpretation of the auditor’s report. While he states that his conclusions are based upon all of the evidence, thereby implying subsidiary findings essential to those conclusions (see Lewis v. Conrad & Co. Inc. 311 Mass. 541, 543), he reports under a heading “Facts” express findings in such detail that it is reasonable to assume they are all of the findings on which his conclusions are based.\nThe orders for judgment are reversed and the cases remanded to the Superior Court for clarification of the subsidiary findings relied upon by the auditor and for further hearing by the same or another auditor or by the court to determine the amount of damage solely attributable to the overflow and seepage of water from the authority’s trench and catch basin.\nSo ordered."", ""type"": ""majority"", ""author"": ""Williams, J.""}], ""attorneys"": [""Jay W. Mead, for the plaintiffs."", ""William Garbose, (William M. Quade with him,) for the defendants.""], ""corrections"": """", ""head_matter"": ""James H. Deyo & another vs. Athol Housing Authority (and a companion case).\nWorcester.\nSeptember 25, 1956.\nFebruary 13, 1957.\nPresent: Wilkins, C.J., Spalding, Williams, Counihan, & Whittemore, JJ.\nWater. Real Property, Water. Practice, Civil, Auditor: findings; New trial.\nA landowner who constructed a drainage trench across his land ending at a catch basin and underground pipe near adjoining land was liable to the owner of the adjoining land for damage thereto resulting when water overflowed the catch basin and either flowed onto or percolated into the adjoining land. [462]\nNeither a housing authority which constructed a road upon its land in a town, retaining title to a sidewalk and a grass strip between it and adjacent land when the road was established as a public town way, nor the town, was liable to the owner of the adjacent land for damage thereto from water retained thereon as a result of blocking of the previous drainage thereof by the fill used in the construction of the road, where no right of the adjacent landowner to drain over the filled land appeared. [462]\nOn the record of an action heard by an auditor whose findings were to be final, the action was remanded to the Superior Court for clarification of the basis of the auditor’s conclusions and for redetermination of damages in accordance with correct principles of law. [463]\nTwo actions of toet. Writs in the Superior Court dated July 12, 1951.\nThe plaintiffs appealed from orders for judgments for the defendants by Cahill, J., upon the report of an auditor whose findings were to be final.\nJay W. Mead, for the plaintiffs.\nWilliam Garbose, (William M. Quade with him,) for the defendants.\nThe companion case is by the same plaintiffs against the town of Athol.""}, ""cites_to"": [{""cite"": ""311 Mass. 541"", ""case_ids"": [889328], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""543""}], ""case_paths"": [""/mass/311/0541-01""], ""opinion_index"": 0}, {""cite"": ""105 Vt. 24"", ""case_ids"": [4573365], ""category"": ""reporters:state"", ""reporter"": ""Vt."", ""pin_cites"": [{""page"": ""48-52""}], ""case_paths"": [""/vt/105/0024-01""], ""opinion_index"": 0}, {""cite"": ""182 App. Div. (N. Y.) 560"", ""case_ids"": [2936775], ""category"": ""reporters:state"", ""reporter"": ""A.D."", ""pin_cites"": [{""page"": ""566""}], ""case_paths"": [""/ad/182/0560-01""], ""opinion_index"": 0}, {""cite"": ""333 Mass. 64"", ""case_ids"": [488995], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/333/0064-01""], ""opinion_index"": 0}, {""cite"": ""281 Mass. 103"", ""case_ids"": [3831887], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""104-105""}], ""case_paths"": [""/mass/281/0103-01""], ""opinion_index"": 0}, {""cite"": ""100 Mass. 181"", ""case_ids"": [2141860], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""182""}], ""case_paths"": [""/mass/100/0181-01""], ""opinion_index"": 0}, {""cite"": ""13 Allen, 211"", ""case_ids"": [2114877], ""category"": ""reporters:state"", ""reporter"": ""Allen"", ""pin_cites"": [{""page"": ""212""}], ""case_paths"": [""/mass/95/0211-01""], ""opinion_index"": 0}, {""cite"": ""10 Allen, 106"", ""case_ids"": [2117028], ""category"": ""reporters:state"", ""reporter"": ""Allen"", ""pin_cites"": [{""page"": ""109-110""}], ""case_paths"": [""/mass/92/0106-01""], ""opinion_index"": 0}, {""cite"": ""9 Cush. 171"", ""case_ids"": [9454221], ""category"": ""reporters:state"", ""reporter"": ""Cush."", ""case_paths"": [""/mass/63/0171-01""], ""opinion_index"": 0}, {""cite"": ""282 Mass. 285"", ""case_ids"": [3832820], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""288""}], ""case_paths"": [""/mass/282/0285-01""], ""opinion_index"": 0}, {""cite"": ""146 Mass. 467"", ""case_ids"": [784132], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""469""}], ""case_paths"": [""/mass/146/0467-01""], ""opinion_index"": 0}, {""cite"": ""108 Mass. 261"", ""case_ids"": [2106006], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""266""}], ""case_paths"": [""/mass/108/0261-01""], ""opinion_index"": 0}, {""cite"": ""99 Mass. 582"", ""case_ids"": [2139687], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""584""}], ""case_paths"": [""/mass/99/0582-01""], ""opinion_index"": 0}, {""cite"": ""151 Mass. 174"", ""weight"": 2, ""case_ids"": [3506598], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""181""}, {""page"": ""181""}], ""case_paths"": [""/mass/151/0174-01""], ""opinion_index"": 0}, {""cite"": ""245 Mass. 250"", ""case_ids"": [5753912], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""251-252""}], ""case_paths"": [""/mass/245/0250-01""], ""opinion_index"": 0}, {""cite"": ""240 Mass. 378"", ""case_ids"": [58251], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""379""}], ""case_paths"": [""/mass/240/0378-01""], ""opinion_index"": 0}, {""cite"": ""190 Mass. 143"", ""case_ids"": [837842], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""146-147""}], ""case_paths"": [""/mass/190/0143-01""], ""opinion_index"": 0}, {""cite"": ""174 Mass. 486"", ""case_ids"": [17212], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/174/0486-01""], ""opinion_index"": 0}, {""cite"": ""156 Mass. 589"", ""case_ids"": [810846], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""596""}], ""case_paths"": [""/mass/156/0589-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""335 Mass. 459"", ""type"": ""official""}], ""file_name"": ""0459-01"", ""last_page"": ""463"", ""first_page"": ""459"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T16:36:40.176661+00:00"", ""decision_date"": ""1957-02-13"", ""docket_number"": """", ""last_page_order"": 503, ""first_page_order"": 499, ""name_abbreviation"": ""Deyo v. 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+3844559,"{""id"": 3844559, ""name"": ""Rocco C. Galotti & others vs. United States Trust Company (and a companion case)"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""5d8802b5f99b4624319c301dc681f2a97fc24e366f4707565bed486b546ef17b"", ""simhash"": ""1:cadef725783c91f0"", ""pagerank"": {""raw"": 0.00000036108559918253315, ""percentile"": 0.8881950260420588}, ""char_count"": 15395, ""word_count"": 2614, ""cardinality"": 749, ""ocr_confidence"": 0.593}, ""casebody"": {""judges"": [], ""parties"": [""Rocco C. Galotti & others vs. United States Trust Company (and a companion case).""], ""opinions"": [{""text"": ""Cutter, J.\nGalotti and others (hereinafter called the partners) were partners in a fruit company and made a contract (which was not offered in evidence) to purchase bananas from a Costa Rican company called Agencias Americanas (hereinafter called Agencias). Two of the partners called at the office of United States Trust Company (hereinafter called the trust company) to obtain a letter of credit required in the transaction. They there executed in triplicate an application for the letter of credit addressed to The Chase National Bank (hereinafter called the Chase Bank).\nThere was conflicting evidence whether, when the application was signed, it was fully made out. One of the partners testified that there was no typewriting on the blank when it was signed because no stenographer was available during the lunch hour to fill it out. In both actions here involved, over objection made in behalf of the trust company, this partner was permitted to testify (a) that he had requested that there be inserted in the application a statement in considerable detail of the specifications with respect to the bananas and certain terms of the sale, and (b) that a representative of the trust company had said that the partners “could rest assured” that, if they signed the application in blank, all that had been requested “would be put in.”\nThe partners “had a fairly good knowledge of the printed provisions which were in the application when they signed it” and the partner who testified stated that he had participated in over one hundred “transactions involving letters of credit and importation of foreign merchandise.” The jury (in the deceit action mentioned below brought by the partners against the trust company and in the original trial of a cross action brought by the trust company against the partners) found, in answer to two special questions submitted by the trial judge, that the application was not complete when signed and that an employee of the trust company told one of the partners “that it would be filled out with the complete description of the bananas” which that partner had testified he furnished to the trust company for insertion.\nWhen the application for the letter of credit was forwarded by the trust company (with its own guaranty) to the Chase Bank the application referred briefly to “fresh bananas @ $1.65 per bunch of 55 lb. per average bunch” and did not contain the somewhat more complete, detailed description which the partners contended they had requested. The application also (a) contained (in small but legible capital letters), under the blank in which the brief description just quoted had been inserted, the printed instruction “ (Please mention commodity only, omitting details as to grade, quality, price, etc.)”; (b) indicated under the heading “Documents required” that there would be needed three commercial invoices and consular invoices and an “Inspection certificate issued by Max Planas or T. Laundre” together with a “Full set on Board Bills of Lading to order of The Chase . . . Bank”; and (c) included a provision that “The users of the Credit shall be deemed our [the partners’] agents and we [the partners] assume all risks of their acts or omissions” and further that neither Chase Bank nor its “correspondents shall be responsible ... for the . . . character, quality ... or delivery of the property purporting to be represented by documents.” There were also included an indemnity agreement and an exculpatory provision that any action taken by the Chase Bank or any correspondent of that bank “under or in connection with the Credit or the relative drafts, documents or property, if taken in good faith, shall be binding on us [the partners] and shall not put you [the Chase Bank] or your correspondent under any resulting liability to us.” It was stated that the bananas were to be shipped to Mobile, Alabama.\nThe Chase Bank then issued its irrevocable letter of credit in conformity with the application. This letter of credit, like the application, contained only a brief description of the bananas, and not the more lengthy description which the partners claimed they had requested.\nBananas were delivered to Mobile, but there was testimony that they did not conform to the specifications. One of the partners requested the trust company and later the Chase Bank to stop payment on the letter of credit. The partners also brought a bill in equity (not one of the cases now before us) in the Superior Court in this Commonwealth against the trust company to restrain payment on the letter of credit. This bill alleged no fraud, breach of contract or misconduct by either the trust company or the Chase Bank.\nAn assignee of Agencias, the shipper of the bananas, also brought an action in the New York courts against the Chase Bank based upon the letter of credit and a draft drawn under it. The partners were allowed to intervene in the New York action and filed a cross action against the Chase Bank, but in this action also there was no allegation that the trust company or the Chase Bank “had committed any breach of duty toward” the partners “in connection with the application or the letter of credit.” In these proceedings summary judgment was recovered by the assignee of Agencias in the sum of $16,495.37. The Chase Bank paid this judgment and also, in connection with the New York action, incurred legal fees of $1,002.30. The cause of action of the Chase Bank against the partners was then assigned to the trust company, which had theretofore collected $15,000 from the partners which was available for application against the trust company’s claim as assignee, leaving a balance of $2,497.67 claimed by the trust company.\nThe first of the present actions is an action by the partners in tort for deceit alleging that the trust company promised to insert, and fraudulently represented that it would insert, in the letter of credit the full specifications of the bananas and certain related terms of sale; that the partners relied on these representations, which the trust company knew were untrue; that the trust company intended to deceive, and did deceive, the partners by failing to insert the specifications in the letter of credit; and that, as a result of the failure, money was paid on the letter of credit. The trust company filed a cross action to recover the balance ($2,497.67) of its claim as assignee of the Chase Bank.\nIn the action for deceit brought by the partners, the trial judge, under leave reserved, entered a verdict for the trust company. The jury had found for the partners in the sum of $15,000. The trial judge did not act upon the trust company’s motion for a new trial in this case, but in the cross action, in which the jury found for the partners, the trial judge ordered a new trial on the ground that the verdict was against the weight of the evidence. A consolidated bill of exceptions presents for our review exceptions saved by the partners to these rulings by the trial judge.\nA new trial of the action by the trust company against the partners took place before a judge of the Superior Court, sitting without a jury. He found for the trust company, having denied certain-requests for rulings, hereinafter mentioned, presented by the partners. A separate bill of exceptions, relating solely to the second trial of the cross action, presents the question of the correctness of the trial judge’s denial of these requests.\n1. In the action of deceit against the trust company the gist of the action was the alleged promise or representation of the trust company that the full specifications of the transaction would be inserted in the letter of credit. There is no evidence of any misrepresentation of any other fact by the trust company and the numerous cases, cited in behalf of the partners, relating to misrepresentations of external facts, whether innocent or fraudulent, are here irrelevant. Ordinarily a promise alone does not furnish basis for an action of deceit. See Morrison v. Tremont Trust Co. 252 Mass. 383, 389; Ernest F. Carlson Co. v. Fred T. Ley & Co. Inc. 269 Mass. 272, 277; Moran v. Levin, 318 Mass. 770, 773; Fanger v. Leeder, 327 Mass. 501, 505-506; Harper and James, Law of Torts, § 7.10.\nHere, however, the partners attempt to bring the case within the principle of Dubois v. Atlantic Corp. 322 Mass. 512, 520, where it was held that if “the defendant [in that case] misrepresented its intention as to filling in the blanks” in a bill of sale there involved “it was a misrepresentation of a material fact, which could be made the foundation of an action for deceit.” In the present case, we think that the partners have produced no evidence tending to show that the representative of the trust company (assuming that he promised that the blank application would be filled in as the partners requested) had no intention of doing so. Indeed, there is no testimony, either direct or in the surrounding circumstances, as to his intention. An intention by a banker to disobey a customer’s explicit instructions cannot reasonably be inferred from anything in this record. There is no evidence suggesting any motive for action in behalf of the trust company contrary to whatever instructions may in fact have been given. An essential element in the case, an intention not to carry out the promise, existing when the promise was made, has thus not been shown. “The intent with which a person acts is usually a question of fact . . . to be determined from his declarations, conduct and motive, and all the attending circumstances” (Casey v. Gallagher, 326 Mass. 746, 749) but there must be evidence from which that intent may be found. Intention not to perform a promise, existing when the promise is made, cannot be shown merely by nonperformance of the promise. Restatement: Torts, § 530, comment c. Prosser, Torts (2d ed.) § 90 at page 565. See analogy of Fanger v. Leeder, 327 Mass. 501, 505-506. See also Flaherty v. Schettino, 136 Conn. 222, 226-227; Fidurski v. Hammill, 328 Pa. 1, 3. That intention must be shown by other evidence. See Knudsen v. Domestic Utilities Manuf. Co. 264 Fed. 470, 473 (where the court felt that there was “much more than proof of a failure to perform”). On the somewhat complicated facts and conflicting testimony of the Dubois case, there was potential benefit to that defendant (from the action alleged to have been taken in filling in the instruments there signed in blank) which might perhaps have justified an inference that an intention existed from the start to fill iri the blanks in a manner contrary to the agreed arrangement. Even as to that, however, the observations of the court at pages 520 and 522 show that the matter was not there free from doubt. We think the Dubois case is distinguishable from the present situation. Compare also Schleifer v. Worcester North Savings Institution, 306 Mass. 226, 227-228.\nIn view of our decision on the issue of misrepresentation, it is not necessary to consider whether the partners have shown such actual (as opposed to nominal) damage resulting from the alleged misrepresentation as would warrant recovery in an action of deceit. Dubois v. Atlantic Corp. 322 Mass. 512, 520-521, and cases cited. Kabatchnick v. Hanover-Elm Building Corp. 328 Mass. 341, 347. Cardullo v. Landau, 329 Mass. 5, 7-8. See Harper and James, Law of Torts, § 7.15.\nA case in deceit has not been proved. Accordingly, the exception to entering a verdict for the defendant under leave reserved must be overruled.\n2. On this record we cannot say that there was error on the part of the trial judge in granting a new trial after the first trial of the action brought by the trust company against the partners. This the trial judge did on the ground that the verdict for the partners was against the weight of the evidence. The partners’ exception to the allowance of the motion for a new trial has not been directly argued in their brief and no respects in which there was abuse of discretion by the trial judge have been suggested. The matter of a new trial is one within the trial judge’s sound discretion and his action will not be set aside unless there has been abuse of discretion, which can seldom be found on review and has not been shown in the present case. See Perry v. Manufacturers National Bank, 315 Mass. 653, 656-657; Hartmann v. Boston Herald-Traveler Corp. 323 Mass. 56, 59-61.\n3. The exceptions to the denial of the partners’ six requests for rulings made in the second trial of the cross action by the trust company against the partners have not been specifically argued in the brief submitted by the partners. The exceptions are mentioned in the partners’ brief only by a reference to the requests in the statement of facts. The brief is wholly devoted to a discussion of the alleged misrepresentation. Under Rule 13 of the Rules for the Regulation of Practice before the Full Court (1952), 328 Mass. 698, this “court need not pass upon questions or issues not argued in the briefs.” The exceptions to the denial of the requests can properly be treated as waived. Jefferson Union Co. v. American Radiator & Standard Sanitary Corp. 329 Mass. 692, 694. Campbell v. Shea, 332 Mass. 422, 424. Davis v. Vermont Transit Co. 334 Mass. 248, 250-251. However, we have examined these exceptions and find no merit in them.\n4. In connection with each of the bills of exceptions, the entry must be\nExceptions overruled.\nIt is also unnecessary and inappropriate (see Moss v. Old Colony Trust Co. 246 Mass. 139, 151, and general discussion at pages 149-156) to consider (a) issues relating to letters of credit, such as those raised in Maurice O’Meara Co. v. National Park Bank, 239 N. Y. 386, Continental National Bank v. National City Bank, 69 Fed. (2d) 312, 315-317 (C. C. A. 9), certiorari denied 293 U. S. 557, and Tocco v. Bank of Italy, 249 Mass. 267, 271-272, or (b) the effect of the exculpatory provisions set out in the application for the letter of credit."", ""type"": ""majority"", ""author"": ""Cutter, J.""}], ""attorneys"": [""James L. Kenney, (Joseph P. Collins with him,) for Galotti and others."", ""John N. O’Donohue, for United States Trust Company.""], ""corrections"": """", ""head_matter"": ""Rocco C. Galotti & others vs. United States Trust Company (and a companion case).\nSuffolk.\nJanuary 7, 1957.\nMarch 1, 1957.\nPresent: Wilkins, C.J., Spalding, Williams, Whittemore, & Cutter, JJ.\nDeceit. Intent. Practice, Civil, New trial.\nAn action of deceit by an applicant to a bank for a letter of credit to be used in a purchase of goods could not be maintained on the basis of a statement by a representative of the bank that certain specifications respecting the goods would be inserted in the letter of credit as requested by the applicant where, although it appeared that such specifications were not inserted, there was no evidence that at the time the representative made the statement he intended not to insert them. [501]\nNo abuse of discretion nor error appeared in an order, made after a verdict for the defendant in an action, for a new trial on the ground that the verdict was against the weight of the evidence. [502-503]\n• Contract or tort. Writ in the Superior Court dated March 12, 1953.\nContract. Writ in the Superior Court dated June 2,1953. The actions were tried before Broadhurst, J. A second trial of the action by the United States Trust Company was before Beaudreau, J., without jury.\nJames L. Kenney, (Joseph P. Collins with him,) for Galotti and others.\nJohn N. O’Donohue, for United States Trust Company.\nThe companion case is by the defendant in the first case against the plaintiffs in the first case.""}, ""cites_to"": [{""cite"": ""249 Mass. 267"", ""case_ids"": [3817828], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""271-272""}], ""case_paths"": [""/mass/249/0267-01""], ""opinion_index"": 0}, {""cite"": ""293 U. S. 557"", ""case_ids"": [3934017, 3927941, 3926118, 3932838, 3928360], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/293/0557-01"", ""/us/293/0557-04"", ""/us/293/0557-05"", ""/us/293/0557-03"", ""/us/293/0557-02""], ""opinion_index"": 0}, {""cite"": ""239 N. 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+3845600,"{""id"": 3845600, ""name"": ""Eddy Bellefeuille vs. Joseph P. Medeiros"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""bd3ee021abe3e27cdc5e2123c88a7ad6d6a76e2f799765defec0e95df59e6ac1"", ""simhash"": ""1:a96764c8bedcae9b"", ""pagerank"": {""raw"": 0.00000037766148251500285, ""percentile"": 0.8963582432798206}, ""char_count"": 12019, ""word_count"": 2053, ""cardinality"": 619, ""ocr_confidence"": 0.603}, ""casebody"": {""judges"": [], ""parties"": [""Eddy Bellefeuille vs. Joseph P. Medeiros.""], ""opinions"": [{""text"": ""Spalding, J.\nThis is a bill in equity in which the plaintiff seeks to rescind the sale of a business because of fraud. The judge made findings of material facts of which the following is a summary: In August, 1954, the defendant was the owner of a business in Fairhaven which he conducted under the name of “F. & B. Cutrate & Fleet Bag Co.” The business consisted of a small dry goods store and an adjoining shop in which the defendant manufactured scallop bags. The defendant desired to sell the business and employed one Mello to sell it for him. Mello brought the plaintiff to see the defendant, and negotiations began for the sale of the business. During these negotiations the defendant told the plaintiff that he (the defendant) could obtain cloth for the manufacture of scallop bags at a certain price per yard, and that if the plaintiff bought the business he would obtain the cloth for the plaintiff. The plaintiff had no previous experience either in operating a dry goods store or in manufacturing scallop bags, and relied upon the statements made by the defendant as to the volume of business and profits “and particularly upon the defendant’s statement that he could obtain cloth for the manufacture of the scallop bags.” On August 16, 1954, an agreement having been reached for the sale of the business including the stock, fixtures and good will, the defendant executed and delivered a bill of sale to the plaintiff in return for $4,500, the agreed purchase price.\nThe plaintiff took possession of the store and shop and undertook to carry on the business. There was no cloth for the manufacture of scallop bags available at this time and the plaintiff made “repeated requests of the defendant to obtain cloth for him, relying upon the defendant’s representation that cloth was available and that he, the defendant, would obtain it for him.” The defendant at various times “agreed to take the plaintiff to cloth dealers, but never kept appointments made for that purpose, and finally under a pretext that news of the sale by him to the plaintiff had leaked out, because of which dealers would not sell cloth, told the plaintiff that he could not obtain the cloth.”\nThe “representations made by the defendant, relative to the availability of cloth in the market, and particularly at the price named by the defendant to the plaintiff prior to the sale were misrepresentations, either intentionally or negligently made, under circumstances for which the defendant was responsible.” After making the foregoing findings the judge referred the case to a master “to determine the fair value as of February 7, 1955, of the equipment, goods in process, goods manufactured, good will, the stock in trade, and any and all other chattels and assets obtained by the plaintiff from the defendant as a result of said sale, and the amount and value of all such assets received in any sale or disposition by the plaintiff of the goods received, and the total amount of the damages sustained, if any, by the plaintiff.”\nAfter hearing the parties, pursuant to the foregoing order of reference, the master filed a report. It was agreed that the machinery and equipment involved in the sale had been submerged in flood waters resulting from the hurricane of August 31, 1954. The value of this property was determined, by consent of the parties, on the basis of its condition before submersion. The master found the value of this and the other property involved in the sale to be $1,964.43. Deducting this sum from the purchase price of $4,500 he found that the damages sustained by the plaintiff, exclusive of interest and costs, was $2,535.57.\nAn interlocutory decree was entered confirming the master’s report and overruling the defendant’s exceptions thereto. A final decree was entered adjudging that the sale be set aside and awarding damages to the plaintiff in the sum of $2,753.35. The defendant appealed. The evidence is not reported.\n1. Contrary to the defendant’s contention, we are of opinion that on the findings the representations as to the availability and price of the cloth concerned matters susceptible of knowledge and were stated as facts and not as opinion and hence were of the sort that would support a decree for rescission. They were “misrepresentations, either intentionally or negligently made,” and the plaintiff relied on them. If the statements were knowingly false there was plainly a basis for rescission. Rykiel v. Sklaver, 259 Mass. 608, 611. Lang v. Girando, 311 Mass. 132, 138. Verville v. Mason, 334 Mass. 322. But a false, though innocent, representation which concerns a matter susceptible of knowledge and is stated as a fact and not as opinion may afford the basis of rescission. Rudnick v. Rudnick, 281 Mass. 205, 208. Yorke v. Taylor, 332 Mass. 368, 371, and cases cited. The defendant’s contention that relief is precluded by the plaintiff’s failure to investigate the truth or falsity of the defendant’s representations is without merit. Yorke v. Taylor, supra, at pages 372-374.\n2. The damages awarded to the plaintiff were determined on the basis of the difference in value between what the plaintiff paid and what he actually received. Relying on the rule of damages applicable in actions of tort for deceit, the defendant argues that the rule applied by the judge was improper. Were this an action for deceit the defendant’s contention would be correct, for in such cases the rule is “the difference in actual value between that which the plaintiff in fact got and that which he would have got if the representation had been true.” Piper v. Childs, 290 Mass. 560, 562. Ceder v. McCarthy, 320 Mass. 618, 619. But this is not an action for deceit. The bill sought rescission and the case was tried and decided on that theory.\nWe are mindful that the judge found that at no time did the plaintiff restore or offer to restore to the defendant what he had received from him. Ordinarily one seeking rescission of a transaction must restore or offer to restore all that he received under it. Fitch v. Ingalls, 271 Mass. 121. Jurewicz v. Jurewicz, 317 Mass. 512, 517. Restatement: Restitution, § 66. This requirement is applied with considerable strictness at law (see, for example, Bassett v. Brown, 105 Mass. 551, 558; Marston v. Singapore Rattan Co. 163 Mass. 296, 302; Owen v. Button, 210 Mass. 219, 222) but the rule is more liberal in equity and it has been held that, where complete restoration is not possible, rescission may, nevertheless, be granted upon such equitable conditions as would amply protect the rights of the defendant. Thomas v. Beals, 154 Mass. 51, 55. Putnam v. Bolster, 216 Mass. 367, 372. United Zinc Co. v. Harwood, 216 Mass. 474, 477-478. J. C. Penney Co. v. Schulte Real Estate Co. Inc. 292 Mass. 42, 46. Lang v. Giraudo, 311 Mass. 132, 139. The final decree awarding the plaintiff the return of the purchase price credited the defendant with the fair value of the property transferred by him. It was not possible for the plaintiff to restore the property acquired, for a substantial portion of it had been sold prior to the hearing. That which had been damaged by the flood was valued on the basis of its condition prior to the flood. In these circumstances we are of opinion that the plaintiff’s failure to restore what he had received did not preclude his obtaining the relief granted by the decree below.\nIn this respect the case at bar bears considerable resemblance to the case of Putnam v. Bolster, 216 Mass. 367. In that case the plaintiff entered into an agreement to purchase a liquor license together with certain furniture and fixtures, and the plaintiff paid part of the purchase price. It later turned out that authority to transfer the liquor license (the principal thing bargained for) could not be obtained from the licensing authorities. In the meantime the plaintiff had sold some of the furniture acquired from the defendant. In a suit to rescind for failure of consideration it was held that the plaintiff could recover back the portion of the purchase price paid less the value of the furniture which had been sold. The court, while recognizing that in these circumstances there would be no right to rescind at law, stated that the bill could, nevertheless, be maintained by imposing conditions which would preserve the defendant’s rights. Cases in other jurisdictions tend to support the conclusion here reached. Green v. Duvergey, 146 Cal. 379, 389. Mosteller v. Braham, 90 Cal. App. 715, 717. Basye v. Paola Refining Go. 79 Kans. 755, 757. Wright v. Dickinson, 67 Mich. 580, 589. Buffalo Builders Supply Co. v. Reeb, 247 N. Y. 170, 176. See Williston on Contracts (Rev. ed.) § 1530. Moreover, the defendant does not argue that the inability of the plaintiff to restore the status quo precludes the relief granted below. His objection to the damages awarded is based solely on the assumption that the action is in essence one for deceit. But, as we have pointed out above, the case was not tried on that theory. We are not to be understood as abrogating the requirement of restoration where the proceedings are in equity. Even in equity restoration should be the rule and rescission without it the exception. We hold only that in the circumstances here obtaining the-decree below was not inequitable.\n3. The defendant finally urges that the judge erred in confirming the master’s report. Some of the objections urged against confirmation have already been discussed. The other objections have been examined and we find no merit in them. T . 7 , „ ,\nT . 7 , „ , Interlocutory decree affirmed. Final decree affirmed with costs of appeal.\nThese bags were made of clot.h of loose texture and were used by fishermen as containers for scallops.\nThis apparently, was the date of the commencement of the hearing before the judge.\nThe master determined the valuation as of August 16, 1954 (the date of the sale), and as of February 7, 1955, and found the value in each case to be the same."", ""type"": ""majority"", ""author"": ""Spalding, J.""}], ""attorneys"": [""Solomon Rosenberg, for the defendant."", ""Louis A. Perras, Jr., for the plaintiff, submitted a brief.""], ""corrections"": """", ""head_matter"": ""Eddy Bellefeuille vs. Joseph P. Medeiros.\nBristol.\nOctober 29, 1956.\nJanuary 10, 1957.\nPresent: Wilkins, C.J., Ronan, Spalding, Williams, & Whittemore, JJ.\nFraud. Deceit. Sale, Rescission, Sale of business. Equity Jurisdiction, Rescission. Damages, On rescission.\nA false statement made by a seller of a small manufacturing business to the buyer and relied on by the buyer, who was inexperienced in that business, as to the availability in the market at a certain price of cloth used in the manufacturing was a statement of fact as of the seller's own knowledge and constituted a basis for rescission of the sale at the instance of the buyer whether the statement was made with consciousness of its falsity or innocently and notwithstanding a failure of the buyer to investigate its truth or falsity. H265]\nIn a suit in equity by a buyer of a business for rescission of the sale by reason of a false representation by the seller, the rule of damages was not that applicable in an action for deceit, and the plaintiff's damages were properly assessed in the amount of the purchase price paid by him less the value of the property received by him in the sale where he was unable to restore it to the defendant. [265-266}\nA buyer of property seeking rescission of the sale in a suit in equity against the seller by reason of a false representation by the defendant was not barred from relief in the circumstances by the fact that he was unable to restore the property to the defendant because some of it had been sold by the plaintiff and some had been damaged; the defendant’s rights were equitably protected by a decree for repayment of the purchase price by the defendant with a credit to him of the fair value of the property at the time of the sale. [[266]\nBill in equity, filed in the Superior Court on September 7, 1954.\nThe suit was heard in part by Smith, J., and, after a reference to a master, was again heard by him on the master’s report.\nSolomon Rosenberg, for the defendant.\nLouis A. Perras, Jr., for the plaintiff, submitted a brief.""}, ""cites_to"": [{""cite"": ""247 N. Y. 170"", ""case_ids"": [1983661], ""category"": ""reporters:state"", ""reporter"": ""N.Y."", ""pin_cites"": [{""page"": ""176""}], ""case_paths"": [""/ny/247/0170-01""], ""opinion_index"": 0}, {""cite"": ""67 Mich. 580"", ""case_ids"": [1325035], ""category"": ""reporters:state"", ""reporter"": ""Mich."", ""pin_cites"": [{""page"": ""589""}], ""case_paths"": [""/mich/67/0580-01""], ""opinion_index"": 0}, {""cite"": ""79 Kans. 755"", ""case_ids"": [1139415], ""category"": ""reporters:state"", ""reporter"": ""Kan."", ""pin_cites"": [{""page"": ""757""}], ""case_paths"": [""/kan/79/0755-01""], ""opinion_index"": 0}, {""cite"": ""90 Cal. App. 715"", ""case_ids"": [2105581], ""category"": ""reporters:state"", ""reporter"": ""Cal. 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+3846075,"{""id"": 3846075, ""name"": ""Newton Girl Scout Council, Inc. vs. Massachusetts Turnpike Authority"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""bb16b72a8188a005b1d303c6386192d53d25ea43abbe3d189e6b765cc70c3917"", ""simhash"": ""1:01a6a5150a2e63c0"", ""pagerank"": {""raw"": 0.0000010390990808405497, ""percentile"": 0.9839183674414995}, ""char_count"": 25620, ""word_count"": 4373, ""cardinality"": 1106, ""ocr_confidence"": 0.596}, ""casebody"": {""judges"": [], ""parties"": [""Newton Girl Scout Council, Inc. vs. Massachusetts Turnpike Authority.""], ""opinions"": [{""text"": ""Cutteb, J.\nThis is a petition under G. L. (Ter. Ed.) c. 79, § 14, by Newton Girl Scout Council, Inc. (a charitable corporation hereinafter called the Girl Scouts), for the assessment of damages caused to it by the taking of a wide strip across its camp land in Natick and Weston by the Massachusetts Turnpike Authority (hereinafter called the Authority) for the construction of a toll express motor vehicle highway and an underpass for local access, in accordance with St. 1952, c. 354. The Authority had awarded damages of $3. The Girl Scouts introduced testimony in-cheating damages of $46,710. The case was tried to a jury who found damages of $9,500. In the course of the trial there was testimony that \""the highest and best use of the property was for a camp purpose.” The trial judge, however, (a) excluded substantial testimony offered by the Girl Scouts to show the extent and character of the damage to this use of the property caused by the taking; (b) admitted certain evidence of a witness called by the Authority about a sale of land in the neighborhood, not developed for camping purposes, in which sale the witness had not participated; and (c), as we read the record, failed to charge, as requested by the Girl Scouts, in respect of certain principles of law, which the Girl Scouts claimed were applicable to assessing damages for a taking of this property, peculiarly adapted to a special purpose and having its highest value for that purpose. The Girl Scouts duly excepted to these rulings on evidence and to the judge’s failure to charge as requested.\nThe property in question, containing before the taking more than seventeen acres of land, was used as a residence camp, for girls. Owned in fee by the Girl Scouts, it was located on the boundary of Natick and Weston on the north shore of Nonesuch Pond. It had been maintained over a period of time in a secluded wooded area and was approached by a winding road through the forest. Prior to the taking, the property constituted an attractive, quiet country area, where some fifty-two girls with sixteen to twenty counselors and staff could engage in a program of swimming, boating, archery, arts and crafts, nature study, dramatics, and music on rural ground unusually accessible for a property of this type for the children in the Greater Boston area for whom it was designed. It was testified that there was no acreage like this near Boston in the area out toward Framingham. The buildings of comparatively little value for ordinary residential purposes were of a character ideally adapted to and equipped for the charitable and educational uses for which they had been built, of giving wholesome rural recreational and educational opportunities to groups of young city dwellers.\nTestimony was received that, after the building of an express highway through the property, separating the camp from the portion of the Girl Scouts’ land which shielded the camp from the then existing highway, the property could not be used for a young girls’ residence camp any more and that its value for that use would be \""practically nil.” The exhibits show that the taking separated the campsite from a large parcel of land, also owned by the Girl Scouts, to the north of the taking and placed a large, modern, double highway athwart some of the Girl Scouts’ woodland, thus destroying the seclusion and rural remoteness of the campsite, bringing to it the noise of heavy traffic (see Wright v. Commonwealth, 286 Mass. 371, 372-373, where traffic noises were taken into account in assessing damages) as well as the risk of unwelcome and unpleasant human intrusion, a matter of natural concern to public spirited citizens operating a camp for young girls. The chief advantages of the property for its camping use could have been found to be the intangible but very real values inherent in its atmosphere of great privacy in a quiet New England .countryside near an attractive pond. The evidence warranted a finding that the highway had utterly destroyed that privacy, and thereby the possibility of giving to the young campers any illusion that they were really camping under natural conditions. When loss of such values can be shown to result from a partial taking of land, the owners are entitled to just compensation for the diminution in the value of their land by reason of this loss. Barnes v. Commonwealth, 305 Mass. 339, 340 (depreciation of value of property by reason of loss of view).\nThe Girl Scouts, in presenting their case, sought to recover compensation for the essential destruction of their property for the purposes for which they had acquired, developed, and used it. There was evidence that camps of this type were not commonly bought and sold in the area. Consequently, the Girl Scouts were forced to prove damages by other means than evidence of comparable sales. The Authority was supported, in essence by all the trial judge’s rulings, in maintaining the position that the measure of damages was market value, on a basis which gave inadequate attention to important elements of value. A substantial amount of evidence of the value of the property for the special uses for which the property was best adapted and had been used was excluded. The result was that the Girl Scouts were in major degree prevented from showing the real character and extent of the money loss which had been suffered.\nThe general rule is that the measure of damages is the fair market value of the property actually taken at the time of the taking. Tigar v. Mystic River Bridge Authority, 329 Mass. 514, 517. Kinney v. Commonwealth, 332 Mass. 568, 571-572. With this, in the case of a partial taking, is to be included the diminution in value of the remaining land caused by the taking. Trustees of Boston University v. Commonwealth, 286 Mass. 57, 62, 64-65. Goodyear Park Co. v. Holyoke, 298 Mass. 510, 511. Valentino v. Commonwealth, 329 Mass. 367, 368. G. L. (Ter. Ed.) c. 79, § 12, as amended by St. 1953, c. 634, § 1. In determining fair market value, the effort is to determine “the highest price which a hypothetical willing buyer would pay to a hypothetical willing seller in an assumed free and open market.” Epstein v. Boston Housing Authority, 317 Mass. 297, 299-300. All the uses to which the property is reasonably adapted may be considered. Tigar v. Mystic River Bridge Authority, 329 Mass. 514, 517-518. Although its \""value for any special purpose is not the test ... it may be considered, with a view of ascertaining what the property is worth in the market for any use for which it would bring the most.” Conness v. Commonwealth, 184 Mass. 541, 542-543. See Smith v. Commonwealth, 210 Mass. 259, 261; Olson v. United States, 292 U. S. 246, 255.\nUnder the authorities already cited, the Girl Scouts, in their attempt to show loss of market value, were plainly entitled to present evidence bearing on every use to which the property was adapted, including (but not limited to) the specialized use for which the property was being employed effectively at the time of the taking. It was open to the Girl Scouts (a) to prove the value of the property for use by a charitable or religious organization or for a school group, and the extent to which the taking had injured or prevented that use; (b) to show the extent of the market, if any, for properties adapted for such use; (c) to establish the general basis on which such properties change hands when they do change hands, the various elements of value which are given weight by organizations naturally interested in the acquisition of such properties, and the methods by which such properties are usually acquired; and (d) to present evidence of other similar relevant factors.\nIt is not to be expected that the properties adapted for such a specialized use will have a very active market or that their market value can be shown by sales of nearby comparable property. Once developed, such properties are rarely abandoned or sold. To assist the trier of the fact of value to reach a just result when such a property is taken by eminent domain, it frequently will be necessary to allow much greater flexibility in the presentation of evidence than would be necessary in the case of properties having more conventional uses. In such cases, for example, detailed knowledge by expert witnesses of local prices of land for ordinary residential or commercial use may be far less helpful than knowledge of conditions (relevant to this particular type of property) over a wide geographical area and of the demand for and use of comparable specialized properties by a particular industry or class of users or customers. The property may be of a character where, within fairly wide limits, geographical location has less effect on its value than its adaptability for a particular use. The properties may be of a type, not frequently bought or sold, but usually acquired by their owners and developed from the ground up, so that the cost of land plus the reproduction cost (less depreciation where appropriate) of improvements may be more relevant than in the ordinary case.\nThe practical problems inherent in the valuation of such properties have been recognized in the Massachusetts decisions, as well as in the authorities generally. Special opportunities for proof of value have long been afforded in cases where it is felt that there is no market value, in the sense in which, in most communities, market value is at all times reflected by a steady volume of sales of ordinary commercial and residential properties. The occasion for this difference in type of proof (permitting the use of valuation data other than those factors ordinarily bearing on market price) has been expressed in terms of absence of market value (see comprehensive discussion in Tigar v. Mystic River Bridge Authority, 329 Mass. 514, 517) or of market (see, for example, United States v. Miller, 317 U. S. 369, 374). The courts in these cases, however, may be doing no more than recognizing that more complex and resourceful methods of ascertaining value must be used where the property is unusual or specialized in character and where ordinary methods will produce a miscarriage of justice. In such cases, it is proper to determine market value from the intrinsic value of the property and from its value for the special purposes for which it is adapted and used. See Nichols, Eminent Domain (3d ed.) § 12.32, especially at pages 134-136, and §§ 18.41 [33, 18.42; Jahr, Eminent Domain, §§ 71, 78, 82 (specialty uses), 83, 84 (properties of nonprofit organizations); Orgel, Valuation under Eminent Domain (2d ed.) §§ 30, 37-40, especially at pages 177-179, 181-183; Hanify, Damages in Eminent Domain, 34 B. U. L. Rev. 146, 151-152; McCormick, Measure of Compensation in Eminent Domain, 17 Minn. L. Rev. 461, especially at pages 467-470.\nThese unusual problems of proof of damages most frequently arise in cases of service-type properties like churches, convents, hospitals, country clubs, school and college premises and buildings of religious and charitable societies and similar organizations. In Massachusetts, problems of this type have arisen in the following cases among others. First Parish in Woburn v. County of Middlesex, 7 Gray, 106 (church). May v. Boston, 158 Mass. 21, 29-31 (land adapted to park use). Beale v. Boston, 166 Mass. 53 (fee of street, as to the value of which the court at page 56 held evidence of the cost and nature of the petitioner’s prior improvements to be relevant). Cochrane v. Commonwealth, 175 Mass. 299, 302 (mill site especially valuable for bleachery). Conness v. Commonwealth, 184 Mass. 541 (mill site). Beals v. Brookline, 245 Mass. 20 (improved private way taken for highway purposes). Vineyard Grove Co. v. Oak Bluffs, 265 Mass. 270, 275-279 (beach property with sea wall on it, used or adaptable for use for bath houses). Tigar v. Mystic River Bridge Authority, 329 Mass. 514, 517-519 (partly completed refrigerating storage plant). See Muskeget Island Club v. Nantucket, 185 Mass. 303, 305-306 (testimony of assessor admissible on value of sand island alleged to be useful principally for shooting); Smith v. Commonwealth, 210 Mass. 259, 261-262 (under the particular circumstances, the value of property for water supply purposes was held irrelevant); Trustees of Boston University v. Commonwealth, 286 Mass. 57, 62 (value of property for specialized university or hospital use as a single unit of land held properly to be considered where only part of land was taken). Compare Sargent v. Merrimac, 196 Mass. 171, 174-176 (trial judge upheld in excluding evidence of the special value of land if used for water supply purposes, when in fact the land was taken for such purposes); Assessors of Quincy v. Boston Consolidated Gas Co. 309 Mass. 60, 65 et seq. (reproduction value and other elements of value of a gas distribution plant were considered for tax purposes, since the \""property was adapted to a single use and its value depended entirely upon a continuance of that use”). See to same general effect Boston Gas Co. v. Assessors of Boston, 334 Mass. 549, 566.\nIt is, of course, true that, where there is no market value, in the sense of a steady current of sales of similarly used properties in the vicinity, the burden is on the owner to show that it is impossible to prove the value of the property without using some mode of ascertaining value which does not depend on market value in this sense of the term. See Tigar v. Mystic River Bridge Authority, 329 Mass. 514, 518. In the present case, however, the Girl Scouts had amply shown that camps of this type were not commonly bought and sold.\nThe specific exceptions of the Girl Scouts to the exclusion of evidence must be considered in the light of the general principles already discussed. The Girl Scouts offered the testimony of the head of the real estate department of the National Bureau of Private Schools with thirty years of experience in surveying property suitable for camp and school purposes all over the country. The witness was denied the opportunity to give his opinion whether it remained \""feasible to operate this camp as a resident camp,” apparently primarily because he was \""not engaged in the field of buying and selling real estate in Massachusetts.” Similarly he was denied the opportunity to give his opinion whether a Girl Scout camp \""can be effectively operated within 250 feet of a toll highway, if the land on which this . . . camp is situated is at a lower level than the toll highway” or whether, without the taking, the land would “be suitable for a private resident camp.” These questions, to an obviously qualified expert in the general field of use of real estate for camps and schools, were decidedly pertinent to the issue of the special value of this property, and the damage to it, for an important use of the property. Within the principles of valuation already discussed, they should have been permitted. Chandler v. Jamaica Pond Aqueduct Corp. 125 Mass. 544, 551. Vineyard Grove Co. v. Oak Bluffs, 265 Mass. 270, 279. See Cornell-Andrews Smelting Co. v. Boston & Providence Railroad, 215 Mass. 381, 390, and the discussion of a somewhat analogous problem in Muzi v. Commonwealth, ante, 101, 104-106. Although the trial judge is given a considerable range of discretion with respect to such testimony, here the effect of his consistent exclusion of evidence bearing on the specialized value of the property was “to deny to the owner the power of proving the real value of that property,” in a situation where evidence of the value for the specialized purposes “given by persons who have knowledge thereof derived from experience in that business, must be admitted from the necessity of the case.” See Cochrane v. Commonwealth, 175 Mass. 299, 302-303, where, with respect to land adapted to a mill site, it was also said, “no one can testify to that value by knowledge derived from the sale of lands in the neighborhood; they are not similar lands; nor by sales of mill sites for such purposes, for mill sites are not commonly bought and sold.” The president of the Girl Scouts was not permitted to give her opinion of the value of the property. She had been active in the work of the camp from 1953 to 1956 as president and, for three years before that, as vice-president. She had been charged with overseeing the property, its repairs, and remodeling. She had participated in the purchase of new property,, and had been actively investigating, with various real estate men, a new site for the camp enterprise. An owner of real estate (Rubin v. Arlington, 327 Mass. 382, 383-385) or an officer of a corporation (Winthrop Products Corp. v. Elroth Co. Inc. 331 Mass. 83, 85-86) must have knowledge of the real estate, apart from his ownership or mere holding of an office, which qualifies him to express an opinion as to its value. The determination whether such knowledge exists is a prefiminary question of fact for the judge. The issue on which the Girl Scouts offered the evidence here in question was on the special value of the property for a use about which the witness had very close knowledge over a period of years. In view of the importance of this issue and the special problems of proof involved, the testimony might well have been received. However, as there must be a new trial in any event, it is not necessary to decide whether the judge exceeded his discretion in excluding the testimony.\nA real estate witness, called by the Authority, who, from the record, does not appear to have had special experience in determining the value of the type of camp property here involved, was permitted to testify to the limited value of the property for conventional residential purposes. No objection was made to the admission of this evidence, but exception was taken to his being allowed to give the price at which a nearby property (not shown to have been similarly used for camp purposes) had been sold in 1951, at least three years before the taking, because the witness had only hearsay knowledge of the price paid in a transaction in which he had not participated. Although an expert witness may give the reasons for his opinion, even if gained from hearsay (Davenport v. Haskell, 293 Mass. 454, 459), this should be done in such terms that inadmissible hearsay is not introduced in a manner prejudicial to a party. Without producing a party to the sale, who could be subjected to cross-examination, direct testimony about the terms of a particular transaction should not have been admitted over objection. See Hunt v. Boston, 152 Mass. 168, 171; Commonwealth v. Sinclair, 195 Mass. 100, 108. See also by analogy Tigar v. Mystic River Bridge Authority, 329 Mass. 514, 519-520.\nThe Authority contends that the exceptions to the exclusion of testimony as to value cannot be considered, because of failure of counsel for the Girl Scouts to make an offer of proof. In effect two witnesses called by the Girl Scouts were erroneously prevented from testifying at all on the issue of value. In such cases, an offer of proof is not required. Mus-keget Island Club v. Nantucket, 185 Mass. 303, 306. Old Silver Beach Corp. v. Falmouth, 266 Mass. 224, 226-227.\nWith respect to the failure of the trial judge to charge as requested by the Girl Scouts, the record is somewhat confused. The Girl Scouts asked that an instruction be given that “Where property is of a kind that is not commonly bought and sold in the vicinity, the measure of damages is not to be limited to market value, and the jury may consider its value for the special purpose for which it was used.” This request was obviously based on Tigar v. Mystic River Bridge Authority, 329 Mass. 514, 517-518. The judge gave this instruction with a minor modification and then, after a colloquy with counsel, appeared to revoke it. Some confusion also may well have arisen as to the precise sense in which the term “market value” was being used by judge and counsel. We have not been given in the bill of exceptions a sufficient summary of the judge’s charge to be sure in what sense the term had been defined by him. As the matter was left, the jury might well have been misled into believing that only market value for purposes of sale for residential or other conventional uses was to be considered. The judge should have made it plain that, in a case like this of a property primarily adapted for a specialized use and of a type not frequently bought or sold as such, the damages caused by the taking were not to be measured solely by the effect of the taking on the value of the property for ordinary real estate development; and that the value of the property for every reasonable present and potential use of the property was to be carefully considered, including the use of the property for the special purpose for which it had been constructed and was being employed by the Girl Scouts.\nExceptions sustained.\nThis statute has been amended in respects not here relevant. See § 5 (k) for the Authority’s powers with respect to land takings. See Opinion of the Justices, 330 Mass. 713, 721-725.\nAn award of $2 was made also for the taking of a drainage easement not here of importance. The practice of making nominal awards of this type, in cases where it is plain that damages are serious, for purposes of negotiating advantage or otherwise, is an obvious disregard of the legislative purpose behind G. L. (Ter. Ed.) c. 79, § 6, to obtain an award of just compensation by fair initial administrative action. See Nichols, Eminent Domain (3d ed.) § 25.5 at page 97. See also Worcester v. County Commissioners of Worcester, 100 Mass. 103, 105-106. Compare Wood v. Milton, 197 Mass. 531, 534. Action of the type taken by the Authority tends to coerce persons whose property has been taken to resort to litigation and to incur unnecessary expense, even though it does not invalidate the taking. See Broderick v. Department of Mental Diseases, 263 Mass. 124, 128; Shea v. Inspector of Buildings of Quincy, 323 Mass. 552, 557.\nThere were some twenty-six camp and service buildings on the property, most of them equipped with running water and other conveniences. An appropriate sanitary system had been provided and the buildings were supplied with electricity by underground cables. There was an open play area. Extensive repairs and improvements had been made to the buildings, beach and other facilities in recent years."", ""type"": ""majority"", ""author"": ""Cutteb, J.""}], ""attorneys"": [""Richard H. Lee, (James K. Fitzpatrick with him,) for the petitioner."", ""Albert W. Wunderly, for the respondent.""], ""corrections"": """", ""head_matter"": ""Newton Girl Scout Council, Inc. vs. Massachusetts Turnpike Authority.\nMiddlesex.\nNovember 8, 1956.\nDecember 12, 1956.\nPresent: Wilkins, C.J., Ronan, Counihan, Whittemore, & Cutter, JJ.\nDamages, Eminent domain. Value. Eminent Domain, Damages. Evidence, Of value; Opinion: expert; Offer of proof; Hearsay. Words, “Market value.”\nIn assessing damages of a girl scout corporation for a taking by eminent domain for an express highway of a wide strip through land of the corporation on which it conducted a residence camp for girls and which was located in a secluded wooded area in the country near an attractive pond, the corporation was entitled to just compensation for the diminution in value of its land by reason of the destruction of the camp’s privacy. [192-193]\nThere must be a new trial of a petition for assessment of damages for a taking by eminent domain of a portion of property developed and used by its owner as a residence camp for girls and of a type not commonly bought and sold, where the trial judge consistently dealt with the case in a manner limiting consideration of market value of the property to value for conventional residential and other uses and precluding proof and consideration of its market value for use as a camp as one of the uses to which it was best adapted. [193, 199-200]\nStatement of principles governing the assessment of damages for a taking of real estate by eminent domain as applicable in the instance of a taking of a portion of property developed and used by its owner as a residence camp for girls and of a type not commonly bought and sold. [193-197]\nAt the trial of a petition for the assessment of damages caused by the taking by eminent domain for an express highway of a strip of land across property used by its owner as a residence camp for girls in a locality in which camps of that type were not commonly bought and sold, testimony of the head of the real estate department of a national bureau of private schools with thirty years of experience in surveying property suitable for camp and school purposes all over the country should have been admitted as to the feasibility of continuing to operate the camp after the taking as bearing on the value of the petitioner’s property for that purpose, even if the witness had \""not engaged in the field of buying and selling real estate in Massachusetts.” [197]\nAt the trial of a petition for assessment of damages for a taking of land by eminent domain, hearsay testimony from a real estate witness as to the price paid in a sale of nearby property in which the witness had not participated should not have been admitted. [199]\nWhere an expert witness for the petitioner in a proceeding for assessment of damages for a taking by eminent domain was in effect prevented by the trial judge's rulings from testifying at all on the issue of value, sustaining of the petitioner’s exceptions to the exclusion of the witness’s testimony was not precluded by the absence of an offer of proof. [199]\nPetition, filed in the Superior Court on August 12, 1955.\nThe case was tried before Beaudreau, J.\nRichard H. Lee, (James K. Fitzpatrick with him,) for the petitioner.\nAlbert W. Wunderly, for the respondent.""}, ""cites_to"": [{""cite"": ""323 Mass. 552"", ""case_ids"": [504103], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""557""}], ""case_paths"": [""/mass/323/0552-01""], ""opinion_index"": 0}, {""cite"": ""263 Mass. 124"", ""case_ids"": [851775], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""128""}], ""case_paths"": [""/mass/263/0124-01""], ""opinion_index"": 0}, {""cite"": ""197 Mass. 531"", ""case_ids"": [72983], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""534""}], ""case_paths"": [""/mass/197/0531-01""], ""opinion_index"": 0}, {""cite"": ""100 Mass. 103"", ""case_ids"": [2141798], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""105-106""}], ""case_paths"": [""/mass/100/0103-01""], ""opinion_index"": 0}, {""cite"": ""330 Mass. 713"", ""case_ids"": [46176], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""721-725""}], ""case_paths"": [""/mass/330/0713-01""], ""opinion_index"": 0}, {""cite"": ""266 Mass. 224"", ""case_ids"": [846817], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""226-227""}], ""case_paths"": [""/mass/266/0224-01""], ""opinion_index"": 0}, {""cite"": ""195 Mass. 100"", ""case_ids"": [54588], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""108""}], ""case_paths"": [""/mass/195/0100-01""], ""opinion_index"": 0}, {""cite"": ""152 Mass. 168"", ""case_ids"": [813982], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""171""}], ""case_paths"": [""/mass/152/0168-01""], ""opinion_index"": 0}, {""cite"": ""293 Mass. 454"", ""case_ids"": [479935], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""459""}], ""case_paths"": [""/mass/293/0454-01""], ""opinion_index"": 0}, {""cite"": ""331 Mass. 83"", ""case_ids"": [936606], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""85-86""}], ""case_paths"": [""/mass/331/0083-01""], ""opinion_index"": 0}, {""cite"": ""327 Mass. 382"", ""case_ids"": [512307], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""383-385""}], ""case_paths"": [""/mass/327/0382-01""], ""opinion_index"": 0}, {""cite"": ""215 Mass. 381"", ""case_ids"": [85179], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""390""}], ""case_paths"": [""/mass/215/0381-01""], ""opinion_index"": 0}, {""cite"": ""125 Mass. 544"", ""case_ids"": [730913], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""551""}], ""case_paths"": [""/mass/125/0544-01""], ""opinion_index"": 0}, {""cite"": ""334 Mass. 549"", ""case_ids"": [3842787], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""566""}], ""case_paths"": [""/mass/334/0549-01""], ""opinion_index"": 0}, {""cite"": ""309 Mass. 60"", ""case_ids"": [891794], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/309/0060-01""], ""opinion_index"": 0}, {""cite"": ""196 Mass. 171"", ""case_ids"": [56023], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""174-176""}], ""case_paths"": [""/mass/196/0171-01""], ""opinion_index"": 0}, {""cite"": ""185 Mass. 303"", ""weight"": 2, ""case_ids"": [826433], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""305-306""}, {""page"": ""306""}], ""case_paths"": [""/mass/185/0303-01""], ""opinion_index"": 0}, {""cite"": ""265 Mass. 270"", ""weight"": 2, ""case_ids"": [3825572], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""275-279""}, {""page"": ""279""}], ""case_paths"": [""/mass/265/0270-01""], ""opinion_index"": 0}, {""cite"": ""245 Mass. 20"", ""case_ids"": [5752971], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/245/0020-01""], ""opinion_index"": 0}, {""cite"": ""175 Mass. 299"", ""weight"": 2, ""case_ids"": [19614], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""302""}, {""page"": ""302-303""}], ""case_paths"": [""/mass/175/0299-01""], ""opinion_index"": 0}, {""cite"": ""166 Mass. 53"", ""case_ids"": [820598], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/166/0053-01""], ""opinion_index"": 0}, {""cite"": ""158 Mass. 21"", ""case_ids"": [801999], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""29-31""}], ""case_paths"": [""/mass/158/0021-01""], ""opinion_index"": 0}, {""cite"": ""7 Gray, 106"", ""case_ids"": [1996122], ""category"": ""reporters:state"", ""reporter"": ""Gray"", ""case_paths"": 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+3850716,"{""id"": 3850716, ""name"": ""August A. Busch & Company of Massachusetts, Inc. & another vs. Liberty Mutual Insurance Company & another"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""30b4ec721ff4a32d1cef7fe54a5f3fc3652f16c333401289be011d5ae9607219"", ""simhash"": ""1:f74756ec1492e0ad"", ""pagerank"": {""raw"": 0.0000007609040486655239, ""percentile"": 0.9708488796064945}, ""char_count"": 10914, ""word_count"": 1844, ""cardinality"": 605, ""ocr_confidence"": 0.6}, ""casebody"": {""judges"": [], ""parties"": [""August A. Busch & Company of Massachusetts, Inc. & another vs. Liberty Mutual Insurance Company & another.""], ""opinions"": [{""text"": ""Williams, J.\nThis is a suit in equity under G. L. c. 231A which is reported without decision on the bill as amended, the answer, and the statement of agreed facts. The plaintiffs are August A. Busch & Company of Massachusetts, Inc., and Zurich General Accident and Liability Insurance Company, Ltd., the latter being added on motion. The defendants are Liberty Mutual Insurance Company and U-Dryvit Auto Rental Company, Inc. Reference to the parties is hereinafter made by abbreviated designation. The issues sought to be determined are the respective liabilities of the two insurance companies on liability insurance policies in the circumstances to be described.\nOn July 5,1949, Busch, a corporation engaged in the manufacture and sale of bottled beer and ale, was the lessee of a motor truck owned by U-Dryvit. Busch had a so called “Comprehensive General and Automobile Policy” issued by Zurich insuring it against liability to pay damages “because of bodily injury . . . sustained by any person or persons and caused by accident.” The limit of liability for bodily injury was stated to be $100,000 for each person, with the qualifying provision that with respect to motor vehicles leased by Busch from U-Dryvit the “insurance afforded shall operate only as excess insurance over and above the amount of $10,000 for bodily injury to each person and subject to that limit for each person.” U-Dryvit had a motor vehicle liability policy issued by Liberty which was applicable to the said leased truck while used by Busch. This policy purported to insure the lessee against liability to “pay . . . damages to others for bodily injury'. . . caused by the ownership, operation, maintenance, control or use of the motor vehicle.” It was declared in the policy that “use of the motor vehicle for the purposes stated includes the loading and unloading thereof.” This policy stated that the limit of liability for bodily injury was $10,000 for each person and provided that “the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability . . . bears to the total applicable limit of liability of all valid and collectible insurance against such loss.”\nOn the date above mentioned Busch was using the truck to deliver cartons of bottled beer to a restaurant on Essex Street in Boston. “Busch employees stopped this truck at Essex Street, a public way in Boston, at the corner of Hersey Place, in front of Ort’s Restaurant and Grill, Inc., . . . which fronted on Essex Street. The driver and helper then removed fifty cartons of bottled beer from the truck and stacked them on the Essex Street sidewalk. Thereafter they placed these cartons — five at a time — upon a hand-aperated two-wheeled roller or truck and pushed the truck fifty-five to sixty feet down the alley called Hersey Place, which ran from Essex Street along one side of Ort’s. They then removed the cartons from this roller and stacked them on the ground in Hersey Place, by a side door leading into Ort’s restaurant. A board or chute or skid was then arranged to slide the cartons from the alley, through an opened trap door inside the said door and in the floor to Ort’s cellar. The cartons were then moved down this chute to the cellar floor and placed on the floor. Thereafter the Busch employees went to the cellar, and the cartons were being put into an ice chest, with the assistance of two employees of another brewer who were preparing to deliver ten barrels of beer through this same side door and trap door. While the cartons were being put into the ice chest, a prospective customer of the restaurant, John Smith, undertook to enter Ort’s through this alley door, fell through the open trap door to the cellar and was injured. John Smith sued Ort’s and Busch as joint tortfeasors for negligently causing personal injuries and recovered judgment against both in the sum of $26,815.64 as damages, and $217.55 as costs. Of this sum, Ort’s or Ort’s liability insurer paid approximately $13,376.69 and Zurich on behalf of Busch under a loan receipt paid approximately the same amount.”\nThe question for decision is whether Liberty is obligated to pay Busch $10,000 on account of the damages paid to Smith and $217.55 on account of costs, with interest thereon.\nThe case presents for the first time in this Commonwealth the question of the extent of coverage provided by a clause in a motor vehicle liability policy that the “use” of a motor vehicle shall include its loading and unloading. In other jurisdictions judicial opinion has differed (see cases collected in 160 A. L. R. 1251). A substantial number of courts have followed the so called “coming to rest” doctrine, Stammer v. Kitzmiller, 226 Wis. 348, American Cas. Co. v. Fisher, 195 Ga. 136, St. Paul Mercury Indem. Co. v. Standard Acc. Ins. Co. 216 Minn. 103, while others have adhered to the “complete operation” rule. State v. District Court, 110 Mont. 250. Wheeler v. London Guar. & Acc. Co. 292 Pa. 156. Pacific Auto. Ins. Co. v. Commercial Cas. Ins. Co. 108 Utah, 500. B & D Motor Lines, Inc. v. Citizens Cas. Co. 181 Misc. (N. Y.) 985 (affirmed without opinion in 267 App. Div. [N. Y.] 955, leave to appeal denied without opinion in 268 App. Div. [N. Y.] 755). Persuasive reasons have been advanced in support of each construction. It is plain that the insertion of the loading and unloading clause in the Liberty policy was intended not to restrict the coverage otherwise afforded as to use of the motor vehicle but to extend the meaning of “use.” Pacific Auto. Ins. Co. v. Commercial Cas. Ins. Co. 108 Utah, 500. Ferry v. Protective Indem. Co. 155 Pa. Super. Ct. 266. (Compare LaMontagne v. Kenney, 288 Mass. 363, 367.) Since the physical process of placing goods in or on a motor vehicle or in removing them from the vehicle plainly would be a use of the vehicle for those purposes, it is reasonable to conclude that the clause must have been intended to cover something more. We are concerned only with the connotation of the word “unloading.”\nWhen the policy was written in 1949 the meaning of that term when contained in motor vehicle liability policies was as above suggested, subject to varying judicial construction. The weight of authority seems to have supported the rule of “complete operation,” that is, the operation of not only removing goods from the motor vehicle but of their delivery to the purchaser or consignee rather than the more restricted doctrine that the unloading has ended when the goods have come to rest. In drafting its policy Liberty could not have been unaware of the current differences in opinion respecting the interpretation of the clause and therefore of its recognized latent ambiguity of meaning. In view of this ambiguity, doubts as to the intended meaning of the words must be resolved against the insurance company that employed them and in favor of the insured. Koshland v. Columbia Ins. Co. 237 Mass. 467, 471-472. Fuller v. Home Indem. Co. 318 Mass. 37, 42. Rezendes v. Prudential Ins. Co. 285 Mass. 505, 511. Reynolds v. John Hancock Mut. Life Ins. Co. 312 Mass. 102, 104. Woogmaster v. Liverpool & London & Globe Ins. Co. Ltd. 312 Mass. 479, 481, and cases cited. They must be construed in the sense that the insured was reasonably given to understand was intended to be their scope.\nWhat Busch would naturally understand was the extent of the coverage afforded by the policy may readily be inferred. It had hired the truck to use in its business which involved the transportation and delivery of its products to customers. Its use of the truck was the means adopted to effect such delivery and the physical removal of goods from the truck was merely incidental to accomplishment of the final objective. From its point of view unloading would mean a continuous transaction ending with the deposit of the goods in the hands of the purchaser. That the insured would so interpret the meaning of unloading ought to have been expected by the writer of the policy. At least from past controversies between insurers and insured over the construction of the term it should have realized that the insured would be warranted in so construing it. We think the policy must be held to have insured Busch against liability to pay the damages resulting from the personal injury to Smith.\nLiberty therefore is obligated to pay Busch $10,000 on account of the sum advanced for damages by Zurich for Busch on a loan receipt, $217.55 for costs also so advanced, and interest on the whole amount. There is no merit in Liberty’s contention that if liable it is responsible for only a percentage of its $10,000 coverage. There was no coverage by Zurich in respect to the first $10,000 of the damages recovered by Smith and the provision in Liberty’s policy as to proportional liability where other insurance is collectible does not apply.\nLet a decree be entered declaring that the liability of Busch for the accident to Smith was within the coverage of Liberty’s policy and ordering that it pay Busch the amounts herein set forth.\nSo ordered."", ""type"": ""majority"", ""author"": ""Williams, J.""}], ""attorneys"": [""Thomas D. Burns & Frank L. Kozol, for the plaintiffs."", ""Thomas H. Mahony, (Edward F. Mahony & George T. Padula with him,) for the defendants.""], ""corrections"": """", ""head_matter"": ""August A. Busch & Company of Massachusetts, Inc. & another vs. Liberty Mutual Insurance Company & another.\nSuffolk.\nDecember 5, 1958.\nMay 18, 1959.\nPresent: Wilkins, C.J., Honan, Williams, Cocnihan, & Whittemobe, JJ.\nInsurance, Motor vehicle liability insurance, Construction of policy. Motor Vehicle, Loading or unloading. Words, “Use,” “Unloading.”\nIn construing an insurance policy written at a time when a certain word therein had been given varying judicial constructions, any doubt as to the meaning of that word as used in the policy must be resolved against the insurer in favor of the insured. [242-243]\nA motor vehicle liability insurance policy written in 1949, insuring a lessee of a motor truck against liability to pay damages to others for bodily injury caused by the “use” of the truck and providing that “use of the motor vehicle . . . includes the . . . unloading thereof,” covered operations of the lessee's employees in removing cartons of bottles from the truck in front of a restaurant to which the lessee was delivering them, stacking the cartons on the sidewalk, placing them on a hand truck and taking them down an alley to a side door of the restaurant, stacking them on the ground there, sliding them down a chute through an opened trap door to the restaurant cellar and placing them on the cellar floor, and then putting them into an ice chest, and covered liability of the lessee for personal injuries sustained by a prospective customer of the restaurant attempting to enter it when he fell through the open trap door as the cartons were being put into the ice chest. [243]\nBill in equity, filed in the Superior Court on October 20, 1953.\nThe suit was reported by Pecce, J.\nThomas D. Burns & Frank L. Kozol, for the plaintiffs.\nThomas H. Mahony, (Edward F. Mahony & George T. Padula with him,) for the defendants.""}, ""cites_to"": [{""cite"": ""312 Mass. 479"", ""case_ids"": [483113], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""481""}], ""case_paths"": [""/mass/312/0479-01""], ""opinion_index"": 0}, {""cite"": ""312 Mass. 102"", ""case_ids"": [483102], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""104""}], ""case_paths"": [""/mass/312/0102-01""], ""opinion_index"": 0}, {""cite"": ""285 Mass. 505"", ""case_ids"": [920489], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""511""}], ""case_paths"": [""/mass/285/0505-01""], ""opinion_index"": 0}, {""cite"": ""318 Mass. 37"", ""case_ids"": [929776], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""42""}], ""case_paths"": [""/mass/318/0037-01""], ""opinion_index"": 0}, {""cite"": ""237 Mass. 467"", ""case_ids"": [60122], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""471-472""}], ""case_paths"": [""/mass/237/0467-01""], ""opinion_index"": 0}, {""cite"": ""288 Mass. 363"", ""case_ids"": [485613], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""367""}], ""case_paths"": [""/mass/288/0363-01""], ""opinion_index"": 0}, {""cite"": ""155 Pa. Super. Ct. 266"", ""case_ids"": [1057036], ""category"": ""reporters:state"", ""reporter"": ""Pa. Super."", ""case_paths"": [""/pa-super/155/0266-01""], ""opinion_index"": 0}, {""cite"": ""108 Utah, 500"", ""weight"": 2, ""case_ids"": [8868739], ""category"": ""reporters:state"", ""reporter"": ""Utah"", ""case_paths"": [""/utah/108/0500-01""], ""opinion_index"": 0}, {""cite"": ""292 Pa. 156"", ""case_ids"": [1109706], ""category"": ""reporters:state"", ""reporter"": ""Pa."", ""case_paths"": [""/pa/292/0156-01""], ""opinion_index"": 0}, {""cite"": ""110 Mont. 250"", ""case_ids"": [5063150], ""category"": ""reporters:state"", ""reporter"": ""Mont."", ""case_paths"": [""/mont/110/0250-01""], ""opinion_index"": 0}, {""cite"": ""216 Minn. 103"", ""case_ids"": [258209], ""category"": ""reporters:state"", ""reporter"": ""Minn."", ""case_paths"": [""/minn/216/0103-01""], ""opinion_index"": 0}, {""cite"": ""195 Ga. 136"", ""case_ids"": [218486], ""category"": ""reporters:state"", ""reporter"": ""Ga."", ""case_paths"": [""/ga/195/0136-01""], ""opinion_index"": 0}, {""cite"": ""226 Wis. 348"", ""case_ids"": [8689452], ""category"": ""reporters:state"", ""reporter"": ""Wis."", ""case_paths"": [""/wis/226/0348-01""], ""opinion_index"": 0}, {""cite"": ""160 A. L. R. 1251"", ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R."", ""opinion_index"": 0}], ""citations"": [{""cite"": ""339 Mass. 239"", ""type"": ""official""}], ""file_name"": ""0239-01"", ""last_page"": ""244"", ""first_page"": ""239"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T16:39:48.057812+00:00"", ""decision_date"": ""1959-05-18"", ""docket_number"": """", ""last_page_order"": 284, ""first_page_order"": 279, ""name_abbreviation"": ""August A. Busch & Co. of Massachusetts, Inc. v. Liberty Mutual 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+3851696,"{""id"": 3851696, ""name"": ""Charles E. Burt, Inc. vs. Seven Grand Corporation"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""9150552e2515b2ddfb23649bba8b28fc44251ad0934d026c6ca49be2e1435512"", ""simhash"": ""1:2fc50518be989d58"", ""pagerank"": {""raw"": 0.0000006996762435850638, ""percentile"": 0.9657499336833923}, ""char_count"": 17934, ""word_count"": 3013, ""cardinality"": 885, ""ocr_confidence"": 0.647}, ""casebody"": {""judges"": [], ""parties"": [""Charles E. Burt, Inc. vs. Seven Grand Corporation.""], ""opinions"": [{""text"": ""Cutter, J.\nThis is a bill in equity filed on May 22, 1958, by the lessee (Burt) of space on the fifth floor of a building in Springfield (a) to enjoin the defendant (Seven Grand) from collecting rents under the lease, (b) to have the lease “rescinded and declared a nullity,” and (c) to obtain damages for the failure of Seven Grand to perform the terms of the lease. The case was referred to a master who proceeded ex parte when the defendant failed to appear at the hearings.\nThe following facts were found by the master or established by the pleadings. On July 1, 1955, Burt executed a lease of the space for five years ending June 30, 1960, at a rent of $4,500 per year. Subsequent to the execution of the lease, Seven Grand became assignee of the lessor’s interest in the lease. Beginning on October 18, 1957, monthly payments of rent were made by Burt to Seven Grand. Thereafter, beginning in November, 1957, Seven Grand failed to furnish (a) electric power and current without giving to Burt the three months’ notice called for by art. 27 of the lease, (b) sufficient heat, and (c) elevator service. “[Sj]uch failure was not due to unavoidable causes which would excuse it.” As a consequence, Burt was obliged to provide otherwise for current and elevator service, and Burt’s printing machines sustained $250 damage from cold. Burt had to operate certain diesel engines at a cost of $300, and to provide current by other means at a cost of $1,000. Burt also lost printing profits of $400 because of necessary suspension of operations and sustained damage of $85 from loss of elevator service. Burt’s total damage was $2,035, a little less than six months’ rent.\nThe master refused to reopen the hearings to hear objections and testimony in behalf of Seven Grand. A motion to recommit the report was denied and the report was confirmed. A final decree (a) provided “that the lease . . . be . . . rescinded as of . . . May 22, 1958,” the day when the bill was filed, and (b) ordered payment by Seven Grand to Burt of $2,035 with costs. Seven Grand appealed.\n1. Where tenants lease space on an upper floor of an urban building, as here, to conduct business enterprises, it is unrealistic to say that furnishing light, heat (in our climate), power, and elevator service does not go to the essence of what the landlord is to provide, to substantially the same extent as the term for years in the space itself. Failure to furnish such services, at least if serious in extent and not excusable, deprives the lessee of a vital part of what the landlord knows the lessee must have in order to carry on his business. Such a failure constitutes a breach of the covenant of quiet enjoyment (see H. W. Robinson Carpet Co. v. Fletcher, 315 Mass. 350, 353; annotation 41 A. L. R. 2d 1414, 1423, 1439) and “enables the lessee to recover the damages caused to him thereby and also provides the lessee with the defense of 'constructive eviction’ (if he removes from the premises).” See Powell, Real Property, § 227, p. 203; § 231, pp. 224-225; and also § 247. The doctrine of constructive eviction has been applied often. See Shindler v. Milden, 282 Mass. 32, 33-35; Westland Housing Corp. v. Scott, 312 Mass. 375, 381, 383; and cases collected in Stone v. Sullivan, 300 Mass. 450, 455; Corbin, Contracts, § 686, esp. at pp. 699-703; Williston, Contracts (Rev. ed.) §§ 890-892; Am. Law of Property, §§ 3.11, 3.51-3.52. Cf. Tiffany, Real Property (3d ed.) §§ 141-146.\nThe terms of this lease will be construed, so far as the language permits, to produce an equitable agreement between the parties. See New England Foundation Co. Inc. v. Commonwealth, 327 Mass. 587, 596. Here we infer, from the use of a New York law blank publisher’s form by the original lessors who were inhabitants of New York, that the lease was prescribed by the landlord. To the extent that it may be ambiguous, we construe it more strongly against the landlord. See Watts v. Bruce, 245 Mass. 531, 534; Standard Sanitary Mfg. Co. v. Hartfield Realty Co. 284 Mass. 540, 546. See also Schaffer v. Hotel & R.R. News Co. 266 Mass. 276, 277; United Shoe Mach. Corp. v. Gale Shoe Mfg. Co. 314 Mass. 142, 149. LaCouture v. Renaud, 325 Mass. 33, 37. We find nothing in arts. 25 and 26, or in the master’s subsidiary findings, which indicates error in the master’s conclusion that Seven Grand’s failure to provide services was not excusable. The provision (art. 26, italicized words, footnote 1, supra) that no “such interruption ... of any . . . ‘service’ shall be deemed a constructive eviction” is sufficiently ambiguous to lead us to interpret it as applying only to excusable failures. The services to be rendered by the landlord were of such a vital character that it would be inconsistent with the general purpose of the lease to interpret the sentence as providing that inexcusable failure of the services under no circumstances could amount to a constructive eviction. Seven Grand’s failure to provide essential services caused Burt in the period November, 1957, to May, 1958, to suffer damages, nearly equal to the rent for the period. Such failure was a material breach of the lease and could be taken by Burt by abandoning the premises as a constructive eviction.\n2. In seeking what it refers to as rescission and that the lease be “declared a nullity” Burt asked little more (see Corbin, Contracts, § 1223, p. 921) than declaratory relief as to its rights. Its prayer, however, that the lease be rescinded, even if it has not abandoned the premises, can reasonably be construed as an election, if its contentions in fact should be sustained, to abandon because of a constructive eviction.\nAt law the .tenant’s abandonment of the leased premises must take place within a reasonable time (see Rome v. Johnson, 274 Mass. 444, 450-451; cf. Palumbo v. Olympia Theatres, Inc. 276 Mass. 84, 88) after the acts alleged to constitute constructive eviction (see A. W. Banister Co. v. P. J. W. Moodie Lumber Corp. 286 Mass. 424, 426-427), but “abandonment of the [leased] premises is not essential to seeking equitable relief.” See Williston, Contracts (Rev. ed.) § 892, p. 2529. See also Epstein v. Dunbar, 221 Mass. 579, 584; Winchester v. O’Brien, 266 Mass. 33, 37-38. In the case of material breaches of a lease by a lessor, where the injury is sufficiently serious, equitable relief by way of injunction or specific performance may be granted. See Jones v. Parker, 163 Mass. 564, 567-569; Ferguson v. Jackson, 180 Mass. 557, 558; New York Cent. R.R. v. Stoneman, 233 Mass. 258, 263; S. C. 236 Mass. 81; Sanford v. Boston Edison Co. 316 Mass. 631, 634-635; Hall, Landlord and Tenant (Adams and Wadsworth’s 4th ed.) §§ 252-265. See analogy of Scioscia v. Iovieno, 318 Mass. 601, 603. We perceive no reason why equitable relief, in appropriate circumstances, should not be given by way of (1) a declaration under G. L. c. 231A that the wrongful acts of the lessor justify treating those acts as a constructive eviction, (2) appropriate consequential relief, and (3) assessment of damages. Although equitable relief was denied in Barry v. Frankini, 287 Mass. 196, 201, there (see pp. 199-200) the lessor’s breach of covenant to pay taxes was “not of such a material . . . nature as to excuse the party suing from proceeding with the contract.” That case, however, did not decide that equitable relief must be denied where breach of covenant constituting failure of consideration “goes to the essence” of the contract. See De Angelis v. Palladino, 318 Mass. 251, 257. See also Case v. Minot, 158 Mass. 577, 584-585. Cf. Callahan v. Goldman, 216 Mass. 238, 239. Such relief is more nearly adequate than the incomplete and hazardous remedy at law which requires that the lessee (a) determine at its peril that the circumstances amount to a constructive eviction, and (b) vacate the demised premises, possibly at some expense, while remaining subject to the risk that a court may decide that the lessor’s breaches do not go to the essence of the lessor’s obligation. The trial judge could properly (1) declare that Seven Grand’s material breach of the lease constituted, or would constitute, a constructive eviction upon Burt’s abandonment of the premises, and that Burt, upon such abandonment, was or would be excused from further performance of the lease and (2) assess damages.\nThe present record does not reveal whether abandonment of the premises has taken place and, if it has, when that occurred. The bill may imply that Burt’s possession of the premises continued at least through the date of the bill. In view of the absence of findings about abandonment, the decree of unconditional rescission must be modified, after appropriate findings as to abandonment, to declare either (a) that Burt has been constructively evicted, if abandonment has in fact taken place, or (b) that Burt is entitled to abandon the premises within a reasonable time and to treat Seven Grand’s conduct as a constructive eviction.\n3. No issue of future damage (cf. Gromelski v. Bruno, 336 Mass. 678, 681) to Burt by reason of its constructive eviction has been argued. The only damages found are those for Seven Grand’s past actions. The appropriate measure of damage thus is the difference between the value of what Burt should have received and the fair value of what it has in fact received. See Grennan v. Murray-Miller Co. 244 Mass. 336, 339; Daniels v. Cohen, 249 Mass. 362, 364; Parker v. Levin, 285 Mass. 125, 128; Corbin, Contracts, §§ 1105, 1108, 1114, 1115; McCormick, Damages, § 142, p. 586; Williston, Contracts (Rev. ed.) §§ 1404, 1455, et seq. See also Riley v. Hale, 158 Mass. 240, 246; Plumer v. Houghton & Dutton Co. 281 Mass. 173, 175-176; Bloom, South & Gurney, Inc. v. Mitchell, 289 Mass. 376, 378; Kurland v. Massachusetts Amusement Corp. 307 Mass. 131, 142; A & S Prod. Corp. v. Parker, 334 Mass. 189, 192; Am. Law of Property, §§ 3.51-3.52.\nThe provisions of the lease are established by the pleadings. Upon the lease and the master’s subsidiary findings, the trial judge could reasonably conclude (a) that the rent reflected the benefit of what Seven Grand received from Burt during the period of Seven Grand’s defaults and also the fair value of what Burt should have received if Seven Grand had performed its obligations fully, and (b) that the value of what Burt in fact received was less than the rent by at least the amount which Burt was obliged to expend for services not furnished by Seven Grand, viz. the aggregate amount ($1,300) spent by Burt for use of diesel engines to produce electric current and for current from other sources. Nothing in the record suggests that incurring these expenses was unreasonable. See A. W. Banister Co. v. P. J. W. Moodie Lumber Corp. 286 Mass. 424, 427-428.\nThe master could reasonably conclude that the damage to Burt’s machinery from cold, the loss of profits during suspension of operations, and the damage resulting from Seven Grand’s failure to operate the elevator, reduced the value of what Burt in fact received from Seven Grand. See Parker v. Levin, 285 Mass. 125, 128. There is no showing that his ultimate conclusion upon the amount of damage was not justified by his subsidiary findings.\nBecause of the absence of findings about the date of abandonment one further uncertainty must be mentioned. If Burt did not abandon the premises within a reasonable time after the date of the bill, when Burt indicated its election to treat Seven Grand’s defaults as a constructive eviction, Seven Grand is entitled to a further credit of the fair value, if any, of Burt’s occupation of the premises after the date of the bill. If Burt paid any rent after the date of the bill, Burt is entitled to a further recovery of the amount by which that rent exceeded the fair value of its use and occupation during the period after May 22, 1958. Burt must give Seven Grand full credit for the benefits, if any, received . by Burt after the date of the bill, for relief of this character should \""be granted [only] upon such equitable conditions as . . . [will] amply protect the rights of the defendant.” See Bellefeuille v. Medeiros, 335 Mass. 262, 266.\n4. The interlocutory decree confirming the master’s report is affirmed. Solely to permit resolution of the uncertainty caused by absence of findings on the issue of abandonment, the final decree is reversed and the case is remanded to the Superior Court for further proceedings consistent with this opinion.\nSo ordered.\nRelevant portions of the lease read: “25th. This lease and the obligation of Tenant to . . . perform all of the . . . covenants and agreements hereunder . . . shall in nowise be . . . excused because Landlord is unable to supply or is delayed in supplying any service ... to be supplied . . . if Landlord is prevented or delayed from so doing . . . for any reason not within the control of the Landlord. 26th. ... In respect to the various ‘services’ . . . to be furnished by the Landlord ... it is agreed that there shall be no . . . abatement of the rent ... for interruption ... of such ‘service’ when such interruption . . . shall be due to accident, alterations or repairs desirable ... to be made or to . . . some other cause, not gross negligence on the part of the Landlord. No such interruption ... of any such ‘service’ shall he deemed a constructive eviction . . . [emphasis supplied]. 27th. Landlord may furnish electric current for light and power . . . but no claim shall be made against the Landlord on account of the failure to supply electric current if such failure shall be due to unavoidable causes. Landlord may cease supplying such electric current on three months notice to Tenant. . . . _29th. The Landlord shall furnish heat at all reasonable hours during the heating season .... 32nd. In conjunction with other tenants . . . freight elevator service shall be furnished by Landlord” (at hours specified which need not be listed).\nWe need not decide whether any other interpretation of the provision would make it so unconscionable as to require disregarding it as against public policy. See analogy of Quality Fin. Co. v. Hurley, 337 Mass. 150, 153-155; Restatement 2d: Trusts, § 222 (2), comment b; Scott, Trusts (2d ed.) § 222.3; Restatement: Contracts, §§ 573-575; Corbin, Contracts, §§ 1472, 1526-1527; Prosser, Torts (2d ed.) § 55, pp. 305-307. Cf. New England Trust Co. v. Paine, 317 Mass. 542, 550."", ""type"": ""majority"", ""author"": ""Cutter, J.""}], ""attorneys"": [""Robert Pierce, for the defendant."", ""J. Clifford Clarkson, for the plaintiff.""], ""corrections"": """", ""head_matter"": ""Charles E. Burt, Inc. vs. Seven Grand Corporation.\nHampden.\nSeptember 23, 1959. —\nDecember 16, 1959.\nPresent: Wilkins, C.J., Williams, Counihan, Whittemore, & Cutter, JJ.\nLandlord and Tenant, Eviction, Services furnished by landlord, Construction of lease. Equity Jurisdiction, Declaratory relief, Eviction. Election. Damages, For breach of lease.\nAn inexcusable and substantial failure, by a lessor of space on an upper floor of a business building in a city, to provide the lessee with light, heat, power, and elevator service as required by the lease was such a material breach of the lease as would constitute a constructive eviction upon the lessee’s abandonment of the demised premises. [127]\nAn ambiguous lease prescribed by the lessor was to be construed more strongly against him. [127]\nIn a certain lease requiring the lessor to furnish specified services essential to the lessee, a provision that no interruption of such services should “be deemed a constructive eviction” was construed as applying only to excusable failures to furnish them. [128]\nIn a bill in equity by a lessee against the lessor alleging failure by the defendant to provide essential services as required by the lease, a prayer seeking that the lease be “rescinded and declared a nullity” might properly be treated as an election by the plaintiff to abandon the demised premises for constructive eviction if his contentions should be sustained. [128]\nIn equity, a lessee, if he had not abandoned the demised premises upon a failure of the lessor to provide essential services as required by the lease, might secure a declaration that such failure would constitute a constructive eviction upon abandonment by the lessee and that the lessee thereupon would be excused from further performance of the lease. [129-130]\nUpon a failure of a lessor of space in an upper floor of a business building to provide the lessee with essential light, power, heat, and elevator service as required by the lease, amounting to a constructive eviction upon abandonment of the demised premises by the lessee, the measure of damages for such failure over a period in the past was the difference between the value of what the lessee should have received, which could reasonably be found to be reflected by the rent, and the value of what the lessee actually received, as to which expense to the lessee in procuring electric current, the amount of damage to the lessee’s machines from cold, loss of profits through suspension of the lessee’s operations, and the amount of damage sustained by the lessee from loss of elevator service were relevant. [130-131]\nIn a suit in equity by a lessee against the lessor seeking relief on the basis that a failure of the lessor to provide certain essential services as required by the lease constituted a constructive eviction, and seeking damages, if it should appear that the lessee had not abandoned the demised premises within a reasonable time after filing the bill, proper adjustments in computing damages should be made by crediting the lessor with the fair value of the lessee’s occupation of the premises after the filing of the bill and, if the lessee paid any rent thereafter, by allowing the lessee recovery of the excess of that rent over the fair value of such use and occupation. [131]\nBill in equity, filed in the Superior Court on May 22, 1958.\nThe defendant appealed from a final decree entered by Smith, J., after hearing on a master’s report.\nRobert Pierce, for the defendant.\nJ. Clifford Clarkson, for the plaintiff.""}, ""cites_to"": [{""cite"": ""317 Mass. 542"", ""case_ids"": [927186], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""550""}], ""case_paths"": [""/mass/317/0542-01""], ""opinion_index"": 0}, {""cite"": ""337 Mass. 150"", ""case_ids"": [3847952], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""153-155""}], ""case_paths"": [""/mass/337/0150-01""], ""opinion_index"": 0}, {""cite"": ""335 Mass. 262"", ""case_ids"": [3845600], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""266""}], ""case_paths"": [""/mass/335/0262-01""], ""opinion_index"": 0}, {""cite"": ""334 Mass. 189"", ""case_ids"": [3842178], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""192""}], ""case_paths"": [""/mass/334/0189-01""], ""opinion_index"": 0}, {""cite"": ""307 Mass. 131"", ""case_ids"": [903030], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""142""}], ""case_paths"": [""/mass/307/0131-01""], ""opinion_index"": 0}, {""cite"": ""289 Mass. 376"", ""case_ids"": [492840], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""378""}], ""case_paths"": [""/mass/289/0376-01""], ""opinion_index"": 0}, {""cite"": ""281 Mass. 173"", ""case_ids"": [3832301], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""175-176""}], ""case_paths"": [""/mass/281/0173-01""], ""opinion_index"": 0}, {""cite"": ""158 Mass. 240"", ""case_ids"": [802001], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""246""}], ""case_paths"": [""/mass/158/0240-01""], ""opinion_index"": 0}, {""cite"": ""285 Mass. 125"", ""weight"": 2, ""case_ids"": [920553], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""128""}, {""page"": ""128""}], 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+3852379,"{""id"": 3852379, ""name"": ""Lillian Goodman & another vs. Frederick Smith"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""cca40c36bdba1c7167078315ab85be9a83505a7fccd7a7c4e7a1567a01be30cb"", ""simhash"": ""1:92eac93a1f7d51ef"", ""pagerank"": {""raw"": 0.00000032139172049091265, ""percentile"": 0.866670025935875}, ""char_count"": 6153, ""word_count"": 1106, ""cardinality"": 381, ""ocr_confidence"": 0.634}, ""casebody"": {""judges"": [], ""parties"": [""Lillian Goodman & another vs. Frederick Smith.""], ""opinions"": [{""text"": ""Counihan, J.\nIn this action of tort Lillian Goodman, hereinafter called the plaintiff, who with her husband, Lester H. Goodman, was a tenant of the defendant, seeks to recover damages for personal injuries sustained by her on or about June 15, 1954, by reason of the negligent maintenance by the defendant of the floor of the attic of a three family dwelling house numbered 12 Spencer Street, Dorchester. Her husband also seeks consequential damages.\nAt the close of the evidence the defendant filed a motion for directed verdicts which was denied subject to an exception of the defendant. The jury under leave reserved returned verdicts for both plaintiffs and the defendant filed a motion for the entry of verdicts for him which was also denied subject to an exception of the defendant.\nThe judge reported the action to this court to determine, we assume, the correctness of his action in denying these motions. G. L. c. 231, § 111.\nIn the meantime the defendant filed a motion for a new trial upon which the judge reserved action until this court acted upon the report. We think that the judge was right in denying the defendant’s motions.\nOn evidence most favorable to the plaintiff it appears that Mr. and Mrs. Goodman became tenants on the first floor of this dwelling house on February 1, 1953. They were then given permission by the defendant to use the attic and the cellar for storage in common with the defendant who occupied the second floor and another tenant who occupied the third floor.\nThe defendant called as a witness by the plaintiff testified that at the time the Goodmans moved in he was familiar with the condition of the floor of the attic and that it was in good condition. That part of the attic floor leading from the entrance to a chimney in the middle of the attic was covered with boards of various lengths which apparently were nailed to the stringers of the attic floor. No flooring covered the stringers on the rest of the attic. When the plaintiff first observed the attic floor where boards covered the stringers that part of the floor looked as normal as any other attic floor. About four or five weeks before the accident her husband stored a spring and a mattress in the attic and there were some loose floor boards there. Her husband reported that condition to the defendant who said he would take care of it.\nOn the day of the accident the plaintiff went to the attic to store some dishes, assuming that the defendant had taken care of the floor. She placed them on the floor near the chimney and as she turned around to walk to the door of the attic a piece of board which was part of the floor slipped and her leg went through the floor and the ceiling of the third floor apartment. She sustained injury.\nThe defendant testified that he went to the attic frequently, that he made inspections of the floor, that at all times he knew the condition of it, and that he never saw any defects in it. After the accident he saw the piece of board which had slipped out. It was about fifteen inches long, seven eighths of an inch thick, and three and one half inches wide at one end tapering down to a point at the other. There was a broken piece of it lying loose. This board had very little support on the stringer; it was practically flush with the end of the stringer. After the accident he put a padlock on the attic door.\nIt is settled in this Commonwealth that, where a landlord retains control over common areaways used by tenants in connection with demised premises, he owes to the tenants the duty to use reasonable care to keep the common areas in as good a condition as that in which they were or appeared to be at the time of the creation of the tenancy. Conroy v. Maxwell, 248 Mass. 92, 96. McCarthy v. Isenberg Bros. Inc. 321 Mass. 170, 172. Stedfast v. Rebon Realty Co. Inc. 333 Mass. 348, 350. The burden is on the plaintiff to show that her injury was the result of a change in the condition of the premises which in the exercise of reasonable care and diligence the defendant should have discovered long enough before the accident to have repaired or remedied it. Furber v. Rodney, 331 Mass. 16, 18-19. We think that the evidence in the case at bar as we have recited it was amply sufficient to sustain such burden.\nWe further are of opinion that the jury were warranted in finding that the plaintiff stood upon a loose board in the floor of the attic which was in the control of the defendant and that the defendant had or should have had in the exercise of reasonable care knowledge of tins defect. Furthermore we think that because of the information conveyed to him by the husband of the plaintiff regarding this condition the jury could have found that the defendant had a reasonable time to remedy it. Dreher v. Bedford Realty, Inc. 335 Mass. 385, 388, 389.\nThe verdicts rendered by the jury in favor of the plaintiffs are to stand and judgments are to be entered upon them unless they shall be set aside after hearing upon the motion of the defendant for a new trial already filed.\nSo ordered."", ""type"": ""majority"", ""author"": ""Counihan, J.""}], ""attorneys"": [""Charles O. Monahan, (Louis Goldblatt with him,) for the defendant."", ""Morris Michelson, for the plaintiffs.""], ""corrections"": """", ""head_matter"": ""Lillian Goodman & another vs. Frederick Smith.\nSuffolk.\nNovember 5, 1959.\nFebruary 4, 1960.\nPresent: Wilkins, C.J., Spalding, Williams, Counihan, & Cutter, JJ.\nLandlord and Tenant, Common attic, Landlord’s liability to tenant or one having his rights.\nA finding that there was a breach of the duty owed by the owner of an apartment building to a tenant of an apartment therein was warranted by evidence that at the beginning of the tenancy the floor of a common attic in the control of the owner, which the tenant had permission to use, was or appeared to be in good condition, that subsequently the • existence of loose boards in the floor was reported to the owner, that four or five weeks later the tenant was injured when a piece of board in the floor slipped and her leg went through the floor and a ceiling below, and that the owner went to the attic frequently and made inspections of the floor.\nTort. Writ in the Superior Court dated July 12, 1954.\nThe action was tried before Smith, J.\nCharles O. Monahan, (Louis Goldblatt with him,) for the defendant.\nMorris Michelson, for the plaintiffs.""}, ""cites_to"": [{""cite"": ""335 Mass. 385"", ""case_ids"": [3845155], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""388, 389""}], ""case_paths"": [""/mass/335/0385-01""], ""opinion_index"": 0}, {""cite"": ""331 Mass. 16"", ""case_ids"": [936589], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""18-19""}], ""case_paths"": [""/mass/331/0016-01""], ""opinion_index"": 0}, {""cite"": ""333 Mass. 348"", ""case_ids"": [487722], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""350""}], ""case_paths"": [""/mass/333/0348-01""], ""opinion_index"": 0}, {""cite"": ""321 Mass. 170"", ""case_ids"": [499867], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""172""}], ""case_paths"": [""/mass/321/0170-01""], ""opinion_index"": 0}, {""cite"": ""248 Mass. 92"", ""case_ids"": [3813175], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""96""}], ""case_paths"": [""/mass/248/0092-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""340 Mass. 336"", ""type"": ""official""}], ""file_name"": ""0336-01"", ""last_page"": ""339"", ""first_page"": ""336"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T16:40:28.725676+00:00"", ""decision_date"": ""1960-02-04"", ""docket_number"": """", ""last_page_order"": 375, ""first_page_order"": 372, ""name_abbreviation"": ""Goodman v. 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+3856198,"{""id"": 3856198, ""name"": ""Robert Fuller, individually and as trustee, & another vs. First Financial Insurance Company"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""0d1b785bb97c24cbae86498aabedc465627dc1a3accf9a1fa2a9e16ae31b820e"", ""simhash"": ""1:297237567c9fb2a6"", ""pagerank"": {""raw"": 0.00000023171325025033438, ""percentile"": 0.789083842339843}, ""char_count"": 16856, ""word_count"": 2734, ""cardinality"": 794, ""ocr_confidence"": 0.884}, ""casebody"": {""judges"": [], ""parties"": [""Robert Fuller, individually and as trustee, & another vs. First Financial Insurance Company.""], ""opinions"": [{""text"": ""Spina, J.\nWe granted an application for direct appellate review to determine whether an exclusionary provision in an insurance policy issued by the defendant, First Financial Insurance Company (First Financial), applies to preclude coverage of a judgment obtained by Jane Doe against First Financial’s insured, Robert Fuller. The underlying lawsuit was brought by Doe against Fuller, alleging that he was responsible for a brutal attack against her by a third party because of negligence in providing security at a building he owned in Boston where the attack began. The present lawsuit was commenced after First Financial denied Fuller’s request to defend him under his general liability policy against claims brought by Doe. The underlying lawsuit then was settled. As part of the settlement, Fuller assigned his rights in the present case to Doe. Doe was substituted as the plaintiff in the Superior Court, seeking to reach and apply First Financial’s insurance policy. On cross motions for summary judgment, a Superior Court judge applied the exclusionary clause in the insurance policy and ruled in favor of First Financial. We affirm.\n1. Background. Jane Doe’s claims stem from an incident that occurred on the night of July 14, 1995. Doe had gone to 434 Dudley Street in the Roxbury section of Boston to visit a friend. While entering the apartment building, Doe was approached from behind by Elwood Furrowh, who put a knife to her back and stated, “You’re coming with me.” Furrowh then forced Doe off the premises to his nearby apartment, where he raped her multiple times, threatened her life, cut her with a knife and attempted to kill her. Doe escaped the following morning and reported the incident to the police. Furrowh subsequently was arrested and prosecuted. He pleaded guilty to multiple counts of aggravated rape, assault by means of a dangerous weapon, assault with intent to maim, assault and battery, and kidnapping.\nAs the owner of 434 Dudley Street, Fuller carried a general liability insurance policy from First Financial. First Financial, however, declined to defend Fuller from Doe’s claims on the basis of exclusions contained in the policy. As relevant here, the exclusionary language concerned claims that arise as a result of an assault or battery:\n“It is agreed and understood that this insurance does not apply to ‘bodily injury’ or ‘property damage’ arising out of assault or battery or out of any act or omission in connection with the prevention or suppression of any such act, whether caused by or at the instigation or direction of the ‘insured,’ his employees, patrons or any other person.”\nSubsequent to learning that First Financial declined to defend or indemnify him in Doe’s action, Fuller settled the case with Doe. The settlement approved by the judge included the following judgment:\n“Judgment shall enter for the Plaintiff, Jane Doe, on Count I of her Complaint in the amount of Two Million ($2,000,000) Dollars, of which One Million ($1,000,000) Dollars is found to be attributable to damages arising from the physical beating, stabbing and attempted murder of the plaintiff, and One Million ($1,000,000) Dollars is found to be attributable to damages arising from the rape and kidnapping.”\nConceding that the portion of the judgment attributed to “physical beating, stabbing and attempted murder” was excluded from coverage, Doe stepped into the shoes of Fuller in the present case to argue that the insurance policy did not exclude coverage for the half of her judgment that was attributable to rape and kidnapping.\nAccording to Doe, the rape and kidnapping claims are not included in the exclusion of coverage for injuries arising out of assault or battery. She argues that because rape is a specific and independent crime that differs significantly from assault and battery, we should not read the exclusionary language in the insurance policy so to include rape and kidnapping claims. In support of this argument, she contends that rape commonly is understood as a distinct and independent crime from assault or battery. The plaintiff further cites instances in Massachusetts common law and statutory law where rape is defined as a particularly heinous crime, separate from the more general assault and battery. Doe also points to numerous examples of how rape and its consequent harm are treated differently from other crimes by law enforcement and crime experts. In addition, she argues that kidnapping consists of any restraint on a person’s liberty and need not involve any particular showing of force.\nFirst Financial responds that under Massachusetts law, every rape necessarily includes an assault or a battery or both. It argues that the exclusionary provision applies to Doe’s case because rape and kidnapping are particular types of assault or battery. First Financial contends that this view is supported by Massachusetts jurisprudence on the subject of exclusionary provisions in insurance policies.\n2. Standard. “The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). The parties produced a statement of agreed facts and exhibits in the Superior Court, leaving no material facts in dispute. The interpretation of an insurance contract is a question of law. See Home Ins. Co. v. Liberty Mut. Fire Ins. Co., 444 Mass. 599, 601-602 (2005); Chenard v. Commerce Ins. Co., 440 Mass. 444, 445 (2003).\n3. Analysis. We are called on to interpret particular language in First Financial’s policy, namely, whether Doe’s judgment for damages attributable to her rape and kidnapping falls within the policy’s exclusion that “this insurance does not apply to ‘bodily injury’ or ‘property damage’ arising out of assault or battery.” If the language of an insurance policy is not ambiguous, we interpret the words of the policy in their usual and ordinary sense. Citation Ins. Co. v. Gomez, 426 Mass. 379, 381 (1998), citing Hakim v. Massachusetts Insurers Insolvency Fund, 424 Mass. 275, 280 (1997). The relevant language in First Financial’s policy is unambiguous — that is, it is not susceptible to more than one meaning, such that reasonably intelligent persons might disagree as to which meaning is proper. Citations Ins. Co. v. Gomez, supra, citing Jefferson Ins. Co. v. Holyoke, 23 Mass. App. Ct. 472, 474-475 (1987). Indeed, we previously have interpreted the language most crucial to this dispute in similar circumstances.\nIn Bagley v. Monticello Ins. Co., 430 Mass. 454 (1999), the\nplaintiff sought to reach and apply the insurance policy of a motel after winning a judgment for negligence that proximately caused her to be brutally beaten and raped by a third party on the motel premises. The motel’s insurance policy contained an “illegal acts” exclusion that stated, in relevant part: “All coverage is excluded hereunder for any claim which arises wholly or in part out of allegations of violation of any federal, state, or local statute, ordinance, or law.”, Id. at 456. The Superior Court judge in the Bagley case agreed with the plaintiff that this exclusion did not apply to her claim because she was seeking coverage for negligent conduct of the insured motel, rather than the illegal acts of her attacker. Id. at 456. In deciding whether a claim of negligence was included under such an exclusion, we observed that “[t]he phrase ‘arising out of’ must be read expansively . . . .” Id. at 457. Unlike the plaintiff in the Bagley case, Doe does not challenge the exclusion’s application on the basis of her negligence theory of liability. Bagley’s guidance to read the “arising out of” language broadly is instructive nonetheless.\nThe Bagley decision cited favorably to “cases interpreting the phrase ‘arising out of’ in insurance exclusionary provisions” that “suggest a causation more analogous to ‘but for’ causation, in which the court examining the exclusion inquires whether there would have been personal injuries, and a basis for the plaintiff’s suit, in the absence of the objectionable underlying conduct.” Id. at 457, citing United Nat’l Ins. Co. v. Parish, 48 Mass. App. Ct. 67, 70-71 (1999), and New England Mut. Life Ins. Co. v. Liberty Mut. Ins. Co., 40 Mass. App. Ct. 722, 727 (1996). Applying that theory of causation here requires the conclusion that Doe’s rape and kidnapping would not have occurred absent the initial assault and battery by Furrowh while still on the premises of 434 Dudley Street.\nWe need not reach Jane Doe’s argument that rape and kidnapping are separable and independent crimes not synonymous with assault or battery in the common understanding of insured persons. Whether that is true or not does not change the application of the broad causal interpretation mandated by the Bagley case — Doe’s injuries attributable to her rape and kidnapping arose out of the initial assault, i.e., Furrowh’s verbal threat to Doe of, “You’re coming with me,” and the initial battery, i.e., Furrowh’s placement of a knife to Doe’s back. Indeed, the assault and battery by Furrowh was committed with the obvious intent to accomplish the subsequent abduction and rape. “[W]ithout the underlying assault and battery, there would have been no personal injuries” related to the rape and kidnapping. United Nat’l Ins. Co. v. Parish, 48 Mass. App. Ct. 67, 70 (1999). We therefore read the phrase “arising out of” in First Financial’s policy to bring within the boundaries of the exclusion all the terrible consequences of the initial attack on Doe, as pleaded in the underlying criminal action.\n4. Conclusion. For the reasons stated, the exclusion of the First Financial policy applies to the judgment obtained by Doe in the underlying action for damages attributable to her rape and kidnapping. The judgment of the Superior Court is affirmed.\nSo ordered.\nAlthough the application for direct appellate review was submitted in the name of Robert Fuller, Jane Doe is the only active plaintiff in this case on appeal, maintaining Fuller’s name in the caption for the sake of clarity. Fuller assigned his interest in this case to Doe as a result of settlement of the underlying lawsuit in the Superior Court, as explained herein.\nFirst Financial initially founded its denial in the “sexual action” exclusion as well as the “assault and battery” exclusion of its policy. The “sexual action” exclusion states:\n“It is understood and agreed that coverage for ‘bodily injury’ and ‘property damage’ is not provided nor will the Company have any duty to defend for claims, accusations, or charges brought by or against any ‘insured(s)’ including employees of the ‘insured(s)’ for actual or alleged sexual action, sexual abuse, or employment related claims, accusations or charges. It is understood and agreed that coverage for ‘bodily injury’ and ‘property damage’ is not provided nor will the Company have any duty to defend for claims, accusations or charges of negligent hiring, investigation, placement, training or supervision arising from actual or alleged sexual action, sexual abuse or employment related claims, accusations or charges.”\nFirst Financial does not contest the Superior Court judge’s ruling that this exclusion does not encompass rape and kidnapping by a third party initiated on the insured’s property.\nWe acknowledge the amicus brief of the Victim Rights Law Center.\nAll Doe’s damages, including her emotional injuries and her need for psychotherapeutic care, fall under the definition of “bodily injury” for the purposes of an insurance contract. See United Servs. Auto. Ass’n v. Doe, 58 Mass. App. Ct. 743, 744-745 (2003), and cases cited. The nonphysical harm to Doe constitutes “bodily injury” because it directly resulted from the corporeal harm that she suffered at the hands of her attacker. Richardson v. Liberty Mut. Fire Ins. Co., 47 Mass. App. Ct. 698, 702-703 (1999). Thus, the nature of Doe’s injuries do not remove her claims from the exclusions of First Financial’s insurance policy.\nThe slight difference in language between the phrase “arises wholly or in part out of” in Bagley v. Monticello Ins. Co., 430 Mass. 454, 456 (1999), and “arising out of” in First Financial’s pohcy is inconsequential. In Liquor Liab. Joint Underwriting Ass’n of Mass. v. Hermitage Ins. Co., 419 Mass. 316 (1995), cited in the Bagley case, we contrasted the defendant’s more narrow exclusionary language with an insurance pohcy from a Connecticut case that is nearly identical to First Financial’s pohcy exclusion. Liquor Liab. Joint Underwriting Ass’n of Mass. v. Hermitage Ins. Co., supra at 320-321 n.4, citing Kelly v. Figueiredo, 223 Conn. 31, 32 (1992). In so doing, the result of United Nat’l Ins. Co. v. Parish, 48 Mass. App. Ct. 67, 70-71 (1999), which upheld the broad exclusionary effect of the “arising out of” language, was foreshadowed.\nThe insurance pohcy at issue in Bagley v. Monticello Ins. Co., supra at 456, also contained, inter aha, an assault and battery exclusion. Because we ruled that the plaintiff’s claims were barred from coverage under the illegal acts exclusion, id. at 455, there was no need to interpret the assault and battery exclusion in that case.\nWe read the phrase “arising out of” broadly, but do so in a different sense than was required in Bagley v. Monticello Ins. Co., supra. For the purposes of the Bagley case, we read the phrase expansively to reject the argument that the plaintiff’s claim did not “arise out of” an illegal act because her pleaded claim concerned negligence of the motel. In this case, the breadth of the phrase refers to the chronological unfolding of events during a single criminal episode. Given the general rule that the phrase “arising out of” is to be read broadly, there is no conflict in these differing applications. This is especially true in light of the source of the interpretative rule cited by the Bagley case, Rischitelli v. Safety Ins. Co., 423 Mass. 703, 704 (1996), which was interpreting the phrase in a similar manner. In that case, the plaintiff was denied insurance coverage for injuries allegedly “arising out of the ownership, maintenance or use of an auto” where he was battered by another driver following an automobile accident. Id. at 704. While we interpreted the phrase “arising out of” broadly, we interpreted the battery to be “sufficiently independent of the motor vehicle accident” so as to not be covered. Id. at 707. The initial assault and battery on Doe was not similarly detached from the subsequent rape and kidnapping and consequent injuries. Cf. Mass. R. Crim. P 9 (a) (1), 378 Mass. 859 (1979) (allowing joinder where related offenses “are based on the same criminal conduct or episode or arise out of a course of criminal conduct or series of criminal episodes connected together or constituting parts of a single scheme or plan”).\nAssault and battery are common-law crimes with penalties prescribed in G. L. c. 265, § 13A. Assault is defined either as an attempt to use physical force on another, or as a threat of use of physical force. See Commonwealth v. Gorassi, 432 Mass. 244, 247-248 (2000), and cases cited. Harmful battery consists of “[a]ny touching ‘with such violence that bodily harm is likely to result ....’” Commonwealth v. Burke, 390 Mass. 480, 482 (1983). Battery by means of a dangerous weapon, such as a knife, “necessarily entails a risk of bodily harm.” Id. at 482-483."", ""type"": ""majority"", ""author"": ""Spina, J.""}], ""attorneys"": [""Mark F. Itzkowitz for the plaintiffs."", ""Joseph S. Berman for the defendant."", ""Nicholas M. O’Donnell, for the Victim Rights Law Center, amicus curiae, submitted a brief.""], ""corrections"": """", ""head_matter"": ""Robert Fuller, individually and as trustee, & another vs. First Financial Insurance Company.\nSuffolk.\nNovember 6, 2006.\nDecember 14, 2006.\nPresent: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.\nInsurance, General liability insurance, Coverage, Construction of policy. Practice, Civil, Summary judgment. Words, “Arising out of.”\nThis court concluded that a provision in a general liability insurance policy issued by the defendant, excluding from coverage bodily injury or property damage arising out of assault or battery, applied to preclude coverage of a judgment obtained by a third party against the defendant’s insured, a building owner, in an action for damages attributable to that third party’s rape and kidnapping, which began in the insured’s building. [5-8]\nCivil action commenced in the Superior Court Department on June 30, 1998.\nMotions for summary judgment were heard by Christopher J. Muse, J., and an order of dismissal was entered by Geraldine S. Hines, J.\nThe Supreme Judicial Court granted an application for direct appellate review.\nMark F. Itzkowitz for the plaintiffs.\nJoseph S. Berman for the defendant.\nNicholas M. O’Donnell, for the Victim Rights Law Center, amicus curiae, submitted a brief.\nOf the 432 Dudley Street Realty Trust.\nJane Doe, assignee.""}, ""cites_to"": [{""cite"": ""390 Mass. 480"", ""year"": 1983, ""weight"": 2, ""case_ids"": [916678], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""482""}, {""page"": ""482-483""}], ""case_paths"": [""/mass/390/0480-01""], ""opinion_index"": 0}, {""cite"": ""432 Mass. 244"", ""year"": 2000, ""case_ids"": [285223], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""247-248""}], ""case_paths"": [""/mass/432/0244-01""], ""opinion_index"": 0}, {""cite"": ""378 Mass. 859"", ""year"": 1979, ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""parenthetical"": ""allowing joinder where related offenses \""are based on the same criminal conduct or episode or arise out of a course of criminal conduct or series of criminal episodes connected together or constituting parts of a single scheme or plan\""""}], ""opinion_index"": 0}, {""cite"": ""423 Mass. 703"", ""year"": 1996, ""weight"": 3, ""case_ids"": [1027979], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""704""}, {""page"": ""704""}, {""page"": ""707""}], ""case_paths"": [""/mass/423/0703-01""], ""opinion_index"": 0}, {""cite"": ""223 Conn. 31"", ""year"": 1992, ""case_ids"": [527613], ""category"": ""reporters:state"", ""reporter"": ""Conn."", ""pin_cites"": [{""page"": ""32""}], ""case_paths"": [""/conn/223/0031-01""], ""opinion_index"": 0}, {""cite"": ""419 Mass. 316"", ""year"": 1995, ""case_ids"": [823646], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/419/0316-01""], ""opinion_index"": 0}, {""cite"": ""47 Mass. App. Ct. 698"", ""year"": 1999, ""case_ids"": [480335], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""702-703""}], ""case_paths"": [""/mass-app-ct/47/0698-01""], ""opinion_index"": 0}, {""cite"": ""58 Mass. App. Ct. 743"", ""year"": 2003, ""case_ids"": [65550], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""744-745""}], ""case_paths"": [""/mass-app-ct/58/0743-01""], ""opinion_index"": 0}, {""cite"": ""40 Mass. App. Ct. 722"", ""year"": 1996, ""case_ids"": [1035623], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""727""}], ""case_paths"": [""/mass-app-ct/40/0722-01""], ""opinion_index"": 0}, {""cite"": ""48 Mass. App. Ct. 67"", ""year"": 1999, ""weight"": 3, ""case_ids"": [1152912], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""70-71""}, {""page"": ""70""}, {""page"": ""70-71""}], ""case_paths"": [""/mass-app-ct/48/0067-01""], ""opinion_index"": 0}, {""cite"": ""430 Mass. 454"", ""year"": 1999, ""weight"": 6, ""case_ids"": [1157262], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""456""}, {""page"": ""456""}, {""page"": ""457""}, {""page"": ""457""}, {""page"": ""456""}], ""case_paths"": [""/mass/430/0454-01""], ""opinion_index"": 0}, {""cite"": ""23 Mass. App. Ct. 472"", ""year"": 1987, ""case_ids"": [3993550], ""category"": ""reporters:state"", ""reporter"": ""Mass. 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+3865089,"{""id"": 3865089, ""name"": ""Commonwealth vs. William G. Buckley"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""0990a334dc2b4f76e576fa6fa1e7c81a4d5af7404f1e4fdf18d2f0d4184cc71a"", ""simhash"": ""1:8a9e2441fa8a2e2e"", ""pagerank"": {""raw"": 0.000000392441044030757, ""percentile"": 0.902760740104925}, ""char_count"": 12704, ""word_count"": 2097, ""cardinality"": 751, ""ocr_confidence"": 0.622}, ""casebody"": {""judges"": [], ""parties"": [""Commonwealth vs. William G. Buckley.""], ""opinions"": [{""text"": ""Cutter, J.\nBuckley was indicted for being present where a narcotic drug was illegally kept and deposited. The defendant moved for dismissal of the indictment “because the charge is unconstitutionally vague and indefinite, and because it inflicts cruel and unusual punishment.” This motion and a motion for a directed verdict of not guilty were denied. The case is before us only on exceptions to these denials.\nOn December 14, 1966, Lawrence MacNamara, a Boston police officer serving in the narcotics division, went with other officers to an apartment at 35 Revere Street with a search warrant. Jimmy Boyer Banks, ‘ ‘ occupant and tenant of the premises,” opened the door. The other officers “went . . . into the parlor with” Banks. Officer MacNamara went into the kitchen. Buckley was seated at the kitchen table on which was a brown envelope, found later by analysis to contain marijuana, and a partly smoked, unlighted cigarette, also found later to contain marijuana. Buckley was placed under arrest. He stated that he had “arrived . . . a few minutes before the police.” Banks and Buckley were the only persons in the apartment.\n1. General Laws c. 94, § 213A (as amended through St. 1960, c. 204, § 2), is set out in the margin. Buckley contends that the first provision (following [AJ in fn. 1) is unconstitutionally vague.\nThere has been little discussion of § 213A in our cases. Commonwealth v. Taber, 350 Mass. 186, was a prosecution under the third provision of § 213A concerning conspiracy (see fn. 1 at [C]). There was no occasion to consider the questions now before us. In Commonwealth v. Murphy, 342 Mass. 393, an appeal from a conviction of violation of G. L. c. 271, § 17, as amended, there was passing reference (p. 397, fn. 1) to c. 94, § 213A. At pp. 396-397, we said, “Subject to possible constitutional limitations as to the operation of a statute . . . the Legislature may determine what shall be deemed a 'public welfare offense’ punishable notwithstanding innocent intent. . . . But an intention to create such an offence should appear in clear and unambiguous language” (emphasis supplied).\nAlthough § 213A was materially revised by St. 1960, c. 204, § 2, the language of the first clause as it appeared in St. 1957, c. 660, § 1 (p. 568), was not changed. In 1957, however, § 213A authorized merely the arrest without a warrant of a person \""present” where narcotics were. By the 1960 amendment, such presence was made a criminal offence.\nThe first clause of § 213A, if read literally, imposes strict criminal liability without regard to whether the accused had knowledge or mens rea. The provision cannot be construed as merely stating the circumstances which give rise to a prima facie case sufficient to establish guilt. Compare the statutes discussed in Commonwealth v. Douglas, ante, 212, 219-220, and cases cited. We thus first consider whether a literal reading of the section as a \""public welfare” statute, imposing strict liability \""notwithstanding innocent intent,” should be taken as reflecting the legislative purpose.\nStatutes, purporting to create criminal offences which may \""impinge upon the public’s access to constitutionally protected matter” (see Demetropolos v. Commonwealth, 342 Mass. 658, 661), have been construed to require knowledge by the accused of the facts giving rise to criminality. Such an interpretation is in part, at least, to preserve interests protected under the First Amendment to the Constitution of the United States. See Commonwealth v. Corey, 351 Mass. 331, 332-334. There is some indication that the due process clause of the Fourteenth Amendment may¡ require knowledge in a range of situations not limited to those which have First Amendment aspects. See Lambert v. California, 355 U. S. 225, 228-230 (failure of a person who had previously been convicted of a felony to register as required by a city ordinance, where such person had no knowledge of the ordinance). Generally, however, it has been held that the Legislature may make criminal an act or omission even where the person responsible has no “blameworthy condition of the mind.” See Commonwealth v. Mixer, 207 Mass. 141, 142-143; Commonwealth v. Ober, 286 Mass. 25, 30; Commonwealth v. Lee, 331 Mass. 166,168; Commonwealth v. Murphy, 342 Mass. 393, 396; Williams, Criminal Law, The General Part (2d ed.), §§ 75-90, esp. at pp. 234-239, 250-254, 255-265; Perkins, Criminal Law, 692-712; Sayre, Public Welfare Offenses, 33 Col. L. Rev. 55; Hart, Aims of the Criminal Law, 23 Law and Contemporary Problems, 401, 422-425. See also Mr. Justice Jackson’s discussion of “public welfare” or “strict liability” offences in Morissette v. United States, 342 U. S. 246, 250-273. There (at pp. 256-258) it is suggested that these are often offences where punishment is by “penalties commonly . . . relatively small” and where “conviction does no grave damage to an offender’s reputation.” For other instances of public welfare offences, see United States v. Balint, 258 U. S. 250, 252-254; United States v. Dotterweich, 320 U. S. 277, 280-281. Cf. Borre, Public Welfare Offenses: A New Approach, 52 J. Crim. Law 418-422.\nSection 213A permits the imposition of a severe penalty, as much as five years in prison. It hardly can be regarded as a minor offence. Thus it would take unusually clear legislative language to lead us to the view that knowledge is not required for a conviction under the first clause (fn. 1 at [A]). In view of the Lambert case, 355 U. S. 225, any other interpretation would raise serious constitutional doubts. Indeed, in another jurisdiction a closely similar statute has been held invalid. Seattle v. Ross, 54 Wash. 2d 655, 659-662. See State v. Birdsell, 235 La. 396, 411-415. To avoid such possible constitutional doubts (see Commonwealth v. Corey, 351 Mass. 331, 334; see also Worcester County Natl. Bank v. Commissioner of Banks, 340 Mass. 695, 701; Opinion of the Justices, 341 Mass. 760, 785), we interpret the first clause of § 213A as requiring for a conviction proof that the accused was “present where [he knew] a narcotic drug . . . [was] illegally kept or deposited.” As in the situation discussed in Commonwealth v. Holiday, 349 Mass. 126, 128, however, a “person’s knowledge . . . like his intent, is a matter of fact, which may not be susceptible of proof by direct evidence. In that event resort must be had, and frequently is had, to proof by inference from all the facts and circumstances developed at the trial.” See Commonwealth v. Boris, 317 Mass. 309, 315 (“resort frequently must be had to proof by inference”).\nWe recognize that the second clause of § 213A (see fn. 1 at [B]) expressly includes the word “knowing,” whereas the first clause does not. See Commonwealth v. Raymond, 97 Mass. 567, 569. In view of the seriousness of the penalty which may be imposed under § 213A, we are unwilling to regard the omission from the first clause (of some word having an effect similar to that of “knowing”) as sufficiently indicating the Legislature’s “clear and unambiguous” intention to require no proof of knowledge in a prosecution under the first clause. See the Murphy case, 342 Mass. 393, 397.\nCommonwealth v. Smith, 166 Mass. 370, 374-375 (presence where gaming instruments are found, that is, in a gaming house; St. 1895, c. 419), and Commonwealth v. Kane, 173 Mass. 477, 481-482 (presence where instruments for smoking opium were found; St. 1895, c. 194), were mentioned in the Murphy case, 342 Mass. 393, 397. Those cases seem to us to be distinguishable from that before us. In those cases, also, knowledge may have been implied, in part at least, from the character of the particular places involved in those prosecutions.\n2. Reading the first clause of § 213A as including a requirement that the accused be present where he knows a narcotic drug is illegally kept or deposited, we think that the words “[wjhoever is present” are not vague. These words, coupled with knowledge, do not import an unlimited area. The words must be given a reasonable interpretation which would permit the knowledge required to be proved. The language reasonably refers to a somewhat restricted space. See Commonwealth v. Kane, 173 Mass. 477, 481-482.\n3. Buckley vaguely argues that (a) the first clause of the statute potentially interferes with the constitutional right of free association, and (b) that it imposes a cruel and unusual punishment. No such violation of constitutional interests can reasonably be found in view of the requirement in the first clause of § 213A, as interpreted by us, that there be proof of knowledge of facts constituting noncompliance with the statute.\n4. We are of opinion that there was ample evidence from which the jury could find violation of § 213A as we interpret it. The section is not invalidly vague on its face. There were no exceptions to the judge’s charge or to any failure to give requested instructions. The jury reasonably could infer, from Buckley’s presence at a table on which were found plainly visible marijuana and a half smoked marijuana cigarette, that he knew about these items.\n5. If in the trial court the case was tried on the theory that § 213A imposes strict liability without knowledge, this is ground for a motion for a new trial. G. L. c. 278, § 29, as amended through St. 1966, c. 301.\nExceptions overruled.\nSection 213A reads: “Whoever [A] is present where a narcotic drug is illegally kept or deposited, or [B] whoever is in the company of a person, knowing that said person is illegally in possession of a narcotic drug, or [C] whoever conspires with another person to violate the narcotic drugs law, may be arrested without a warrant by an officer . . . whose duty it is .to enforce the narcotic drugs law, and may be punished by imprisonment in the state prison for not more than five years, or by imprisonment in a . . . house of correction for not more than two years or by a fine of not less than five hundred dollars nor more than five thousand dollars” (emphasis supplied). The letters in brackets are inserted to assist convenient reference to the language immediately following such letters, respectively.\nThe legislative history does not indicate why § 213A was inserted in the 1957 statute which contains many features of the Uniform Narcotics Drugs Act (see G. L. c. 94, §§ 197-217D). That act contains no comparable provision. See Uniform Laws Annotated, vol. 9B, pp. 415, 423; 1957 House Bill No. 3072; 1957 Senate Bill No. 767; 1960 House Bills Nos. 2489, 2490.\nA later case, involving allegedly obscene materials, contains general language which may not be limited to prosecutions where there is some First Amendment consideration. See Manual Enterprises, Inc. v. Day, Postmaster Gen. 370 U. S. 478, 492-493. See also Redrup v. New York, 386 U. S. 767, 771-772 (in Mr. Justice Harlan’s dissent).\nSee Am. Law Inst., Model Penal Code (Tent. Draft No. 4, 1955), §§ 2.05, and comments, pp. 12, 18, 123, 140 (also Proposed Official Draft, 1962, pp. 25-28, 31-32), which avoids the imposition of strict liability except for minor violations and where major penalties are not to be imposed. Cf. discussion in Warner v. Metropolitan Police Commr. [1968] 2 Weekly I. R. 1303, 1307-1320 (dissent), 1324-1335, 1337-1341, 1343-1348, 1350-1354."", ""type"": ""majority"", ""author"": ""Cutter, J.""}], ""attorneys"": [""The case was submitted on briefs."", ""Ronald J. Chisholm & Gerard F. Schaefer for the defendant."", ""Joseph R. Nolan, Assistant District Attorney, for the Commonwealth.""], ""corrections"": """", ""head_matter"": ""Commonwealth vs. William G. Buckley.\nSuffolk.\nMay 28, 1968.\nJune 20, 1968.\nPresent: Wilkins, C.J., Spalding, Whittemore, Cutter, Kirk, Spiegel, & Reardon, JJ.\nNarcotic Drugs. Public Welfare Offence. Statute, Construction. Constitutional Law, Due process of law, Freedom of association, Cruel and unusual punishment.\nG. L. c. 94, § 213A, as amended through St. 1960, c. 204, § 2, requires scienter as an element of the crime, created by the statute, of being “present where a narcotic drug is illegally kept or deposited”; so construed, the statute does not violate any constitutional rights to due process of law or freedom of association, nor inflict a cruel and unusual punishment. [512-513]\nConviction in a criminal proceeding of knowingly being “present where a narcotic drug . . . [was] illegally kept or deposited” in violation of G. L. c. 94, § 213A, as amended through St. 1960, c. 204, § 2, was warranted by evidence that when police with a search warrant entered an apartment the defendant, oné of two occupants thereof, was found seated at a table on which were an envelope and a partly smoked, unlighted cigarette, each containing marijuana. [513]\nIndictment found and returned on January 5, 1967.\nThe case was tried in the Superior Court before Collins, J.\nThe case was submitted on briefs.\nRonald J. Chisholm & Gerard F. Schaefer for the defendant.\nJoseph R. Nolan, Assistant District Attorney, for the Commonwealth.""}, ""cites_to"": [{""cite"": ""386 U. S. 767"", ""case_ids"": [6183638], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""page"": ""771-772""}], ""case_paths"": [""/us/386/0767-01""], ""opinion_index"": 0}, {""cite"": ""370 U. 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+3871555,"{""id"": 3871555, ""name"": ""Commonwealth vs. Frank Clifford"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""0090fea3b40be3a315629722bf2a8a4d8feda8d5d46011f9ad180b57d93d6c4e"", ""simhash"": ""1:ab0321ab063049c5"", ""pagerank"": {""raw"": 0.0000005989605903596479, ""percentile"": 0.9540926903460395}, ""char_count"": 31621, ""word_count"": 5129, ""cardinality"": 1384, ""ocr_confidence"": 0.902}, ""casebody"": {""judges"": [], ""parties"": [""Commonwealth vs. Frank Clifford.""], ""opinions"": [{""text"": ""Liacos, J.\nThe defendant was tried and found guilty by a jury on two indictments, one charging that he wilfully and maliciously set fire to the Mayflower Hotel in Springfield, and the other charging him with murder in the first degree of one Robert Stokes. On September 21,1974, the judge sentenced the defendant to imprisonment for life on the indictment for murder in the first degree and fifteen to twenty years on the indictment for arson; he ordered the sentences to be served concurrently at the Massachusetts Correctional Institution at Walpole.\nOn appeal to this court, the defendant raises seven issues with respect to alleged errors of the trial judge in (1) denying the defendant’s motion for a directed verdict, (2) denying the defendant’s motion for a mistrial based on statements made by the witness Marilyn Olmstead, (3) admitting the testimony of the witness Robert James, (4) admitting evidence of in-court and out-of-court identifications of the defendant, (5) restricting the cross-examination of Marilyn Olmstead, (6) admitting in evidence certain photographs of the deceased, and (7) refusing to instruct the jury that this case was not a murder committed with extreme atrocity or cruelty.\nWe hold that there was no reversible error. We find no basis to modify the jury verdict under G. L. c. 278, § 33E.\nWe summarize the evidence in its aspect most favorable to the Commonwealth. Commonwealth v. Klein, 372 Mass. 823, 824 (1977). Both the defendant and Stokes were residents of the Mayflower Hotel in Springfield. They occupied adjoining rooms on the fifth floor. In the early morning of April 7, 1974, the defendant and Stokes quarreled in the corridor outside Stokes’s room. During this argument Stokes warned the defendant, “If I catch you in my room again again, I’ll kill you.” The defendant responded to this threat by saying: “M. F., you ain’t going to be doing nothing to me.” There was a physical altercation between the two men which was broken up by other persons, including the night manager of the hotel. The night manager then asked the defendant to vacate his room and leave the hotel. This incident occurred approximately at 1:30 a.m. The defendant left the premises shortly thereafter. There was evidence that subsequently at a nearby automobile garage a man wearing a hat, bluish jacket, and dark pants — clothing similar to that worn by the defendant — purchased gasoline in a can between 2 and 3 a.m.\nAbout 3 a.m. a fire broke out in the deceased’s room. Expert testimony was to the effect that the cause of the fire was by “human design.” The Commonwealth presented several witnesses linking the defendant to this crime. Marilyn Olmstead, occupant of the room next to the deceased’s room, testified that at approximately 3 a.m. she opened her door after detecting the odor of gasoline and saw the defendant in dark pants and a blue jacket outside her door. One Robert Shumate testified he heard the victim in his room “screaming” and “hollering” that he was burning. The screams were described as “ungodly.” Linda Washington, who occupied a room two doors from the deceased, testified that after noticing the fire she opened her door and saw the defendant standing in the hallway holding a can in his hand. She then fled the hotel, crossed the street, and observed the deceased jump from his fifth floor window and fall forty-five to fifty feet to the street below.\nShortly thereafter the police found the deceased in the alley by the rear of the hotel. His hair smelled of gasoline. An autopsy later revealed that the victim died from a broken neck, other multiple fractures, and lacerations of the lung, liver, and spleen. The body had extensive second and third degree burns of the back and neck and on all four extremities. There was evidence that the victim was still alive when he fell to the street but died almost immediately thereafter. At approximately 5:15 a.m. on the morning of the fire the defendant was arrested wearing a hat, blue jacket, and dark pants. His hands had the odor of gasoline.\nThe defendant took the stand in his own behalf and also presented several witnesses to establish an alibi defense.\n1. Directed Verdict.\nThe defendant contends that the judge erred in denying the defendant’s motions for directed verdicts at the close of the prosecution’s case and at the close of all the evidence. The issue raised by a motion for a directed verdict is “whether there was sufficient evidence of the defendant’s guilt to warrant the submission of the [case] to a jury.” Commonwealth v. Baron, 356 Mass. 362, 365 (1969), quoting from Commonwealth v. Altenhaus, 371 Mass. 270, 271 (1944). The appellate standard of review is whether the evidence, read in a light most favorable to the Commonwealth, Commonwealth v. Flynn, 362 Mass. 455, 479 (1972), is sufficient so that the jury “might properly draw inferences, not too remote in the ordinary course of events, or forbidden by any rule of law, and conclude upon all the established circumstances and warranted inferences that the guilt of the defendant was proved beyond a reasonable doubt.” Commonwealth v. Vellucci, 284 Mass. 443, 445 (1933). Commonwealth v. Gallagher, 4 Mass. App. Ct. 661, 662 (1976).\nFrom the evidence as summarized above, the jury properly could have found the defendant guilty of the crime of arson and the crime of murder in the first degree, either because committed with deliberately premediated malice aforethought or with extreme atrocity or cruelty. The defendant contends that his alibi defense is as plausible as the confusing and uncertain testimony of the Commonwealth’s two principal witnesses, Olmstead and Washington, who placed the defendant in the hall at the time of the fire. But it was for the jury and not the judge to determine whether the defendant’s explanations should be believed. Commonwealth v. Vellucci, supra at 446.\nThe defendant erroneously relies on Commonwealth v. Croft, 345 Mass. 143, 145 (1962), where this court stated: “When the evidence tends equally to sustain either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof.”\nThis is not a case, however, in which the guilt of the defendant has no solid foundation in fact, as happened in Croft. In Croft, the inference that the defendant held heroin with the intent to sell was no more compelling than the inference that he retained it until he was certain he had defeated his drug habit. Id. at 144-145. See Commonwealth v. Fancy, 349 Mass. 196, 200 (1965) (defendant’s mere presence in the apartment where stolen liquor was found was insufficient to convict him of stealing liquor); Commonwealth v. Altenhaus, supra at 273-274 (evidence on issue of the defendant’s knowledge of use of hotel for immoral purposes was as consistent with innocence as with his guilt). Here, the prosecution’s evidence strongly supported the inference that the defendant committed arson and murder. While the jury could have disbelieved the testimony of Olmstead and Washington and that of the other prosecution witnesses they were not required to do so. The judge properly denied the defendant’s motions for a directed verdict.\n2. Motion for Mistrial.\nUnder the fourth assignment of error, the defendant argues that the judge committed reversible error by denying the defendant’s motion for a mistrial based on the testimony of Marilyn Olmstead. During direct examination, Olmstead alluded to the defendant’s involvement in a robbery.\nOrdinarily, evidence of other crimes and prior misconduct of which the defendant might be guilty may not be received. Commonwealth v. Nassar, 351 Mass. 37, 42-43 (1966), appeal after remand, 354 Mass. 249 (1968), cert, denied, 393 U.S. 1039 (1969). Commonwealth v. Welcome, 348 Mass. 68, 70 (1964). Commonwealth v. Banuchi, 335 Mass. 649, 654 (1957). Commonwealth v. Ellis, 321 Mass. 669, 670 (1947). Commonwealth v. Stone, 321 Mass. 471, 473 (1947). Commonwealth v. Green, 302 Mass. 547, 552 (1939). W.B. Leach & P.J. Liacos, Massachusetts Evidence 122-123 (4th ed. 1967). This rule stems from the belief that such evidence forces the defendant to answer accusations not set forth in the indictment, confuses his defense, diverts the attention of the jury, and may create undue prejudice against him. Commonwealth v. Jackson, 132 Mass. 16, 20-21 (1882).\nThe harmful effects of such evidence, however, can be offset by a judge’s careful warning to the jury. Here the improper and nonresponsive answer by the witness was immediately cured by the judge’s instruction that the jury disregard the witness’s remark. This court adheres to a practical view which does “not assume that jurors will slight strong and precise instructions of the trial judge to disregard the matters which have been withdrawn from their consideration.” Commonwealth v. Gordon, 356 Mass. 598, 604 (1970). See Commonwealth v. Stone, 366 Mass. 506, 513 (1974) .\nWhere we have held that the judge’s instructions did not cure the error, other factors were present. Compare Commonwealth v. Banuchi, supra at 654 (although giving cautionary instructions, the judge left the same prejudicial evidence in later during cross-examination), and Commonwealth v. Kosior, 280 Mass. 418, 423 (1932) (error not cured by charge since the judge said jury might consider evidence “for what it is worth”), with Commonwealth v. A Juvenile, 365 Mass. 421, 438-439 (1974) (error in nonresponsive remark regarding the defendant’s prior abuse of murder victim corrected by the judge’s instruction).\nThe defendant cites two cases to support his argument that no curative instruction could remove the harmful effects of the witness’s statement. Both these cases are inapposite. In Commonwealth v. Vanderpool, 367 Mass. 743, 748 (1975) , this court said that it is desirable for the judge to give cautionary instructions when there is a real possibility that the jury in their deliberations may consider that which is not properly in evidence. Such instructions were given. In Bruton v. United States, 391 U.S. 123, 137 (1968), cautionary instructions were held to be ineffective in remedying a violation of the defendant’s Sixth Amendment rights. No constitutional violation is involved here.\nWe note also that the defendant’s counsel sought no additional cautionary instructions to the jury on this matter as part of the judge’s charge. The failure to make such request seems explained by defense counsel’s decision to explore this matter further with the same witness on cross-examination and then to argue the matter to the jury as illustrative of Olmstead’s bias against the defendant. The defendant cannot have it both ways. The judge did not abuse his discretion in denying the defendant’s motion for a mistrial.\n3. Impeachment Testimony.\nThe defendant argues that the testimony of the witness Robert James for the Commonwealth was so inflammatory as to outweigh its impeachment value. The defendant had testified previously under cross-examination that he was not in the possession of gasoline on the day preceding the fire. In rebuttal, the Commonwealth called James who stated that the defendant, while carrying an orange soda bottle containing gasoline, had stopped in James’s room the day before the fire.\nIn essence, the defendant is contending that the judge abused his discretion by admitting this testimony in evidence. The only case the defendant cites in support of his argument is Commonwealth v. Chalifoux, 362 Mass. 811, 816 (1973), in which this court stated that an argument could be made for excluding a statement whose probative force appeared to be substantially outweighed by the danger of prejudice. In Chalifoux, however, the court affirmed the defendant’s conviction despite a witness’s reference to the defendant’s being in jail.\nCarrying a soda pop bottle filled with gasoline is not in itself a wrongful act. The judge properly advised the jury that the evidence was admitted for the limited purpose of contradicting the defendant’s testimony that he did not have possession of gasoline on the day prior to the day of the crime. Extrinsic evidence on a collateral matter may be introduced at trial for the purposes of impeachment in the sound discretion of the judge. Commonwealth v. Chase, 372 Mass. 736, 747 (1977). Commonwealth v. Doherty, 353 Mass. 197, 213-214 (1967), cert, denied, 390 U.S. 982 (1968). There was no error.\n4. Identification Evidence.\nUnder assignments of error 1, 3, and 6, the defendant alleges that the police conduct during a pre-trial lineup violated his right to counsel and due process of law. The judge made the following findings in ruling on the defendant’s motion to suppress any in-custody or in-court identification evidence.\nOn the morning of the fire, at approximately 5:15 a.m., the Springfield police arrested the defendant at the Amtrak railroad station in Springfield. The defendant was taken to the police station where arrangements were made for a lineup. The defendant was given the Miranda warnings and advised of his right to use a telephone. The defendant then requested representation by an attorney. Between 6:30 and 7 a.m., the police called Mr. Edward F. McBride, head of the Springfield office of the Massachusetts Defenders Committee, and asked him to assist the defendant during the lineup. Mr. McBride agreed to appear, but stated that, since the defendant was charged with murder in the first degree, he (Mr. McBride) would not be the attorney at trial; hence he protested the holding of any lineup procedures until after the defendant had been arraigned and trial counsel appointed. He, nevertheless, proceeded to the police station to consult with the defendant.\nPrior to Mr. McBride’s arrival at the police station, the police placed the defendant in a lineup with four other black males of similar height, age, and build. Two of them were police officers, and two were suspects under arrest. Except for a brown fur-lined hat, the defendant had on the same clothes he had worn for the past twenty-four hours: a short blue jacket, black pants, white T-shirt, and black leather shoes with a red suede instep. Two other lineup participants wore white T-shirts; three wore dark pants, including the police officers in their dark uniform pants with a blue stripe down the legs; and one of the participants wore an Army jacket.\nThe lineup was conducted through a one-way mirror. The first potential witness to view the lineup, the gasoline attendant, could not identify the defendant. Mr. McBride then arrived at the station and met with the defendant who was called from the lineup room. The attorney-client consultation lasted only about thirty seconds because the police officers in charge wished to proceed with the lineup.\nMarilyn Olmstead and Linda Washington, residents of the Mayflower Hotel, and Tyrone Barnett, manager of the hotel, then viewed the lineup and identified the defendant. They all previously knew him.\nAt the defendant’s trial, Olmstead identified the defendant in court and testified as to her out-of-court identification. Washington also identified the defendant in court, but did not testify as to her out-of-court identification of him. A photograph of the lineup was later offered and admitted in evidence on the ground that it represented the appearance of the defendant on the day of the crime.\nThe defendant contends that his Sixth Amendment rights were violated when the police prevented his attorney from adequately assisting him during the lineup. He argues that the abbreviated conference which the police allowed the defendant and his attorney violated the principle set forth in Powell v. Alabama, 287 U.S. 45, 59 (1932), and Avery v. Alabama, 308 U.S. 444, 446 (1940). In both these cases, the Supreme Court recognized that effective assistance of counsel at trial is denied when counsel is not given adequate opportunity to prepare the defense. While conceding that there was no constitutional obligation to provide counsel at a pre-indictment lineup, the defendant makes the bare assertion that once counsel was provided the police were obligated to conform to the teaching of Powell and Avery, supra.\nKirby v. Illinois, 406 U.S. 682, 689-690 (1972), governs this case. See Commonwealth v. Stewart, 365 Mass. 99, 101-102 (1974); Commonwealth v. Stanley, 363 Mass. 102, 104 (1973). The per se rule of exclusion of identification evidence when counsel is absent from the lineup proceeding is inapplicable where the defendant has been arrested but neither a criminal complaint, an indictment, nor other formal charge has been issued against the defendant. Commonwealth v. Kudish, 362 Mass. 627 (1972). Commonwealth v. Lopes, 362 Mass. 448, 451 (1972). See also Flaherty v. Vinzant, 386 F. Supp. 1170, 1172 (D. Mass. 1974).\nAlthough the police did not exceed the constitutional bounds by providing only a short period for the defendant and his attorney to confer, we agree with the judge in these circumstances that the better practice would have been to give the attorney a more meaningful opportunity to become acquainted with the case and the prospective witnesses, even if this delayed the lineup a while longer. Because counsel is not constitutionally required at this stage of the criminal process, however, we find no reversible error in the extremely brief consultation allowed the defendant and his attorney.\nThe defendant also contends that the police conducted the in-custody lineup in a manner unnecessarily suggestive and conducive to irreparable mistaken identification, thus denying him due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. The defendant argues that because he was the only individual in the lineup with a blue jacket, the same clothing he wore when the witnesses Olmstead and Washington saw him on the evening of the fire, a suggestive element was improperly added to the identification procedure. Thus, according to the defendant, it was all but inevitable that he would be singled out by the witnesses.\nWhen a pre-indictment lineup is conducted in a manner so impermissibly suggestive as to give rise to a substantial likelihood of irreparable mistaken identification, due process is denied. Kirby v. Illinois, supra at 690-691. Stovall v. Denno, 338 U.S. 293, 309-312 (1967). Commonwealth v. Lopes, supra at 451-454. In deciding whether a lineup was unnecessarily suggestive, the judge is to consider the totality of the circumstances surrounding it. It is for the defendant to establish by a preponderance of the evidence that impermissibly suggestive procedures were employed at the lineup. Commonwealth v. Botelho, 369 Mass. 860, 866 (1976).\nThe judge, after hearing testimony with respect to the lineup procedures, found no evidence that any improper suggestion had been made to the witnesses and found that the lineup was fairly conducted. If the judge’s careful findings regarding the identification of the defendant are supported by the evidence, we are not likely to disturb them. Commonwealth v. DeBrosky, 363 Mass. 718, 726 (1973). Commonwealth v. Murphy, 362 Mass. 542, 547 (1972). We believe that the defendant’s wearing apparel is a factor to consider in determining the fairness of the confrontation but it is not dispositive, especially here since the defendant does not contend that he was forced to don this jacket. The judge, being in a superior position to observe and weigh the testimony, could well have concluded that, in light of the over-all makeup of the lineup, the defendant would not be impermissibly singled out for wearing a jacket similar to the one used during the crime. Cf. Commonwealth v. Mobley, 369 Mass. 892, 896 (1976). Furthermore, the judge’s conclusion was bolstered by his finding that the danger of misidentification was substantially lessened because the identifying witnesses personally knew the defendant for some time prior to the crime. See Commonwealth v. Ferguson, 365 Mass. 1, 7 (1974); Commonwealth v. Leaster, 362 Mass. 407, 414 (1972); United States v. Wade, 388 U.S. 218, 241 n.33 (1967).\nThe defendant also contends that the judge should have excluded the in-court identification of the defendant by the two witnesses. Since the judge properly found that the pretrial lineup was conducted fairly, no taint attached to these in-court identifications, and they were thus rightly admitted. Commonwealth v. Dickerson, 372 Mass. 783, 791 (1977). Commonwealth v. Roberts, 362 Mass. 357, 366 (1972). There was no error in the denial of the motion to suppress identification evidence.\n5. Restriction of Cross-examination.\nUnder the fifth assignment of error, the defendant contends that the judge abused his discretion in restricting the cross-examination of Marilyn Olmstead. The defendant wanted to ask the witness whether she ever carried a gun and to bring out the fact that she was scheduled to go to court on a charge involving unlawful possession of a gun.\nThe right of cross-examination is “an essential and fundamental requirement for ... [a] fair trial . . . .” Pointer v. Texas, 380 U.S. 400, 405 (1965). See also Commonwealth v. Johnson, 365 Mass. 534, 543 (1974), and cases cited therein. This right to cross-examination, however, is not absolute, but must be accommodated to other legitimate interests. Commonwealth v. Turner, 371 Mass. 803 (1977). Here, the judge correctly limited cross-examination. Evidence of prior bad conduct may not be used to impeach a witness’s credibility except by production of records of criminal convictions pursuant to G. L. c. 233, § 21. Commonwealth v. Turner, supra at 809-810. Commonwealth v. Binkiewicz, 342 Mass. 740, 755 (1961). Commonwealth v. Dominico, 1 Mass. App. Ct. 693, 713 (1974). W.B. Leach &P.J. Liacos, Massachusetts Evidence at 123.\nFurthermore, Olmstead’s possession of a gun was irrelevant to the issue on trial. The judge had the discretionary powers to limit such examination. Commonwealth v. Turner, supra at 811. Commonwealth v. Nassar, 351 Mass, at 43-44.\n6. Photographs of the Deceased.\nThe defendant contends that the judge abused his discretion by admitting in evidence three allegedly inflammatory photographs of the deceased’s body taken the day of his death. The defendant does not take issue with the authentication of the photographs, but argues that the prejudicial effect far outweighs the minimal probative value of the photographs. In proving that the presiding judge abused his discretion by admitting in evidence inflammatory photographs, the defendant carries a heavy burden. Compare Commonwealth v. Bys, 370 Mass. 350, 361 (1976), with Commonwealth v. Richmond, 371 Mass. 563 (1976).\nIt is well settled that photographs of the deceased have probative worth and may be admitted to show the jury the -nature of the injuries inflicted. Commonwealth v. Galvin, 323 Mass. 205, 215 (1948), and cases cited therein. Here the photographs graphically portrayed to the jury the gruesome nature of the crime. Thus, they were relevant to the issue of extreme atrocity and cruelty as a possible ground for conviction of murder in the first degree. This court has repeatedly held that such photographs may be properly admitted on the issue of “extreme atrocity or cruelty.” See, e.g., Commonwealth v. Bys, supra at 358; Commonwealth v. Simpson, 370 Mass. 119, 126 (1976); Commonwealth v. Rogers, 351 Mass. 522, 531, cert, denied, 389 U.S. 991 (1967); Commonwealth v. Sheppard, 313 Mass. 590, cert, denied, 320 U.S. 213 (1943); Commonwealth v. Osman, 284 Mass. 421, 423 (1933); Commonwealth v. Knowlton, 265 Mass. 382, 385-386 (1928).\nThe defendant contends that, even if relevant to the issue of atrocity or cruelty, these photographs were unnecessary since the jury could comprehend the extent of the injuries from the detailed testimony of the expert medical witness. In Commonwealth v. Bys, supra at 359, this court stressed that it had “invariably rejected” the argument that oral testimony adequately describing the victim made the introduction of photographs unnecessary. See, e.g., Commonwealth v. Chalifoux, 362 Mass, at 817.\nIn light of the relevance and authenticity of these photographs, we cannot say that the judge abused his discretion. See Commonwealth v. D’Agostino, 344 Mass. 276, 279 (1962).\n7. Charge to the Jury.\nThe defendant finally argues under the tenth and eleventh assignments of error, raised by exceptions 24 and 25, that the judged erred in refusing to instruct the jury that this case was not a murder committed with extreme atrocity or cruelty.\nTo submit the issue of atrocity or cruelty to the jury, the evidence must tend to show that the murder was committed with an aggravated and extreme degree of atrocity or cruelty. Commonwealth v. Eisen, 358 Mass. 740, 746 (1971), and cases cited therein. In the following cases this court held that the judge did not err in charging the jury on this question: Commonwealth v. Reddick, 372 Mass. 460, 461-462 (1977) (victim stabbed eleven times); Commonwealth v. Eisen, supra at 746 (victim died as a result of extensive head wound inflicted by heavy, blunt instrument); Commonwealth v. Knowlton, supra at 385, 389 (victim died from single severe blow on the head); Commonwealth v. Feci, 235 Mass. 562, 571 (1920) (deceased shot in head three times and stabbed and cut in twenty places); Commonwealth v. Gilbert, 165 Mass. 45 (1895) (evidence that victim died from single blow with an axe).\nOn review, this court examines both the defendant’s actions, in terms of his method of murder, and the resulting effect on the victim, in terms of the physical injury and pain suffered. Commonwealth v. Lacy, 371 Mass. 363, 367 (1976). Most cases fall between the extremes of mercy killings and gruesome deaths; if the evidence is sufficient, the judge may submit the question to the jury. As stated in Commonwealth v. Lacy, supra at 367-368: “[I]n the final analysis the issue must be left largely to the deliberation of the jury ‘who, as the repository of the community’s conscience, can best determine when the mode of inflicting death is so shocking as to amount to extreme atrocity or cruelty.’” Commonwealth v. Connolly, 356 Mass. 617, 628, cert, denied, 400 U.S. 843 (1970). See also Commonwealth v. Harrison, 365 Mass. 235, 236-237 (1974).\nThe defendant alleges that the evidence did not warrant a charge of murder with extreme cruelty since there was insufficient proof that the defendant doused the deceased with gasoline. We think, however, that the Commonwealth presented sufficient circumstantial proof that the deceased had been splashed with gasoline, set on fire, and that as a result of these acts the deceased suffered great pain and was foreseeably caused to leap through a fifth floor window to his death. Thus, the judge did not err in submitting this issue to the jury.\n8. Chapter 278, § 33E, Review.\nPursuant to G. L. c. 278, § 33E, we have reviewed the entire record and transcript. We conclude that the verdict was supported by both the law and the evidence. The interests of justice demand neither a new trial nor the entry of a verdict of a lesser degree of guilt.\nJudgments affirmed.\nThe following dialogue between Olmstead and the attorney for the Commonwealth occurred: “Q. You had words with who? A. Clifford [the defendant], Q. And could you tell the Court and jury what those words were? A. Well, we had a robbery in our place in the men’s room, and I told him that I could identify him, and I couldn’t turn my back any more.”\nThe judge clearly and forcefully cautioned the jury: “Now, Mr. Foreman and ladies and gentlemen of the jury, I’m going to ask you to completely disregard the last statement that was made by the witness. It was made inadvertently on her part, but nevertheless, I want you to completely disregard that. Put it right out of your minds. It has absolutely nothing to do with this case.”\nThe defendant does not contest the use of a one-way mirror at the lineup. This court has not found its use unconstitutional. Commonwealth v. Lopes, 362 Mass. 448 (1972). But see Allen v. Moore, 453 F.2d 970, 974 (1st cir.), cert, denied, 406 U.S. 969 (1972). The defendant also does not criticize the fact that two lineup participants wore police uniform pants. This fact in itself would probably not result in a denial of due process. See Commonwealth v. Wilson, 357 Mass. 49, 54, cert, denied, 400 U.S. 823 (1970) (no due process denial despite lineup with nine men, three of whom were policemen known to the eyewitnesses).\nThe facts of this case do not require us to decide whether to allow the admission of evidence of an unnecessarily suggestive confrontation if other indicia of reliability exist, such as the witnesses’ prior knowledge of the defendant. Compare Manson v. Brathwaite, 432 U.S. 98 (1977), with Commonwealth v. Botelho, 369 Mass. 860 (1976).\nThe judge also properly charged, without exception, the jury on premeditation as an alternative basis of finding murder in the first degree."", ""type"": ""majority"", ""author"": ""Liacos, J.""}], ""attorneys"": [""John F. Donahue for the defendant."", ""L. Jeffrey Meehan, Assistant District Attorney, for the Commonwealth.""], ""corrections"": """", ""head_matter"": ""Commonwealth vs. Frank Clifford.\nHampden.\nMarch 7, 1977.\nJanuary 27, 1978.\nPresent: Hennessey, C.J., Braucher, Wilkins, Liacos, & Abrams, JJ.\nPractice, Criminal, Directed verdict, Mistrial, Charge to jury. Evidence, Other offense, Collateral matter, On cross-examination, Photograph, Judicial discretion. Witness, Impeachment. Identification. Constitutional Law, Assistance of counsel. Homicide.\nEven though the testimony of two witnesses at the trial of indictments for murder and arson was confusing and uncertain there was sufficient evidence to warrant a finding of guilty. [296-297]\nThe fact that a prosecution witness in a criminal case alluded to unrelated criminal conduct by the defendant did not require a mistrial where the judge immediately instructed the jury to disregard the remark and defense counsel sought no additional cautionary instructions as part of the judge’s charge. [297-299]\nWhere a defendant charged with arson and murder testified that he was not in possession of gasoline on the day preceding the fire, there was no error in admitting, for the purpose of impeaching the defendant’s testimony, evidence that he had been carrying gasoline in an orange soda bottle the day before the fire. [299-300]\nA criminal defendant who was permitted to consult with an attorney for only a very brief time during a pre-trial lineup was not denied his Sixth Amendment rights where neither a criminal complaint, an indictment, nor other formal charge had been issued against the defendant [300-302]; nor was he denied due process of law by the fact that he was the only individual in the lineup with a blue jacket, especially where the identifying witnesses knew the defendant for some time prior to the crime [303-304].\nAt a criminal trial a judge did not abuse his discretion in refusing to allow the defendant to cross-examine a witness as to whether she was scheduled to go to court on a charge involving unlawful possession of a gun. [305]\nAt a murder trial, there was no error in the admission of photographs of the deceased’s body. [305-306]\nAt a murder trial, evidence that the defendant had poured gasoline on the deceased and set him on fire and that as a result the deceased had leapt from a fifth floor window to his death warranted submission to the jury of the issue whether the decedent had been killed with extreme atrocity or cruelty. [306-308]\nIndictments found and returned in the Superior Court on June 5, 1974.\nThe cases were tried before Moriarty, J.\nJohn F. Donahue for the defendant.\nL. Jeffrey Meehan, Assistant District Attorney, for the Commonwealth.""}, ""cites_to"": [{""cite"": ""406 U.S. 969"", ""year"": 1972, ""case_ids"": [6313536, 6313921, 6313731, 6315639, 6313353, 6314156, 6315116, 6315895, 6314358, 6314583, 6315386, 6314847], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/406/0969-02"", ""/us/406/0969-04"", ""/us/406/0969-03"", ""/us/406/0969-11"", ""/us/406/0969-01"", ""/us/406/0969-05"", ""/us/406/0969-09"", ""/us/406/0969-12"", ""/us/406/0969-06"", ""/us/406/0969-07"", ""/us/406/0969-10"", ""/us/406/0969-08""], ""opinion_index"": 0}, {""cite"": ""400 U.S. 843"", ""year"": 1970, ""case_ids"": [12077377, 12077635, 12077892, 12077316, 12077956, 12077480, 12078107, 12077741, 12077584, 12078034, 12077432, 12078171, 12077533], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/400/0843-02"", ""/us/400/0843-07"", ""/us/400/0843-09"", ""/us/400/0843-01"", ""/us/400/0843-10"", 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+3872083,"{""id"": 3872083, ""name"": ""Commonwealth vs. Paul R. Clinton"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""1bb8a476f26a459267e5243505598ac8ed6d122f1cc9a120f62c53dd1e3a1118"", ""simhash"": ""1:f8b3d55d104c11a6"", ""pagerank"": {""raw"": 0.00000045744107654000435, ""percentile"": 0.9251778771658116}, ""char_count"": 4849, ""word_count"": 801, ""cardinality"": 362, ""ocr_confidence"": 0.89}, ""casebody"": {""judges"": [], ""parties"": [""Commonwealth vs. Paul R. Clinton.""], ""opinions"": [{""text"": ""Hennessey, C.J.\nThis case came before the court on a bill of exceptions, following a jury waived trial in the Third District Court of Eastern Middlesex at which the defendant was convicted of negligently operating a motor vehicle so as to endanger the lives and safety of the public, G. L. c. 90, § 24, and refusing to stop for a police officer, G. L. c. 90, § 25. The judge heard and denied motions to dismiss each of the complaints, and he imposed fines of $75 and $50 respectively. We hold that the motions to dismiss should have been allowed.\nWe summarize the facts. On July 20, 1976, an officer of the Metropolitan District Commission (M.D.C.) stopped the defendant while he was driving an automobile in Cambridge. The officer properly completed two citations, delivering the originals in hand to the defendant. The defendant was cited for violations of G. L. c. 90, §§24 and 25, and each citation was clearly designated “complaint,” as required by G. L. c. 90C, § 2, par. 2.\nThe same evening, after issuing the above citations, the complaining officer returned to his assigned station (M.D.C. — Old Colony Division) and deposited the portion of each citation known as the “request for a complaint,” G. L. c. 90C, § 2, par. 4, with the M.D.C. motor vehicle complaint clerk.\nAccording to the standard M.D.C. procedure, the above requests were forwarded to the police station in the area where the incident occurred (M.D.C. — Lower Basin Division) . There was evidence that this M.D.C. practice was designed to facilitate the compilation of data on offenses occurring within the various M.D.C. districts.\nThe requests for complaints were returned to the Old Colony Division on July 27, 1976. The complaining officer received notice of this fact that evening.\nThe next day — eight days after the citations had been written — the complaining officer deposited the requests for complaints in the appropriate District Court, together with duly executed applications for complaints. General Laws c. 90C, § 2, however, requires that this be done within three days after the citation is written. It seems clear to us beyond dispute that this requirement is included in the statute to implement the “no fix” purpose of the statute.\nThe defendant argues persuasively that the failure of the police to observe the statutory deadline constitutes a defense to the crimes charged. Since this statute is penal in nature, it must be strictly construed. Commonwealth v. Federico, 354 Mass. 206, 207 (1968). See Commonwealth v. Hayden, 211 Mass. 296, 297 (1912). It is true that the Legislature did not specify what consequences should follow the failure of the police to satisfy the three-day time limit, but uncertainty that results from a literal reading of the statute is to be resolved in favor of the defendant. Commonwealth v. Conway, 2 Mass. App. Ct. 547, 552 (1974).\nThere is no reason why the M.D.C. police cannot make a copy of the request for a complaint for their own purposes and thereby compile in due course whatever data are needed. The statute unambiguously requires the uniform treatment of violators so as to ensure that traffic tickets cannot be fixed. Although it can be argued that the Legislature’s purpose might be frustrated by a police officer who intentionally postponed filing the request for a complaint, we decline to speculate that any officer would intentionally subvert the law in that way. The language of the statute is clear, and the trial judge erred in denying the defendant’s motions to dismiss. The exceptions therefore are sustained.\nSo ordered.\nGeneral Laws c. 90C, § 2, par. 4, as amended through St. 1968, c. 725, § 3, reads in part as follows: “If the police officer has directed that an application for a complaint be filed, said police chief or person authorized by him shall deposit the parts of the citation designated as the request for a complaint, together with a duly executed application for a complaint and the duplicate registry of motor vehicles record, with the court having jurisdiction over the offense at a time no later than three days after the date on which the citation was written, Sundays and holidays excepted.”"", ""type"": ""majority"", ""author"": ""Hennessey, C.J.""}], ""attorneys"": [""Richard S. Barton for the defendant."", ""Peter W. Agnes, Jr., Assistant District Attorney, for the Commonwealth.""], ""corrections"": """", ""head_matter"": ""Commonwealth vs. Paul R. Clinton.\nMiddlesex.\nNovember 8, 1977.\nMarch 30, 1978.\nPresent: Hennessey, C.J., Braucher, Wilkins, Liacos, & Abrams, JJ.\nMotor Vehicle, Citation for violation of motor vehicle law. Statute, Construction.\nThe failure of the police to observe the statutory deadline of G. L. c. 90C, § 2, fourth paragraph, required dismissal of complaints for motor vehicle violations. [720-721]\nComplaints received and sworn to in the Third District Court of Eastern Middlesex on August 10,1976, and August 12, 1976, respectively.\nThe cases were heard by Bailey, J.\nRichard S. Barton for the defendant.\nPeter W. Agnes, Jr., Assistant District Attorney, for the Commonwealth.""}, ""cites_to"": [{""cite"": ""2 Mass. App. Ct. 547"", ""year"": 1974, ""case_ids"": [3941863], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""552""}], ""case_paths"": [""/mass-app-ct/2/0547-01""], ""opinion_index"": 0}, {""cite"": ""211 Mass. 296"", ""year"": 1912, ""case_ids"": [477058], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""297""}], ""case_paths"": [""/mass/211/0296-01""], ""opinion_index"": 0}, {""cite"": ""354 Mass. 206"", ""year"": 1968, ""case_ids"": [3866635], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""207""}], ""case_paths"": [""/mass/354/0206-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""374 Mass. 719"", ""type"": ""official""}], ""file_name"": ""0719-01"", ""last_page"": ""722"", ""first_page"": ""719"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T17:01:33.512127+00:00"", ""decision_date"": ""1978-03-30"", ""docket_number"": """", ""last_page_order"": 740, ""first_page_order"": 737, ""name_abbreviation"": ""Commonwealth v. 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+3873319,"{""id"": 3873319, ""name"": ""Donna Linthicum vs. Joseph E. Archambault"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""34e7d39df5f5321b1029a464cd0ed56c5519d6b5ba544c7be654970c26b8183c"", ""simhash"": ""1:1da6bfb690d5eec9"", ""pagerank"": {""raw"": 0.000003860857013850191, ""percentile"": 0.9982701694191437}, ""char_count"": 22864, ""word_count"": 3884, ""cardinality"": 1027, ""ocr_confidence"": 0.894}, ""casebody"": {""judges"": [], ""parties"": [""Donna Linthicum vs. Joseph E. Archambault.""], ""opinions"": [{""text"": ""Abrams, J.\nAt issue is whether the plaintiff, who prevailed on a breach of contract claim, is entitled to additional relief under G. L. c. 93A. The trial judge found and ruled that the “plaintiff had a conventional claim in contract for breach of contract and of implied warranty for a reasonably good and workmanlike performance.” The judge awarded the plaintiff damages for breach of contract but declined to consider her claims under G. L. c. 93A. The plaintiff appealed and we granted her motion for direct appellate review. We hold that the plaintiff established a claim under G. L. c. 93A, § 11, and is entitled to attorney’s fees and costs, but not to multiple damages. Thus, we reverse the judge’s finding and ruling as to waiver of the claims for costs and attorney’s fees, but affirm his refusal to award multiple damages.\nThe plaintiff, coowner of a duplex house, which she had been renting to others from approximately August, 1975, received a complaint from a tenant in August, 1976, as to a leak in the front hallway area. At that time the plaintiff was preparing the other side of the house for new tenant occupancy. The plaintiff decided to have the roof of the duplex dwelling reshingled and she discussed the roofing job with the defendant.\nOn August 10, 1976, the defendant and the plaintiff signed a contract. The defendant agreed to reshingle the roof of the entire dwelling “in a workman-like manner according to standard practices” for $1,800. Shortly thereafter the plaintiff joined her husband, who was then stationed in California on military duty. The plaintiff paid the defendant promptly on being notified that the job was completed.\nAlthough defects in the workmanship became apparent in the fall of 1976, the plaintiff did not complain to the defendant until the spring of 1977 when she returned to Massachusetts. At that time the plaintiff notified the defendant of her dissatisfaction with his work. The defendant told the plaintiff that he would make some minor corrections, an offer which the plaintiff refused. The plaintiff and her husband moved into the house in July, 1977. The plaintiff then sent a demand letter pursuant to G. L. c. 93A, § 9 (3), to which the defendant made no written response, and thereafter commenced this lawsuit. After a trial, the plaintiff prevailed on the contract claim, but the judge declined to give the plaintiff any relief pursuant to her G. L. c. 93A claim.\nThe plaintiff’s principal argument on appeal is that it was error for the judge to refuse to consider her claim under G. L. c. 93A. In this contention the plaintiff is clearly correct. As we have previously stated, G. L. c. 93A “is a statute of broad impact which creates new substantive rights and provides new procedural devices for the enforcement of those rights.” Slaney v. Westwood Auto, Inc., 366 Mass. 688, 693 (1975). Such relief is in addition to, and not an alternative to, traditional tort and contract remedies. York v. Sullivan, 369 Mass. 157, 164 (1975). See Heller v. Silverbranch Constr. Corp., 376 Mass. 621, 626 (1978). The position adopted by the trial judge was specifically rejected in Slaney. “ [Wjhere equity jurisdiction is specifically conferred by statute, it is no objection that the plaintiff also has a plain, adequate, and complete remedy at law.” Slaney, supra at 700. Therefore, it was error for the trial judge to refuse relief under c. 93A because it was “unnecessary to secure adequate relief for said plaintiff,” or because the plaintiff would thereby find herself “in a better position than she would have been in had the defendant fulfilled his contractual obligations.” Of course, a judge can refuse the requested relief if he or she rules that the plaintiff has not proved a right to relief, but that is a far cry from the action taken by the trial judge in the instant case.\nWe turn to the plaintiff’s further argument that the pleadings and the judge’s findings of fact show that she is entitled to relief under G. L. c. 93A, § 9, as matter of law. Under the applicable version of the statute, relief under c. 93A was open to two classes of people. Section 9 governed private actions by consumers, persons who purchased or leased goods, services or property primarily for personal, family or household purposes. Section 11 provided remedies for those engaged “ in the conduct of any trade or commerce.” In order to recover under § 9 (as then in effect), a party was required to show: first, that he or she purchased or leased goods, services or property, real or personal primarily for personal, family or household purposes; second, that the defendant used or employed an unfair or deceptive act or practice; third, that the complaining party suffered loss of money or property, real or personal, as a result; and fourth, that a proper written demand for relief was sent to prospective defendants at least thirty days prior to filing the complaint. G. L. c. 93A, § 9 (1), (3), as amended through St. 1978, c. 478, § 45.\nThe main issue on which there is a dispute is whether the plaintiff’s contract is one primarily for personal, family or household purposes. If the plaintiff is a personal consumer, she is entitled to relief under § 9. The plaintiff relies on the pleadings to establish her status as a § 9 consumer. She claims that the defendant’s answer contains an admission that the contract is a “consumer contract” and hence she is entitled to multiple damage relief under § 9. The record does not bear out the plaintiff’s claim.\nThe defendant admitted the contract was a “consumer contract” for purposes of the breach of implied warranty claim but specifically denied the allegations contained in the plaintiff s complaint concerning G. L. c. 93A, with the exception that he admitted receipt of the plaintiff’s demand letter, to which he made no written response. Rule 8 (e) (2) of Mass. R. Civ. P., 365 Mass. 749 (1974), authorizes a party to “set forth two or more statements of a claim or defense alternatively or hypothetically, either in one count or defense or in separate counts or defenses” and to “state as many separate claims or defenses as he has regardless of consistency.” A litigant pleading inconsistent or alternative defenses under rule 8 (e) (2) “does not thereby run the risk of being held to have unwittingly pleaded himself into a . . . judgment.” Little v. Texaco, Inc., 456 F.2d 219, 220 (10th Cir. 1972). Therefore, alternative or inconsistent pleadings may not be used as binding judicial admissions. See Continental Ins. Co. v. Sherman, 439 F.2d 1294, 1298 (5th Cir. 1971). See also Giannone v. United States Steel Corp., 238 F.2d 544, 547-548 (3d Cir. 1956). See generally 5 C.A. Wright & A.R. Miller, Federal Practice and Procedure §§ 1282 and 1283 (1969). Prior practice is to the same effect. “[Fjacts stated in pleading one separate and complete defence cannot be used in determining the issue upon another separate and complete defence.” Herman v. Fine, 314 Mass. 67, 69-70 (1943). Accord, Stone & Webster Eng’r Corp. v. First Nat'l Bank & Trust Co., 345 Mass. 1, 4 (1962); Beacon Motor Car Co. v. Shadman, 226 Mass. 570, 578 (1917); 4 J. Wigmore, Evidence § 1064 (2), at 70 (Chadbourn rev. 1972); McCormick, Evidence § 265, at 634 (2d ed. 1972). Thus the plaintiff may not rely on the “admission” to an allegation in another count to establish her status as a § 9 consumer. The defendant’s express denial of the claim under c. 93A, § 9, required the plaintiff to prove that she purchased goods or services primarily for personal, family or household purposes.\nThe facts found by the judge show that at the time the contract was signed the plaintiff had received a complaint from one tenant and was preparing the other half of the duplex house for new tenant occupancy. Thereafter, the plaintiff rented the entire dwelling and left for California. The judge ruled that the plaintiff had “not purchased goods or services primarily for personal, family or household purposes within the meaning of G. L. c. 93A, § 9.” But cf. Lant-ner v. Carson, 374 Mass. 606, 607-608 (1978) (c. 93A, § 9, inapplicable to sale of residence by individual homeowner).\nBy the express language found in § 1 of G. L. c. 93A, a person who rents real property is engaged in “trade” or “commerce.” Since the plaintiff was using the entire house as rental property at the time she purchased the defendant’s services, she was acting in a business context and, thus, engaging in “trade” or “commerce.” Although the plaintiff was occupying one-half of the duplex house at the time the demand letter was sent as well as at the time of trial, that fact does not make erroneous the judge’s ruling that the plaintiff did not purchase goods or services primarily for personal, family or household purposes.\nThe judge’s finding, however, that there was a material and substantial breach of warranty provides the plaintiff with ample basis for recovery under § 11. See G. L. c. 93A, § 2; Slaney v. Westwood Auto, Inc., 366 Mass. 688, 702 (1975); Attorney General’s Rules and Regulations, 940 Code Mass. Regs. § 3.08 (2) (1978). Nothing in the plaintiff’s complaint or request for rulings precludes such relief.\nUnder § 11 the plaintiff’s damages are limited to actual damages if the breach of warranty is not a wilful or knowing violation of § 2. Cf. Heller v. Silverbranch Constr. Corp., 376 Mass. 621, 627-628 (1978). The judge specifically ruled that the defendant’s breach of the contractual warranties was not wilful, intentional, and deliberate, but essentially was due to inexperienced and unsupervised employees. While it is not a defense to a c. 93A claim that the defendant’s conduct was negligent rather than intentional, negligence does not give rise to a multiple damages claim under § 11. The judge’s findings foreclose recovery of multiple damages.\nAlthough the plaintiff’s motions for attorney’s fees and costs were made pursuant to § 9 (4), which requires that “reasonable attorney’s fees and costs incurred in connection with said action” be awarded any time a violation of § 2 is found, the motions are also applicable to claims under §11, which contains the same requirements. As to attorney’s fees, the law is quite clear that “when attorney’s fees are statutorily authorized legal service organizations are entitled to receive such awards.” Lincoln St. Realty Co. v. Green, 374 Mass. 630, 631 (1978). Accord, Darmetko v. Boston Hous. Auth., 378 Mass. 758, 763-764 (1979). While the amount of a reasonable attorney’s fee is largely discretionary, the judge on remand should consider the nature of the case and the issues presented, the time and labor required, the amount of damages involved, the result obtained, the experience, reputation and ability of the attorney, the usual price charged for similar services by other attorneys in the same area, and the amount of awards in similar cases. Id. at 764, and authorities cited therein. Attorney’s fees attributable to this appeal and any proceedings after remand may be included in the award. Id. at 765.\nOn the issue of costs, the plaintiff seeks to recover $167.10, the principal component of which is $119.10 for her expert witness, as “costs incurred in connection with said action.” She was awarded $35.50 in usual costs by the court, pursuant to G. L. c. 261, §§ 1 and 23. The usual rule in Massachusetts is that the litigant must bear his own expenses, Creed v. Apog, 377 Mass. 522, 525 (1979). Chapter 93A is a statutory exception to that rule. Although the award of expert witness fees is usually discretionary, George v. Coolidge Bank & Trust Co., 360 Mass. 635, 640 (1971), we think that reasonable expert witness fees should normally be recoverable in a c. 93A case in order to vindicate the policies of the act. See generally Note, Expert Witness Fees: Protection for the Indigent Party, 48 Nw. U.L. Rev. 106 (1953).\nThe issue, however, is whether actual cost, i.e., the amount which the expert witness has charged the plaintiff, is recoverable or whether some discretion resides in the judge as to the amount to be paid as costs. Although the word “incurred” as used in a contract has been construed to mean “personally obligated to pay,” Lincoln St. Realty Co. v. Green, 374 Mass. 630, 632 (1978), where it is the statutory policy to award reasonable costs incurred, the trial judge has discretion to set the amount to be awarded even if the plaintiff is personally obligated to pay the amount billed. Where the award of costs is statutorily authorized, judges are vested with discretion either expressly or by judicial construction in determining the size of the award. State v. Wilson, 115 N.H. 99, 101-103 (1975) (construing N.H. Rev. Stat. Ann. 525: 14-a [1974]). Stevenson v. Henning, 268 A.2d 872, 874-875 (Del. 1970) (construing 10 Del. Code tit. 10, § 8906 [1974]). Leadville Water Co. v. Parkville Water Dist., 164 Colo. 362, 365-367 (1967) (construing Colo. Rev. Stat. 56-6-2 [1963]). State Dep’t of Highways v. Salemi, 249 La. 1078, 1083-1084 (1966) (relying on La. Rev. Stat. Ann. § 13.3666 [West 1968]). Of course, consideration should be given to factors such as the time spent by the expert in testimony, the number of appearances, preparation time, the degree of learning and skill possessed by that witness, as well as the assistance such testimony gave to the trier of fact. See Mountain States Tel. & Tel. Co. v. Public Utils. Comm’n, 195 Colo. 130, 136-137 (1978).\nThe judgment denying all relief under G. L. c. 93A is reversed, and the case is remanded for consideration of the plaintiff’s motions for reasonable attorney’s fees and costs.\nSo ordered.\nThe defendant also filed a notice of appeal, but he did not prosecute his appeal.\nThe judge found and ruled “that the insertion of a M.G.L.A. Chapter 93A Count or Consumer Protection Act Count in said Complaint was unnecessary to secure adequate relief for said plaintiff,” and treated the plaintiff’s requests for rulings under c. 93A as waived due to his finding in her favor on the contract claim.\nBecause her husband, who was the other coowner, was absent on military duty, only the plaintiff signed the contract.\nThe trial judge found that, by paying the defendant, the plaintiff had not waived her right to object to the defendant’s performance because “said plaintiff could not be found to have waived defects in performance . . . which were then totally unknown by the plaintiff,” due to her absence from the Commonwealth.\nThe pertinent part of § 9, as it read at the time of trial, is as follows: “ (1) Any person who purchases or leases goods, services or property, real or personal primarily for personal, family or household purposes and thereby suffers any loss of money or property, real or personal, as a result of the use or employment by another person of an unfair or deceptive act or practice declared unlawful by section two or by any rule or regulation issued under paragraph (c) of said section two may, as hereinafter provided, bring an action in the superior court whether by way of original complaint, counterclaim, cross-claim or third-party action for damages and such equitable relief, including an injunction, as the court deems to be necessary and proper.” (Amended through St. 1978, c. 478, § 45, approved July 18, 1978; by § 343 effective July 1, 1978.)\nAs amended through St. 1979, c. 406, § 1, G. L. c. 93A, § 9 (1), now reads as follows: “ (1) Any person, other than a person entitled to bring action under section eleven of this chapter, who has been injured by another person’s use or employment of any method, act or practice declared to be unlawful by section two or any rule or regulation issued thereunder or any person whose rights are affected by another person violating the provisions of clause (9) of section three of chapter one hundred and seventy-six D may bring an action in the superior court, or in the housing court as provided in section three of chapter one hundred and eighty-five C whether by way of original complaint, counterclaim, cross-claim or third party action, for damages and such equitable relief, including an injunction, as the court deems to be necessary and proper” (emphasis supplied).\nAs defined under G. L. c. 93A, § 2, as amended by St. 1978, c. 459, § 2: “ (a) Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.\n“ (b) It is the intent of the legislature that in construing paragraph (a) of this section in actions brought under sections four, nine and eleven, the courts will be guided by the interpretations given by the Federal Trade Commission and the Federal Courts to section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C 45(a)(1)), as from time to time amended.\n“ (c) The attorney general may make rules and regulations interpreting the provisions of subsection 2(a) of this chapter. Such rules and regulations shall not be inconsistent with the rules, regulations and decisions of the Federal Trade Commission and the Federal Courts interpreting the provisions of 15 U.S.C. 45(a) (1) (The Federal Trade Commission Act), as from time to time amended.”\nIt is unclear whether the characterization of the contract as a “consumer contract” is significant when the breach of implied warranty claim is not related to a c. 93A claim, as was true in count 7 of the plaintiff’s complaint. For other instances where consumer status is essential to recovery, see, e.g., G. L. c. 106, § 9-109 (1) and § 9-307 (2). See also G. L. c. 140C, § 1 (j) (aa) et seq. (Truth-in-Lending Act); 15 U.S.C. §§ 1601, 1602(h) et seq. (1976) (Consumer Credit Protection Act); H. Alperin & R. Chase, Consumer Rights and Remedies § 156, at 324 (1979).\nThe judge granted the defendant’s requested ruling that “[a] person who enters into a contract to have a roof reshingled on a two family house in which that person does not live and both apartments which she rents to others has not purchased goods or services primarily for personal, family or household purposes within the meaning of G. L. c. 93A, § 9.”\nWe intimate no view on whether we would reach the same result had the plaintiff resided in her duplex home at the time she contracted for the defendant’s services. See Marshal House, Inc. v. Rent Control Bd. of Brookline, 358 Mass. 686, 695 (1971); Note, Consumer Protection Legislation and the Assertion of Tenant Rights: The Massachusetts Paradigm, 59 B.U.L. Rev. 483, 494-495, 507-508 (1979). Compare Crowell v. McCaffrey, 377 Mass. 443, 452-453 (1979).\nThe plaintiff’s case is governed by c. 93A, § 11, as amended through St. 1978, c. 478, § 47, which reads in relevant part: “Any person who engages in the conduct of any trade or commerce and who suffers any loss of money or property, real or personal, as a result of the use or employment by another person who engages in any trade or commerce of an unfair method of competition or an unfair or deceptive act or practice declared unlawful by section two or by any rule or regulation issued under paragraph (c) of section two may, as hereinafter provided, bring an action in the superior court whether by way of original complaint, counterclaim, cross-claim or third-party action for damages and such equitable relief, including an injunction, as the court deems to be necessary and proper.” Statute 1979, c. 72, § 2, amended § 11 by adding a provision for Housing Court jurisdiction.\nThus, the judge’s ruling that “there is a vacuum of evidence of any unfair or deceptive act or fraudulent practice by the defendant roofing contractor in the conduct of his trade or practice” is incorrect in light of his findings as to a material breach of warranty.\n“[N]either intent to engage in an unlawful act nor knowledge of its unlawfulness is required in order to establish liability.” Rice, New Private Remedies for Consumers: The Amendment of Chapter 93A, 54 Mass. L.Q. 307, 314 (1969).\nGeneral Laws c. 261, § 1, states: “In civil actions the prevailing party shall recover his costs, except as otherwise provided.”\nGeneral Laws c. 261, § 23, as appearing in St. 1973, c. 1114, § 346, states: “There shall be allowed, in a civil action in the supreme judicial court or in the superior court, in addition to other disbursements allowed by law, the following costs:\n“For the entry fee, three dollars.\n“For the complaint, fifty cents.\n“For an attorney’s fee, if an issue in law or fact is joined, two dollars and fifty cents; if not, one dollar and twenty-five cents.\n“For a term fee, five dollars for each sitting while the action is pending, not exceeding three sittings, except by an order of the court. If an action or question of law therein is carried to the full court, two additional term fees may be allowed. If the defendant is defaulted without having appeared, only one term fee shall be allowed.\n“For travel, such sum as the court may allow.”\nIn this case the record reveals that the trial judge relied extensively on the expert testimony in making his findings."", ""type"": ""majority"", ""author"": ""Abrams, J.""}], ""attorneys"": [""Vida K. Brack for the plaintiff.""], ""corrections"": """", ""head_matter"": ""Donna Linthicum vs. Joseph E. Archambault.\nWorcester.\nSeptember 14, 1979.\nDecember 19, 1979.\nPresent: Hennessey, C.J., Quirico, Braucher, Liacos, & Abrams, JJ.\nConsumer Protection Act, Availability of remedy, Consumer, Businessman’s claim, Damages, Attorney’s fees. Practice, Civil, Consumer protection case, Costs. Damages, Consumer protection case. Legal Services Organization.\nA judge erred in refusing to consider a plaintiffs claim under G. L. c. 93A on the ground that she had adequate relief under a contract claim against the defendant. [383-384]\nIn an action under G. L. c. 93A for defects in a roofing job performed by the defendant on the plaintiff s duplex house, the plaintiff was not a personal consumer entitled to relief under § 9 where, at the time the roofing contract was signed, one side of the duplex was rented and the other was being prepared for new tenant occupancy, even though the plaintiff was occupying one-half of the duplex house at the time of her demand letter to the defendant; however, the judge’s finding that there was a material and substantial breach of warranty provided the plaintiff with ample basis for recovery under § 11. [384-388]\nIn an action under G. L. c. 93A, § 11, the plaintiff was not entitled to multiple damages where the defendant’s breach of contractual warranties was negligent rather than intentional. [388]\nA plaintiff who successfully litigates a claim under G. L. c. 93A, § 11, is entitled to attorney’s fees and costs although the judge has discretion as to the amount to be awarded pursuant to § 9 (4). [388-390]\nCivil action commenced in the Superior Court on December 21, 1977.\nThe case was heard by McCooey, J., a District Court judge sitting under statutory authority.\nThe Supreme Judicial Court granted a request for direct appellate review.\nVida K. Brack for the plaintiff.""}, ""cites_to"": [{""cite"": ""377 Mass. 443"", ""year"": 1979, ""case_ids"": [334138], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""452-453""}], ""case_paths"": [""/mass/377/0443-01""], ""opinion_index"": 0}, {""cite"": ""59 B.U.L. Rev. 483"", ""year"": 1979, ""category"": ""journals:journal"", ""reporter"": ""B.U. L. Rev."", ""pin_cites"": [{""page"": ""494-495, 507-508""}], ""opinion_index"": 0}, {""cite"": ""358 Mass. 686"", ""year"": 1971, ""case_ids"": [298396], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""695""}], ""case_paths"": [""/mass/358/0686-01""], ""opinion_index"": 0}, {""cite"": ""15 U.S.C. §§ 1601"", ""category"": ""laws:leg_statute"", ""reporter"": ""U.S.C."", ""opinion_index"": 0}, {""cite"": ""195 Colo. 130"", ""year"": 1978, ""case_ids"": [4553314], ""category"": ""reporters:state"", ""reporter"": ""Colo."", ""pin_cites"": [{""page"": ""136-137""}], ""case_paths"": [""/colo/195/0130-01""], ""opinion_index"": 0}, {""cite"": ""249 La. 1078"", ""year"": 1966, ""case_ids"": [9837522, 3253229], ""category"": ""reporters:state"", ""reporter"": ""La."", ""pin_cites"": [{""page"": ""1083-1084"", ""parenthetical"": ""relying on La. Rev. Stat. 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+3878962,"{""id"": 3878962, ""name"": ""Mission Insurance Company vs. United States Fire Insurance Company"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""27d5897ffb5b7a7b2be9ef4fe1c6a72efa4d48deaa9c20163913c7e97cbc73f3"", ""simhash"": ""1:031f24bb0d5c8655"", ""pagerank"": {""raw"": 0.00000045739647934665283, ""percentile"": 0.9251670657246812}, ""char_count"": 23994, ""word_count"": 3780, ""cardinality"": 838, ""ocr_confidence"": 0.943}, ""casebody"": {""judges"": [], ""parties"": [""Mission Insurance Company vs. United States Fire Insurance Company.""], ""opinions"": [{""text"": ""Hennessey, C.J.\nThe plaintiff, Mission Insurance Company (Mission), seeks a declaration under G. L. c. 231 A, § 1 (1986 ed.), that the defendant, United States Fire Insurance Company (U.S. Fire), must contribute to a tort claim settlement negotiated by Mission and two primary insurers. On cross motions for summary judgment, a Superior Court judge agreed with U.S. Fire’s view that the insurance provided by U.S. Fire is excess of that provided by Mission, and therefore U.S. Fire need not contribute to the settlement until the Mission policy is exhausted. We granted Mission’s application for direct appellate review. We reverse this judgment, and rule instead that Mission and U.S. Fire are excess insurers to the same degree, and must contribute equally to the settlement up to the limits of their policies once the primary policies are exhausted.\nMission issued an “Umbrella Liability Insurance” policy to the lessor of a vehicle involved in the accident which gave rise to the settlement at issue. U.S. Fire issued a “Commercial Comprehensive Catastrophe Liability Policy” to the vehicle lessee. There is no dispute that, in the absence of other insurance, each of the policies provides coverage for the losses resulting from the accident.\nThe Mission policy contains a “Limit of Liability” clause which states that the policy provides coverage excess of that given by primary insurance obtained by the lessor listed in an attached schedule. U.S. Fire’s “Retained Limit — Limit of Liability” clause indicates that U.S. Fire’s coverage is excess of primary insurance obtained by the lessee listed in an attached schedule. U.S. Fire’s limit of liability clause also states that the coverage is excess of the “limits of any other insurance collectible by the insured.” Both policies also contain “Other Insurance” clauses indicating that the coverage they provide is excess of all “other valid and collectible insurance . . . available to the insured” unless such other insurance is specifically intended to be excess of themselves. Neither policy is listed in the other’s schedule of underlying policies.\nU.S. Fire contends that the language of Mission’s limit of liability clause indicates an intent to provide coverage as soon as the policies listed in the schedule attached to the Mission policy are exhausted. U.S. Fire notes that, unlike its own limit of liability clause, the Mission clause does not say that the coverage provided is .excess of all other insurance collectible by the insured. U.S. Fire contends that, to the extent that Mission’s limit of liability clause is inconsistent with Mission’s other insurance clause, which does say it is excess of all other available coverage, Mission has created an ambiguity which should be construed adversely to Mission. U.S. Fire points to the consistency of its own limit of liability and other insurance clauses and concludes that its coverage is excess of that provided by the inconsistently worded Mission policy.\nU.S. Fire alternatively argues that Transamerica Ins. Co. v. Norfolk & Dedham Mut. Fire Ins. Co., 361 Mass. 144 (1972), requires a ruling that its coverage is excess of Mission’s. U.S. Fire reads Transamerica to require all coverage provided to the owner of a vehicle to be exhausted before the driver’s insurers are obligated to pay.\nMission, not surprisingly, takes a different view. Mission argues that both policies are designed to provide excess umbrella-type coverage. Mission contends that, where the “other insurance” clauses in two policies purport to make each policy excess of all others, this court should follow the majority approach of declaring the clauses mutually repugnant and requiring the insurers to contribute to the settlement on a proportionate basis. E.g., Lumbermens Mut. Casualty Co. v. Allstate Ins. Co., 51 N.Y.2d 651, 655 (1980); 16 M.S. Rhodes, Couch’s Cyclopedia of Insurance Law §§ 62:79-62:80 (2d ed. rev. 1983). Under this approach, each insurer would pay in the proportion that its coverage bears to the total coverage provided by the two policies. Mission also argues that its failure to make itself excess of all collectible insurance in the limit of liability clause creates no ambiguity because that clause speaks to Mission’s relationship with its insured while the “other insurance” clause delineates Mission’s relationship with other insurers.\nU.S. Fire counters that the “other insurance” clauses should not be read as mutually repugnant here because to do so distorts other language in the policies. See State Farm Fire & Casualty Co. v. LiMauro, 65 N.Y.2d 369, 374 (1985); Lumbermens Mut. Casualty Co., supra at 655-657. Finally, U.S. Fire contends that, if it is required to contribute to the settlement with Mission, it should do so on an equal, not a proportionate, basis.\nThis case requires close construction of the policies’ terms, and entry into the morass created by the existence of overlapping insurance and “other insurance” clauses. “Other insurance” clauses, clauses designed to establish a policy’s relationship with other policies covering a loss, were first developed in the real property fire insurance field in order to prevent owners from overinsuring. 16 M.S. Rhodes, supra at § 62:32, at 467. Note, Conflicts Between “Other Insurance” Clauses in Automobile Liability Insurance Policies, 20 Hastings L.J. 1292,1292-1293 (1969). The Commonwealth’s statutorily prescribed fire insurance policy now prevents any conflict between “other insurance” clauses in the real property fire insurance context by requiring all policies covering the property to share in the loss on a proportionate basis, G. L. c. 175, § 99 (1986 ed.). No such statutory solution has developed in the automobile insurance context.\nIn general, there are three types of “other insurance” clauses — pro rata, escape, and excess. See generally National Indent. Co. v. Continental Ins. Co., 61 Md. App. 575,578-579 (1985); 8A J.A. Appleman, Insurance Law and Practice § 4906, at 345-350 (rev. ed. 1981). In sorting out the many conflicts between the different types of “other insurance” clauses, courts have taken a number of approaches. Originally, in the fire insurance context, rules were developed and applied such as: the more specific insurer is primarily liable; the insurer of the primary tortfeasor is primarily liable; and the insurer whose policy bears the earliest effective date is primarily liable. See Kurtock, Overlapping Liability Coverage — The “Other Insurance” Provision, 25 Fed’n Ins. Couns. Q. 45, 46-47 (1974); Note, 20 Hastings L.J., supra at 1297-1299.\nFinding that the rules developed to resolve conflicts between “other insurance” clauses in the fire insurance context “were not amenable to resolving overlap problems facing automobile insurers. . . . [T]he majority of courts have embraced a humanistic rule of construction — insurance clauses that conflict are to be reconciled and interpreted upon the determination of the sense and meaning of the terms the parties used.” Kurtock, supra. This approach generally has resulted in giving excess clauses preference to escape and pro rata clauses and declaring mutual repugnancy where either excess or escape clauses appear in both policies. See, e.g., National Indem. Co. v. Continental Ins. Co., supra at 579; Note, 20 Hastings L.J., supra at 1294-1303. In sum, in approaching conflicting other insurance clauses, the courts have rejected the early formalistic rules, and now seek to effect “the terms of [each insurer’s] contract with its insured.” State Farm Fire & Casualty Co. v. LiMauro, supra at 373.\nWhile this court has not decided any cases directly involving a conflict between excess clauses, we have faced related cases and cases in the general insurance context. Our approach in these cases, consistent with the modem approach to conflicting “other insurance” clauses, has been to attempt to effectuate the language of the policies at issue. See Reliance Ins. Co. v. Aetna Casualty & Sur. Co., 393 Mass. 48, 52 (1984) (court will apply clear language of policy despite evidence that parties ’ intent may have been different). This approach is merely an outgrowth of the general rules that language in insurance policies should be given its ordinary meaning, Slater v. United States Fidelity & Guar. Co., 379 Mass. 801, 803 (1980), and that insurance policies should be construed as a whole “without according undue emphasis to any particular part over another.” Woogmaster v. Liverpool & London & Globe Ins. Co., 312 Mass. 479, 481 (1942). A review of our cases reveals our analytical approach of giving effect to the policy language. See, e.g., Beattie v. American Auto. Ins. Co., 338 Mass. 526 (1959) (where no provision of either policy made it excess to the other, insurers cover the loss equally); August A. Busch & Co. v. Liberty Mutual Ins. Co., 339 Mass. 239 (1959) (provision in one policy made it excess to second policy as to the first $10,000 of loss).\nU.S. Fire’s failure to appreciate our analytical approach in these cases causes it to argue that Transamerica Ins. Co. v. Norfolk & Dedham Mut. Fire Ins. Co., 361 Mass. 144 (1972), requires us to find that its coverage is excess of Mission’s. In Transamerica, supra, the owner of an automobile was injured while riding in it as a passenger. The driver had the owner’s consent to operate the vehicle. Both the owner’s insurance of the automobile involved in the accident and the driver’s insurance of his own automobile provided coverage for the owner’s injuries. The policies contained identical “other insurance” clauses which indicated that, where covered losses occur in connection with the use of a vehicle not owned by the policyholder, the coverage provided is excess of other available insurance. This court followed the majority approach in these circumstances and ruled that “the coverage on the car is primary while the coverage of the driver is excess as between two automobile insurers whose policies contain identical ‘other insurance’ clauses.” Id. at 148 & n.5. While we ruled that the driver’s policy was excess of the owner’s, properly understood the case does not establish, as U.S. Fire argues, a hard and fast rule that in all circumstances and under all policies insurance on the vehicle is primary while insurance of the driver is excess. Instead, this court effectuated the policy language before it. The owner’s policy provided primary coverage where his automobile was involved in an accident, and this language was given effect. The driver’s policy provided excess coverage where the driver operated a nonowned vehicle and this was given effect. Thus, Transamerica, supra, and our other decisions, require us to determine whether language contained in the U.S. Fire or Mission policies establishes that Mission’s coverage must be exhausted before U.S. Fire contributes to the settlement.\nIn accord with our approach, we now give effect to the language contained in the Mission and U.S. Fire policies. That both the Mission and U.S. Fire policies provide excess umbrella-type coverage is apparent in their language and the scope of risks they insure. Although it is not determinative, we note that both policies bear titular designations generally associated with umbrella-type coverage: Mission’s is entitled “Umbrella Liability Insurance” and U.S. Fire’s is entitled “Commercial Comprehensive Catastrophe Liability Policy.” Mission’s limit of liability clause tells its insured that the policy provides coverage excess to that provided by those policies in an attached schedule. Mission’s “other insurance” clause tells its insured that the provided coverage is excess of any other insurance covering the insured whether listed or not, and whether procured by the insured or not. Similarly, U.S. Fire’s limit of liability clause and “other insurance” clause both indicate that the U.S. Fire policy provides excess coverage. Further, both policies cover wide risks ranging from personal injury to advertising liability in various contexts. In sum, as between each insurer and its insured, each policy creates umbrella-type excess insurance.\nHaving established Mission’s and U.S. Fire’s relationship with their insureds, we now turn to their relationship with one another. Unlike in August A. Busch & Co., supra at 240, there is no provision in either of the policies specifically making the coverage provided excess of the other policy. See also Transamerica, supra at 148 (policies both state that where driver does not own vehicle involved in accident, driver’s coverage is excess). In the circumstances of this case, rather, we are left with conflicting excess clauses. If both of these clauses are given effect, each insurer would seek to defer to the other leaving no coverage for a loss each has been compensated to recompense. State Farm Fire & Casualty Co., supra at 373-374. 8A J.A. Appleman, supra at § 4909, at 395-403. To avoid this result, we adopt the majority approach in these circumstances and declare that, where excess clauses conflict, they are mutually repugnant and both insurers must contribute to the loss.\nIn reaching this conclusion, we reject U.S. Fire’s argument that Mission’s failure to state in its limit of liability clause, as Mission did in its “other insurance” clause, that the coverage Mission provides is excess of all other collectible insurance, creates an ambiguity which should be construed against Mission. The difference in Mission’s limit of liability clause and “other insurance” clause creates no ambiguity justifying an outcome adverse to Mission. From a reading of the Mission policy as a whole, Woogmaster, supra at 481, it would be clear to Mission’s insured that the policy provides excess umbrella-type coverage as detailed above. The only colorable ambiguity which arises occurs when the language of Mission’s limit of liability clause is compared with the language of U.S. Fire’s limit of liability clause. The existence of this “ambiguity,” created by comparing Mission’s policy with a separate unrelated document, does not justify construing Mission’s policy other than as written.\nWe also reject U.S. Fire’s argument that to hold the excess clauses mutually repugnant distorts other language in the policies. U.S. Fire relies on a number of decisions of the Court of Appeals of New York for this proposition. State Farm Fire & Casualty Co., supra. Lumbermens Mut. Casualty Co., supra. As the Court of Appeals stated in State Farm Fire & Casualty Co, supra at 375, “[t]he rule to be distilled from these cases is that an insurance policy which purports to be excess coverage but contemplates contribution with other excess policies or does not by the language used negate that possibility . . . must be exhausted before a policy which expressly negates contribution ...” (emphasis added). In our case, both the Mission and the U.S. Fire “other insurance” clauses contain language expressly negating the possibility of contribution. In the decisions relied on by U.S. Fire, only one policy contained this language, or other language in the policies at issue allowed the court to declare one policy excess of the other. Id. at 376-377. Lumbermens Mut. Casualty Co., supra at 654-656. As a result, our case is distinguishable from these New York decisions, and more generally from August A. Busch & Co., supra, because there is no language in one policy which makes its coverage excess of the other. See Beattie, supra at 530.\nHaving determined that U.S. Fire must contribute to the settlement, we now must determine the amount of each insurer’s contribution. After deducting available primary coverage, the settlement requires a contribution of approximately $430,000 by the excess insurers. Mission argues that each insurer should pay the percentage of this amount that its policy limit bears to the total combined policy limits. Mission provides up to $1,000,000 of coverage while U.S. Fire provides up to $3,000,000 of coverage. Thus, Mission contends it should pay one-fourth of the $430,000 and U.S. Fire should pay three-fourths of that amount. U.S. Fire contends that the insurers should contribute equally (one-half each) to the $430,000. The policies are silent on the matter of percentage of contribution with other insurers.\nAfter reviewing the authorities cited by the parties, we determine that, in the absence of language controlling the issue, the better approach is to require the insurers to contribute equally until the policy with the lower limit is exhausted. Any remaining amounts due would be paid by the remaining insurer until its policy limit is also exhausted. Mission’s argument that proportionate contribution better reflects the insurers’ undertaking is not persuasive. Because premiums generally do not increase proportionately with the amount of coverage provided, the proportionate method will not always reflect the insurers’ undertakings. See Reliance Ins. Co. v. St. Paul Surplus Lines Ins. Co., 753 F.2d 1288, 1291-1292 (4th Cir. 1985). Further, while it will not always be clear what factors caused or allowed insurers to provide given levels of coverage for whatever premium, what will be clear is that each insurer has been compensated to provide coverage for the loss. In such circumstances, it is equitable to require the insurers to pay equally for the loss up to their respective policy limits. See Cosmopolitan Mut. Ins. Co. v. Continental Casualty Co., 28 N.J. 554,564(1959).\nThe judgment below is vacated. A new judgment is to be entered declaring that there is owing from U.S. Fire to Mission $214,598.39, which represents one-half of the excess insurers’ obligations in the settlement.\nSo ordered.\nThe lessee’s employee was operating the vehicle at the time of the accident.\nU.S. Fire also points to language in the lease agreement stating that the lessor is primarily responsible for insuring the vehicle as indicating that the U.S. Fire policy provides coverage excess of Mission’s. The lessor and lessee are not parties to this suit, however, and their agreement has no impact on the obligations undertaken by Mission and U.S. Fire to them in the respective policies. See Beattie v. American Auto. Ins. Co., 338 Mass. 526, 530-531 (1959).\nPro rata clauses provide that, if other insurance is available to the insured, the policy containing the pro rata clause will contribute to the loss in the proportion that its policy limit bears to the total limit of all available policies. Escape clauses provide that, if there is other insurance available to the insured, the policy containing the escape clause will pay no benefits. Excess clauses provide that, if there is other insurance available to the insured, the policy containing the excess clause will pay no benefits until such other insurance is exhausted. See generally 8A J.A. Appleman, Insurance Law and Practice § 4906, at 345-350 (rev. ed. 1981).\nWhere policies each contain excess or escape clauses, they are declared mutually repugnant, and each insurer is required to contribute to the loss, for to give effect to both clauses would result in no coverage for the insured. See State Farm Fire & Casualty Co., supra at 373-374; 8A J.A. Appleman & J. Appleman, supra at § 4909, at 395-403.\nThe fact is that, in this case, Mission received a higher premium for lower levels of coverage.\nMission notified U.S. Fire of the settlement negotiations and invited U.S. Fire to join in them. U.S. Fire declined to do so, contending that its coverage was excess of Mission’s — a contention we have rejected. Our cases make clear that a party such as Mission is not barred by settlement of a claim from seeking recompense from other liable parties. E.g., Fireside Motors, Inc. v. Nissan Motor Corp. in U.S.A., 395 Mass. 366, 370-371 (1985), and cases cited; Berke Moore Co. v. Lumbermens Mut. Casualty Co., 345 Mass. 66, 70-71 (1962). At no point in the course of this litigation has U.S. Fire contended that the settlement was unreasonable. Therefore, the question need not be considered. See Franklin v. North Weymouth Coop. Bank, 283 Mass. 275, 282 (1933). We note, however, that a party that refuses to participate in settlement negotiations following notification may face an increased burden if it later seeks to have the settlement terms declared unreasonable. See Berke Moore Co., supra at 70 (“[indemnitee] should not be crowded into a worse position” by indemnitor’s advance disclaimers)."", ""type"": ""majority"", ""author"": ""Hennessey, C.J.""}, {""text"": ""Wilkins, J.\n(dissenting, with whom Lynch, J., joins). The Superior Court judge was right. The U.S. Fire coverage is excess of the Mission coverage. The limit of liability clauses call for that conclusion, and the “other insurance” clauses do not change the result.\nThe Mission policy provides that it is excess of “the limits of the underlying insurances set out in the attached schedule.” The U.S. Fire policy was not listed on the attached schedule. Thus Mission does not state it is excess of U.S. Fire’s coverage. The U.S. Fire policy, on the other hand, provides coverage in excess of “the total of the applicable limits of the underlying policies listed in Schedule A hereof, and the applicable limits of any other insurance collectible by the. insured” (emphasis supplied). Mission’s policy is “other insurance collectible by the insured” as to which U.S. Fire states it is excess. The limit of liability clauses standing alone unquestionably place U.S. Fire’s coverage in excess of Mission’s coverage.\nThe policies’ “other insurance” clauses do not permit, much less require, a different conclusion. Mission’s “other insurance” clause seeks to place Mission’s obligations in excess of any other valid and collectible insurance covering a loss except “insurance that is specifically stated to be excess of this policy.” U.S. Fire’s policy specifically states that it is in excess of Mission’s policy. U.S. Fire’s “other insurance” clause says that, if other insurance is available, U.S. Fire will be excess as to that insurance “except insurance purchased to apply in excess of . . . the limit of [U.S. Fire’s] liability” under its policy. Mission’s coverage was not purchased to be in excess of U.S. Fire’s coverage. It was purchased to be in excess of certain listed policies of which U.S. Fire’s policy was not one. Thus U.S. Fire’s coverage is in excess of Mission’s coverage.\nThe court never explains why this straightforward conclusion, based on uncomplicated policy language, should be rejected. My conclusion is consistent with the fact that Mission provided less coverage ($1,000,000 v. $3,000,000) for a substantially higher annual premium ($7,900 v. $1,500)."", ""type"": ""dissent"", ""author"": ""Wilkins, J.""}], ""attorneys"": [""Carol A. Griffin for the plaintiff."", ""Susan H. Williams for the defendant.""], ""corrections"": """", ""head_matter"": ""Mission Insurance Company vs. United States Fire Insurance Company.\nSuffolk.\nOctober 6, 1987.\nJanuary 11, 1988.\nPresent: Hennessey, C.J., Wilkins, Liacos, Abrams, Lynch, & O’Connor, JJ.\nInsurance, Liability insurance, Coverage, Construction of policy, Contribution among insurers.\nDiscussion of the rules developed to resolve conflicts between “other insurance” clauses in liability policies issued by different insurers against the same risk. [495-497]\nIn an action by an “excess” insurer seeking a declaration that another excess insurer must contribute to a tort claim settlement, this court held the “other insurance” language of the umbrella-type excess insurance policies at issue to be conflicting and declared that, inasmuch as the clauses were mutually repugnant, both insurers must contribute to settle the loss [497-500] and, as the policies were silent on the matter of percentage of contribution, the insurers would be required to pay in equal amounts until the lower limit policy was exhausted [500-501], Wilkins, J., dissenting, with whom Lynch, J., joined.\nCivil action commenced in the Superior Court Department on June 20, 1984.\nThe case was heard by John Paul Sullivan, J., on a motion for summary judgment.\nThe Supreme Judicial Court granted a request for direct appellate review.\nCarol A. Griffin for the plaintiff.\nSusan H. Williams for the defendant.""}, ""cites_to"": [{""cite"": ""283 Mass. 275"", ""year"": 1933, ""case_ids"": [477872], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""282""}], ""case_paths"": [""/mass/283/0275-01""], ""opinion_index"": 0}, {""cite"": ""345 Mass. 66"", ""year"": 1962, ""case_ids"": [48077], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""70-71""}], ""case_paths"": [""/mass/345/0066-01""], ""opinion_index"": 0}, {""cite"": ""395 Mass. 366"", ""year"": 1985, ""case_ids"": [895998], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""370-371""}], ""case_paths"": [""/mass/395/0366-01""], ""opinion_index"": 0}, {""cite"": ""28 N.J. 554"", ""year"": 1959, ""case_ids"": [561041], ""category"": ""reporters:state"", ""reporter"": ""N.J."", ""pin_cites"": [{""page"": ""564""}], ""case_paths"": [""/nj/28/0554-01""], ""opinion_index"": 0}, {""cite"": ""753 F.2d 1288"", ""year"": 1985, ""case_ids"": [292463], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""1291-1292""}], ""case_paths"": [""/f2d/753/1288-01""], ""opinion_index"": 0}, {""cite"": ""339 Mass. 239"", ""year"": 1959, ""case_ids"": [3850716], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""parenthetical"": ""provision in one policy made it excess to second policy as to the first $10,000 of loss""}], ""case_paths"": [""/mass/339/0239-01""], ""opinion_index"": 0}, {""cite"": ""338 Mass. 526"", ""year"": 1959, ""weight"": 3, ""case_ids"": [515654], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""parenthetical"": ""where no provision of either policy made it excess to the other, insurers cover the loss equally""}, {""page"": ""530""}, {""page"": ""530-531""}], ""case_paths"": [""/mass/338/0526-01""], ""opinion_index"": 0}, {""cite"": ""312 Mass. 479"", ""year"": 1942, ""weight"": 2, ""case_ids"": [483113], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""481""}, {""page"": ""481""}], ""case_paths"": [""/mass/312/0479-01""], ""opinion_index"": 0}, {""cite"": ""379 Mass. 801"", ""year"": 1980, ""case_ids"": [3873362], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""803""}], ""case_paths"": [""/mass/379/0801-01""], ""opinion_index"": 0}, {""cite"": ""393 Mass. 48"", ""year"": 1984, ""case_ids"": [894390], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""52"", ""parenthetical"": ""court will apply clear language of policy despite evidence that parties ' intent may have been different""}], ""case_paths"": [""/mass/393/0048-01""], ""opinion_index"": 0}, {""cite"": ""61 Md. App. 575"", ""year"": 1985, ""case_ids"": [2265770], ""category"": ""reporters:state"", ""reporter"": ""Md. 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+3895508,"{""id"": 3895508, ""name"": ""Augat, Inc., & another vs. Liberty Mutual Insurance Company"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""232e8294252e9eb2bdd882728068cf46d31beda0bbfd0c71ec8391bf59d05bd9"", ""simhash"": ""1:558565af970c868f"", ""pagerank"": {""raw"": 0.0000043008468469230765, ""percentile"": 0.99854238606189}, ""char_count"": 15161, ""word_count"": 2412, ""cardinality"": 760, ""ocr_confidence"": 0.947}, ""casebody"": {""judges"": [], ""parties"": [""Augat, Inc., & another vs. Liberty Mutual Insurance Company.""], ""opinions"": [{""text"": ""Lynch, J.\nThis is an action for damages and declaratory relief alleging that the defendant, Liberty Mutual Insurance Company (Liberty Mutual), breached an insurance contract issued to the plaintiffs, Augat, Inc., and its wholly-owned subsidiary, Reliable Electronic Finishing Company, Inc. (referred to collectively as Augat). A Superior Court judge granted Liberty Mutual’s motion for summary judgment. Augat appealed, and we transferred the case to this court on our own motion. We affirm.\nThe facts are not in dispute. Augat, through its subsidiary corporation, operated a manufacturing facility in Canton where it electroplated mechanical devices by placing them in tanks of chemicals. The plant had a water treatment system to purify waste water generated by the electroplating process before it was released into the municipal sewer system. In late 1983, however, an inspection by the Massachusetts Department of Environmental Quality Engineering (DEQE) revealed that the water treatment system had failed, and that contaminated water had been discharged into the sewer sys-tern and the ground at the site.\nThe Commonwealth drafted a complaint against Augat seeking damages, injunctive relief, and civil penalties pursuant to G. L. c. 12, § 1 ID (1988 ed.). According to an Augat official, the Commonwealth indicated that, unless Augat consented to a judgment and agreed to decontaminate the site, the Commonwealth intended to clean up the site itself and then seek to recover three times the cleanup costs from Augat under G. L. c. 21E (1988 ed.) and other applicable statutes. Augat entered into negotiations with the Commonwealth and, on February 2, 1984, the Commonwealth simultaneously filed its complaint, a consent order signed by Augat and the Commonwealth, and a proposed form of judgment in Superior Court. Four days later, final judgment entered on the complaint imposing civil penalties and requiring that Augat decontaminate the site at its own expense.\nOn February 9, 1984, Augat wrote to Liberty Mutual that “[a] situation has arisen . . . which may give rise to a claim” under a comprehensive general liability policy issued to Augat that covered the plant. Nearly two and one-half years later, in a letter dated July 30, 1986, Augat informed Liberty Mutual of the court order. In the letter, Augat requested reimbursement of $1,101,380 incurred thus far in cleanup costs and asked that Liberty Mutual acknowledge liability for an additional $3,850,000 in anticipated expenses. On September 17, 1987, after Liberty Mutual failed to respond to Augat’s letters, Augat sent a demand letter pursuant to G. L. c. 93A, asserting that Liberty Mutual’s refusal to address Augat’s claim constituted bad faith conduct. On November 4, Liberty Mutual denied coverage under the policy.\nAugat sued Liberty Mutual seeking damages for breach of contract and unfair trade practices, see G. L. c. 176D, § 3 (1988 ed.); G. L. c. 93A, and seeking a declaratory judgment resolving the parties’ duties under the policy. Liberty Mutual moved for summary judgment asserting that Augat’s obligations were incurred voluntarily and therefore were excluded from coverage by a policy provision that states: “The insured shall not, except at his own cost, voluntarily make any payment, assume any obligation or incur any expense other than for first aid to others at the time of the accident.” (We refer to this provision hereafter as the voluntary payment provision.) The judge granted summary judgment in Liberty Mutual’s favor.\nThe standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law. Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974). See Yakubowicz v. Paramount Pictures Corp., 404 Mass. 624, 626 (1989); Leavitt v. Mizner, 404 Mass. 81, 88 (1989); Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). We may consider any ground supporting the judgment. Champagne v. Commissioner of Correction, 395 Mass. 382, 386 (1985).\nAugat argues, first, that the judge’s decision was improperly based on Augat’s failure to give prompt notice of its claim rather than on the violation of the voluntary payment provision. Second, Augat contends that it did not violate the voluntary payment provision because its consent to judgment was not “voluntary,” but was coerced by the threat of a more costly verdict. Finally, Augat suggests that, even if the payment was voluntary, decisions of this court require Liberty Mutual to demonstrate that it was prejudiced by Augat’s actions before it can disclaim coverage under the voluntary payment provision. Liberty Mutual did not introduce evidence that shows any specific prejudice flowing from Augat’s decision to agree to a consent judgment. Therefore, Augat contends that a material fact remains in issue and summary judgment is inappropriate. We reject these arguments.\nAugat initially contends that the judge’s ruling was not based on Augat’s voluntary assumption of liability at all, but was based on its failure to give prompt notice of its claim. Therefore, Augat argues, the ruling was in error because, where an insurance company seeks to avoid liability under a policy on the ground that the insured delayed in giving notice of a claim, the insurer is required to demonstrate that its position was prejudiced by the delay. See Johnson Controls, Inc. v. Bowes, 381 Mass. 278, 282 (1980); G. L. c. 175, § 112 (1988 ed.). Having reviewed the record, however, we conclude that neither Liberty Mutual’s motion nor the judge’s ruling was based on the defense of late notice. In fact, Liberty Mutual expressly declined to rely on late notice in arguing for summary judgment, and the judge clearly re-on the voluntary payment provision in his decision. Augat’s initial argument, therefore, is unsupported by the record.\nThe question then becomes whether, by entering into a consent judgment, Augat “voluntarily” assumed the obligation to fund the cleanup, thus releasing Liberty Mutual from the duty to indemnify under the voluntary payment provision of the policy. We conclude that the assumption of the obligation was “voluntary” for present purposes. Here, as Augat urges, we give a seemingly unambiguous term of the insurance policy its common, ordinary meaning. See Transamer-ica Ins. Co. v. Norfolk & Dedham Mut. Fire Ins. Co., 361 Mass. 144, 147 (1972). Webster’s defines “voluntary” variously as “by an act of choice,” “not constrained, impelled, or influenced by another,” “acting or done of one’s own free will,” and adds that the word “implies freedom from any compulsion that could constrain one’s choice.” Webster’s Third New International Dictionary 2564 (1961). Augat suggests that, under this definition, its settlement with the DEQE was not “voluntary” because the company did not want to assume the considerable expense of cleaning up the site of the spill. Instead, according to Augat, the company was presented with a “Hobson’s choice”: it could accept the settlement DEQE offered or risk paying treble damages following a suit. See Hazen Paper Co. v. United States Fidelity & Guar. Co., 407 Mass. 689, 695-697 (1990) (discussing the substantial risks posed to polluters by such suits). We conclude that the decision was “voluntary,” however, because Augat had an alternative — it had the right to demand that Liberty Mutual defend the claim and assume the obligation to pay for the cleanup. Nevertheless, Augat failed to exercise this right. Thus, while Augat’s decision obviously was not “voluntary” in the sense of “spontaneous” or entirely free from outside influence, it was “voluntary” in the sense of “by an act of choice.” Therefore, we conclude that the voluntary payment clause, if applied literally, would remove the cleanup costs from the scope of coverage under the policy.\nAugat suggests, however, that prior decisions of this court dictate that Liberty Mutual be required to show that its position was prejudiced before it is allowed to deny coverage. We disagree. We have previously ruled that a showing of actual prejudice is required where the insurer seeks to disclaim coverage based on the violation of a provision requiring: that the insured promptly notify the insurer of a claim, Johnson Controls, supra', that the insurer consent to a settlement affecting a claim, Maclnnis v. Aetna Life & Casualty Co., 403 Mass. 220, 223 (1988), or that the insured cooperate in the event of a lawsuit, Darcy v. Hartford Ins. Co., 407 Mass. 481, 491 (1990). These decisions rejected the traditional, contractual approach to the interpretation of insurance policies, whereby a breach of a policy provision would automatically relieve the insurer of liability. This traditional approach, we stated in Johnson Controls, “fails to recognize the true nature of the relationship between insurance companies and their insureds. An insurance contract is not a negotiated agreement; rather its conditions are by and large dictated by the insurance company to the insured. The only aspect of the contract over which the insured can ‘bargain’ is the monetary amount of coverage.” Johnson Controls, supra at 281, quoting Brakeman v. Potomac Ins. Co., 472 Pa. 66, 72 (1977).\nTherefore we held that the violation of a policy provision should bar coverage only where the breach frustrates the purpose underlying that provision. Notice, consent-to-settlement, and cooperation provisions share a common purpose, we ruled: to give an insurer the opportunity to protect its interests. Maclnnis v. Aetna Life & Casualty Co., supra at 223. Accordingly, we held that an insurer seeking to disclaim liability because of a breach of one of these provisions must demonstrate that the breach actually prejudiced the insurer’s position. See Darcy, supra at 489-491; Maclnnis, supra; Johnson Controls, supra at 280-282.\nThis analysis leads to a different result when applied to the facts of this case. Here too the purpose of the policy provision in question is to give the insurer an opportunity to protect its interests. In this case, however, the record clearly establishes that Augat’s breach of the voluntary payment provision undermined that purpose. After Augat agreed to a settlement, entered into a consent judgment, assumed the obligation to pay the entire cost of the cleanup, and in fact paid a portion of that cost, it was too late for the insurer to act to protect its interests. There was nothing left for the insurer to do but issue a check. We conclude, therefore, that no showing of prejudice is required in this case, and that entry of summary judgment in favor of Liberty Mutual was correct.\nBased on the undisputed facts, therefore, Liberty Mutual was entitled to judgment as a matter of law. The judge did not err in granting summary judgment in Liberty Mutual’s favor.\nJudgment affirmed.\nCommonwealth vs. Reliable Electronic Finishing Co., Inc., Civil No. 66602, Superior Court in Suffolk County (Feb. 6, 1984).\nThe clause is appended to the cooperation provision of the contract. The section, in full, reads as follows (the disputed clause is italicized):\n“The insured shall cooperate with the company and, upon the company’s request, assist in making settlements, in the conduct of suits and in enforcing any right of contribution or indemnity against any person or organization who may be liable to the insured because of injury or damage with respect to which insurance is afforded under this policy; and the insured shall attend hearings and trials and assist in securing and giving evidence and obtaining the attendance of witnesses. The insured shall not, except at his own cost, voluntarily make any payment, assume any obligation or incur any expense other than for first aid to others at the time of the accident.”\nThe judge’s order and memorandum of decision reads, in part: “The [plaintiffs’] policy specifically states that payments which the insured voluntarily makes or obligations which it voluntarily assumes will be made at its own cost. In this context, the word ‘voluntarily’ refers to actions taken without the knowledge or consent of the insurer. Augat and Reliable assumed a legal obligation to fund the clean up at the site and pay civil penalties without notifying Liberty Mutual of the action or affording Liberty Mutual the opportunity to protect and defend its own interests.”\nWhile the opinion at various places refers to the “notice requirement,” in context it is clear that the judge relied on the voluntary payment clause. The semantic confusion may be explained by the fact that the notice and voluntary payment provisions occur in the same section of the policy and by the fact that both provisions share the same goal, which, the judge found, is to “protect [] the insurer’s right to defend a claim where it may be required to indemnify any loss incurred by the insured.”\nAugat also contends that the judge erred by granting summary judgment on the ground of late notice after Liberty Mutual expressly declined to rely on late notice as a basis for summary judgment and the parties did not have the opportunity to address the issue before the court. This argument, too, is misdirected because the judge did not in fact rely on late notice as a ground for his ruling."", ""type"": ""majority"", ""author"": ""Lynch, J.""}], ""attorneys"": [""Stephen H. Oleskey for the plaintiffs."", ""Lee H. Glickenhaus for the defendant."", ""Thomas W. Brunner, Marilyn E. Kerst & Joseph L. Ruby I of the District of Columbia, Peter G. Hermes & Molly H. I Sherden, for Insurance Environmental Litigation Associa- I tion, amicus curiae, submitted a brief. I""], ""corrections"": """", ""head_matter"": ""Augat, Inc., & another vs. Liberty Mutual Insurance Company.\nSuffolk.\nMarch 5, 1991. -\nMay 14, 1991.\nPresent: Liacos. C.J.. Wilkins, Abrams. Nolan. & Lynch, JJ.\nPractice, Civil, Summary judgment. Notice, Insurance claim. Insurance, Comprehensive liability insurance, Notice, Construction of policy, Coverage. Contract, Insurance, Construction of contract. Words, “Voluntary.”\nThe record of a civil action did not support the contention of the plaintiff that the judge’s granting of the defendant insurer’s motion for summary judgment was based on the defense of late notice of the plaintiff’s claim. [120-121]\nAn electroplate manufacturing facility that entered into a consent judgment with the Commonwealth agreeing to decontaminate the site of its failed water treatment plant voluntarily assumed an obligation within the meaning of an exclusionary clause of its comprehensive general liability insurance policy, with the result that the cleanup costs were not within the scope of coverage under the policy. [121-122]\nIn a breach of contract action involving an insurance policy, the insurer was not required to demonstrate prejudice before being allowed to disclaim liability under an exclusionary clause in the policy. [122-123]\nCivil action commenced in the Superior Court Department on November 25, 1987.\nThe case was heard by Robert A. Mulligan, J., on motions for summary judgment.\nThe Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.\nStephen H. Oleskey for the plaintiffs.\nLee H. Glickenhaus for the defendant.\nThomas W. Brunner, Marilyn E. Kerst & Joseph L. Ruby I of the District of Columbia, Peter G. Hermes & Molly H. I Sherden, for Insurance Environmental Litigation Associa- I tion, amicus curiae, submitted a brief. I\nReliable Electronic Finishing Company, Inc.""}, ""cites_to"": [{""cite"": ""472 Pa. 66"", ""year"": 1977, ""case_ids"": [1727725], ""category"": ""reporters:state"", ""reporter"": ""Pa."", ""pin_cites"": [{""page"": ""72""}], ""case_paths"": [""/pa/472/0066-01""], ""opinion_index"": 0}, {""cite"": ""407 Mass. 481"", ""year"": 1990, ""weight"": 2, ""case_ids"": [3887317], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""491""}, {""page"": ""489-491""}], ""case_paths"": [""/mass/407/0481-01""], ""opinion_index"": 0}, {""cite"": ""403 Mass. 220"", ""year"": 1988, ""weight"": 2, ""case_ids"": [3880806], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""223""}], ""case_paths"": [""/mass/403/0220-01""], ""opinion_index"": 0}, {""cite"": ""407 Mass. 689"", ""year"": 1990, ""case_ids"": [3885987], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""695-697"", ""parenthetical"": ""discussing the substantial risks posed to polluters by such suits""}], ""case_paths"": [""/mass/407/0689-01""], ""opinion_index"": 0}, {""cite"": ""361 Mass. 144"", ""year"": 1972, ""case_ids"": [3867436], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""147""}], ""case_paths"": [""/mass/361/0144-01""], ""opinion_index"": 0}, {""cite"": ""381 Mass. 278"", ""year"": 1980, ""case_ids"": [816136], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""282""}], ""case_paths"": [""/mass/381/0278-01""], ""opinion_index"": 0}, {""cite"": ""395 Mass. 382"", ""year"": 1985, ""case_ids"": [896023], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""386""}], ""case_paths"": [""/mass/395/0382-01""], ""opinion_index"": 0}, {""cite"": ""404 Mass. 14"", ""year"": 1989, ""case_ids"": [484522], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""16-17""}], ""case_paths"": [""/mass/404/0014-01""], ""opinion_index"": 0}, {""cite"": ""404 Mass. 81"", ""year"": 1989, ""case_ids"": [484691], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""88""}], ""case_paths"": [""/mass/404/0081-01""], ""opinion_index"": 0}, {""cite"": ""404 Mass. 624"", ""year"": 1989, ""case_ids"": [484581], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""626""}], ""case_paths"": [""/mass/404/0624-01""], ""opinion_index"": 0}, {""cite"": ""365 Mass. 824"", ""year"": 1974, ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""opinion_index"": 0}], ""citations"": [{""cite"": ""410 Mass. 117"", ""type"": ""official""}], ""file_name"": ""0117-01"", ""last_page"": ""124"", ""first_page"": ""117"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T17:24:21.316167+00:00"", ""decision_date"": ""1991-05-14"", ""docket_number"": """", ""last_page_order"": 140, ""first_page_order"": 133, ""name_abbreviation"": ""Augat, Inc. v. Liberty Mutual 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+3905656,"{""id"": 3905656, ""name"": ""Estelle Jussim & another vs. Massachusetts Bay Insurance Company"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""c4dd8e6ff0c13896ff8ee07cccc4bcd5f974688c67e8aeec94ebcf3b85060ea9"", ""simhash"": ""1:85e2f5f8459ae4aa"", ""pagerank"": {""raw"": 0.0000007666285379362112, ""percentile"": 0.9712853915421323}, ""char_count"": 16613, ""word_count"": 2702, ""cardinality"": 827, ""ocr_confidence"": 0.962}, ""casebody"": {""judges"": [], ""parties"": [""Estelle Jussim & another vs. Massachusetts Bay Insurance Company.""], ""opinions"": [{""text"": ""Greaney, J.\nWe granted the defendant’s application for further appellate review in this case to decide whether the plaintiffs are entitled to coverage under their homeowner’s insurance policy issued by the defendant for damages incurred when home heating oil migrated onto the plaintiffs’ property after the oil was negligently spilled at a neighbor’s house. We conclude that the policy covered the event.\nThe case arose through the plaintiffs’ action in the Superior Court seeking a declaration that they were entitled to coverage under the defendant’s policy for their damages. In connection with the action, the plaintiffs and the defendant stipulated to the material facts. Those facts are set forth in the Appeals Court opinion, 33 Mass. App. Ct. at 236-237, as follows: “The plaintiffs’ residence in Granby abuts and is downgrade from a residence at 26 Cedar Drive. Number 26 was heated by oil and was originally equipped with a fuel storage tank in the basement. At some point, previous owners of the property at 26 Cedar Drive decided to remove the fuel storage tank from the basement and to install an underground storage tank in their yard.\n“One or more of the following events then took place: (1) the previous owners of 26 Cedar Drive either (a) negligently failed properly to remove or seal the disconnected fuel oil delivery line that led into the basement, or (b) negligently removed or altered the seal on the disconnected fuel delivery line; or (2) the current owners of 26 Cedar Drive negligently failed to direct delivery of heating oil into the correct fuel delivery line; or (3) an oil delivery company, making a delivery for the current owners, negligently failed to determine whether the fuel delivery line into which it delivered oil was properly attached to a fuel storage tank at 26 Cedar Drive.\n“As a result of one or more of the above negligent acts, approximately 500 gallons of fuel oil was pumped through the disconnected fuel delivery line into the basement of the home at 26 Cedar Drive through the disconnected fuel delivery line. The oil then seeped out of the basement and migrated underground to the plaintiffs’ property. It contaminated the plaintiffs’ well and caused other damage to the plaintiffs’ property.”\nBased on these facts, the parties filed cross motions for summary judgment. The plaintiffs contended that their damages were caused by the negligence of others for which the defendant’s policy provides coverage. The defendant maintained that the damages were subject to a provision in the policy which excluded from coverage “loss . . . caused by . . . release, discharge or dispersal of contaminants or pollutants.” A judge in the Superior Court granted the plaintiffs’ motion for summary judgment, and an amended judgment entered which declared that the plaintiffs were entitled to coverage and payment under the policy.\nThe Superior Court judge relied on the decision in Standard Elec. Supply Co. v. Norfolk & Dedham Mut. Fire Ins. Co., 1 Mass. App. Ct. 762 (1973), in allowing summary judgment for the plaintiffs. The Appeals Court agreed that this decision controlled the case. 33 Mass. App. Ct. at 237-238. In the Standard Elec. Supply Co. case, a water pipe burst in the basement of premises adjacent to the plaintiff’s property and collected water seeped into the plaintiff’s basement causing water damage to the contents located there. The defendant’s insurance policy insured against “all risks of physical loss,” but contained an exclusion for “loss caused by, [or] resulting from . . . water below the surface of the ground including that which . . . flows, seeps or leaks through . . . foundations, walls, basement or other floors.” Id. at 763 & n.1. The Appeals Court decided that the “[l]oss from the bursting of a pipe on the premises of another would seem to be the kind of ‘fortuitous loss’ which is ‘not usually covered under other insurance’ and against which an ‘all risk’ policy is designed to extend protection” (citations omitted). Id. at 763. The court then went on to reject the defendant’s contention that the exclusion applied, stating that the contention was “inconsistent with the well established principle that recovery on an insurance policy is allowed ‘where the insured risk itself set into operation a chain of causation in which the last step may have been an excepted risk.’ ” Id. at 765-766, quoting Appleman, Insurance Law and Practice § 3083, at 311.\nThe principle quoted above is based on a test which has long been used by this court to resolve coverage controversies in chain causation cases. That test seeks to determine the efficient proximate cause of the loss. If that cause is an insured risk, there will be coverage even though the final form of the property damage, produced by a series of related events, appears to take the loss outside of the terms of the policy. The decision in Lynn Gas & Elec. Co. v. Meriden Fire Ins. Co., 158 Mass. 570, 575 (1893), explained this test of causation in the following manner: “When it is said that the cause to be sought is the direct and proximate cause, it is not meant that the cause or agency which is nearest in time or place to the result is necessarily to be chosen. . . . The active efficient cause that sets in motion a train of events which brings about a result without the intervention of any force started and working actively from a new and independent source is the direct and proximate cause referred to in the cases. . . .” (Citations omitted.)\nThree decisions furnish examples of our application of the train of events test to coverage disputes in first-person insurance cases. In Lynn Gas & Elec. Co., supra, coverage was found for damaged machinery under a fire insurance policy, where a minor fire caused a short circuit in electrical wiring, which affected an electric dynamo. This, in turn, resulted in damage to machinery connected by belts and pulleys to the dynamo, some of which disintegrated. Damage then resulted to yet other pieces of equipment, none of which had been touched by the fire itself. This court held the fire to be the proximate cause of the loss in accordance with the causation test stated therein, and permitted recovery. Id. at 577.\nIn Jiannetti v. National Fire Ins. Co., 277 Mass. 434, 439 (1931), firefighters removed and replaced a skylight over an insured store while fighting a fire in adjoining premises. There was evidence that the skylight was improperly replaced, resulting in water damage to inventory when the skylight leaked during a rain storm. This court held that the jury could correctly find a proximate causal relationship between the acts of the fire department in fighting the fire and the rain damage, thereby upholding an award under the insurance policy which afforded protection only for loss by fire. Id. at 440.\nIn Barnett v. John Hancock Mut. Life Ins. Co., 304 Mass. 564, 565-568 (1939), the insured had a life insurance policy providing double indemnity for accidental death. He was involved in an automobile accident, was treated for nine days in a hospital and then returned to work. He subsequently developed pneumonia and died three months after the accident. There was evidence that he was weakened by the accident and that this weakness permitted the pneumonia bacteria, which may not have entered his body until after the accident, to take hold and thrive. This court held that the jury were warranted in finding the accident alone to be the proximate cause of the insured’s death and to award double indemnity. Id. at 568.\nThe law in other jurisdictions generally is in accord with the Standard Elec. Supply Co. case and our case law. See Sabella v. Wisler, 59 Cal. 2d 21, 31-32 (1963); Frontis v. Milwaukee Ins. Co., 156 Conn. 492, 499 (1968); Fawcett House, Inc. v. Great Cent. Ins. Co., 280 Minn. 325 (1968); Villella v. Public Employees Mut. Ins. Co., 106 Wash. 2d 806 (1986). See also 18 G. Couch, Insurance § 74:711 (2d rev. ed. 1983). The defendant has offered no persuasive authority to the contrary. In this case, it was stipulated that, as a result of one or more negligent acts on property adjacent to the plaintiffs’ property, fuel oil seeped underground and damaged the plaintiffs’ property. The defendant’s insurance policy expressly covered losses caused by the negligence of a third party. As the Appeals Court correctly reasoned: “That covered event, like the bursting pipe in Standard Elec. Supply Co. v. Dedham Mut. Fire Ins. Co., supra, set in motion a chain of circumstances that resulted in the contamination of the plaintiffs’ well, a loss that constitutes an event excluded under the policy. However, where the excluded event is not the cause of the loss, but rather the result of a covered risk, the insured may recover. Standard Elec. Supply Co., supra at 766. See Bettigole v. American Employers Ins. Co., 30 Mass. App. Ct. 272, 276 (1991) (the court noted that there is no recovery where the excluded event causes the loss, but there is recovery where a covered event causes a loss in the form of an excluded event).” 33 Mass. App. Ct. at 237-238. This result is entirely in accord with the definition of efficient proximate cause in train of events cases such as the Lynn Gas case, and its progeny.\nThe defendant’s contention that the proximate cause of the plaintiffs’ loss was the release of oil which is an excluded event cannot be accepted in view of the stipulation which establishes that the pumping of oil into the wrong line occurred “as a result of’ one or more negligent acts, thereby setting off a stipulated chain of events which concluded with damage to the plaintiffs’ property. The stipulation clearly separates the acts of negligence from the release of the oil.\nThe other arguments of the defendant seeking exclusion of the loss under the “acts and decisions” and “faulty design” provisions of the policy were considered and rejected by the Appeals Court. 33 Mass. App. Ct. at 238-239. We agree with the Appeals Court’s conclusions that these provisions are of no help to the defendant.\nWe also reject the claim that the public interest will not be served by a decision for the plaintiffs, which will enable insureds to recover despite pollution exclusions in policies, because some negligence almost always can be found in a chain of events leading to loss caused by pollution or contamination to property. It is suggested that, if the plaintiffs’ position is accepted, insurers will be unable to exclude liability in circumstances similar to those presented in this case. The plaintiffs’ policy’s exclusion section has a preamble providing: “We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss.” If the pollution exclusion had been listed in the general exclusion section, following this preamble, an insured plainly would be foreclosed from invoking the train of events rule of the Standard Elec. Supply Co. case. Additionally, if the defendant intended to exclude liability for physical loss to property from pollution or contamination, however caused, the pollution exclusion clause should have been listed in the general exclusion section. Under the policy as drafted, pollution or contamination caused by an antecedent negligent act is a covered risk. If an insurer desires to eliminate coverage for pollution or contamination caused by a fortuitous negligent act, language accomplishing that purpose, and the means to do so, are readily available.\nThe amended judgment is affirmed.\nSo ordered.\n“The opinion of the Appeals Court is reported at 33 Mass. App. Ct. 235 (1992).\nBettigole v. American Employers Ins. Co., 30 Mass. App. Ct. 272 (1991), concerned a special multi-peril policy insuring against risks of direct physical loss to property but excluding loss caused by corrosion. Id. at 273-274. The insured’s parking garage was damaged by the effect of deicing salts, brought in on the wheels of vehicles, which corroded the steel and concrete of the structure. The court rejected the insured’s attempt to bring this case within the doctrine of Standard Elec. Supply Co. v. Norfolk & Dedham Mut. Fire Ins. Co., 1 Mass. App. Ct. 762 (1974), noting that there was no covered risk distinct from, and preceding, the corrosion affecting the building. Id. at 276. Bettigole did not purport to alter the rule of Standard Elec. Supply Co., and therefore provides no support for the defendant’s position. Similarly, in League of Minn. Cities Ins. Trust v. Coon Rapids, 446 N.W.2d 419 (Minn. Ct. App. 1989), the insured failed to identify a discrete antecedent occurrence that caused the contamination at issue. McQuade v. Nationwide Mut. Fire Ins. Co., 587 F. Supp. 67 (D. Mass. 1984), is of no greater assistance to the defendant. In that case, the plaintiff conceded that his property loss was caused by an excluded risk. In Auten v. Employers Nat’l Ins. Co., 722 S.W.2d 468 (Tex. Ct. App. 1987), the court rejected the plaintiffs’ claim that because an antecedent act of negligence (faulty application of pesticide) caused contamination they were entitled to coverage. Auten is in accord with the defendant’s position. In view of the better reasoned authority to the contrary, we are not persuaded by this decision.\nThe defendant also directs our attention to four recent cases interpreting “absolute” or “total” pollution exclusion clauses in commercial liability insurance policies. See Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118 (2d Cir. 1990); Guilford Indus. Inc. v. Liberty Mut. Ins. Co., 688 F. Supp. 792 (D. Me. 1988), aff'd, 879 F.2d 853 (1st Cir. 1989); Vantage Dev. Corp. v. American Env’t Technologies Corp., 251 N.J. Super. 516 (1991); Budofsky v. Hartford Ins. Co., 147 Misc. 2d 691 (N.Y. Sup. Ct. 1990). These cases address pollution exclusion clauses which have been recently amended (and broadened) by the insurance industry. Previously, policies of this type excluded liability coverage for pollution damage to third parties’ properties unless the damage was caused by a sudden and accidental release of pollutants. See, e.g., Lumbermens Mut. Casualty Co. v. Belleville Indus., Inc., 407 Mass. 675 (1990). In the cases cited by the defendant, the courts have concluded that the new pollution exclusion language, viewed in the context of the entire policy, is meant to apply regardless of any possible negligent or accidental antecedent occurrence which might have contributed to causing the pollution or contamination. In contrast, the homeowner’s policy at issue does not clearly and unambiguously exclude coverage for pollution or contamination caused by an antecedent negligent action, which is a covered risk. Thus, the policy brings into play the train of events test which operates to the plaintiffs’ benefit."", ""type"": ""majority"", ""author"": ""Greaney, J.""}], ""attorneys"": [""Allen R. Miller (John N. Love with him) for the defendant."", ""Charles W. Danis, Jr., for the plaintiffs."", ""Stephen D. Marcus & Mark J. Seplak of Illinois, & Richard L. Neumeier, for Insurance Environmental Litigation Association, amicus curiae, submitted a brief.""], ""corrections"": """", ""head_matter"": ""Estelle Jussim & another vs. Massachusetts Bay Insurance Company.\nHampden.\nMarch 1, 1993.\nApril 15, 1993.\nPresent: Liacos. C.J.. Nolan. Lynch. O’Connor, & Greaney, JJ.\nInsurance, Homeowner’s insurance, Coverage, Construction of policy, Pollution exclusion clause.\nDiscussion of decisions considering insurance coverage controversies in cases involving a chain of events leading to a loss. [26-30]\nIn an action for a declaratory judgment, brought by insureds under a homeowner’s policy against the insurer, summary judgment was correctly entered for the plaintiffs where the parties agreed that the chain of causation leading to the plaintiffs’ loss from the underground migration of fuel oil from adjoining property was set in operation by one or more negligent acts that were insured risks, notwithstanding a pollution exclusion clause. [30]\nIn an action seeking declaratory judgment brought by insureds against their insurer seeking to establish coverage under a homeowner’s policy, neither the “acts and decisions” exclusion nor the “faulty design” exclusion, nor any public policy concern, precluded coverage under the policy as written on the facts stipulated by the parties. [30-31]\nCivil action commenced in the Superior Court Department on January 4, 1989.\nThe case was heard by William W. Simons, J., on motions for summary judgment.\nAfter review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.\nAllen R. Miller (John N. Love with him) for the defendant.\nCharles W. Danis, Jr., for the plaintiffs.\nStephen D. Marcus & Mark J. Seplak of Illinois, & Richard L. Neumeier, for Insurance Environmental Litigation Association, amicus curiae, submitted a brief.\nElizabeth M. Linquist-Cock.""}, ""cites_to"": [{""cite"": ""407 Mass. 675"", ""year"": 1990, ""case_ids"": [3885971], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/407/0675-01""], ""opinion_index"": 0}, {""cite"": ""147 Misc. 2d 691"", ""year"": 1990, ""case_ids"": [888872], ""category"": ""reporters:state"", ""reporter"": ""Misc. 2d"", ""case_paths"": [""/misc2d/147/0691-01""], ""opinion_index"": 0}, {""cite"": ""251 N.J. Super. 516"", ""year"": 1991, ""case_ids"": [361730], ""category"": ""reporters:state"", ""reporter"": ""N.J. Super."", ""case_paths"": [""/nj-super/251/0516-01""], ""opinion_index"": 0}, {""cite"": ""879 F.2d 853"", ""year"": 1989, ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""opinion_index"": 0}, {""cite"": ""688 F. Supp. 792"", ""year"": 1988, ""case_ids"": [3997933], ""category"": ""reporters:federal"", ""reporter"": ""F. Supp."", ""case_paths"": [""/f-supp/688/0792-01""], ""opinion_index"": 0}, {""cite"": ""922 F.2d 118"", ""year"": 1990, ""case_ids"": [10542029], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""case_paths"": [""/f2d/922/0118-01""], ""opinion_index"": 0}, {""cite"": ""722 S.W.2d 468"", ""year"": 1987, ""case_ids"": [9974008], ""category"": ""reporters:state_regional"", ""reporter"": ""S.W.2d"", ""case_paths"": [""/sw2d/722/0468-01""], ""opinion_index"": 0}, {""cite"": ""587 F. Supp. 67"", ""year"": 1984, ""case_ids"": [3670926], ""category"": ""reporters:federal"", ""reporter"": ""F. Supp."", ""case_paths"": [""/f-supp/587/0067-01""], ""opinion_index"": 0}, {""cite"": ""446 N.W.2d 419"", ""year"": 1989, ""case_ids"": [10596084], ""category"": ""reporters:state_regional"", ""reporter"": ""N.W.2d"", ""case_paths"": [""/nw2d/446/0419-01""], ""opinion_index"": 0}, {""cite"": ""33 Mass. App. Ct. 235"", ""year"": 1992, ""case_ids"": [4010324], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""case_paths"": [""/mass-app-ct/33/0235-01""], ""opinion_index"": 0}, {""cite"": ""30 Mass. App. Ct. 272"", ""year"": 1991, ""weight"": 3, ""case_ids"": [1418672], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""276"", ""parenthetical"": ""the court noted that there is no recovery where the excluded event causes the loss, but there is recovery where a covered event causes a loss in the form of an excluded event""}, {""page"": ""273-274""}], ""case_paths"": [""/mass-app-ct/30/0272-01""], ""opinion_index"": 0}, {""cite"": ""106 Wash. 2d 806"", ""year"": 1986, ""case_ids"": [1195558], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/106/0806-01""], ""opinion_index"": 0}, {""cite"": ""280 Minn. 325"", ""year"": 1968, ""case_ids"": [297710], ""category"": ""reporters:state"", ""reporter"": ""Minn."", ""case_paths"": [""/minn/280/0325-01""], ""opinion_index"": 0}, {""cite"": ""156 Conn. 492"", ""year"": 1968, ""case_ids"": [1598409], ""category"": ""reporters:state"", ""reporter"": ""Conn."", ""pin_cites"": [{""page"": ""499""}], ""case_paths"": [""/conn/156/0492-01""], ""opinion_index"": 0}, {""cite"": ""59 Cal. 2d 21"", ""year"": 1963, ""case_ids"": [4392076], ""category"": ""reporters:state"", ""reporter"": ""Cal. 2d"", ""pin_cites"": [{""page"": ""31-32""}], ""case_paths"": [""/cal-2d/59/0021-01""], ""opinion_index"": 0}, {""cite"": ""304 Mass. 564"", ""year"": 1939, ""weight"": 2, ""case_ids"": [873508], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""565-568""}, {""page"": ""568""}], ""case_paths"": [""/mass/304/0564-01""], ""opinion_index"": 0}, {""cite"": ""277 Mass. 434"", ""year"": 1931, ""weight"": 2, ""case_ids"": [861439], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""439""}, {""page"": ""440""}], ""case_paths"": [""/mass/277/0434-01""], ""opinion_index"": 0}, {""cite"": ""158 Mass. 570"", ""year"": 1893, ""case_ids"": [802028], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""575""}], ""case_paths"": [""/mass/158/0570-01""], ""opinion_index"": 0}, {""cite"": ""1 Mass. App. Ct. 762"", ""year"": 1973, ""weight"": 2, ""case_ids"": [3942082], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""case_paths"": [""/mass-app-ct/1/0762-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""415 Mass. 24"", ""type"": ""official""}], ""file_name"": ""0024-01"", ""last_page"": ""31"", ""first_page"": ""24"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T17:27:20.631958+00:00"", ""decision_date"": ""1993-04-15"", ""docket_number"": """", ""last_page_order"": 47, ""first_page_order"": 40, ""name_abbreviation"": ""Jussim v. Massachusetts Bay 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+4273930,"{""id"": 4273930, ""name"": ""Surabian Realty Co., Inc. vs. NGM Insurance Company"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""3e6cbcec746d39f80ad5d24645aba80cdcecc6b923d1f32bad73849876fb4047"", ""simhash"": ""1:39e2c323417a230a"", ""pagerank"": {""raw"": 0.0000001502654069761593, ""percentile"": 0.6659409486807918}, ""char_count"": 18344, ""word_count"": 2988, ""cardinality"": 896, ""ocr_confidence"": 0.898}, ""casebody"": {""judges"": [], ""parties"": [""Surabian Realty Co., Inc. vs. NGM Insurance Company.""], ""opinions"": [{""text"": ""Cordy, J.\nSurabian Realty Co., Inc. (Surabian), appeals from the judgment entered against it on the parties’ cross-motions for summary judgment. At issue is whether the motion judge erred when he concluded, as a matter of law, that an insurance policy Surabian had purchased from NGM Insurance Company (NGM) did not cover flood damage resulting from a clogged parking lot drain. We affirm.\n1. Background. We summarize the undisputed material facts found in the summary judgment record. Surabian owns and operates commercial and residential properties in Massachusetts and Rhode Island. One of its properties is a three-story professional office building in Foxborough. A parking lot surrounds the property, and a drain is located in the parking lot approximately twenty feet from the building.\nOn June 29, 2009, heavy rains fell around the area of the property. About thirty minutes after the storm began, water stopped flowing down the parking lot drain. Subsequent examination revealed that the drain had become clogged with debris. As a result, the heavy rains collected in the parking lot and seeped under the door of the building, flooding its lower level. The flooding caused damage to the carpeting, baseboards, and walls, totaling approximately $34,000.\nSurabian had insured the property with a business owner’s policy issued by NGM. The contract was an “all risk” insurance policy, covering damage from any peril that was not specifically excluded. One of the exclusions was for water damage. The relevant portion of the policy reads:\n“B. Exclusions\n“1. We will not pay for loss or damage caused directly or indirectly by any of the following. Such loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss.\n“g. Water\n“(1) Flood, surface water, waves, tides, tidal waves, overflow of any body of water, or their spray, all whether driven by wind or not;\n“(2) Mudslide or mudflow;\n“(3) Water that backs up or overflows from a sewer, drain or sump; or\n“(4) Water under the ground surface pressing on, or flowing or seeping through:\n“(a) Foundations, walls, floors, or paved surfaces;\n“(b) Basements, whether paved or not; or\n“(c) Doors, windows, or other openings.\n“But if Water as described in B.l.g.(l) through B.l.g.(4) results in fire, explosion, or sprinkler leakage, we will pay for the loss or damage caused by that fire, explosion or sprinkler leakage.”\nSurabian had also purchased, at additional cost, the “OMNI Gold” indorsement to the policy. This five-page supplement replaced individual paragraphs in the business owner’s policy. It amended the water exclusion as follows:\n“G. Water Backup.\n“Paragraph B.l.g.(3) of the BUSINESSOWNERS SPECIAL PROPERTY COVERAGE FORM is deleted and replaced by the following:\n“The most we will pay for loss or damage caused by water that backs up or overflows from a sewer, drain or sump is $25,000 for any one occurrence.”\nSurabian filed a claim with NGM under the indorsement. After investigating the cause of the flooding, NGM denied the claim. NGM reasoned that the damage resulted at least in part from surface water, which was excluded by the policy.\nThe present action ensued. Surabian’s complaint alleged breach of contract, breach of the implied covenant of good faith and fair dealing, unfair or deceptive insurance practices in violation of G. L. c. 176D, and unfair or deceptive acts or practices in violation of G. L. c. 93A. The complaint also sought declaratory relief. Both parties filed motions for summary judgment on all counts. A judge in the Superior Court granted NGM’s motion, finding that the damage was caused at least in part by “surface water.” Although the damage was also partially caused by water that had backed up from a drain, the “anticoncurrent cause” provision of the business owner’s policy excluded coverage for surface water “regardless of any other cause or event that contributes concurrently or in any sequence to the loss.” We granted Surabian’s application for direct appellate review, and the case was paired for argument with Boazova v. Safety Ins. Co., ante 346 (2012).\n2. Discussion. Summary judgment is appropriate when, “viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Fuller v. First Fin. Ins. Co., 448 Mass. 1, 5 (2006), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). The interpretation of an insurance policy is a question of law for the trial judge, subject to our de novo review. Boazova v. Safety Ins. Co., supra at 350.\n“Interpretation of an insurance policy is no different from interpretation of any other contract.” Citation Ins. Co. v. Gomez, 426 Mass. 379, 381 (1998). We interpret all words in their usual and ordinary sense, and construe policies as a whole, without according special emphasis to any particular part over another. Mission Ins. Co. v. United States Fire Ins. Co., 401 Mass. 492, 497 (1988). “When the policy language is ambiguous, ‘doubts as to the intended meaning of the words must be resolved against the insurance company that employed them and in favor of the insured.’ ” Boazova v. Safety Ins. Co., supra at 350-351, quoting August A. Busch & Co. of Mass. v. Liberty Mut. Ins. Co., 339 Mass. 239, 243 (1959). We may conclude that language is ambiguous only “where the phraseology can support a reasonable difference of opinion as to the meaning of the words employed and the obligations undertaken.” Bank v. Thermo Elemental Inc., 451 Mass. 638, 648 (2008), quoting President & Fellows of Harvard College v. PECO Energy Co., 57 Mass. App. Ct. 888, 896 (2003). “[A]n ambiguity is not created simply because a controversy exists between the parties, each favoring an interpretation contrary to the other.” Boazova v. Safety Ins. Co., supra at 351, quoting Citation Ins. Co. v. Gomez, supra.\nOur first task, then, is to construe the phrases “surface water” and “[wjater that backs up or overflows from a sewer, drain or sump.” “Surface water” is defined as “waters from rain, melting snow, springs, or seepage, or floods that lie or flow on the surface of the earth and naturally spread over the ground but do not form part of a natural watercourse or lake.” DeSanctis v. Lynn Water & Sewer Comm’n, 423 Mass. 112, 115 n.6 (1996). See Boazova v. Safety Ins. Co., supra at 354, and authorities cited. Rain that collects on a paved surface, such as a parking lot, retains its character as surface water. See id. at 355, and cases cited (rain that collected on patio and migrated to house foundation considered surface water). Rainwater that collects on the ground is considered surface water even when, but for an obstruction, the water would have entered a drainage system. See Front Row Theatre, Inc. v. American Mfrs. Mut. Ins. Cos., 18 F.3d 1343, 1348 (6th Cir. 1994); Hirschfield v. Continental Cas. Co., 199 Ga. App. 654, 655 (1991); Casey v. General Acc. Ins. Co., 178 A.D.2d 1001, 1002 (N.Y. 1991).\nNo Massachusetts case has defined the phrase “[w]ater that backs up or overflows from a sewer, drain or sump.” Courts analyzing this phrase in other jurisdictions have concluded that it refers to “damage caused by water that has entered a drain and then is subsequently forced out from or through that drain.” Drutz vs. Scottsdale Ins. Co., U.S. Dist. Ct., No. WMN-10-3499, slip op. at 8 (D. Md. Feb. 28, 2012). There is some dispute within the case law regarding whether the phrase “backs up . . . from a sewer” requires a reversal of water flow or merely a diversion within a blocked system. See Front Row Theatre, Inc. v. American Mfrs. Mut. Ins. Cos., supra at 1348 (phrase encompasses damage from water that was diverted through different exit); Dent vs. Allstate Indem. Co., Va. Cir. Ct., No. CL-2010-3481, slip op. at 5-6 (Mar. 23, 2011), and cases cited. These cases are consistent, however, that “the water [must have] occupied the pipe or drain before it caused the damage.” Dent vs. Allstate Indem. Co., supra at 5. Drutz vs. Scottsdale Ins. Co., supra at 7-12, and cases cited.\nConstruing these clauses in combination, we interpret the insurance contract, as amended by the indorsement, to exclude damage caused by flood waters that spread over the surface of the ground without having entered a drain, but to cover damage caused by water that backed up after entering a drain.\nFor purposes of summary judgment, the parties agree that the present damage resulted from the combination of water that backed up after entering the parking lot drain and water that, as a result of the blockage, never entered the drain and remained surface water. The damage thus resulted from the combination of a covered peril and an excluded peril.\nWhen damage arises from multiple causes, an “anticoncurrent cause” provision may operate to bar coverage. Anticoncurrent cause provisions, which disclaim coverage when damage is caused concurrently by an excluded peril and a covered peril, are valid and enforceable under Massachusetts law. See Boazova v. Safety Ins. Co., supra at 356-358; Alton v. Manufacturers & Merchants Mut. Ins. Co., 416 Mass. 611, 613-615 (1993); Jussim v. Massachusetts Bay Ins. Co., 415 Mass. 24, 30-31 (1993). In Boazova v. Safety Ins. Co., supra at 357, we declared that “[a]n anticon-current cause provision in an insurance policy does not create an ambiguity and, therefore, will be given effect according to its express terms.” We added that enforcement of anticoncurrent cause provisions is fully consistent with the public welfare and that the vast majority of States have upheld and applied such provisions. Id.\nSurabian’s business owner’s policy contains an anticoncurrent cause provision, quoted above, at the beginning of the exclusions section. The provision explicitly states that damage caused by an enumerated exclusion is “excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss.” Numerous courts have barred coverage based on an anti-concurrent cause provision under virtually identical circumstances, when an obstruction caused a flood consisting of both surface water and backed up water. See, e.g., Front Row Theatre, Inc. v. American Mfrs. Mut. Ins. Cos., supra at 1349; Hirschfield v. Continental Cas. Co., supra; Casey v. General Acc. Ins. Co., supra. The anticoncurrent cause provision likewise forecloses Surabian’s claim.\nSurabian argues that the indorsement covers all flood damage caused even indirectly by a drain backup, or at the very least that the policy is ambiguous. Surabian bases its reading on the location of the coverage for water backup in an indorsement. The indorsement does not restate the surface water exclusion or the anticoncurrent cause provision. It simply provides coverage for damage caused by “water that backs up or overflows from a sewer, drain or sump.” A reasonable consumer, purchasing the indorsement at additional cost, arguably would not realize that damage caused by surface water that pooled due to a drain backup remained excluded.\nSurabian attempts to draw support from Bishops, Inc. v. Penn Nat’l Ins., 984 A.2d 982 (Pa. Super. Ct. 2009), which found an ambiguity in a policy similar to the one at issue here. The insured in Bishops had suffered extensive flood damage following a hurricane. Id. at 984. Similar to this case, the damage arose from a combination of the backup of a municipal drainage system and the overflowing of bodies of water. Id. The insured had purchased a basic policy that was identical in all relevant respects to the present one, including, in subsection B.l.g.(3), an exclusion for “[wjater that backs up or overflows from a sewer, drain or sump.” Id. at 985. The insured had also purchased an indorsement, under which the insurer promised to “pay for loss or damage . . . caused by a back up from a sewer or drain or an overflow from a sump.” The indorsement further stated, “Exclusion B.l.g.(3) does not apply to this Additional Coverage.” Id. at 987. The court held that this last sentence created an ambiguity whether the indorsement completely excised the exclusion for backups and overflows, including when they occurred concurrently with other perils, or whether it overrode only subsection B.l.g.(3), retaining the anticoncurrent cause provision. Id. at 991-992.\nSurabian’s reliance on Bishops is unavailing, because the indorsement in that case was written more broadly than the indorsement in the present case. That indorsement covered any loss or damage “caused by a back up . . . or an overflow this indorsement covered loss or damage “caused by water that backs up or overflows” (emphasis added). The former language is more expansive than the latter and might reasonably encompass damage caused by surface water that collected as a result of a backup. Front Row Theatre, Inc. v. American Mfrs. Mut. Ins. Cos., 18 F.3d 1343, 1348 (6th Cir. 1994). In addition, that indorsement overrode subsection B.1.g.(3), stating that it “does not apply,” but this indorsement “deleted and replaced” the subsection (emphasis added). By situating the new coverage within the structure of the original policy, NGM clarified that all other provisions of the original policy continued to apply, including the surface water exclusion and the anticoncurrent cause provision. Courts have denied coverage on such facts when an indorsement “deleted” the exclusion for water that backed up, explicitly retaining the rest of the standard policy. See, e.g., Doylestown Elec. Supply Co. vs. Maryland Cas. Ins. Co., U.S. Dist. Ct., No. 96-632 (E.D. Pa. Dec. 31, 1996); Montanaro vs. Nationwide Ins. Co., Conn. Super. Ct., No. CV010380448 (Feb. 27, 2003). In sum, we are required to “read the policy as written” and may not “revise it or change the order of the words.” Continental Cas. Co. v. Gilbane Bldg. Co., 391 Mass. 143, 147 (1984). The text of this indorsement is simply not susceptible to the alternative reading that Surabian urges and that the Bishops court credited.\nWe further observe that the Bishops court was motivated, at least in part, by expressions in Pennsylvania’s “own jurisprudence that appear to hold concurrent causation exclusions in disfavor.” Bishops, Inc. v. Penn Nat’l Ins., supra at 993. By contrast, “[o]ur jurisprudence has never suggested . . . that denying enforcement of an anticoncurrent cause provision in a[n] . . . insurance policy is necessary to protect some aspect of the public welfare.” Boazova v. Safety Ins. Co., ante 346, 357 (2012). The present case gives us no reason to question that policy.\nFinally, we discern no merit in Surabian’s claim that our interpretation renders the indorsement illusory. As Surabian recognizes, the indorsement provides coverage for water damage resulting from the backup of an interior drain at the property. Coverage would likewise be triggered when an exterior sewer or drain backs up due to a burst water main. In addition, neither the surface water exclusion nor the anticoncurrent cause provision would bar coverage when heavy rain enters a sewer system, is diverted out of the system, and is then the sole cause of damage to property. The water would have lost its character as surface water on entering the sewer system and, at the moment of damage, the water would have been defined solely as drain or sewer water. A temporary characterization as surface water before the onset of damage does not deem the damage to be indirectly caused by surface water. Selective Way Ins. Co. v. Litigation Tech., Inc., 270 Ga. App. 38, 40-41 (2004) (surface water exclusion and anticoncurrent cause provision inapplicable when rainwater gathered into thirteen-foot-deep hole, entered sewer pipe, and flowed into building). See Front Row Theatre, Inc. v. American Mfrs. Mut. Ins. Cos., supra at 1347-1348 (portion of damage attributable to water that had entered sewer system not caused by surface water); M & M Corp. of S.C. v. Auto-Owners Ins. Co., 390 S.C. 255, 259-260 (2010) (rainwater channeled into stormwater collection pipes not considered surface water); Heller v. Fire Ins. Exch., 800 P.2d 1006, 1009 (Colo. 1990) (surface water exclusion inapplicable when runoff from melted snow diverted into manmade drainage trenches before damaging property). A policy is not illusory simply because it contains a broad exclusion, so long as it provides coverage for some acts. McGregor v. Allamerica Ins. Co., 449 Mass. 400, 404 (2007), citing Bagley v. Monticello Ins. Co., 430 Mass. 454, 459-460 (1999). That the plain meaning of the policy, construed as a whole, results in a denial of coverage under these circumstances gives us no cause to render it illusory.\n3. Conclusion. Because NGM’s denial of coverage was based on a correct interpretation of its insurance policy, the judge properly denied all of Surabian’s claims, including those under G. L. c. 93A and G. L. c. 176D. See Lumbermen’s Mut. Cas. Co. v. Offices Unlimited, Inc., 419 Mass. 462, 468 (1995).\nJudgment affirmed."", ""type"": ""majority"", ""author"": ""Cordy, J.""}], ""attorneys"": [""Benjamin C. Rudolf (Roy A. Bourgeois with him) for the plaintiff."", ""David F. Hassett (Scott T. Ober with him) for the defendant.""], ""corrections"": """", ""head_matter"": ""Surabian Realty Co., Inc. vs. NGM Insurance Company.\nWorcester.\nMarch 6, 2012. -\nJuly 12, 2012.\nPresent: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.\nInsurance, Business owner’s policy, Water damage, Coverage, Construction of policy.\nIn a civil action involving a business owner’s insurance policy issued by the defendant insurer and arising from flood damage incurred by the plaintiff policy owner at its commercial property, the judge properly granted summary judgment in favor of the insurer, where the damage resulting from a combination of water that backed up after entering a parking lot drain and water that, as a result of a sewer blockage, never entered the drain and remained surface water constituted a combination of a covered peril and a peril excluded under the policy, and therefore, the anticoncurrent cause provision of the policy operated to bar coverage. [718-723]\nCivil action commenced in the Superior Court Department on October 6, 2009.\nThe case was heard by Peter W. Agnes, Jr., J., on motions for summary judgment.\nThe Supreme Judicial Court granted an application for direct appellate review.\nBenjamin C. Rudolf (Roy A. Bourgeois with him) for the plaintiff.\nDavid F. Hassett (Scott T. Ober with him) for the defendant.""}, ""cites_to"": [{""cite"": ""419 Mass. 462"", ""year"": 1995, ""case_ids"": [823654], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""468""}], ""case_paths"": [""/mass/419/0462-01""], ""opinion_index"": 0}, {""cite"": ""430 Mass. 454"", ""year"": 1999, ""case_ids"": [1157262], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""459-460""}], ""case_paths"": [""/mass/430/0454-01""], ""opinion_index"": 0}, {""cite"": ""449 Mass. 400"", ""year"": 2007, ""case_ids"": [3816605], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""404""}], ""case_paths"": [""/mass/449/0400-01""], ""opinion_index"": 0}, {""cite"": ""800 P.2d 1006"", ""year"": 1990, ""case_ids"": [10382526], ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""pin_cites"": [{""page"": ""1009"", ""parenthetical"": ""surface water exclusion inapplicable when runoff from melted snow diverted into manmade drainage trenches before damaging property""}], ""case_paths"": [""/p2d/800/1006-01""], ""opinion_index"": 0}, {""cite"": ""390 S.C. 255"", ""year"": 2010, ""case_ids"": [3868672], ""category"": ""reporters:state"", ""reporter"": ""S.C."", ""pin_cites"": [{""page"": ""259-260"", ""parenthetical"": ""rainwater channeled into stormwater collection pipes not considered surface water""}], ""case_paths"": [""/sc/390/0255-01""], ""opinion_index"": 0}, {""cite"": ""270 Ga. App. 38"", ""year"": 2004, ""case_ids"": [1202870], ""category"": ""reporters:state"", ""reporter"": ""Ga. App."", ""pin_cites"": [{""page"": ""40-41"", ""parenthetical"": ""surface water exclusion and anticoncurrent cause provision inapplicable when rainwater gathered into thirteen-foot-deep hole, entered sewer pipe, and flowed into building""}], ""case_paths"": [""/ga-app/270/0038-01""], ""opinion_index"": 0}, {""cite"": ""391 Mass. 143"", ""year"": 1984, ""case_ids"": [918583], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""147""}], ""case_paths"": [""/mass/391/0143-01""], ""opinion_index"": 0}, {""cite"": ""984 A.2d 982"", ""year"": 2009, ""weight"": 6, ""case_ids"": [7293784], ""category"": ""reporters:state_regional"", ""reporter"": ""A.2d"", ""pin_cites"": [{""page"": ""984""}, {""page"": ""985""}, {""page"": ""987""}, {""page"": ""991-992""}], ""case_paths"": [""/a2d/984/0982-01""], ""opinion_index"": 0}, {""cite"": ""415 Mass. 24"", ""year"": 1993, ""case_ids"": [3905656], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""30-31""}], ""case_paths"": [""/mass/415/0024-01""], ""opinion_index"": 0}, {""cite"": ""416 Mass. 611"", ""year"": 1993, ""case_ids"": [819052], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""613-615""}], ""case_paths"": [""/mass/416/0611-01""], ""opinion_index"": 0}, {""cite"": ""178 A.D.2d 1001"", ""year"": 1991, ""case_ids"": [1065413], ""category"": ""reporters:state"", ""reporter"": ""A.D.2d"", ""pin_cites"": [{""page"": ""1002""}], ""case_paths"": [""/ad2d/178/1001-01""], ""opinion_index"": 0}, {""cite"": ""199 Ga. App. 654"", ""year"": 1991, ""case_ids"": [8863463], ""category"": ""reporters:state"", ""reporter"": ""Ga. App."", ""pin_cites"": [{""page"": ""655""}], ""case_paths"": [""/ga-app/199/0654-01""], ""opinion_index"": 0}, {""cite"": ""18 F.3d 1343"", ""year"": 1994, ""weight"": 5, ""case_ids"": [10514388], ""category"": ""reporters:federal"", ""reporter"": ""F.3d"", ""pin_cites"": [{""page"": ""1348""}, {""page"": ""1348"", ""parenthetical"": ""phrase encompasses damage from water that was diverted through different exit""}, {""page"": ""1349""}, {""page"": ""1348""}, {""page"": ""1347-1348"", ""parenthetical"": ""portion of damage attributable to water that had entered sewer system not caused by surface water""}], ""case_paths"": [""/f3d/18/1343-01""], ""opinion_index"": 0}, {""cite"": ""423 Mass. 112"", ""year"": 1996, ""case_ids"": [1028024], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/423/0112-01""], ""opinion_index"": 0}, {""cite"": ""57 Mass. App. Ct. 888"", ""year"": 2003, ""case_ids"": [1250615], ""category"": ""reporters:state"", ""reporter"": ""Mass. 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+594079,"{""id"": 594079, ""name"": ""Martindale Clothing Company, Respondent, v. Spokane & Eastern Trust Company, Appellant, T. H. Gowman, Defendant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""003adfc22e5a122a5c4cc923ce592b0780469db1c00dd0936b3bc1889787878e"", ""simhash"": ""1:2caeac03844a17c6"", ""pagerank"": {""raw"": 0.00000014630411344908331, ""percentile"": 0.6577074570756828}, ""char_count"": 17064, ""word_count"": 3014, ""cardinality"": 667, ""ocr_confidence"": 0.525}, ""casebody"": {""judges"": [], ""parties"": [""Martindale Clothing Company, Respondent, v. Spokane & Eastern Trust Company, Appellant, T. H. Gowman, Defendant.""], ""opinions"": [{""text"": ""Parker, J.\nThis action was commenced by the plaintiff to recover damages claimed to have resulted to it from the negligent maintenance by the defendants, Spokane & Eastern Trust Company and T. H. Gowman, its tenant, of a water pipe in the upper story of a building owned by the trust company, and negligently permitting the pipe to burst from freezing, thereby causing a large quantity of water to be precipitated upon the goods of the plaintiff in its store, occupying the ground floor of the building. A trial resulted in verdict and judgment in favor of the plaintiff and against the defendant trust company, and exonerating the defendant ' Gowman. The trust company has appealed.\nThe clothing company occupied the ground floor and basement of the building under a lease as a tenant of the trust company, while Gowman occupied the entire second floor of the building under a lease as tenant of the trust company. Both tenants had been in the occupancy of their respective leased premises for several years. These were entirely separate tenancies. In so far as the right of either tenant to go upon or interfere with the premises leased by the other, such right was no different than as if each occupied a separate building under their respective leases. The provisions of the leases do not call for any particular notice here, except possibly the following provision found in each of them:\n“And the said party of the second part [the tenant] does covenant and agree with the said party of the first part, its successors and assigns, that the said party of the second part shall and will make all interior repairs to said rooms during the life of this lease and without any cost to the party of the first part.”\nThe building is situated at 716, Riverside avenue, in Spokane, being on the northerly side of that avenue. It is but two stories high in addition to its basement. It is not supplied with heat other than such as the respective tenants supplied for themselves. The second floor was occupied by Gowman and wife with a photograph gallery and their living rooms, and also by a dentist who was a subtenant of Gowman. Water was supplied to the second floor through a pipe which ran from the avenue into the basement and up through the clothing company’s store on its westerly wall, some distance back from the avenue, passing into a toilet room on the second floor, situated near the middle of that floor on the westerly side of a hallway running north and south. In the basement, there was a cut-off in the pipe leading to the upper floor by which the water could be entirely shut off from that floor. From the toilet on the upper floor, a pipe ran under the floor of the hallway to a sink in the room on the east side of the hall. This room was included in Gowman’s tenancy, though seemingly unoccupied, save possibly as a storeroom. The pipe leading to the sink in this room had a cut-off near the bowl in the toilet room. Whether reasonable inspection by Gowman under the circumstances would have disclosed to him the fact that this pipe carried water across the hall to the sink, and that the water could have been cut off therefrom by this cut-off, is one of the principal controverted questions touching both his and the trust company’s negligence. The damage occurred from the bursting by freezing of this pipe at a point near the sink in this room, on the east side of the hall, during a very cold night in January, when such freezing and bursting of the pipe might have been anticipated with the water left in it, and might have been prevented by the use of the cut-off in the toilet room. Another pipe ran under the floor of the hall into the dental rooms at the front of the building. There was a cut-off in this pipe under the floor of the hall nearly opposite the sink in the room to the east of the hall. Gowman claims that he thought this cut-off could be used to stop the flow of water to the sink as well as to the dental rooms. This cut-off was accessible by raising a loose board left for that purpose over it in the floor of the hall.\nDuring the evening of the night when the bursting of the pipe at the sink occurred, Gowman, deeming it a necessary precaution because of the intense cold, turned the cut-off in the hall floor to stop the flow of water, as he had often done during previous cold .spells. Gowman testified, in substance, that, when he went into possession of the upper floor under his lease, the cut-off in the floor of the hall was called to his attention by the agent of the trust company and that the agent then requested him “to see that this shut-off was shut off during cold weather, to prevent any freezing of the water in the dental rooms;” also, that other cut-offs in the upper floor were then called to his attention but the one in the toilet room was not then mentioned; though we may assume, for argument’s sake, that Gowman knew it was there. He also testified, in substance, that there was nothing to indicate that the pipe supplying the sink in the room to the east of the hall came from the toilet room. Two experienced plumbers testified, in substance, that the cut-off in the toilet room was simply such as are usually installed in such places to enable repairs to be made to toilets and that there was nothing, so far as the outward appearance of the plumbing was concerned, to indicate that the pipe leading to the sink came from the toilet room or that the cut-off therein controlled the flow of water to the sink, but that from outward appearances, the cut-off under the hall floor seemed to be the one to check the flow of water to the sink, though, as demonstrated by the freezing and bursting of the pipe here involved, that was not the fact. The trial court submitted to the jury a special interrogatory, which it answered and returned with its verdict, as follows:\n“Did the defendant Gowman, under all the circumstances of this case, at and immediately prior to the time of the alleged freezing and bursting of the water pipe, act as an ordinary prudent man would have acted relative to the water pipe? Ans. Yes.”\nThe principal contention made by counsel for the trust company is that the trial court erred in refusing to dispose of the cause in its favor as a matter of law upon its motions for nonsuit, for instructed verdict, and for judgment nothwithstanding the verdict. It is argued that the trust company was entitled to have the cause so disposed of, (1) because of failure of proof showing any negligence on the part of the trust company; and (2) because the evidence conclusively showed that whatever damage the clothing company suffered was the result of its own negligence. We will notice these in order.\nWas there sufficient evidence to sustain the jury’s conclusion that the trust company’s negligence was the proximate cause of the damage? We ignore, for the present, the question of the clothing company’s contributory negligence. Had the trust company been in the actual occupancy of the second floor as owner, instead of such occupancy being by its tenant Gowman, it seems to us there would be but little room for serious argument in defense of the trust company, in view of the well recognized necessity of taking precautions against the bursting of water pipes by freezing and the means readily at hand on that floor to exercise such precaution. The trust company actually knew of the cut-off in the floor of the hall, and in the absence of evidence showing to the contrary, we think the jury were warranted in believing that the trust company also knew that the cut-off in the toilet room would stop the flow of water to the sink; the placing of the pipe leading from the toilet to the sink in the store room being before Gowman’s tenancy commenced, and done presumably at the instance of the trust company, the owner of the building. Now, if all this knowledge of the trust company, which we conclude the jury were warranted in believing it possessed, touching the means at hand for cutting off the water to prevent freezing, had been in possession of Gowman, counsel for the trust company might well argue that it was Gowman’s negligence in not shutting off the water flowing to the sink which was the proximate cause of the damage. But it was the duty of the trust company, as owner of the building, to inform Gowman of the means provided by it to shut off the water flowing to the sink, either by specific directions, as it did relative to the cut-off in the hall floor, and other cut-offs upon Gowman’s leased premises, or by having the plumbing so constructed in its building as to render it apparent to Gowman upon reasonable inspection that the cut-off in the toilet room would stop the flow of water to the sink. In view of the apparent condition of the plumbing, indicating, as testified to by the plumbers, that the cut-off in the hall would stop the flow of water to the sink as well as the flow to the dental rooms, and the other circumstances the evidence tends to show, we think the jury was justified in malting their special finding which, in effect, exonerated Gowman from all negligence in his failure to cut off the flow of water to the sink by the use of the cut-off in the toilet room, and that the negligence of the trust company induced Gowman to so act, and thus became, as we think the jury could rightfully conclude, the proximate cause of the damage. Among the decisions called to our notice dealing with the negligence of tenants on upper floors causing damages to those on lower floors, the following are of interest: Lederer v. Fox, 151 Ill. App. 300; McCarthy v. York County Sav. Bank, 74 Me. 315, 43 Am. Rep. 591; Allen v. Smith, 76 Me. 335; Kenny v. Barns, 67 Mich. 336, 34 N. W. 587; Lebensburger v. Scofield, 155 Fed. 85, 12 L. R. A. (N. S.) 1025, and note.\nThese decisions, however, turn upon the question of the negligence of the upper tenant, and are of but little aid here, in view of the jury’s finding exonerating Gowman, the upper tenant, from negligence, which finding, we conclude, was justified by the evidence. The following decisions are of interest touching the question of a landlord’s negligence in allowing water to escape in upper stories under his control, thereby causing damage to his tenant’s goods occupying a lower story: Priest v. Nichols, 116 Mass. 401; Freidenburg Co. v. Jones, 63 Ga. 612; and our own recent decision in LeVette v. Hardman Estate, 77 Wash. 320, 137 Pac. 454.\nThese decisions, however, cannot be said to be directly in point upon the exact question here involved, nor has any decision come to our notice which can be said to be exactly in point. We think, however, the logic of the decisions above noticed, relating to negligence of tenants and landlords controlling upper floors resulting in damage to tenants occupying lower floors, support the conclusion that the facts of this case warranted the jury in finding that the negligence of the trust company was the proximate cause of the injury here complained of in that such negligence resulted in Gowman’s failure to shut off the water flowing in the pipe to the sink. Our attention has been called to Buckley v. Cunningham, 103 Ala. 449, 15 South. 826, 49 Am. St. 42. That decision, however, in so far as it may be regarded as applicable to this situation, is seemingly not in harmony with our views expressed in Le Vette v. Hardman Estate, supra.\nWas the evidence such as to enable the court to determine, as a matter of law, that the clothing company’s contributory negligence was the proximate cause of the damage suffered? We think not. It is true, there was, in the basement occupied by the clothing company, a cut-off which would, if used, have stopped the flow of water to the entire upper floor. The failure of the clothing company to stop this flow of water to the upper floor and thereby prevent freezing, by the use of this cut-off, is claimed to be the principal act of contributory negligence on its part. We have seen that the tenancies were entirely separate.' It seems quite clear to us that the clothing company would have no more right to turn this cut-off and stop the flow of water to the upper floor than it would to go off its own leased premises and stop the flow of water to that floor. That pipe and the water flowing through it, while upon the clothing company’s leased premises, was not for its use, and was no more a part of its leased premises than as if it had been, in fact, physically off such premises. The argument amounts in substance to this; that the clothing company did not anticipate the negligence of those who were in control of, or responsible for, the taking of proper precaution to prevent the freezing and bursting of water pipes on the upper floor, which floor, we have noticed, was no part of the premises leased by the clothing company. While it may be contributory negligence under some circumstances not to anticipate fault in others, yet it cannot be said, as a matter of law, that it was so on the part of the clothing company under the circumstances here shown. Thompson, Negligence, §§ 190, 191. The clothing company had occupied the ground floor and basement of this building for a number of years. It had manifestly never had occasion to anticipate that proper precaution would not be taken by those in control of the upper floor to prevent freezing and bursting of the water pipes on that floor; though it is apparently conceded that, in the climate of Spokane, in a building such as this, without any other heat than such as the tenants themselves furnished, it was necessary, during the winter months, to take such precautions. We have had occasion to deal with the question of damages occurring upon leased premises as between the landlord and the tenant of the particular premises upon which the claimed negligence occurred, in Howard v. Washington Water Power Co., 75 Wash. 255, 134 Pac. 927, and Mesher v. Osborne, 75 Wash. 439, 134 Pac. 1092. This, however, is not a case of the clothing company exercising the proper control and care over its own leased premises, but, so far as its contributory negligence is concerned, it becomes a question of its anticipating the negligence of others upon premises which it did not occupy.\nSome contention is made rested upon the duty of these tenants, to wit, the clothing company and Gowman, to make “interior repairs” upon their respective leased premises as provided in their leases. We are unable, however, to see that this provision touches any duty of the clothing company as to needed repairs upon Gowman’s premises, defective condition of plumbing therein, or negligence on the part of Gowman or the trust company in failing to properly control the water on that floor, in view of the fact that the respective tenancies were entirely separate and independent of each other. We think what we have said disposes, in substance, of the numerous assignments of error made by counsel for the trust company, and that further discussion is not called for.\nThe judgment is affirmed.\nFullerton, Morris, and Mount, JJ., concur."", ""type"": ""majority"", ""author"": ""Parker, J.""}], ""attorneys"": [""David Herman and W. W. Zent, for appellant."", ""Voorhees & Canfield, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 11597.\nDepartment Two.\nMay 18, 1914.]\nMartindale Clothing Company, Respondent, v. Spokane & Eastern Trust Company, Appellant, T. H. Gowman, Defendant.\nLandlord and Tenant — Damages From Freezing Water Pipes— Negligence — Question for Jury. The negligence of a landlord of a two-story building, the different floors of which were leased to separate tenants, in failing to prevent the pipes from freezing and flooding the lower story, is a question for the jury, where there was evidence that one cut-off for that purpose was so located as not to attract the attention of the upper tenant, in the exercise of reasonable care, and that the landlord did not point it out to him, so that the upper tenant was not guilty of negligence in failing to discover it and shut off the water.\nSame — Contributory Negligence — Question for Jury. A tenant in a lower story is not guilty of contributory negligence, as a matter of law, preventing a recovery for damages when pipes in the upper story were frozen and burst, flooding the lower premises, from the fact that, in the basement occupied by him, there was a cut-off to the pipe serving the second story which, if used, would stop the flow of water to the upper story; since the pipe was not under his control and he was not bound to anticipate the negligence of the upper tenant in not taking proper precautions to prevent the pipes from freezing.\nSame — Injury to Tenant’s Goods — Lease—Effect of Provisions. A provision in a lease, compelling the tenant to make all “interior repairs,” has no bearing on an action for damages against the landlord and an upper tenant for negligently allowing a water pipe to freeze and burst, flooding plaintiff’s premises.\nAppeal from a judgment of the superior court for Spokane county, Kennan, J., entered March 15, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.\nAffirmed.\nDavid Herman and W. W. Zent, for appellant.\nVoorhees & Canfield, for respondent.\nReported in 140 Pac. 909.""}, ""cites_to"": [{""cite"": ""140 Pac. 909"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""134 Pac. 1092"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""75 Wash. 439"", ""case_ids"": [622661], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/75/0439-01""], ""opinion_index"": 0}, {""cite"": ""134 Pac. 927"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""75 Wash. 255"", ""case_ids"": [622625], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/75/0255-01""], ""opinion_index"": 0}, {""cite"": ""15 South. 826"", ""category"": ""reporters:state_regional"", ""reporter"": ""So."", ""opinion_index"": 0}, {""cite"": ""103 Ala. 449"", ""case_ids"": [3398838], ""category"": ""reporters:state"", ""reporter"": ""Ala."", ""case_paths"": [""/ala/103/0449-01""], ""opinion_index"": 0}, {""cite"": ""137 Pac. 454"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""77 Wash. 320"", ""case_ids"": [615468], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/77/0320-01""], ""opinion_index"": 0}, {""cite"": ""63 Ga. 612"", ""case_ids"": [24335], ""category"": ""reporters:state"", ""reporter"": ""Ga."", ""case_paths"": [""/ga/63/0612-01""], ""opinion_index"": 0}, {""cite"": ""116 Mass. 401"", ""case_ids"": [719836], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/116/0401-01""], ""opinion_index"": 0}, {""cite"": ""12 L. R. A. (N. S.) 1025"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A.N.S."", ""opinion_index"": 0}, {""cite"": ""155 Fed. 85"", ""case_ids"": [3957067], ""category"": ""reporters:federal"", ""reporter"": ""F."", ""case_paths"": [""/f/155/0085-01""], ""opinion_index"": 0}, {""cite"": ""34 N. W. 587"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.W."", ""opinion_index"": 0}, {""cite"": ""67 Mich. 336"", ""case_ids"": [1325078], ""category"": ""reporters:state"", ""reporter"": ""Mich."", ""case_paths"": [""/mich/67/0336-01""], ""opinion_index"": 0}, {""cite"": ""76 Me. 335"", ""case_ids"": [604599], ""category"": ""reporters:state"", ""reporter"": ""Me."", ""case_paths"": [""/me/76/0335-01""], ""opinion_index"": 0}, {""cite"": ""43 Am. Rep. 591"", ""category"": ""reporters:state_regional"", ""reporter"": ""Am. Rep."", ""opinion_index"": 0}, {""cite"": ""74 Me. 315"", ""case_ids"": [8844659], ""category"": ""reporters:state"", ""reporter"": ""Me."", ""case_paths"": [""/me/74/0315-01""], ""opinion_index"": 0}, {""cite"": ""151 Ill. App. 300"", ""case_ids"": [2634941], ""category"": ""reporters:state"", ""reporter"": ""Ill. App."", ""case_paths"": [""/ill-app/151/0300-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""79 Wash. 643"", ""type"": ""official""}], ""file_name"": ""0643-01"", ""last_page"": ""651"", ""first_page"": ""643"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T20:41:00.156422+00:00"", ""decision_date"": ""1914-05-18"", ""docket_number"": ""No. 11597"", ""last_page_order"": 685, ""first_page_order"": 677, ""name_abbreviation"": ""Martindale Clothing Co. v. Spokane & Eastern Trust 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+849973,"{""id"": 849973, ""name"": ""Victor Miller et al., Respondents, v. Vance Lumber Company, Appellant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""f6d90c9b074424bbce98c59b0879d805fdb07e66f7ab0f2f678da03424a76a2d"", ""simhash"": ""1:a472cc70c1c24446"", ""pagerank"": {""raw"": 0.00000019334720234737706, ""percentile"": 0.7345098111897643}, ""char_count"": 14757, ""word_count"": 2619, ""cardinality"": 707, ""ocr_confidence"": 0.514}, ""casebody"": {""judges"": [""Mitchell, Beeler, and Millard, JJ., concur.""], ""parties"": [""Victor Miller et al., Respondents, v. Vance Lumber Company, Appellant.""], ""opinions"": [{""text"": ""Parker, J.\nThe plaintiffs, Miller and wife, commenced this action in the superior court for King county seeking recovery for personal injuries suffered by Mrs. Miller, claimed as the result of the negligence of the defendant lumber company in its failure to make safe the plaster of the ceiling of the bathroom of the apartment occupied by them as tenants of the lumber company in its apartment house. A trial upon the merits in that court, sitting with a jury, resulted in verdict and judgment awarding to Miller and wife recovery against the lumber company in the sum of $750, from which it has appealed to this court.\nReversal of the judgment and dismissal of the action are sought upon the sole ground that the evidence does not support the awarding of any recovery to Miller and wife, and that the trial court should have so decided as a matter of law in response to .appropriate motions made in that behalf.\nThe controlling facts, admitted or shown by the evidence introduced in behalf of Miller and wife, may be fairly summarized as follows: The lumber company was the owner of the apartment house at all times in question. Mrs. Simmons was the lumber company’s managing agent of the apartment house, which agency included authority on her part to rent the apartments to tenants and to collect rent therefor. Mrs. Simmons ’ husband was the engineer of the apartment house.\nOn September 23, Mrs. Simmons rented the furnished apartment No. 317 to Miller and wife, receiving therefor one month’s rent in advance. They moved into the apartment on that day. They inspected the apartment, including the bathroom, and there did not then appear any defect in the plastering of the bathroom ceiling. This was the beginning of a month-to-month tenancy for ordinary housekeeping purposes.\nOn Thursday, October 16, Mr. Miller first noticed a defect in the plastering of the bathroom ceiling. He testified as to what was then said and done with reference thereto, as follows:\n“Q. Did you get in touch with the management of the building that evening? A. Yes, sir. Q. Who did you get in touch with? A. Well) when I called up the first time I thought it was Mrs. Simmons, but the lady who answered the phone said that Mrs. Simmons was not in, and that she would tell her as soon as she did come in. An hour later the phone rang again, she says ‘What is the trouble, Mr. Miller? This is Mrs. Simmons speaking.’ I says, ‘The plaster in the bathroom is cracked. I want to report it to you.’ She said she would have Mr. Simmons take care of it right away.”\nThere is no further evidence in the record as to the nature or extent of the then defect in the bathroom ceiling plaster.\nNothing was done about the matter until the forenoon of Saturday, October 18. As to what was then done, Mr. Miller testified that, during that evening, after the accident, Mrs. Simmons said to him: “Mr. Simmons and I went up this morning to look at the plaster. We thought it would be safe until Monday.” There is no other testimony as to the then condition of the plaster.\nMr. and Mrs. Miller were both employed in business vocations, taking them away from the apartment during the business hours of the day. They came home to the apartment that evening as usual. A short time thereafter, Mrs. Miller went into the bathroom, and, when she had come to near the center of the bathroom, a section of the ceiling plaster, about fourteen by twenty inches, fell, inflicting upon her the injuries in question. Mr. and Mrs. Simmons, in response to a call from the apartment, came very soon thereafter. It was soon thereafter that Mrs. Simmons told Mr. Miller of the inspection of the plaster by herself and Mr. Simmons that morning.\nIt is the settled rule of law in this state, prevailing generally in the United States and England, that,\n“ . . . in the absence of express contract to the contrary, a tenant takes the demised premises as he finds them and there is no implied warranty by the landlord that they are safe or fit for the purpose for which they are hired. The maxim caveat emptor applies.” Mesher v. Osborne, 75 Wash. 439, 134 Pac. 1092, 48 L. R. A. (N. S.) 917.\nSee Larson v. Eldridge, 153 Wash. 23, 279 Pac. 120, and our prior decisions therein noticed. This rule was in that case held applicable to a resident tenant of an apartment in an apartment house, as well as to a resident tenant of the whole of a separate dwelling house, when the tenant’s right of control and enjoyment of the apartment under Ms tenancy is as complete and exclusive as it would be under an ordinary tenancy of a separate dwelling house.\nThe original tenancy contract did not contain any promise by or for the lumber company to make any repairs in the apartment. The original tenancy contract did not contain any warranty by or for the landlord that the apartment was safe and fit for the purpose for which it was rented to the tenant. The original tenancy contract gave Miller and wife as complete and exclusive right of control and enjoyment of the apartment as if it were a tenancy of a separate dwelling house.\nIt is argued that the original tenancy contract impliedly put upon the lumber company a contractual duty of repair, because of a custom to that effect in the management of apartment houses in Seattle, of such notoriety that the court should take judicial notice thereof and construe the original tenancy contract accordingly. Our decision in Larson v. Eldridge, 153 Wash. 23, 279 Pac. 120, is decisive against this contention.\nThe fact that the apartment was- rented to Miller and wife, furnished, by the lumber company is stressed by their counsel as tending to evidence a tenancy of a somewhat different nature than an ordinary tenancy of a dwelling house or an unfurnished apartment. There is that difference between this tenancy and the tenancy involved in Larson v. Eldridge, 153 Wash. 23, 279 Pac. 120. But we are of the opinion that such difference in the tenancies does not furnish any substantial ground for recognizing any distinction between the legal relation of the landlord and tenant in that case and the legal relation of the landlord and tenant in this case.\nThese considerations, we think, call for the conclusion that the tenants, Miller and wife, do not have any right of recovery against their landlord, the lumber company, rested upon any breach of their original tenancy contract.\nIt is contended in behalf of Miller and wife that the lumber company, in any event, incurred a contractual obligation to them to repair the ceiling of the bathroom upon its manager, Mrs. Simmons, being advised by Mr. Miller, on October 16, that the plaster of the bathroom was cracked, and her reply that she would have Mr. Simmons take care of it right away. In the text of 16 B>. C. L. 1033, we read:\n“It has frequently been held that the landlord is under no obligation to make repairs, unless such a stipulation is made a part of the original contract, and that any subsequent promise to make repairs, founded merely on the relation of the parties, and not one of the conditions of the lease, is without consideration, and for that reason creates no liability. According to some decisions a mere promise by the landlord to repair, based alone upon the tenant’s agreement not to abandon the demised premises before the end of his term, is without consideration, and cannot be enforced, but there is also authority .to the effect that although a landlord is not bound originally to repair the premises, if the tenant notifies him that the premises are defective and threatens to vacate, and the landlord thereupon promises to make repairs, he is liable to the tenant for a failure to make such repairs. Even though a gratuitous executory contract of this kind would not be binding on the landlord, he would place himself in a very different position if he should see fit to treat it as binding, and actually enter upon its fulfilment. He is at liberty to repudiate it, or to perform it at his option, but if his choice should be to perform it he comes under some measure of liability as to the manner of its performance.”\nThis is not a case of a repair contract obligation arising after the commencement of the tenancy between the landlord and tenant by reason of the landlord’s promise to repair and the tenant’s promise to remain in consideration thereof; nor by reason of the promise to repair in response to the tenant’s threat to move if the landlord does not repair; .nor by the landlord’s actually assuming an obligation to repair by actually commencing such repairs before the accident occurs.\nIt seems plain to us that this mere notice by Mr. Miller to Mrs. Simmons, the lumber company’s manager of the apartment house, and her response above noticed, did not give rise to any new contract repair obligation on the part of the lumber company; and that therefore the lumber company is not liable for the breach of any such claimed contract.\nDid the lumber company become liable in damages as -for a tort liability in its failure to repair and make safe the ceiling of the bathroom prior to the occurrence of Mrs. Miller’s injury? It may be conceded that the lumber company might become so liable* if the defect in the ceiling had existed at the time of the commencement of the tenancy and was then known to or should have been known to the lumber company as being of a character likely to damage someone who might rightfully be in the bathroom either as a tenant or a lawful invitee therein. There is no evidence in this record pointing to any defect in the plastering at the time of the commencement of the tenancy. Whatever defect there was of that nature manifestly occurred thereafter, and did not become noticeable until well towards the expiration of the first month of the tenancy, that is, on October 16, when Mr. Miller first noticed it; evidently being the one to first discover it.\nIn Howard v. Washington Water Power Co., 75 Wash. 255, 134 Pac. 927, 52 L. R. A. (N. S.) 578, the injury to the tenant was caused by a dangerous condition of an electric light switch, known to the landlord when the tenancy commenced, and not disclosed tó the tenant. The landlord was held liable for damages to the tenant as for tort, it being assumed that there was no agreement to repair. Mesher v. Osborne, 75 Wash. 439, 134 Pac. 1092, 48 L. R. A. (N. S.) 917, was a somewhat similar case wherein the landlord was held liable. In that case, Judge Ellis, speaking for the court, said:\n“To the general rule of the landlord’s nonliability for injury from defects, there is the well recognized exception that, even in the absence of warranty or express agreement by the landlord to repair, he is liable to the tenant or the tenant’s guest as for a tort, where, with actual knowledge of obscure defects or dangers at the time of the letting, he lets the premises without disclosing such defects to a tenant who does not know, and by the exercise of reasonable care would not discover them. The duty to disclose such latent defects and dangers when actually known to the landlord exists without regard to any covenant or lack of covenant to repair. But in the absence of such covenant, there is no duty of inspection on the landlord’s part to discover latent and unknown defects. 3 Shearman & Redfield, Negligence (6th ed.), §709; Moore v. Parker, 63 Kan. 52, 64 Pac. 975, 53 L. R. A. 778; Cowen v. Sunderland, 145 Mass. 363, 14 N. E. 117, 1 Am. St. 469; Coke v. Gutkese, 80 Ky. 598, 44 Am. Rep. 499; Martin v. Richards, 155 Mass. 381, 29 N. E. 591; Anderson v. Hayes, 101 Wis. 538, 77 N. W. 891, 70 Am. St. 930; Edwards v. New York & H. R. Co., 98 N. Y. 245, 50 Am. Rep. 659; Kern v. Myll, 80 Mich. 525, 45 N. W. 587, 8 L. R. A. 682; Howard v. Washington Water Power Co., 75 Wash. 255, 134 Pac. 927.”\nIn Lowe v. O’Brien, 77 Wash. 677, 138 Pac. 295, the landlord promised repair of the premises in response to his tenant’s saying to him that, if he did not fix the house and make it safe, she would have to move out. This was, in substance, a promise by the landlord, supported by an implied promise of tbe tenant to remand if the repair would soon be made. It was beld tbat tbe tenant was absolved from tbe charge of assumption of risk because sbe remained a short time awaiting’ tbe landlord’s fulfilment of bis promise, during which time sbe was injured because of bis failure in tbat regard.\nIn Johnson v. Dye, 131 Wash. 637, 230 Pac. 625, the landlord, at tbe beginning of tbe tenancy, assumed tbe contractual obligation of keeping tbe premises in repair. Tbe landlord was beld liable, as for tort, for damage to tbe tenant resulting from latent defects in tbe support of tbe steps which would have been readily discovered by him bad be fulfilled bis obligation to repair tbe steps, as prior to tbe accident was several times demanded of him by tbe tenant.\nIn McCourtie v. Bayton, 159 Wash. 418, 294 Pac. 238, the damage occurred by reason of negligence of tbe landlord in leaving a portion of tbe premises in a dangerous condition while be was actually engaged in repairing tbe premises. Tbe landlord was beld liable to the tenant so damaged as for tort.\nThese decisions, principally relied upon by- counsel for Miller and wife, touching tbe question of tbe lumber company’s tort liability, we think, do not support their contention in. that behalf. No decision has come to our notice bolding a landlord liable in damages to tbe tenant as for tort where, as in this case, there was no contractual obligation to repair in the original tenancy contract or in any subsequent contract, and no known dangerous defect in tbe premises at tbe time of tbe commencement of tbe tenancy, nor any dangerous defect in tbe premises at any time known to tbe landlord and not known to tbe tenant.\nWe conclude tbat tbe landlord, tbe lumber company, is not liable to Miller and wife, its tenants, either upon the theory of breach of any contractual obligation or upon the theory of any tort obligation. The judgment is reversed, and the cause remanded to the superior court with directions to dismiss the action.\nMitchell, Beeler, and Millard, JJ., concur."", ""type"": ""majority"", ""author"": ""Parker, J.""}, {""text"": ""Tolman, C. J.\n(dissenting) — The tenant of a furnished apartment is not ordinarily expected to make repairs, and in a case like this, where the owner maintains employees for that purpose, the tenant in all probability would not be permitted to make repairs. In my opinion, on the facts here shown, the rule applicable to a lodging house keeper or to the operator of an hotel should be applied. I therefore dissent."", ""type"": ""dissent"", ""author"": null}], ""attorneys"": [""Stephen V. Carey and Henry T. Ivers, for appellant."", ""Long & Hammer, for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 23486.\nDepartment One.\nMarch 24, 1932.]\nVictor Miller et al., Respondents, v. Vance Lumber Company, Appellant.\nStephen V. Carey and Henry T. Ivers, for appellant.\nLong & Hammer, for respondents.\nReported in 9 P. (2d) 351.""}, ""cites_to"": [{""cite"": ""9 P. (2d) 351"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""294 Pac. 238"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""159 Wash. 418"", ""case_ids"": [833115], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/159/0418-01""], ""opinion_index"": 0}, {""cite"": ""230 Pac. 625"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""131 Wash. 637"", ""case_ids"": [770236], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/131/0637-01""], ""opinion_index"": 0}, {""cite"": ""138 Pac. 295"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""77 Wash. 677"", ""case_ids"": [615520], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/77/0677-01""], ""opinion_index"": 0}, {""cite"": ""8 L. R. A. 682"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A."", ""opinion_index"": 0}, {""cite"": ""45 N. W. 587"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.W."", ""opinion_index"": 0}, {""cite"": ""80 Mich. 525"", ""case_ids"": [1348228], ""category"": ""reporters:state"", ""reporter"": ""Mich."", ""case_paths"": [""/mich/80/0525-01""], ""opinion_index"": 0}, {""cite"": ""50 Am. Rep. 659"", ""category"": ""reporters:state_regional"", ""reporter"": ""Am. Rep."", ""opinion_index"": 0}, {""cite"": ""98 N. Y. 245"", ""case_ids"": [557975], ""category"": ""reporters:state"", ""reporter"": ""N.Y."", ""case_paths"": [""/ny/98/0245-01""], ""opinion_index"": 0}, {""cite"": ""77 N. W. 891"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.W."", ""opinion_index"": 0}, {""cite"": ""101 Wis. 538"", ""case_ids"": [11282571], ""category"": ""reporters:state"", ""reporter"": ""Wis."", ""case_paths"": [""/wis/101/0538-01""], ""opinion_index"": 0}, {""cite"": ""29 N. E. 591"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.E."", ""opinion_index"": 0}, {""cite"": ""155 Mass. 381"", ""case_ids"": [808269], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/155/0381-01""], ""opinion_index"": 0}, {""cite"": ""44 Am. Rep. 499"", ""category"": ""reporters:state_regional"", ""reporter"": ""Am. Rep."", ""opinion_index"": 0}, {""cite"": ""80 Ky. 598"", ""case_ids"": [4396328], ""category"": ""reporters:state"", ""reporter"": ""Ky."", ""case_paths"": [""/ky/80/0598-01""], ""opinion_index"": 0}, {""cite"": ""14 N. E. 117"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.E."", ""opinion_index"": 0}, {""cite"": ""145 Mass. 363"", ""case_ids"": [770456], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/145/0363-01""], ""opinion_index"": 0}, {""cite"": ""53 L. R. A. 778"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A."", ""opinion_index"": 0}, {""cite"": ""63 Kan. 52"", ""weight"": 2, ""case_ids"": [1120691], ""category"": ""reporters:state"", ""reporter"": ""Kan."", ""case_paths"": [""/kan/63/0052-01""], ""opinion_index"": 0}, {""cite"": ""52 L. R. A. (N. S.) 578"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A.N.S."", ""opinion_index"": 0}, {""cite"": ""134 Pac. 927"", ""weight"": 2, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""75 Wash. 255"", ""weight"": 2, ""case_ids"": [622625], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/75/0255-01""], ""opinion_index"": 0}, {""cite"": ""279 Pac. 120"", ""weight"": 3, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""153 Wash. 23"", ""weight"": 3, ""case_ids"": [821843], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/153/0023-01""], ""opinion_index"": 0}, {""cite"": ""48 L. R. A. (N. 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+46127,"{""id"": 46127, ""name"": ""Rosario Lembo & another vs. Town of Framingham"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""e40397ac193bb4f8cd7180b60d815d52e35ef762c1cc8cd8d6b95153b8524d3b"", ""simhash"": ""1:8f440a799d144026"", ""pagerank"": {""raw"": 0.0000002875987025880113, ""percentile"": 0.8431788880355573}, ""char_count"": 5480, ""word_count"": 953, ""cardinality"": 368, ""ocr_confidence"": 0.632}, ""casebody"": {""judges"": [], ""parties"": [""Rosario Lembo & another vs. Town of Framingham.""], ""opinions"": [{""text"": ""Lummus, J.\nThe county commissioners of Middlesex County in 1948 took land of the petitioners in Framingham for highway purposes, awarding $5,000 to the petitioners as damages to be paid by the respondent town. The premises taken consisted of 5,150 square feet of land, with a frame building on it which contained on the first floor a grocery store operated by the petitioners, two rooms in the rear in which they lived, and two other rooms let for $8 a week, and on the second floor two living apartments rented for $7 a week each.\nThe jury awarded the petitioners $8,965, and they alleged exceptions to rulings as to the admission and exclusion of evidence.\nThe petitioner Rosario Lembo testified that the fair market value of the entire real estate at the time of the taking was $40,000. He was asked by his own counsel what was the fair, rental value of the store. That was excluded, and the petitioners excepted and offered to prove that the answer would be $75 a month with $75 more for\nthe storage room. Ordinarily the rental value of real estate may be received in evidence as affording some indication of the fair market value. Lincoln v. Commonwealth, 164 Mass. 368, 380. Matter of City of New York, 118 App. Div. (N. Y.) 272. But the ultimate question is the fair market value for the purpose of sale. That question was fully tried upon the evidence of expert witnesses for both parties. Rosario Lembo was not shown to have had any experience in hiring or letting stores. The judge was not required to find him qualified to express an opinion, as to the rental value of a store. Though Rosario Lembo owned the store, his ownership alone did not require the judge to admit his opinion as to its rental value, even if in his discretion he might have done so. Menici v. Orton Crane & Shovel Co. 285 Mass. 499, 503 et seq. Rubin v. Arlington, 327 Mass. 382. Moreover, an expert witness for the petitioners was later permitted to testify as to the rental value of the store. Bishop v. Burke, 216 Mass. 231, 233-234.\nThe respondent was permitted, subject to the exception of the petitioners, to show that they paid only $4,000 for the real estate in 1944. That evidence was competent, unless the lapse of four years from the purchase makes it incompetent. Ham v. Salem, 100 Mass. 350, 352. Manning v. Lowell, 173 Mass. 100, 104. The petitioners contend that we should notice judicially a rapid rise in real estate values during those four years. Whether the time of buying the property was so remote in time that the price would afford no indication of the value at the time of the taking was largely within the discretion of the judge. Johnson v. Lowell, 240 Mass. 546, 549-550. The conditions during the four years in question were doubtless -within the memories of the jurors, and they could make due allowance for them. We think that there was no error in the admission of this evidence.\nThe petitioners excepted to the admission in evidence of the fact that when they bought the property it had on it a mortgage of about $1,100, which has since been paid and discharged. The amount of any mortgage was immaterial, since the jury were to value the property without regard to any encumbrance. Farnsworth v. Boston, 126 Mass. 1. Bates v. Boston Elevated Railway, 187 Mass. 328, 337. It cannot be supposed that the jury would think that the existence of a mortgage for $1,100 would furnish any basis for determining the value of the property. We think that the admission of this immaterial evidence could not injuriously affect the substantial rights of the petitioners. G. L. (Ter. Ed.) c. 231, § 132.\nExceptions overruled."", ""type"": ""majority"", ""author"": ""Lummus, J.""}], ""attorneys"": [""John F. Sullivan, for the petitioners."", ""Dewey C. Kadra, (E. John Ferrazzi, Town Counsel, with him,) for the respondent.""], ""corrections"": """", ""head_matter"": ""Rosario Lembo & another vs. Town of Framingham.\nMiddlesex.\nOctober 6, 1953.\nOctober 29, 1953.\nPresent: Qua, C.J., Lummus, Ronan, Spalding, & Williams, JJ.\nEvidence, Of value, Opinion, Relevancy and materiality. Practice, Civil, Exceptions: whether error harmful. Error, Whether error harmful.\nThe mere fact that a witness was one of the owners of a store whose fair market value was in issue did not show error in the exclusion of his opinion as to its rental value. [462-463]\nOn the issue of the fair market value of real estate taken by eminent domain in 1948, there was no error in admitting evidence of the price paid for it in a purchase in 1944. [463]\nThe petitioners in a proceeding for assessment of damages for a taking of real estate by eminent domain were not harmed by the admission of immaterial evidence that when they bought the property a few years before the taking there was a mortgage in a certain amount on it. [463-464]\nPetition for assessment of damages for a taking by eminent domain, filed in the Superior Court on May 20, 1949, against the county commissioners of the county of Middlesex, the town of Framingham, and a mortgagee of the premises taken.\nThe case was tried before Dowd, J.\nThe county commissioners made the taking in question in 1948 for highway purposes and provided in their order that the town of Framingham should pay “all . . . damages, costs, and expenses ... in consequence of this order.”\nThe mortgage upon the premises was paid before trial of the case. The petitioners “waived their action” as against the county commissioners and it was stipulated that “the award of damages would be solely against” the town of Framingham and that “the sole issue would be the amount of damages.”\nJohn F. Sullivan, for the petitioners.\nDewey C. Kadra, (E. John Ferrazzi, Town Counsel, with him,) for the respondent.""}, ""cites_to"": [{""cite"": ""187 Mass. 328"", ""case_ids"": [833859], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""337""}], ""case_paths"": [""/mass/187/0328-01""], ""opinion_index"": 0}, {""cite"": ""126 Mass. 1"", ""case_ids"": [728027], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/126/0001-01""], ""opinion_index"": 0}, {""cite"": ""240 Mass. 546"", ""case_ids"": [58303], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""549-550""}], ""case_paths"": [""/mass/240/0546-01""], ""opinion_index"": 0}, {""cite"": ""173 Mass. 100"", ""case_ids"": [21611], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""104""}], ""case_paths"": [""/mass/173/0100-01""], ""opinion_index"": 0}, {""cite"": ""100 Mass. 350"", ""case_ids"": [2141822], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""352""}], ""case_paths"": [""/mass/100/0350-01""], ""opinion_index"": 0}, {""cite"": ""216 Mass. 231"", ""case_ids"": [88101], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""233-234""}], ""case_paths"": [""/mass/216/0231-01""], ""opinion_index"": 0}, {""cite"": ""327 Mass. 382"", ""case_ids"": [512307], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/327/0382-01""], ""opinion_index"": 0}, {""cite"": ""285 Mass. 499"", ""case_ids"": [920543], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/285/0499-01""], ""opinion_index"": 0}, {""cite"": ""118 App. Div. (N. Y.) 272"", ""case_ids"": [7666883, 5278900], ""category"": ""reporters:state"", ""reporter"": ""A.D."", ""case_paths"": [""/nys/103/0441-01"", ""/ad/118/0272-01""], ""opinion_index"": 0}, {""cite"": ""164 Mass. 368"", ""case_ids"": [789019], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""380""}], ""case_paths"": [""/mass/164/0368-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""330 Mass. 461"", ""type"": ""official""}], ""file_name"": ""0461-01"", ""last_page"": ""464"", ""first_page"": ""461"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T16:33:33.584831+00:00"", ""decision_date"": ""1953-10-29"", ""docket_number"": """", ""last_page_order"": 506, ""first_page_order"": 503, ""name_abbreviation"": ""Lembo v. Town of 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+475908,"{""id"": 475908, ""name"": ""Michael J. Goldfarb et al., Appellants, v. Norman E. Dietz et al., Respondents"", ""court"": {""id"": 8985, ""name"": ""Washington Court of Appeals"", ""name_abbreviation"": ""Wash. Ct. App.""}, ""analysis"": {""sha256"": ""8c010019b11bf606b3698cda742f333215e0d2763dc04210edbdc3d54af61f76"", ""simhash"": ""1:93ae62205e76b9f4"", ""pagerank"": {""raw"": 0.00000011312815594673092, ""percentile"": 0.5758551946464833}, ""char_count"": 15250, ""word_count"": 2496, ""cardinality"": 740, ""ocr_confidence"": 0.664}, ""casebody"": {""judges"": [], ""parties"": [""Michael J. Goldfarb et al., Appellants, v. Norman E. Dietz et al., Respondents.""], ""opinions"": [{""text"": ""Horowitz, J.\nThe issues here concern the nature of obligations created by a real estate contract and the vendee’s right to rescind that contract for nondisclosure by the vendor of the status of the real property with respect to the applicable local zoning and building code requirements.\nThe findings are undisputed and no statement of facts has been filed. The findings show the following as the facts of the case. Defendants Dietz originally acquired the property involved under a real estate installment contract for investment and income purposes in 1966. The property when purchased was improved with a 2-story frame dwelling and five independent frame cottages. Subsequently, defendant husband was informed the property was zoned for single-family residency. Because of the nature of the improvements on the property, he did not believe the information would apply. He was an experienced carpenter and proceeded to make major and minor repairs, alterations and modifications to the improvements. He was generally familiar with the King County building code, but at no time did he obtain a building permit. The court found that such a permit was required “for certain repairs.”\nIn the fall of 1969, defendants advertised the property for sale. Plaintiff Goldfarb saw the advertisement. He was then engaged in another business, but he was also a contract purchaser of two apartment house properties in Seattle and was interested in acquiring an additional investment in income-producing property. Both plaintiff and his employee, Schwartz, made a physical inspection of the property and “were aware of the nature and character of the investment, to-wit, that it was an older complex . . .” Schwartz conferred with Dietz and they discussed the economics of the property. During their conference, Dietz explained that during his ownership he had “made repairs to the subject premises.” The question of zoning and building requirements as they affected the property was not discussed, nor did it arise. Dietz did not “reveal to Schwartz any information relating to his investigation of zoning . . .” Neither Goldfarb nor Schwartz had any knowledge of any existing violations of either the King County building code or the King County zoning code, and the court made no finding of specific knowledge by Dietz that the improvements on the property failed to comply with either the zoning or building codes of King County.\nOn November 7, 1969, Goldfarb and Schwartz executed the real estate contract here involved. As partners they operated the property for several months. Schwartz then sold his interest to plaintiffs Mesher. On May 15, 1970, a fire occurred on the property substantially destroying the 2-story frame dwelling. In late May 1970, the King County building department made a physical inspection of the entire property. The inspection revealed that none of the single units could pass the building inspection because of the lack of airspace, the height of the buildings, lack of foundations, and building code violations, including those related to plumbing and wiring. Plaintiffs were further informed that the two building lots upon which the improvements were located could qualify only for a single-family residential zoning, and that the 2-story frame building had been converted into a 3-family residence. Investigation showed “that prior to the fire, the property would have come under a legal nonconforming status, but once the fire took place, the property became illegal and the buildings would have to be condemned.” Plaintiffs were accordingly informed by the King County building department that they could not rebuild the premises to its former condition.\nIn June 1970 plaintiffs paid the installments owing up to September 30 on their real' estate contract to Dietz; and, in July 1970, they made their last payment on the -underlying real estate contract between defendant Dietz and their vendor. In October 1970 plaintiffs notified defendants by mail of the former’s intention to rescind. Defendants refused the demand for rescission, claiming the unpaid purchase price. This litigation followed. From the judgment in favor of the defendants for the unpaid purchase price, plaintiffs appeal.\nPlaintiffs first contend defendants were not entitled to judgment because the latter could not tender a marketable title to the real property after the fire, the property being encumbered both by building code and zoning law violations. The trial court held, over plaintiffs’ objection, that the determining date of marketable title was the date of closing and that, as of the date of closing, defendants’ title was marketable. The provisions of the real estate contract are not set forth in the findings. Defendants, however, rely on a provision of the real estate contract, the original of which has been filed in this court. Plaintiffs have made no motion to strike it from the appeal record, and in their reply brief argue the merits of the assignment of error as if the contract is properly before us.\nThe deed called for in the contract is “a statutory warranty deed to said real estate, . . . free of encumbrances except any that may attach after date of closing through any person other than the seller . . .’’At the date of closing, which was prior to the fire, “[t]he investigation revealed that prior to the fire, the property would have come under a legal nonconforming status . . .” So far as concerns a zoning law violation, there was none at the date of closing and Dietz’ title was, therefore, a marketable one.\nNor can it be claimed that the zoning law prohibition against restoration of improvements following destruction by fire, which became applicable subsequent to the date of closing, is an encumbrance of which vendees can complain. A zoning law in itself, as distinguished from a zoning law violation, is not an encumbrance. Hall v. Risley, 188 Ore. 69, 213 P.2d 818 (1950); Miller v. Milwaukee Odd Fellows Temple, 206 Wis. 547, 240 N.W. 193 (1932); Lincoln Trust Co. v. Williams Bldg. Corp., 229 N.Y. 313, 128 N.E. 209 (1920); 4 H. Tiffany, Real Property § 1005, at 141 (3d ed. 1939); 7 G. Thompson, Real Property § 3183, at 290 (1962). Furthermore, paragraph (4) of the real estate contract provides in part:\nThe purchaser assumes all hazards of damage to or destruction of any improvements now on said real estate or hereafter placed thereon, and of the taking of said real estate or any part thereof for public use; and agrees that no such damage, destruction or taking shall constitute a failure of consideration.\nUnder paragraph (4) plaintiff assumed the risk of loss by fire, and that loss included that resulting from the application of the zoning law which prevented the restoration of the improvements following the fire.\nPlaintiffs rely on Ashford v. Reese, 132 Wash. 649, 233 P. 29 (1925), to support their claim that risk of loss remains with the vendor pending delivery of legal title. In view both of paragraph (4) of the contract and the- nature of the deed required to be furnished, the doctrine of Ashford v. Reese, supra, is inapplicable. In any case, that doctrine “has been whittled away until nothing remains.” Windust v. Department of Labor & Indus., 52 Wn.2d 33, 37, 323 P.2d 241 (1958); In re Estate of Verbeek, 2 Wn. App. 144, 152, 467 P.2d 178 (1970). See Meltzer v. Wendell-West, 7 Wn. App. 90, 95, 497 P.2d 1348 (1972).\nSo far as building law violations are concerned, plaintiffs' are precluded from relying upon them as prohibited encumbrances by virtue of paragraph (3) of the real estate contract. It reads:\nThe purchaser agrees that full inspection of said real estate has been made and that neither the seller nor his assigns shall be held to any covenant respecting the condition of any improvements thereon nor shall the purchaser or seller or the assigns of either be held to any covenant or agreement for alterations, improvements or repairs unless the covenant or agreement relied on is contained herein or is in writing and attached to and made a part of this contract.\nThe real estate contract contains neither a covenant nor an agreement requiring the seller to remedy any defect in the improvements.\nPlaintiffs argue there is a failure of consideration here because, following the fire and inability to restore, they failed to receive what they bargained for, namely, an investment in income-producing property. The parties bargained for the purchase and sale of specific real property without a warranty that the property would be or remain an investment in income-producing property. Plaintiffs* hopes, expectations or reasons for acquiring the property were not part of the consideration described in the contract. Furthermore, paragraph (4) of the real estate contract required the purchasers to bear the “hazards of damage to or destruction of any improvements,” and expressly provided that such damage or destruction should not “constitute a failure of consideration.” The hazard described included the consequences of fire with resulting inability to restore the improvements damaged.\nPlaintiffs finally contend the contract should be rescinded for mutual mistake. They argue that the defendant Norman E. Dietz was “generally familiar with the contents of the King County Building Code” and “experienced in all phases of remodeling and reconstruction, and had, on occasion, been involved in obtaining building permits for the construction of homes.” They then claim that Dietz should have known of the zoning law requirement preventing the restoration of the improvements in the event of destruction, and that he should have informed Goldfarb and Schwartz of that requirement. For support of their position, plaintiffs particularly rely upon Sorrell v. Young, 6 Wn. App. 220, 491 P.2d 1312 (1971), published subsequent to the filing of appellants’ brief.\nUnder certain circumstances, even as between a vendor and vendee dealing at arm’s length, the vendor may come under a duty to disclose a material fact likely to affect the judgment of a prospective vendee as to whether or not the latter should purchase the property. See Obde v. Schle-meyer, 56 Wn.2d 449, 353 P.2d 672 (1960) (termite infestation), noted in 36 Wash. L. Bev. 202 (1961); Ikeda v. Curtis, 43 Wn.2d 449, 261 P.2d 684 (1953) (prostitution as source of earnings). The duty to disclose a material fact is, however, to be distinguished from a duty to disclose a rule of law such as a zoning law or building code. It may be that a vendee should not be charged with knowledge of a fact not apparent. A rule of law, however, is something else again. See Flemetis v. McArthur, 119 Utah 268, 226 P.2d 124, 126 (1951). Furthermore, knowledge of a rule of lav/ such as a zoning law or building code is within the power of a vendee to obtain before he makes a proposed purchase of real estate. It is conceivable that a vendor has a duty to disclose to a prospective vendee a rule of law known to him if there exists a fiduciary relationship between them. We need not determine that matter, however, because in the instant case there is no claim or finding that there existed between the vendor and vendee anything other than an arm’s length relationship.\nIn any event, even in cases involving the duty to disclose a material fact, certain requirements must be met. Thus, in Sorrell v. Young, supra, relied on by plaintiffs and involving a duty to disclose that the land proposed to be sold was filled land, the court said:\nWe conceive the essential “elements” in proof of constructive fraud by nondisclosure of the existence of a land fill to be: (1) a vendor, knowing that the land has been filled, fails to disclose that fact to a purchaser of the property, and (2) the purchaser is unaware of the existence of the fill because either he has had no opportunity to inspect the property, or the existence of the fill was not apparent or readily ascertainable, and (3) the value of the property is materially affected by the existence of the fill.\n6 Wn. App. at 225. These rules are supported by the rationale of prior Washington cases, including Obde v. Schlemeyer, supra, Ikeda v. Curtis, supra, and Perkins v. Marsh, 179 Wash. 362, 37 P.2d 689 (1934).\nIn the instant case, there is neither an express nor necessarily implied finding that the vendors knew of the zoning law provision that prevented restoration of improvements, occupying a “legal nonconforming status” following their destruction by fire. Nor is there an express or implied finding that, aside from the failure to take out a permit, the improvements were known by defendants Dietz to be in violation of the King County building code in the respects, later discovered by the plaintiffs through an inspection by the King County building department. More important, there is no express or implied finding that the building violations or the potential application of the zoning law following the fire were matters of which the vendees were unaware because they had “no opportunity to inspect the property,” or were matters “not apparent or readily ascertainable.”\nHere both Goldfarb and Schwartz made a physical inspection of the property and discovered it was “an older complex.” Unlike the facts in Sorrell v. Young, supra, the purchasers knew from paragraph (3) of the proposed real estate contract that they were being asked to purchase the property on what was in effect an “as is” basis. Proposed paragraph (3) served the purpose of a warning, and put them on notice that it was up to the vendees to satisfy themselves as to whether the improvements conformed to proper building standards and requirements so as to fulfill their purpose to obtain an income-producing investment. In the presence of such a warning the matter should have been pursued. There was nothing to prevent Messrs. Gold-farb, an experienced businessman and apartment house investor, and his employee Schwartz, acting prudently, from inquiring of the defendant whether he knew of any possible building violations or knew of the present or future zoning law status of the property. Similarly, there was nothing to prevent the vendees from making inquiry of the King County building department concerning both building and zoning matters as they affected or might affect the property. There is no claim that either course was not practicable. There is also no claim that the defendants affirmatively misrepresented the building code or zoning law status of the property, or even made a misleading statement concerning these matters. These matters were not discussed. Accordingly, whether or not under other circumstances there is a duty to disclose either a material fact or a rule of law, in the instant case the duty did not arise if only because the vendees actually inspected the property, were put on notice that they were acquiring the improvements on an “as is” basis, and the undisclosed matters of which they complained were “readily ascertainable.”\nThe judgment is affirmed.\nWilliams and Callow, JJ., concur."", ""type"": ""majority"", ""author"": ""Horowitz, J.""}], ""attorneys"": [""Stern, Gay ton, Neubauer & Brucker and Michel P. Stern, for appellants."", ""W. L. Delbridge, for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 1250-1.\nDivision One — Panel 2.\nMarch 5, 1973.]\nMichael J. Goldfarb et al., Appellants, v. Norman E. Dietz et al., Respondents.\nStern, Gay ton, Neubauer & Brucker and Michel P. Stern, for appellants.\nW. L. Delbridge, for respondents.""}, ""cites_to"": [{""cite"": ""37 P.2d 689"", ""year"": 1934, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""179 Wash. 362"", ""year"": 1934, ""case_ids"": [877793], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/179/0362-01""], ""opinion_index"": 0}, {""cite"": ""119 Utah 268"", ""year"": 1951, ""weight"": 2, ""case_ids"": [8870185], ""category"": ""reporters:state"", ""reporter"": ""Utah"", ""pin_cites"": [{""page"": ""126""}], ""case_paths"": [""/utah/119/0268-01""], ""opinion_index"": 0}, {""cite"": ""261 P.2d 684"", ""year"": 1953, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""pin_cites"": [{""parenthetical"": ""prostitution as source of earnings""}], ""opinion_index"": 0}, {""cite"": ""43 Wn.2d 449"", ""year"": 1953, ""case_ids"": [5007809], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""parenthetical"": ""prostitution as source of earnings""}], ""case_paths"": [""/wash-2d/43/0449-01""], ""opinion_index"": 0}, {""cite"": ""353 P.2d 672"", ""year"": 1960, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""pin_cites"": [{""parenthetical"": ""termite infestation""}], ""opinion_index"": 0}, {""cite"": ""56 Wn.2d 449"", ""year"": 1960, ""case_ids"": [1020659], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""parenthetical"": ""termite infestation""}], ""case_paths"": [""/wash-2d/56/0449-01""], ""opinion_index"": 0}, {""cite"": ""491 P.2d 1312"", ""year"": 1971, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""6 Wn. App. 220"", ""year"": 1971, ""weight"": 2, ""case_ids"": [1864359], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""225""}], ""case_paths"": [""/wash-app/6/0220-01""], ""opinion_index"": 0}, {""cite"": ""497 P.2d 1348"", ""year"": 1972, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""7 Wn. App. 90"", ""year"": 1972, ""case_ids"": [1851309], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""95""}], ""case_paths"": [""/wash-app/7/0090-01""], ""opinion_index"": 0}, {""cite"": ""467 P.2d 178"", ""year"": 1970, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""2 Wn. App. 144"", ""year"": 1970, ""case_ids"": [1847507], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""152""}], ""case_paths"": [""/wash-app/2/0144-01""], ""opinion_index"": 0}, {""cite"": ""323 P.2d 241"", ""year"": 1958, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""52 Wn.2d 33"", ""year"": 1958, ""case_ids"": [1008372], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""37""}], ""case_paths"": [""/wash-2d/52/0033-01""], ""opinion_index"": 0}, {""cite"": ""233 P. 29"", ""year"": 1925, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""132 Wash. 649"", ""year"": 1925, ""case_ids"": [772281], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/132/0649-01""], ""opinion_index"": 0}, {""cite"": ""128 N.E. 209"", ""year"": 1920, ""category"": ""reporters:state_regional"", ""reporter"": ""N.E."", ""opinion_index"": 0}, {""cite"": ""229 N.Y. 313"", ""year"": 1920, ""case_ids"": [90845], ""category"": ""reporters:state"", ""reporter"": ""N.Y."", ""case_paths"": [""/ny/229/0313-01""], ""opinion_index"": 0}, {""cite"": ""240 N.W. 193"", ""year"": 1932, ""category"": ""reporters:state_regional"", ""reporter"": ""N.W."", ""opinion_index"": 0}, {""cite"": ""206 Wis. 547"", ""year"": 1932, ""case_ids"": [8694543], ""category"": ""reporters:state"", ""reporter"": ""Wis."", ""case_paths"": [""/wis/206/0547-01""], ""opinion_index"": 0}, {""cite"": ""188 Ore. 69"", ""year"": 1950, ""weight"": 2, ""case_ids"": [2072440], ""category"": ""reporters:state"", ""reporter"": ""Or."", ""case_paths"": [""/or/188/0069-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""8 Wash. App. 464"", ""type"": ""official""}], ""file_name"": ""0464-01"", ""last_page"": ""471"", ""first_page"": ""464"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T19:54:38.951698+00:00"", ""decision_date"": ""1973-03-05"", ""docket_number"": ""No. 1250-1"", ""last_page_order"": 491, ""first_page_order"": 484, ""name_abbreviation"": ""Goldfarb v. 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+48040,"{""id"": 48040, ""name"": ""Paul F. Regan vs. Gertrude Nelson, trustee"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""2c40f926290361c441d5edd214683a0594e87d9e2d942174b24bca189c001d8f"", ""simhash"": ""1:b2a0e737efe323d2"", ""pagerank"": {""raw"": 0.00000013822332174924663, ""percentile"": 0.6407632259641393}, ""char_count"": 7183, ""word_count"": 1272, ""cardinality"": 450, ""ocr_confidence"": 0.525}, ""casebody"": {""judges"": [], ""parties"": [""Paul F. Regan vs. Gertrude Nelson, trustee.""], ""opinions"": [{""text"": ""Spiegel, J.\nThis is an action of tort to recover damages for personal injuries sustained by the plaintiff in a fall upon property owned by the defendant. At the close of the evidence, the trial judge allowed the defendant’s motion for a directed verdict, subject to the plaintiff’s exception.\nWe state the evidence most favorable to the plaintiff. The defendant owns commercial property in Brighton which she rents to Kennedy & Co. a retailer of butter and eggs, who had been a tenant there prior to the defendant’s acquisition of the property in 1951. The defendant owns an open lot to the rear of the building from which access could be gained to an adjoining street, and “over which, area deliveries and collection[s] could be made to the rear of Kennedy’s and which lot was used to make deliveries to Kennedy’s by the plaintiff.” This lot contained a “dry well” for drainage and two “area ways.” An “area way” is a “hole in the ground near a cellar window to allow light, air and deliveries to the cellar.” The “area way” in question was the one closer to the rear door of Kennedy’s. It was located a foot out from the rear wall of the premises and two to three feet to the right of Kennedy’s rear door as one faced the rear of the building. The hole was covered by “matched boards one inch thick and approximately 2 feet wide and 4 feet long,” and “covered by dirt and appeared to be part of the ground. ’ ’\nOn March 19,1959, the plaintiff, a truck driver, was making a delivery of goods to Kennedy’s. In the course of unloading the goods the plaintiff “stepped from the rear step of his truck down a distance of 3 feet onto the ‘area way’ cover” which “gave way beneath the plaintiff and he fell 3 or 4 feet into the . . . hole,” thereby suffering injury. An examination of the cover revealed that “the wooden underpinnings and supports were water soaked and rotted and were below the ground level. ’ ’ From time to time the “dry well” located in the area owned by the defendant to the rear of the “area ways” became “blocked up by debris and flooded this area with water and kept this area wet all the time and ... on a number of occasions the cellar of Kennedys became flooded because of this condition.” The defendant’s employees, either on request by the health department or as a result of complaint by the tenants in the area, would clean out the debris and unblock the dry well to permit drainage. There was testimony that under these circumstances a wooden cover below ground level would rot and that all other “area ways” in this group of buildings were bordered by masonry and covered by iron rods.\nThe defendant had four employees whose duties were to “make repairs” on the defendant’s various properties and who ‘ ‘ at one time made repairs to the Kennedy front and to Kennedy’s rear door.” The defendant’s carpenter foreman learned of the accident from the defendant’s renting agent on the following day and he “went to the premises to see the condition and to see what materials he would need to make repairs, however, the ‘area way’ cover had already been replaced. ’ ’\nThe defendant contends that the directed verdict should be upheld because the plaintiff “failed to show that there has been a change in the condition of the property and particularly the ‘area way’ where he was injured between the date of the new letting between Kennedy & Co. and the defendant and the date of the plaintiff’s injury.” It is true that with respect to common areas used by tenants over which the landlord retains control, the landlord owes to his tenants “the duty to use reasonable care to keep the common areas in as good a condition as that in which they were or appeared to be at the time of the creation of the tenancy.” Crea v. Stunzenas, 344 Mass. 265, 267. However, this rule has been restricted to “common” ways or passageways such as stairs. Its inapplicability to cases of another nature has been pointed out quite often. Yorra v. Lynch, 226 Mass; 153, 155. Gilroy v. Badger, 301 Mass. 494, 496-497. Globe Leather & Shoe Findings, Inc. v. Golburgh, 339 Mass. 380, 382. In the instant case it does not appear that the tenant, Kennedy & Co., used the “area way” in question in ‘ ‘ common’ ’ with even one other tenant. See Flanagan v. Welch, 220 Mass. 186, 191-192. The defendant’s brief itself points out that the “plaintiff has not shown that the ‘area way’ where the plaintiff injured himself was a common way or area. ” It is precisely this fact which renders inoperable the rule of law for which the defendant argues.\nWhere no “common passageway” is involved, the rule is that a person in control of a building, or of a part thereof, is required to exercise reasonable care to keep it in such condition that others will not be injured in their persons or property. Grasselli Dyestuff Corp. v. John Campbell & Co. 259 Mass. 103, 108. Gilroy v. Badger, 301 Mass. 494, 496. “This duty of due care extends as much to an occupant of another part of the same building, whether the negligent person be landlord or tenant, as it does to an adjoining proprietor or to a traveller on the highway.” Gilroy v. Badger, supra, 496. Compare Chalfen v. Kraft, 324 Mass. 1, 4; Ross v. Broitman, 338 Mass. 770, 772-773. If this duty extends to a traveler on the highway, then it must extend also to a business invitee of the owner’s tenant, a status conceded to the plaintiff in the defendant’s brief.\nWe believe a jury could have found that the “area way” wherein the plaintiff hurt himself was not a 1 ‘ common passageway,” that the defendant owner retained control over the exterior of the building and surrounding areas, and that the defendant or her employees failed to exercise due care in the maintenance of such areas. It was error, therefore, to direct a verdict for the defendant.\nExceptions sustained."", ""type"": ""majority"", ""author"": ""Spiegel, J.""}], ""attorneys"": [""Charles J. Elmore for the plaintiff."", ""Robert E. MeCourt for the defendant.""], ""corrections"": """", ""head_matter"": ""Paul F. Regan vs. Gertrude Nelson, trustee.\nMiddlesex.\nJanuary 11, 1963. —\nApril 2, 1963.\nPresent: Wilkins, C.J., Spalding, Whittemore, Spiegel, & Reardon, JJ.\nNegligence, One owning or controlling real estate, “Area way.” Landlord and Tenant, Portion of premises in control of landlord, “Area way,” Landlord’s liability to tenant or one having his rights.\nAn “area way,” covered by boards and dirt, located in an open lot close to the rear wall of a commercial building let to a tenant by the owner of the premises and two or three feet to the side of the rear door of the building, might be found to be in the control of the owner and not used in common, and, on evidence that the cover of the “area way” became soaked and rotten through water on the lot due to failure of a drainage facility to function and that a truckman delivering goods to the building as an invitee of the tenant was injured when he stepped on the cover of the “area way” and it gave way under him, a finding that the owner was negligent toward and liable to the truckman was warranted, even if the condition of the “area way” had not changed between the time of the letting to the tenant and the time of the accident.\nTort. Writ in the Superior Court dated December 7, 1959.\nThe action was tried before Tomasello, J.\nCharles J. Elmore for the plaintiff.\nRobert E. MeCourt for the defendant.""}, ""cites_to"": [{""cite"": ""338 Mass. 770"", ""case_ids"": [515495], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""772-773""}], ""case_paths"": [""/mass/338/0770-01""], ""opinion_index"": 0}, {""cite"": ""324 Mass. 1"", ""case_ids"": [510379], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""4""}], ""case_paths"": [""/mass/324/0001-01""], ""opinion_index"": 0}, {""cite"": ""259 Mass. 103"", ""case_ids"": [854735], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""108""}], ""case_paths"": [""/mass/259/0103-01""], ""opinion_index"": 0}, {""cite"": ""220 Mass. 186"", ""case_ids"": [3463069], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""191-192""}], ""case_paths"": [""/mass/220/0186-01""], ""opinion_index"": 0}, {""cite"": ""339 Mass. 380"", ""case_ids"": [3850380], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""382""}], ""case_paths"": [""/mass/339/0380-01""], ""opinion_index"": 0}, {""cite"": ""301 Mass. 494"", ""weight"": 3, ""case_ids"": [866444], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""496-497""}, {""page"": ""496""}, {""page"": ""496""}], ""case_paths"": [""/mass/301/0494-01""], ""opinion_index"": 0}, {""cite"": ""344 Mass. 265"", ""case_ids"": [520681], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""267""}], ""case_paths"": [""/mass/344/0265-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""345 Mass. 678"", ""type"": ""official""}], ""file_name"": ""0678-01"", ""last_page"": ""681"", ""first_page"": ""678"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T16:43:45.473724+00:00"", ""decision_date"": ""1963-04-02"", ""docket_number"": """", ""last_page_order"": 723, ""first_page_order"": 720, ""name_abbreviation"": ""Regan v. 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+483045,"{""id"": 483045, ""name"": ""Westland Housing Corporation vs. Raymond F. Scott; Same vs. Same"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""d4997886453d4aa074adbccdf73bce5d77ee92c352e5f3092ba23c0084206273"", ""simhash"": ""1:2466ab88c8403b4c"", ""pagerank"": {""raw"": 0.0000006993971264665114, ""percentile"": 0.9657225189576689}, ""char_count"": 20416, ""word_count"": 3560, ""cardinality"": 813, ""ocr_confidence"": 0.596}, ""casebody"": {""judges"": [], ""parties"": [""Westland Housing Corporation vs. Raymond F. Scott. Same vs. Same.""], ""opinions"": [{""text"": ""Dolan, J.\nThese are two actions of contract brought to recover rent alleged to be due the plaintiff, hereinafter referred to as the landlord, from the defendant, hereinafter described as the tenant, under the terms of a written lease of an apartment in premises owned by the former. The actions were first tried in the District Court together with an action of tort brought by the tenant to recover damages alleged to have been caused by his eviction from the apartment by the landlord. The judge found for the landlord in all of the cases, ruling, contrary to the requests of the tenant, that the tenant’s action was barred by the terms of the lease, and that under its terms he was barred from setting up eviction as a defence to the landlord’s actions for rent. The three cases were reported to the Appellate Division in a consolidated report. The landlord moved in the Appellate Division that the report be dismissed for failure of the tenant to file copies of the report within the time fixed by Rule 31 of the District Courts (1932). The copies had been actually filed after the time fixed in Rule 31. The motion was denied and the landlord appealed.\nThereafter the Appellate Division ordered the report remanded for “amplification, correction or other amendment,” and the judge filed a supplemental report in the following terms: “I did not pass upon the question of eviction as fact. I intended to dispose of the cases by ruling that as matter of law the lease between the parties was in itself a bar to a recovery in the tort action for wrongful eviction and for the same reason wrongful eviction was not a defense in the contract actions.” The cases again came before the Appellate Division. In the tenant’s case an order was entered dismissing the report and that case went to judgment. In the cases of the landlord now before us the Appellate Division entered an order deciding that there was prejudicial error in the ruling of the trial judge, to which we have already referred, and ordering that the findings for the landlord be vacated and that the cases- stand for new trial. They were subsequently tried together anew and were reported to the Appellate Division.\nMaterial facts disclosed by the report follow: On September 10, 1936, the parties entered into a written lease of an apartment in Ware Hall, Cambridge. Pertinent provisions of the lease are these: “witnesseth, that the Lessor leases to the lessee the apartment numbered 105 in the building numbered 383 Harvard Street, Cambridge .... yielding and paying therefor rent at the rate of $52.50 . . . per month the first payment of $52.50 to be made on the first day of October 1936 and a like sum on the first day of every month thereafter in advance. . . . No alleged failure to make any repairs or to keep the premises in any condition, shall constitute a defense to any action brought by the lessor on the contract contained in this lease. . . . And the lessee covenants and agrees that there shall be no acceptance by the lessor of a surrender of these premises, nor any cancellation of this lease so as to discharge the lessee’s liability for rent hereunder save only by the making of a written agreement to accept such surrender or cancellation signed by the lessor; but in no case shall any imputed oral agreement release the lessee from his liability.”\nThe tenant occupied the premises until February 16, 1937, on which day he vacated the premises due to the alleged constructive eviction. The tenant paid the rent in full up to February, 1937. He paid only $22.50 in February and nothing in March and April. The present actions were brought to recover the rents due for those months.\nThe apartment in question was located on the first floor above the boiler room of the apartment house. At the time the tenant moved into the apartment the premises were heated with soft coal. Shortly thereafter the landlord installed an oil burner to be used to heat the building with oil instead of coal. The oil burner was installed to improve the heating conditions and the type of burner used was one of the best on the market. The burner was operated for the first time in the first week of December, and smoke, soot, and oil came into the tenant’s apartment through openings around the pipes, in the baseboards, and the floor of the tenant’s apartment and caused damage to the tenant’s furniture and clothing. This was due to a defect in the “boiler,” which the landlord endeavored to remedy without success, and smoke and soot continued to come into the apartment until the tenant vacated it on February 16.\nOn January 5 the tenant called in a doctor to attend him and his wife. The doctor testified that he treated both the tenant and his wife for headaches, dizziness and sore throat, that he attributed their condition to the soot, smoke and fumes, and that he advised the tenant, whom he visited five or six times, to vacate the premises, otherwise his health would be seriously impaired. Promises were made by the landlord to remedy the situation and some attempt was made to carry them out but without success up to the time the tenant left the premises.\nThe judge found for the tenant in each case, granting two of the landlord’s twenty-eight requests for rulings and denying the remainder to the effect, so far as here pertinent, that the terms of the lease barred the tenant’s defence of eviction; that the prior action by the tenant for damages adjudicated that there was no eviction; and that the evidence would not warrant a finding that the tenant had been evicted from the premises or that he vacated the premises within a reasonable time.\nOn January 6, 1941, the Appellate Division ordered that the finding for the tenant be vacated and judgment entered for the landlord in each case in a fixed amount. On January 13 the tenant filed a motion for rehearing, and on January 21 the Appellate Division ordered the clerk of the District Court to make the following entry in each case: “Opinion recalled for corrections.” On March 4, 1941, the motion for rehearing was allowed and an order entered directing the clerk of the District Court to make the following entry in each case: “The case to stand for further hearing.” On October 1, 1941, an order was entered dismissing the report in each case, and the landlord appealed.\nWith respect to the landlord’s appeal from the order of the Appellate Division denying its motion that the first report be dismissed for failure of the tenant, who claimed that report, to file additional copies of the report within fifteen days after its allowance, as required by Rule 31 of the District Courts (1932), it appears that at the time the motion was presented the additional copies had in fact been filed, but after the expiration of the time fixed by Rule 31. Rule 31 of the District Courts (1932) so far as pertinent provides as follows: “After notice of the allowance or establishment of a report, fifteen days shall be allowed the parties for filing briefs with the clerk of the Court whose ruling is in issue, unless upon good cause shown further time is allowed by the Appellate Division. The party seeking the report shall also file within said fifteen days three additional copies of the report as allowed or established. There shall be filed with said clerk four copies of each brief, together with one additional copy for each adverse party.” There was no error in the denial of the motion. See Boston Morris Plan Co. v. Barrett, 272 Mass. 487, 489, 490, and cases cited.\nWe now approach the consideration of the questions presented for determination in connection with the appeal from the order of the Appellate Division dismissing the report after the second trial of the actions brought by the landlord.\n1. We consider first the denial by the judge of the requested ruling of the landlord that the terms of the lease barred the defence of eviction. As to this subject matter the landlord contends that an interpretation of the provisions of the lease, hereinbefore set forth, that the liability for rent shall be conditioned on the premises being fit for occupancy is not permissible. We do not take that view. The terms of the lease to the effect that the landlord is under no obligation to repair the premises did not give it the right to evict the tenant actually or constructively and still to require payment of the rent which would otherwise become due. Nor does the provision that there shall be no cancellation of the obligation to pay rent without a written agreement confer any such right upon the landlord. Eviction as a defence to an action for rent is based upon the principle that the consideration for the rent, that is, the use and enjoyment of the premises demised, has failed, and that therefore the landlord cannot recover rent because he has failed to perform his part of the agreement. Royce v. Guggenheim, 106 Mass. 201, 202. Smith v. McEnany, 170 Mass. 26, 27. Moore v. Mansfield, 182 Mass. 302, and cases cited. The tenant is excused from the obligations of his covenants in the future if the landlord evicts him. 3 Williston, Contracts (Rev. ed.) § 891-, and cases1 cited. There was no error in the denial by the judge of the requested ruling just considered.\n2. There was no error in the denial by the judge of the landlord’s request for a ruling that the defence of eviction was barred because it had been adjudicated in the action by the tenant against the landlord, which went to judgment in favor of the latter, that there had been no eviction. But when that and the present cases were tried together in the first instance by the judge, no question of the fact of eviction was determined, as is evidenced by the supplemental report of the judge, in which he stated specifically that he “did not pass upon the question of eviction as fact,” but that he “intended to dispose of the cases by ruling as matter of law the lease between the parties was in itself a bar to a recovery in the tort action for wrongful eviction and for the same reason wrongful eviction was not a defense in the contract actions.” It was because of this ruling that the finding of the judge for the landlord in each of its actions was vacated and a new trial ordered. Manifestly the question whether the tenant had been wrongfully evicted was open in the second trial of those cases under the tenant’s answers pleading eviction as a defence.\n3. There was no error in the denial by the judge of requested rulings to the effect that the evidence did not warrant a finding that the tenant had been evicted by the landlord. In this connection the landlord has argued that the evidence does not disclose any act done by it with the intention and effect of depriving the tenant of the use and enjoyment of the property and that therefore a constructive eviction of the tenant could not be found properly.\nA constructive eviction has been defined in our decisions relative to that subject matter as “some act of a permanent character, done by the landlord with the intention and effect of depriving the tenant of the enj oyment of the demised premises or some part of it, to which he yields, abandoning the possession within a reasonable time.” Bartlett v. Farrington, 120 Mass. 284. Tracy v. Long, 295 Mass. 201, 203, and cases cited. Stone v. Sullivan, 300 Mass. 450, 455. The intent required is not an actual intent, but “may be inferred from the character of . . . [the landlord’s] acts if their natural and probable consequence is such as to deprive the tenant of the use and enjoyment of the premises let.” Tracy v. Long, 295 Mass. 201, 205. In applying this definition with reference to the intent of the landlord “the law assumes that he intends the natural and probable consequences of his acts. Skally v. Shute, 132 Mass. 367.” Shindler v. Milden, 282 Mass. 32, 33.\nIn the instant cases the landlord installed the oil burner and substituted oil for coal to improve the heating conditions in the premises. There is nothing to warrant a finding that it installed the oil burner with any intent to create the conditions which caused the tenant to leave the premises. But the acts of the landlord went beyond the mere installation of the oil burner. The conditions that manifested themselves at once were not corrected by the landlord during the substantial period of time during which, the judge could and did find, they continued unabated. There was evidence that after the tenant had vacated the apartment, an investigator of an insurance company went into the apartment and saw some evidence of smoke and soot on the baseboards, flares of oil and soot on them and on the wallpaper, and that he went into the boiler room and there saw dense clouds of smoke and openings in the floor in the tenant’s apartment where the floor joined the baseboards. This evidence was received subject to the landlord’s exceptions which may here be disposed of by saying that it was within the judge’s discretion to admit it. Beacon Trust Co. v. Wright, 288 Mass. 1, 5, 6, and cases cited.\nThe defence of eviction, actual or constructive, is based upon a failure of consideration, or a breach, whether of commission or omission, of a covenant of the lease so material as to excuse the tenant from performing. McCall v. New York Life Ins. Co. 201 Mass. 223. Boston Veterinary Hospital v. Kiley, 219 Mass. 533. Rome v. Johnson, 274 Mass. 444. It is a defence sounding in contract since the landlord impliedly warrants the quiet enjoyment of the demised premises, Ellis v. Welch, 6 Mass. 246, 250; Duncklee v. Webber, 151 Mass. 408; Brown v. Holyoke Water Power Co. 152 Mass. 463; Case v. Minot, 158 Mass. 577, 585; 3 Williston, Contracts (Rev. ed.) § 891, and it is generally held that “. . .if the landlord’s acts necessarily deprive the tenant permanently or for a substantial time of the enjoyment of the property it can hardly be material with what intention the landlord acts.” 3 Williston, Contracts (Rev. ed.) § 891, at page 2527, and cases cited. While this precise language has not been used in our previous decisions relating to the same subject matter, we think that the same principle is to be found in substance in Skally v. Shute, 132 Mass. 367, in which it was said, in effect, that the question of actual intent arises only when the acts are such as do not of themselves afford a presumption of intent; that generally the question, whether acts of the landlord in consequence of which the tenant abandons the premises amount to an eviction, is a question of law, and includes the question whether they constitute proof of intent; that a person is presumed to intend the natural and probable consequences of his acts; and that wrongful acts of the landlord upon the premises that render them permanently unsafe and unfit for occupancy, so that the tenant loses the enjoyment of them, carry with them the presumption of the intent to deprive the tenant of that enjoyment.\nIn all the circumstances we are of opinion that the landlord must be presumed to have intended the natural consequences of its own acts, subsequent to the installation of the oil burner, in failing to remedy the conditions which deprived the tenant of the use and enjoyment of the premises over a substantial period of time, and that the judge was warranted on the facts disclosed by the evidence in concluding that the tenant had been evicted by the landlord. Boston Veterinary Hospital v. Kiley, 219 Mass. 533. See Alger v. Kennedy, 49 Vt. 109, 118; McCurdy v. Wyckoff, 44 Vroom, 368; Dyett v. Pendleton, 8 Cowen (N. Y.) 727; Tebb v. Cave, [1900] 1 Ch. 642.\nThe landlord has argued that the tenant did not vacate the premises within a reasonable time. What is a reasonable time depends upon the circumstances of each case. Rome v. Johnson, 274 Mass. 444, 451. In the present case the tenant remained on the premises from the date of the installation of the oil burner, December 7, 1936, until February 16, 1937. The judge could find properly that he did so in reliance on the promises of the landlord to remedy the situation, and that he was justified in remaining in the apartment as long as he did in the expectation of relief. On all the evidence it could not have been ruled properly as matter of law that the tenant, acting reasonably, should have vacated the premises before he did.\nAt the outset of the trial the landlord called the tenant as a witness. In the examination of the tenant thereafter the latter’s counsel was permitted to ask him leading questions over the objections of the landlord. That was a matter within the discretion of the trial judge. In Guiffre v. Carapezza, 298 Mass. 458, 460, the court said: “We are aware of no decision in this Commonwealth in which exceptions have been sustained because of the allowance of leading questions.” See also Moody v. Rowell, 17 Pick. 490, 498; Francis v. Rosa, 151 Mass. 532, 534; Gray v. Kelley, 190 Mass. 184, 187.\nWhat we have said disposes of all the questions of law which have been argued by the landlord.\nIn each case the entry will be\nOrder dismissing report affirmed."", ""type"": ""majority"", ""author"": ""Dolan, J.""}], ""attorneys"": [""J. I. Moskow, for the plaintiff."", ""No brief nor argument for the defendant.""], ""corrections"": """", ""head_matter"": ""Westland Housing Corporation vs. Raymond F. Scott. Same vs. Same.\nMiddlesex.\nApril 7, 1942.\nNovember 13, 1942.\nPresent: Field, C.J., Donahue, Dolan, Cox, & Ronan, JJ.\nLandlord and Tenant, Eviction, Construction of lease. Practice, Civil, Appellate Division: filing of copies; Discretionary control of evidence. Res Judicata. Intent. Evidence, Presumptions and burden of proof, Relevancy. Witness, Cross-examination, Leading questions.\nNo error appeared in the denial by an Appellate Division of a motion that a report by a District Court judge be dismissed on the ground that the parties requesting the report had not filed additional copies of the report until after the expiration of the fifteen days fixed for such filing by Rule 31 of the Rules of the District Courts (1932).\nA defence of eviction through failure to correct a certain injurious condition of leased premises, set up by the lessee in an action for rent, was not barred by provisions of the lease that “no alleged failure to make any repairs or to keep the premises in any condition, shall constitute a defence to any action brought by the lessor on the contract contained in this lease,” and that there should not be “any cancellation of this lease so as to discharge the lessee’s Lability for rent hereunder save only by the making of a written agreement.”\nThe issue of fact, whether a lessee had been constructively evicted, raised by him in defence to an action by the lessor for rent, was not res judicata by reason of a judgment for the lessor in an action of tort against him by the lessee for wrongful eviction, where eviction was not passed on as a question of fact but the judgment was based solely on a ruling that as matter of law recovery was barred by the terms of the lease.\nFrom the fact that the landlord of an apartment building failed for over two months to remedy an injurious condition of smoke, soot, oil and fumes rising from a newly installed oil burner in the basement into a leased first floor apartment, causing the tenant thereof to vacate within a reasonable time, it must be presumed that the landlord intended deprivation of the tenant of his use and enjoyment of the apartment, which was the natural and probable consequence of such failure, and a finding of a constructive eviction was warranted.\nA tenant’s remaining in an apartment for over two months in reliance upon unfulfilled promises by the landlord to remedy conditions which deprived the tenant of the intended use and enjoyment of the premises did not preclude a finding of a constructive eviction on the ground that the tenant, acting reasonably, should have vacated earlier.\nIn an action for rent defended on the ground that the defendant had been constructively evicted by the plaintiff's failure to remedy an injurious condition of the premises, testimony by a witness that he had observed such condition after the tenant vacated the premises was admissible in the discretion of the trial judge.\nNo error was shown in allowing a party called as a witness by the opposing party to be asked leading questions by his own counsel.\nTwo actions of contract. Writs in the Third District Court of Eastern Middlesex dated March 4 and April 3, 1937.\nThe first hearing of the actions was by Green, J., and the second by Counihan, J.\nJ. I. Moskow, for the plaintiff.\nNo brief nor argument for the defendant.""}, ""cites_to"": [{""cite"": ""190 Mass. 184"", ""case_ids"": [837748], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""187""}], ""case_paths"": [""/mass/190/0184-01""], ""opinion_index"": 0}, {""cite"": ""151 Mass. 532"", ""case_ids"": [3507773], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""534""}], ""case_paths"": [""/mass/151/0532-01""], ""opinion_index"": 0}, {""cite"": ""17 Pick. 490"", ""case_ids"": [2023939], ""category"": ""reporters:state"", ""reporter"": ""Pick."", ""pin_cites"": [{""page"": ""498""}], ""case_paths"": [""/mass/34/0490-01""], ""opinion_index"": 0}, {""cite"": ""298 Mass. 458"", ""case_ids"": [887978], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""460""}], ""case_paths"": [""/mass/298/0458-01""], ""opinion_index"": 0}, {""cite"": ""44 Vroom, 368"", ""category"": ""reporters:state"", ""reporter"": ""Vroom"", ""opinion_index"": 0}, {""cite"": ""49 Vt. 109"", ""case_ids"": [4445147], ""category"": ""reporters:state"", ""reporter"": ""Vt."", ""pin_cites"": [{""page"": ""118""}], ""case_paths"": [""/vt/49/0109-01""], ""opinion_index"": 0}, {""cite"": ""158 Mass. 577"", ""case_ids"": [801971], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""585""}], ""case_paths"": [""/mass/158/0577-01""], ""opinion_index"": 0}, {""cite"": ""152 Mass. 463"", ""case_ids"": [814068], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/152/0463-01""], ""opinion_index"": 0}, {""cite"": ""151 Mass. 408"", ""case_ids"": [3506384], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/151/0408-01""], ""opinion_index"": 0}, {""cite"": ""6 Mass. 246"", ""case_ids"": [2000813], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""250""}], ""case_paths"": [""/mass/6/0201-01""], ""opinion_index"": 0}, {""cite"": ""274 Mass. 444"", ""weight"": 2, ""case_ids"": [3827609], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""451""}], ""case_paths"": [""/mass/274/0444-01""], ""opinion_index"": 0}, {""cite"": ""219 Mass. 533"", ""weight"": 2, ""case_ids"": [33559], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/219/0533-01""], ""opinion_index"": 0}, {""cite"": ""201 Mass. 223"", ""case_ids"": [3494218], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/201/0223-01""], ""opinion_index"": 0}, {""cite"": ""288 Mass. 1"", ""case_ids"": [485928], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""5, 6""}], ""case_paths"": [""/mass/288/0001-01""], ""opinion_index"": 0}, {""cite"": ""282 Mass. 32"", ""case_ids"": [3833123], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""33""}], ""case_paths"": [""/mass/282/0032-01""], ""opinion_index"": 0}, {""cite"": ""132 Mass. 367"", ""weight"": 2, ""case_ids"": [2131594], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/132/0367-01""], ""opinion_index"": 0}, {""cite"": ""300 Mass. 450"", ""case_ids"": [864389], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""455""}], ""case_paths"": [""/mass/300/0450-01""], ""opinion_index"": 0}, {""cite"": ""295 Mass. 201"", ""weight"": 2, ""case_ids"": [883760], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""203""}, {""page"": ""205""}], ""case_paths"": [""/mass/295/0201-01""], ""opinion_index"": 0}, {""cite"": ""120 Mass. 284"", ""case_ids"": [738964], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/120/0284-01""], ""opinion_index"": 0}, {""cite"": ""182 Mass. 302"", ""case_ids"": 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""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T16:22:32.788819+00:00"", ""decision_date"": ""1942-11-13"", ""docket_number"": """", ""last_page_order"": 422, ""first_page_order"": 413, ""name_abbreviation"": ""Westland Housing Corp. v. 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+484450,"{""id"": 484450, ""name"": ""Buckley & Scott Utilities, Inc. vs. Petroleum Heat and Power Company"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""d6a2bc1a2b655a1eab75c3cf0c81f5100614381dc1f73f80a3b84a069bf737d8"", ""simhash"": ""1:a5427cae8ede85d9"", ""pagerank"": {""raw"": 0.00000043000351277328766, ""percentile"": 0.9166891583254467}, ""char_count"": 29383, ""word_count"": 4944, ""cardinality"": 1181, ""ocr_confidence"": 0.602}, ""casebody"": {""judges"": [], ""parties"": [""Buckley & Scott Utilities, Inc. vs. Petroleum Heat and Power Company.""], ""opinions"": [{""text"": ""Qua, J.\nOn December 10, 1927, American Nokol Company entered into a contract with Buckley and Scott, Inc., by which the Nokol company granted to Buckley and Scott, Inc. the exclusive right until December 31, 1937, to sell the “NoKol” automatic oil burner in parts of Massachusetts, including Boston and its vicinity, and in parts of New Hampshire. In this litigation this contract has been known as the “Nokol franchise,” or the “franchise.” On March 22, 1929, Buckley and Scott, Inc., assigned its rights in the franchise to the plaintiff, and on April 22, 1929, the defendant, through a mesne conveyance, acquired the assets formerly of American Nokol Company and assumed the liabilities upon its outstanding contracts. The case seems to have been tried before the master, as it has been argued before us, on the theory that after April 22, 1929, the rather common contractual relationship of manufacturer and distributor existed directly between the defendant and the plaintiff, the terms of which were embodied in the franchise and were binding upon each. We shall deal with the case on that basis.\nThe bill alleges unfair competition and misappropriation by the defendant of the plaintiff's business, but inasmuch as the plaintiff's rights spring from the franchise, and as the plaintiff now seeks only to recover damages, the suit bears also some of the aspects of an action of contract for breach of the exclusive franchise. No objection has been made to jurisdiction in equity.\nDuring the times here material the defendant was the only manufacturer which sold oil burners nationally through dealer organizations and which also engaged in selling oil. There is an important relation between the sale of oil burners and the sale of the fuel oil burned in them. Prospective purchasers of burners require assurance of a supply of fuel oil. Where the same person handles both branches, sales of burners ordinarily result in contracts for the supply of the oil. The Nokol burners had come early upon the market and were readily salable. The defendant's purpose in acquiring the Nokol was “particularly because it expected and desired to obtain thereby the opportunity to sell fuel oil in connection with the sale and installation of such burners.” It expected that the plaintiff would be willing to sell oil for it on commission, and shortly after it acquired the- Nokol, for the sale of which the plaintiff then held the exclusive franchise in the Boston district, it proposed to the plaintiff that the plaintiff sell oil for the defendant on commission. The plaintiff declined to do this for the reason that it could sell oil for itself at a profit much greater than the commission offered by the defendant. The defendant continued to press the plaintiff to sell oil on commission and threatened no longer to recognize the plaintiff’s Nokol franchise unless it turned over its oil business to the defendant. The plaintiff complied with these demands from time to time as to parts of its oil business, and compromises were effected, but the controversy continued. • Finally on March 8, 1932, the defendant informed the plaintiff that it wanted the plaintiff’s oil business and was determined to get it and with that end in view made a proposal to the plaintiff which the plaintiff did not accept. The plaintiff’s representative said, “This looks to me like an ultimatum.” The defendant’s representative replied, “ Call it what you like.” Thereafter the defendant made plans for and opened a “factory branch” in Boston from which it actively competed with the plaintiff in the sale of burners and of oil. It then sold models of burners which it called “Petra” and in advertising, “Petro-Nokol,” but most of which the master found were essentially developments and improvements of the Nokol burner. The master found as a fact that the new models, except the “W-l,” were so similar to the Nokol burners after which they were patterned “as to constitute them Nokol burners within the meaning of the Nokol franchise.” This finding is consistent with the subsidiary findings and with the true construction of the franchise under which it could not have been intended that mere improvements and developments of the Nokol could be taken from the Nokol line and thrown into a competing line upon calling them by a different name. The defendant refused to sell these new burners to the plaintiff, but continued to furnish the plaintiff only the old models which it continued to call “Nokol” burners. It extensively advertised the so called “Petra” models and made many sales in the territory covered by the plaintiff’s Nokol franchise. As a result of the defendant’s opening its factory branch in the Boston territory in competition with the plaintiff and of the belief that the plaintiff’s business could not survive, if not in some instances also as the result of direct persuasion for which the defendant was responsible, the plaintiff’s wholesale and retail sales managers and salesmen representing “more than half of the [plaintiff’s] effective retail selling ability” left the plaintiff’s employ and entered that of the defendant. This had “a very damaging effect on the plaintiff’s retail selling organization.” By means of an “announcement” by the defendant, followed by vigorous and determined efforts on the part of the plaintiff’s former wholesale sales manager, after his employment by the defendant, the great majority of the plaintiff’s sub-dealers signed up as sub-dealers for the defendant for' the new models which the defendant was placing on the market in competition with the plaintiff. There were some price advantages in favor of the new models. The defendant carried on a successful campaign for the purpose of replacing at a special low price old Nokol model burners with one of the new models which the defendant was refusing to supply to the plaintiff. Still further reductions were given if the purchaser took an oil contract. After the defendant opened its factory branch it continued to use the name “Nokol” in connection with the name “Pet-ra” in order to avail itself of the good will of the Nokol name in competition with the plaintiff.\nThe master properly finds as a conclusion from his other findings that the defendant undertook to appropriate to itself the plaintiff’s business of selling burners under the Nokol franchise “and the incidental business in the sale of fuel oil which naturally and normally flowed from the sale of burners ”; that the several acts of the defendant herein-before narrated were means to that end; that the defendant did thereby appropriate to itself business in burners and oil which otherwise the plaintiff would have received; and that the plaintiff’s efficient sales organization was very nearly destroyed, its good will greatly impaired, and its rights under the Nokol franchise rendered practically valueless.\nThe defendant’s conduct was in violation of its obligations to the plaintiff under the Nokol franchise. The franchise and a “memorandum” which became part of it contained detailed provisions manifestly framed to secure the rights and to define the duties of both “Owner” and “Dealer” and to create a mutually profitable relationship between them. Neither party could lawfully do violence to the essential nature of this relationship. By an express provision of the franchise the “Owner” (defendant) became bound to “use due diligence to protect the territory covered by this appointment but cannot guarantee to prevent the shipment of Burners into the territory herein, defined by other parties than itself, and will not be responsible therefor.” It seems to us contrary to this provision for the defendant itself, before the termination of the franchise, to invade the plaintiff’s exclusive territory for the purpose of selling oil burners in direct competition with the burners which its predecessor had granted to the plaintiff an exclusive right to sell. A fortiori is this true where the major part of the burners so sold by the defendant were in fact merely improvements or developments of the Nolcol line, although the defendant chose to sell them under a different name. It does not appear that the plaintiff accepted the defendant’s nomenclature as modifying the plaintiff’s rights under the franchise. See Champion Spark Plug Co. v. Automobile Sundries Co. 273 Fed. 74, 81-82. Moreover, even in the absence of an express agreement, there would have been implied in the franchise an agreement on the part of the “Owner” not to engage in competition with the “Dealer” in the latter’s exclusive territory by means and in a manner that would practically destroy the right granted and that would also render it impossible for the “Dealer” to “promote” sales and to “operate his entire territory” as the terms of the franchise required it to do. Randall v. Peerless Motor Car Co. 212 Mass. 352, 378-379. Garfield v. Peerless Motor Car Co. 189 Mass. 395, 402-403. Old Corner Book Store v. Upham, 194 Mass. 101, 104-105. Martino v. Pontone, 270 Mass. 158. Manners v. Morosco, 252 U. S. 317, 326-327. Foster v. Callaghan & Co. 248 Fed. 944, 947. Uproar Co. v. National Broadcasting Co. 81 Fed. (2d) 373. Williston on Contracts (Rev. ed.) § 670, at page 1926; § 1293A. As to the binding force and effect of an exclusive manufacturer-distributor contract like that here involved see further Wiggin v. Consolidated Adjustable Shoe Co. 161 Mass. 597; Moon Motor Car Co. of New York v. Moon Motor Car Co. Inc. 29 Fed. (2d) 3; Jay Dreher Corp. v. Delco Appliance Corp. 93 Fed. (2d) 275. The defendant therefore became liable to the plaintiff for the damage it caused to the plaintiff’s business of selling “Nokol” burners.\nThe defendant also became liable to the plaintiff for the damage it caused to the plaintiff’s business of selling oil in so far as that damage resulted from wrongful interference with the plaintiff’s business of selling burners. The defendant argues that the franchise did not relate to oil and left the defendant free to establish a competing oil business; that incidental damage to the plaintiff’s oil business was not within the contemplation of the original parties to the franchise as a probable result of a breach of its terms; and that the plaintiff cannot recover for this damage on any theory of contract. John Hetherington & Sons, Ltd. v. William Firth Co. 210 Mass. 8, 21. Am. Law Inst. Restatement: Contracts, § 330. We are not yet prepared to concede that the plaintiff’s rights in this matter are limited to such as it could enforce in an action of contract. If the plaintiff had acquired its franchise to sell oil burners from a stranger instead of from the defendant’s predecessor, and if the defendant, for the purpose of getting for itself the plaintiff’s oil business, had intentionally persuaded that stranger to break its contract, the defendant would have committed a tort and would have been liable for all damage proximately resulting from its tortious act. Lumley v. Gye, 2 El. & Bl. 216. Beekman v. Marsters, 195 Mass. 205. Anderson v. Moskovitz, 260 Mass. 523, 526. Comerford v. Meier, 302 Mass. 398, 404. Sullivan v. Barrows, 303 Mass. 197, 203. Tompkins v. Sullivan, 309 Mass. 496. Am. Law Inst. Restatement: Torts, §§ 766, 767. Can the defendant’s liability be less extensive with respect to the oil business where the loss is caused, not by persuading a third party to break a contract, but by itself deliberately breaking its own contract with respect to, the burner business? Can the right of competition furnish justification for a loss intentionally inflicted outside the scope of the contract by the defendant’s determination to use a favorable situation in which it found itself by reason of the fact that it had a contract and that it possessed the physical power to break that contract for a predatory purpose? We do not answer these questions, since we think that in any event the inference should be drawn that it was within the contemplation of the original parties to the franchise that the distributor might develop an oil business dependent upon the continued existence of the burner franchise. The defendant’s predecessor knew or ought to have known of the interdependence between sales of burners and sales of oil and that the chief element of value in a burner franchise might well be, as apparently in this instance it turned out to be, the opportunity it afforded for the sale of oil. The plaintiff’s predecessor was engaged in selling oil on commission when it took the franchise, and the defendant acquired the Nokol business less than a year and a half later, primarily for the purpose of selling oil. The master speaks of the sale of oil as “naturally” and “normally” flowing from the sale of burners. See Dondis v. Borden, 230 Mass. 73, 79, 80; Greany v. McCormick, 273 Mass. 250, 253.\nThe defendant contends that the plaintiff does not come into court with clean hands because after its difficulties with the defendant arose it engaged in the work of installing the “Marr” burner, which the master found “could reasonably be considered competitive with the burners constituting the Nokol heating business,” and because of interests which the individuals who in reality owned the plaintiff acquired in the corporations which manufactured and distributed the Marr. The short answer to this contention, even if the plaintiff be held chargeable with the conduct of its officers and stockholders as individuals or in connection with other affiliated corporations, is that all that was done in connection with the Marr burner was done after the defendant had given the plaintiff the “ultimatum” of March 8, 1932, and had threatened to open its own factory branch in Boston. The preparations of the defendant to open its factory branch in wrongful competition with the plaintiff and the efforts of those affiliated with the plaintiff to secure the right to sell the Marr burner went on simultaneously, and on the findings of the master the latter would not have been undertaken if it had not been for the former. Sales of Marr burners did not begin until after the defendant had disrupted the plaintiff’s organization as already related, and installations of those burners by the plaintiff did not begin until after the defendant’s factory branch was in full operation selling burners in competition with the plaintiff. The plaintiff’s connection with the Marr burner was therefore defensive in character. It was excused by the defendant’s previous breach of an “essential part of . . . [its] contract.” Randall v. Peerless Motor Car Co. 212 Mass. 352, 378. It lacked the element of indifference to legal or moral obligation which would render it contrary to public policy to grant the plaintiff relief. Moore Drop Forging Co. v. McCarthy, 243 Mass. 554, 564. Barbrick v. Huddell, 245 Mass. 428, 437. New England Wood Heel Co. v. Nolan, 268 Mass. 191, 197. New York, New Haven & Hartford Railroad v. Pierce Coach Lines, Inc. 281 Mass. 479, 482. Samuel Hertzig Corp. v. Gibbs, 295 Mass. 229, 231.\nNo error appears in the master’s finding that but for the defendant’s acts the plaintiff would have sold at retail at least seven hundred ninety-four burners and boiler units for at least as much money as the defendant received for the same number sold by it. We do not know what the evidence was. The master finds that the plaintiff, with the sales organization, good will, and selling momentum which it possessed prior to the opening of the defendant’s factory branch, was capable of distributing burners in the Boston territory much more effectively and at much less expense than that at which they could be distributed by the defendant. The finding as to the number the plaintiff could have sold does not appear to have been based entirely upon the number the defendant actually sold, but, under the circumstances found, that number may well have been taken into account in determining the loss of sales by the plaintiff. Williston on Contracts (Rev. ed.) § 1406.\nWe think, however, that in making up the final decree the plaintiff’s profits, amounting to $14,158.80, on oil contracts derived by it from the sale of the Marr burners should have been deducted from the $75,000 loss otherwise found to have been sustained by the plaintiff. It is expressly found that but for the acts of the defendant the plaintiff would never have engaged in installing the Marr burners, and there are other findings to the effect that the plaintiff’s activity in installing and servicing Marr burners “represented no more than an effort on the part of the plaintiff to make full use of its service department at a time when its burner-selling department had been rendered unprofitable and unpromising as a result of acts of the defendant.” From these findings it would seem that the plaintiff’s profit on oil contracts in connection with Marr burners had resulted from the release of the energies of the plaintiff’s organization brought about by the defendant’s conduct and could not otherwise have been realized. At least it does not appear that this is not true. See F. E. Atteaux & Co. Inc. v. Mechling Brothers Manuf. Co. 245 Mass. 483, 499; Vitagraph, Inc. v. Park Theatre Co. of Boston, 249 Mass. 25, 34. The case therefore does not fall within the rule of Olds v. Mapes-Reeve Construction Co. 177 Mass. 41, and similar cases. The final decree should be modified in this respect and the necessary readjustments should be made in the interest.\nThere was no error in the denial of the defendant’s motion to recommit. The only matters argued by the defendant in connection with this motion are the questions arising out of paragraphs in each of which recommittal is requested in order that the master may append brief, accurate and fair summaries of evidence. The only source of any right of a litigant in the Superior Court to a report by a master of summaries of evidence is found in the second paragraph of Rule 90 of the Superior Court (1932). The provisions of that paragraph relate to questions of law arising at the hearing before the master and determined by him in the course of his duty of hearing the case as master. Such questions are proper subjects of objections and exceptions to his report, and the purpose of the rule is to secure the laying of a proper foundation in the report for such objections and exceptions. Typical of such questions are those arising upon rulings upon evidence made by the master during the hearings or other ruhngs relating to the conduct of the hearing. Included also are questions whether the evidence was sufficient to support a finding made by the master, although-as to questions of this kind the right to a summary is, by the terms of the rule, conditioned upon the selection or approval of a stenographer by the master before any evidence is introduced (a condition that does not appear to have been met in this case) and upon the furnishing to the master of the required transcript of the evidence. The rule requires the master to report only summaries of evidence under the conditions set forth. It is not a means by which a party can compel a master to report additional subsidiary facts. That matter commonly lies in the discretion of the court that appointed the master. Pearson v. Mulloney, 289 Mass. 508, 513. MacLeod v. Davis, 290 Mass. 335, 338. Nor does the rule enable a party to raise before the master questions of law decisive of the merits of the case that ought to be raised in court at the hearing on the merits and then to ask the master for summaries of the evidence relating to such matters in the hope thereby to bring before the court all the evidence in the case or all the evidence relating to selected issues. We have carefully examined every contention made by the defendant on its motion to recommit. Each falls outside of the rule for one or more of the reasons just pointed out.\nThe defendant’s exception to the master’s report founded on its objection to the exclusion of a letter from “counsel” to the two individuals who controlled the corporation that owned all the stock of the plaintiff cannot be sustained. Whether these persons disregarded the advice of their counsel is of no importance. No other exception has been argued.\nWe think there was no error in the manner in which the interest was calculated in making up the final decree. It seems plain that the master did not include any interest on the round sum of $75,000 which he found represented the plaintiff's damages before deducting the sum of $14,158.80 for profit realized by the plaintiff on the oil business which it acquired from the sale of Marr burners. It was therefore within the power of the judge to add interest from the filing of the bill. Young v. Winkley, 191 Mass. 570, 575. Royal Paper Box Co. v. Munro & Church Co. 284 Mass. 446, 452. Interest is commonly allowed from the date of the writ in actions of contract on unliquidated claims. Graustein v. H. P. Hood & Sons, Inc. 293 Mass. 207, 222. Fuller v. Lovell, 304 Mass. 542, 548-549. And interest may be allowed in actions of tort in order that full compensation may be awarded. Young v. New York, New Haven & Hartford Railroad, 273 Mass. 567, 571, 572. Royal Paper Box Co. v. Munro & Church Co. 284 Mass. 446, 452. It was proper to’ allow interest in this suit. We are also of opinion that the added item of interest was rightly compounded, together with the sum found by the master, as of the date of the filing of the master’s report. It is provided by G. L. (Ter. Ed.) c. 235, § 8, among other things, that when judgment is made up upon the report of a master interest shall be computed upon the “amount of the award . . . from the time when made to the time of making up the judgment,” thus compounding any interest included in the master’s report as of the date of the filing of the report. The statute announces a general principle applicable also to judgments made up upon an award of county commissioners, a committee or referees, the report of an auditor, the verdict of a jury, or the finding of a judge. See Hawkes v. Lackey, 207 Mass. 424, 434. In a case like the present one the decree rests 'upon the findings of the master and in substance is “made up upon” the “award,” even though the judge did add an item of interest which the master had not included. We think the statute must be held to apply to the item so added. It would be inconvenient and inconsistent if, every time the amount reported by a master, perhaps in a long account, were increased by adding or increasing some item by inference from the findings or by way of correction or of supplying an omission, interest had to be compounded under the statute as of the filing of the report on such items as remained unchanged, but had to be calculated to the date of decree without a rest on such items as had been added or on the amount of the increase in such items as had been increased. This precise question was not passed upon in Young v. Winkley, 191 Mass. 570, 575, 576, since in that case the appealing defendant could not be injured by any failure to compound the item of interest, and so far as we know the question has never before been decided.\nThe result is that the interlocutory decrees appealed from are affirmed, and that the final decree, modified as hereinbefore set forth and by bringing the interest down to date, is affirmed with costs.\nOrdered accordingly.\nThe following appeared in the master’s report: “The defendant offered a letter from counsel to . . . [such individuals, written in 1932]. It was excluded. The defendant offered to show ‘that advice of counsel . . . was taken by . . . [them] with regard to relations between what they proposed to do . . . [respecting the Marr burner] with the existing Nokol franchise; that they were told in substance that what they were going to do was or might be found to be in violation of the Nokol franchise, and that before undertaking that matter they should terminate the Nokol franchise in Boston; that without conferring with counsel after receiving that letter they disregarded his advice and went ahead and nominally hung on to the Nokol franchise until February, 1934.’ This evidence was excluded and the defendant's objection noted.” The defendant argued in its brief that this evidence should have been admitted on the question, whether the plaintiff came into court with clean hands. — Reforteb."", ""type"": ""majority"", ""author"": ""Qua, J.""}], ""attorneys"": [""B. G. Dodge, (T. Chase with him,) for the defendant."", ""C. B. Cross, (C. P. Bartlett with him,) for the plaintiff.""], ""corrections"": """", ""head_matter"": ""Buckley & Scott Utilities, Inc. vs. Petroleum Heat and Power Company.\nSuffolk.\nNovember 5, 1942. —\nApril 1, 1943.\nPresent: Field, C.J., Donahue, Qua, Cox, & Honan, JJ.\nContract, Performance and breach, Dealer’s contract. Proximate Cause. Damages, For breach of contract. Equity Jurisdiction, Plaintiff’s clean hands. Equity Pleading and Practice, Master: report of evidence. Evidence, Relevancy and materiality. Interest.\nA manufacturer violated an exclusive franchise, granted to a dealer to sell oil burners in a certain territory, and rendered himself liable to the dealer for resulting damage to the dealer’s business, by advertising and selling in that territory and in active competition with the dealer and with intent to appropriate his business, oil burners which were merely developments and improvements of and closely similar to those covered by the franchise although they were sold under a somewhat different name, and by incidentally disrupting the dealer’s sales organization.\nConduct of a manufacturer of oil burners, which, in breach of an exclusive franchise granted to a dealer to sell the burners, deprived the dealer of sales of burners, properly was found to have 'been a proximate cause of the dealer’s also losing incidental business in the sale of fuel oil although the franchise did not expressly relate to oil, where it appeared that the selling of oil “naturally and normally flowed from” the sale of the burners and an inference was justified that the parties to the franchise contemplated that the dealer might develop an oil business dependent upon the continued existence of the franchise; the dealer’s damages for breach of the franchise properly included compensation for loss of such oil business.\nA dealer complaining of wrongful competition by a manufacturer in breach of an exclusive selling franchise given the dealer by the manufacturer did not come into court with unclean hands by reason of his having engaged in selling and installing another article competitive with that covered by the franchise after the manufacturer’s wrongful competition had begun and solely on account of it.\nIn computing a dealer’s damages against a manufacturer for loss of business through wrongful competition of the manufacturer in breach of an exclusive selling franchise granted by him to the dealer, there should be deducted, in the circumstances, profits derived by the dealer from dealings in another article undertaken solely because of the manufacturer’s conduct and thereby made practicable for the dealer’s organization.\nThe provisions of Rule 90 of the Superior Court (1932) as to a master’s reporting summaries of evidence do not furnish a means for a party’s compelling the master to report additional subsidiary facts, or for a party’s bringing before the court all the evidence in the case or the evidence on selected issues by raising before the master questions of law decisive of the merits which ought to be raised in court and asking him for a summary of the evidence pertaining thereto.\nIn a suit by a corporation for damages for breach by the defendant of an exclusive selling franchise granted to the plaintiff, evidence, that individuals who indirectly controlled the plaintiff were advised by their counsel that certain proposed action by them might itself be in violation of the franchise and that they disregarded counsel’s advice and “went ahead,” was irrelevant and properly excluded on the issue, whether the plaintiff came into court with clean hands.\nIn a suit in equity seeking damages for injury to the plaintiff’s business resulting from a breach by the defendant of an exclusive selling franchise granted by him to the plaintiff, where a master’s report contained an assessment of the plaintiff's damages but did not include interest thereon, it was proper for the judge to add interest on the amount of damages found by the master from the date of the filing of the bill to the date of the filing of his report, and under G. L. (Ter. Ed.) c. 235, § 8, the final decree should include interest to the date of its entry from the date of the filing of the master’s report on the total of the damages found by the master and of such interest added by the judge.\nBill in equity, filed in the Superior Court on March 23, 1938.\nAfter the filing of a master’s report, a motion to recommit was denied by Beaudreau, J. By order of Swift, J., there were entered an interlocutory decree confirming the report, and a final decree directing the defendant to pay the plaintiff “the sum of $75,000, with interest on that sum from the date of the filing of the bill to the date of the filing of the master’s report in the amount of $12,937.50, and with interest on $87,937.50 from the date of the filing of the master’s report to the entry of the final decree, together with costs . . . The defendant appealed from all three decrees.\nB. G. Dodge, (T. Chase with him,) for the defendant.\nC. B. Cross, (C. P. Bartlett with him,) for the plaintiff.""}, ""cites_to"": [{""cite"": ""207 Mass. 424"", ""case_ids"": [3476630], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""434""}], ""case_paths"": [""/mass/207/0424-01""], ""opinion_index"": 0}, {""cite"": ""273 Mass. 567"", ""case_ids"": [3826479], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""571, 572""}], ""case_paths"": [""/mass/273/0567-01""], ""opinion_index"": 0}, {""cite"": ""304 Mass. 542"", ""case_ids"": [873525], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""548-549""}], ""case_paths"": [""/mass/304/0542-01""], ""opinion_index"": 0}, {""cite"": ""293 Mass. 207"", ""case_ids"": [479937], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""222""}], ""case_paths"": [""/mass/293/0207-01""], ""opinion_index"": 0}, {""cite"": ""284 Mass. 446"", ""weight"": 2, ""case_ids"": [3834809], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""452""}, {""page"": ""452""}], ""case_paths"": [""/mass/284/0446-01""], ""opinion_index"": 0}, {""cite"": ""191 Mass. 570"", ""weight"": 2, ""case_ids"": [459419], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""575""}, {""page"": ""575, 576""}], ""case_paths"": [""/mass/191/0570-01""], ""opinion_index"": 0}, {""cite"": ""290 Mass. 335"", ""case_ids"": [494098], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""338""}], ""case_paths"": [""/mass/290/0335-01""], ""opinion_index"": 0}, {""cite"": ""289 Mass. 508"", ""case_ids"": [492807], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""513""}], ""case_paths"": [""/mass/289/0508-01""], ""opinion_index"": 0}, {""cite"": ""177 Mass. 41"", ""case_ids"": [26068], ""category"": ""reporters:state"", ""reporter"": ""Mass."", 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+488082,"{""id"": 488082, ""name"": ""Nelson A. Foot & another vs. Mordecai Bauman"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""66dbb924286c11e2379c48a37371961d858aef2d4f8ead5c8eb05c6b66ad2fe0"", ""simhash"": ""1:b1daeeac0717aee0"", ""pagerank"": {""raw"": 0.0000006153474712664519, ""percentile"": 0.956345910514474}, ""char_count"": 11985, ""word_count"": 2116, ""cardinality"": 685, ""ocr_confidence"": 0.618}, ""casebody"": {""judges"": [], ""parties"": [""Nelson A. Foot & another vs. Mordecai Bauman.""], ""opinions"": [{""text"": ""Qua, C.J.\nThis suit is between owners of neighboring properties located upon a hillside in Stockbridge. We are concerned with three parcels of land designated for the purposes of this case as “A,” “B,” and “C.” Parcel “A,” owned by the defendant, is the highest of the three. Parcel “B,” owned by the plaintiffs, is on the opposite side of “Old Meeting House Road” and is substantially lower than “A,” and parcel “C,” also owned by the plaintiffs, is still lower and slopes down to Church Street which skirts the lower part of the hill. The house on parcel “A” is a large residence capable of accommodating some thirty-five persons using bathroom and toilet facilities. On parcel “B” there was also until 1951 a large residence of twenty rooms, with six baths and ten toilets. This house was burned in 1951. The purpose of the suit is to restrain the defendant from causing sewage to flow through a private drain from his house on parcel “A” across parcels “B” and “C” to the town sewer in Church Street.\nAfter confirming the master’s report, the judge entered a final decree dismissing the bill. The plaintiffs appeal from the final decree.\nThe town sewer in Church Street was constructed in 1897. Shortly thereafter and before 1901 Anna Blakeman, who then owned all three parcels, constructed the private sewer in question from her house on parcel “A,” across “Old Meeting House Road” and across parcels “B” and “C” to Church Street. Whether the house on parcel “B” had then been built does not appear, but the sewer was provided with a manhole so placed on parcel “B” that the house on that parcel could be and at some time was connected to the manhole, as was also a garage on parcel “B.” A second manhole was located near the lower boundary of parcel “B” and a third on parcel “C” near Church Street. Use of the sewer by parcel “B” as well as by parcel “A” may well have been contemplated from the beginning, since only a four inch pipe was used to the first manhole and a six inch pipe was used below that. At any rate, the entire private sewer and all the manholes were on land of Anna Blakeman when constructed.\nThe defendant claims an easement to use the sewer across land of the plaintiffs derived by implied reservation or implied grant when, as he contends, on two occasions conveyances were made of the separate parcels by a common owner. These claims present questions of some difficulty and we do not consider them, since we believe that on the detailed findings of the master the defendant’s further claim of an easement by prescription must be sustained in spite of the conclusion by the master to the contrary.\nThe master makes all findings necessary to the acquisition of an easement by prescription in favor of parcel “A” over parcels \""B” and \""C,” except that he finds that the use was not open for as long as twenty years. On this question of openness his pertinent findings, in addition to facts already mentioned, are in substance these: In 1912 one Davis became the owner of parcel \""A,” the dominant tenement, and used the sewer until his death in 1944. Parcels “B” and \""C,” the servient tenements, were occupied by one de Gersdorff from 1914 until 1944, a period of about thirty years. He became the owner in 1930. The master finds that there was \""no evidence as to the nature of de Gersdorff’s occupancy” between 1920 and 1930, and he does not find what the nature of that occupation was prior to 1920. However, it is hardly to be assumed that de Gersdorff’s occupancy during any of this time was wrongful. It was apparent that the house on parcel \""A” was a large one and would require substantial sewage disposal. The character of the soil and sharpness of the slope rendered a septic tank impracticable. The natural location for a sewer would seem to us to have been down the hill to the town sewer in Church Street. The covers of the three manholes on parcels \""B” and “C” were visible on the land. If the presence and location of the manholes did not disclose that parcel \""A” drained through them, nevertheless that fact could have been discovered, as it was later (in 1949) by the present plaintiff Nelson A. Foot, by lifting the cover of the first manhole. But if these considerations were not sufficient to render the use \""open, ” there was more. One Krebs was \""caretaker” for Davis from 1919 until the death of Davis in 1944. Davis had instructed him to have the sewer cleaned out whenever it became plugged, and he \""customarily went onto Parcels B or C to service the sewer line during the occupancy of de Gersdorff” which continued until 1944. One Fisher, an employee of de Gersdorff, and Krebs “sporadically serviced the sewers, opening the manholes on the catch basins to see if everything was all right.” There were stoppages on two occasions, one in 1922 and one in 1940, and on each occasion Krebs and an employee of de Gersdorff attended to the difficulty. There “was always complete cooperation between Krebs and the de Gersdorff caretakers on the question of servicing the sewers.” The use of the sewer “was known to de Gersdorff, who occupied the premises during the period 1914 to 1944, since his employees during this time patrolled the sewer line in company with Krebs, the Davis employee, and there was an apparent agreement between Davis and de Gersdorff that in the event of a stoppage the party responsible therefor (either Davis or de Gersdorff, if this could be determined) would pay the cost of cleaning out the catch basin. ”\nThe master says that “In order for the use to be open it must be either (a) known to the owner of the servient tenement, or (b) so conspicuous that it could be observed by the public in general.” He therefore concludes that since de Gersdorff did not.become the owner of the servient tenements until 1930 and died in 1944, shortly after which the plaintiffs became owners and had no knowledge until 1949, there could be no easement by prescription. In our opinion neither “(a)” nor “(b)” states a correct test of “openness.” Expressions can be found in some of the cases seeming to require actual knowledge by the owner. See, for example, Sargent v. Ballard, 9 Pick. 251, 255; Powell v. Bagg, 8 Gray, 441, 443; Smith v. Miller, 11 Gray, 145, 148-149; Edson v. Munsell, 10 Allen, 557, 567. These expressions seem to have originated in a passage in Bracton in which he refers to a servient owner “qui scivit et non prohibuit,” but they ought not to be taken literally as requiring actual knowledge. So to take them would deprive the principle of prescription of much of its value in quieting controversy and giving sanction to long continued usages. Later cases take the position that the use may be so apparent that the owner may be presumed to have known of it without proof of actual knowledge. Deerfield v. Connecticut River Railroad, 144 Mass. 325, 338. In such cases he is said to be “chargeable with knowledge.” Gray v. Cambridge, 189 Mass. 405, 418. In this last case it was said that the owner of the servient tenement cannot avoid the effect of twenty years’ adverse user by showing that he was out of the country and so did not know. Other cases are Attorney General v. Ellis, 198 Mass. 91, 98, Bigelow Carpet Co. v. Wiggin, 209 Mass. 542, 549, Gadreault v. Hillman, 317 Mass. 656, 662, and Aksomitas v. South End Realty Co. 136 Conn. 277, 283. The case of Oldfield v. Smith, 304 Mass. 590, 593, is distinguishable on its facts.\nThe requirement frequently stated that in order to create a prescriptive right the use must be “open and notorious” is intended only to secure to the owner a fair chance of protecting himself. In American Law of Property, § 8.56, the rule is set forth in this manner, “To be open the use must be made without attempted concealment. To be notorious it must be known to some who might reasonably be expected to communicate their knowledge to the owner if he maintained a reasonable degree of supervision over his premises. It is not necessary that the use be actually known to the owner for it to meet the test of being notorious.” We think this is the true rule. It is supported by Restatement: Property, § 458, comment i, and by Tiffany on Real Property (3d ed.) § 1197.\nWe are of opinion that upon all the findings of the master, especially taking into account the constant assertion by Davis of his rights and the full knowledge and cooperation by the agents of de Gersdorff for the entire period of about thirty years during the occupancy by the latter both before and after he became the title owner, an inference should be drawn that the use of the sewer was sufficiently open and notorious to create an easement in favor of parcel “A” over parcels “B” and “C.”\nIt is immaterial that the defendant did not appeal from the interlocutory decree confirming the master’s report. That decree simply established the facts as found by the master as the facts in the case. It still remained the duty of the trial judge, and it is the duty of this court on appeal from the final decree to see that the final decree is such as the law requires upon the facts found by the master and proper inferences therefrom. French v. Peters, 177 Mass. 568, 571-572. Lyons v. Elston, 211 Mass. 478, 482, and cases cited. Fay v. Corbett, 233 Mass. 403, 409-410. Watertown v. Dana, 255 Mass. 67, 72. Zevitas v. Adams, 276 Mass. 307, 317. Kasper v. H. P. Hood & Sons, Inc. 291 Mass. 24. Logically it would seem that the errors of the master did not affect the final decree, since it was the duty of the judge, as it is our duty, to disregard those errors and to see that the final decree was correct on the facts found, as we think it was. But even if those errors can somehow be said to have affected the final decree, they are subject to correction now under G. L. (Ter. Ed.) c. 214, § 27. Arey v. George Associates, Inc. 299 Mass. 130, 132. Crystal Concrete Corp. v. Braintree, 309 Mass. 463, 469.\nInasmuch as the defendant has prevailed upon the merits of the case, there is no occasion to consider his appeal from the overruling of his demurrer. In fact he has not argued the point.\nInterlocutory decree overruling demurrer affirmed.\nFinal decree affirmed with costs of appeal.\nThis passage is quoted extensively in the case last above cited."", ""type"": ""majority"", ""author"": ""Qua, C.J.""}], ""attorneys"": [""Lincoln S. Cain, (.Rudolph A. Lewis with him,) for the plaintiffs."", ""L. George Beder, (,Sidney I. Katz with him,) for the defendant.""], ""corrections"": """", ""head_matter"": ""Nelson A. Foot & another vs. Mordecai Bauman.\nBerkshire.\nSeptember 20, 1955.\nNovember 8, 1955.\nPresent: Qua, C.J., Ronan, Spalding, Williams, & Counihan, JJ.\nAdverse Possession and Prescription. Easement. Brain. Equity Pleading and Practice, Master: conclusion from findings; Decree.\nIt is not necessary to the establishment of an easement by prescription to prove that the owner of the alleged servient tenement had actual knowledge of the use made thereof if it was unconcealed and such that he would be reasonably expected to learn of it. [217-218]\nFindings by a master respecting a private sewer running from a large house on a steep hill down the hill across other property to a municipal sewer and having several manholes with visible covers located on the lower property, and “servicing” of the private sewer for many years by employees connected with both properties in cooperation, required the inference that the use of the private sewer was sufficiently open and notorious to create an easement by prescription for such use over the lower property in favor of the upper property. [218]\nFailure of a party in a suit in equity to appeal from an interlocutory decree confirming a master’s report containing an erroneous inference from subsidiary findings did not affect the duty of the trial court and this court to enter a final decree in favor of that party where that was the proper decree required by the subsidiary findings of the master and a correct inference therefrom. [219]\nBill in equity, filed in the Superior Court on May 8, 1952.\nThe suit was heard by Paquet, J., on a master’s report.\nLincoln S. Cain, (.Rudolph A. Lewis with him,) for the plaintiffs.\nL. George Beder, (,Sidney I. 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+488233,"{""id"": 488233, ""name"": ""Theodore Couris vs. Casco Amusement Corporation"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""3c651e1b2585f8896bfc6e96d0b557971cb178d7947e7ed5032dd9551c1821f5"", ""simhash"": ""1:40f276eead90934b"", ""pagerank"": {""raw"": 0.0000005723652026670707, ""percentile"": 0.9500268162352322}, ""char_count"": 4443, ""word_count"": 743, ""cardinality"": 351, ""ocr_confidence"": 0.602}, ""casebody"": {""judges"": [], ""parties"": [""Theodore Couris vs. Casco Amusement Corporation.""], ""opinions"": [{""text"": ""Williams, J.\nThis is an action to recover damages for personal injuries received on November 25,1951, in Peabody when a seat in a theatre maintained and operated by the defendant collapsed. There was evidence that while the plaintiff, who was a ticket holder, was “watching the show,” the seat in which he was sitting “suddenly collapsed,” and he fell to the floor. A bolt which had come out of the seat was later found. The seat was one of the five hundred or six hundred wooden seats which were provided for patrons. “[XTjhildren would come into the theatre building sometimes to play and break the seats.” On this evidence, which was all that was offered by the plaintiff on liability, the defendant rested. Its motion for a directed verdict was denied subject to its exception. A verdict for the plaintiff was returned and recorded under leave reserved to enter a verdict for the defendant. Thereafter the defendant filed a “motion for judgment in accordance with leave reserved” which the judge allowed. The plaintiff then excepted.\nThe defendant owed to the plaintiff, a business visitor, the duty to exercise reasonable care in maintaining the seat which he was expected to occupy in a reasonably safe condition. Hale v. McLaughlin, 274 Mass. 308. Keenan v. E. M. Loew’s, Inc. 302 Mass. 309, 311. As the plaintiff offered no evidence as to the cause of the seat’s collapse, the question for decision is whether under the doctrine of res ipsa loquitur evidence of the collapse was in the circumstances sufficient to warrant a finding of the defendant’s negligence. This doctrine is a rule of evidence which applies where the direct cause of the accident and so much of the circumstances as were essential to its occurrence were within the sole control of the defendant (Wilson v. Colonial Air Transport, Inc. 278 Mass. 420, 425) and permits the fact finding tribunal to infer from the occurrence itself that in the light of ordinary experience the accident would not have happened unless the defendant had been negligent. Graham v. Nadger, 164 Mass. 42, 47. Beattie v. Boston Elevated Railway, 201 Mass. 3, 6. Roscigno v. Colonial Beacon Oil Co. 294 Mass. 234, 235.\nThe principle has been applied in cases involving the unexplained derailment of a railway car (Gilchrist v. Boston Elevated Railway, 272 Mass. 346, 351, and cases cited), the extraordinary lurch of a public conveyance (Convery v. Eastern Massachusetts Street Railway, 252 Mass. 418, 421, and cases cited), and the fall of an object from the defendant’s premises (Melvin v. Pennsylvania Steel Co. 180 Mass. 196; McNicholas v. New England Telephone & Telegraph Co. 196 Mass. 138). See cases cited in Knych v. Trustees of New York, New Haven & Hartford Railroad, 320 Mass. 339, 342-343.\nThe jury would be warranted in finding that the unexplained collapse of the seat in question while being used in a normal manner was due either to defective construction or to lack of repair, and that its unsafe condition was more likely attributable to negligence on the part of the defendant than to some other cause. Brennan v. Ocean View Amusement Co. 289 Mass. 587, 592-593. Beaulieu v. Lincoln Rides, Inc. 328 Mass. 427. See Knych v. Trustees of New York, New Haven & Hartford Railroad, 320 Mass. 339, 343. The case is distinguishable from Briggs v. New Bedford Amusement Co. Inc. 315 Mass. 84, on which the defendant relies, where the nature of the defect indicated a reasonable probability that it was of recent origin. We need not discuss the allowance of the defendant’s motion for judgment except to point out that the practice was irregular. Cunningham v. Boston & Maine Railroad, 309 Mass. 215, 216. The plaintiff’s exception is sustained. The order allowing the defendant’s motion for judgment is set aside, and the verdict of the jury is to stand.\nSo ordered."", ""type"": ""majority"", ""author"": ""Williams, J.""}], ""attorneys"": [""James A. Liacos, for the plaintiff, submitted a brief."", ""Frank M. Lewis, for the defendant.""], ""corrections"": """", ""head_matter"": ""Theodore Couris vs. Casco Amusement Corporation.\nEssex.\nJanuary 6, 1956.\nMarch 28, 1956.\nPresent: Qua, C.J., Honan, Spalding, Williams, & Counihan, JJ.\nNegligence, Theatre, Res ipsa loquitur.\nEvidence merely that a seat in a theatre in which a patron was sitting suddenly collapsed and he fell to the floor warranted a finding of negligence of the proprietor of the theatre toward him under the doctrine of res ipsa loquitur.\nTort. Writ in the Superior Court dated August 10, 1953.\nThe action, was tried before Morton, J.\nJames A. Liacos, for the plaintiff, submitted a brief.\nFrank M. Lewis, for the defendant.""}, ""cites_to"": [{""cite"": ""309 Mass. 215"", ""case_ids"": [891728], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""216""}], ""case_paths"": [""/mass/309/0215-01""], ""opinion_index"": 0}, {""cite"": ""315 Mass. 84"", ""case_ids"": [904064], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/315/0084-01""], ""opinion_index"": 0}, {""cite"": ""328 Mass. 427"", ""case_ids"": [514010], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/328/0427-01""], ""opinion_index"": 0}, {""cite"": ""289 Mass. 587"", ""case_ids"": [492819], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""592-593""}], ""case_paths"": [""/mass/289/0587-01""], ""opinion_index"": 0}, {""cite"": ""320 Mass. 339"", ""weight"": 2, ""case_ids"": [498259], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""342-343""}, {""page"": ""343""}], ""case_paths"": [""/mass/320/0339-01""], ""opinion_index"": 0}, {""cite"": ""196 Mass. 138"", ""case_ids"": [56028], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/196/0138-01""], ""opinion_index"": 0}, {""cite"": ""180 Mass. 196"", ""case_ids"": [32265], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/180/0196-01""], ""opinion_index"": 0}, {""cite"": ""252 Mass. 418"", ""case_ids"": [746208], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""421""}], ""case_paths"": [""/mass/252/0418-01""], ""opinion_index"": 0}, {""cite"": ""272 Mass. 346"", ""case_ids"": [3826287], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""351""}], ""case_paths"": [""/mass/272/0346-01""], ""opinion_index"": 0}, {""cite"": ""294 Mass. 234"", ""case_ids"": [481438], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""235""}], ""case_paths"": [""/mass/294/0234-01""], ""opinion_index"": 0}, {""cite"": ""201 Mass. 3"", ""case_ids"": [3491737], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""6""}], ""case_paths"": [""/mass/201/0003-01""], ""opinion_index"": 0}, {""cite"": ""164 Mass. 42"", ""case_ids"": [789104], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""47""}], ""case_paths"": [""/mass/164/0042-01""], ""opinion_index"": 0}, {""cite"": ""278 Mass. 420"", ""case_ids"": [859545], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""425""}], ""case_paths"": [""/mass/278/0420-01""], ""opinion_index"": 0}, {""cite"": ""302 Mass. 309"", ""case_ids"": [867890], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""311""}], ""case_paths"": [""/mass/302/0309-01""], ""opinion_index"": 0}, {""cite"": ""274 Mass. 308"", ""case_ids"": [3828818], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/274/0308-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""333 Mass. 740"", ""type"": ""official""}], ""file_name"": ""0740-01"", ""last_page"": ""742"", ""first_page"": ""740"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T16:35:32.376089+00:00"", ""decision_date"": ""1956-03-28"", ""docket_number"": """", ""last_page_order"": 778, ""first_page_order"": 776, ""name_abbreviation"": ""Couris v. Casco Amusement 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+490706,"{""id"": 490706, ""name"": ""Fibre Leather Mfg. Corp. vs. Ramsay Mills, Inc."", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""15e1bc2f120b1cddb6066964013b50086bddd8fb9a5b2a0854bde6c354ad955c"", ""simhash"": ""1:9ea645d91d1eaf4c"", ""pagerank"": {""raw"": 0.0000005961043247832727, ""percentile"": 0.9536878404879976}, ""char_count"": 6509, ""word_count"": 1129, ""cardinality"": 426, ""ocr_confidence"": 0.599}, ""casebody"": {""judges"": [], ""parties"": [""Fibre Leather Mfg. Corp. vs. Ramsay Mills, Inc.""], ""opinions"": [{""text"": ""Spalding, J.\nThis is an action of tort in two counts for property damage caused by the escape of water from a water tank on the defendant’s premises. The first count is based on absolute liability; the second on negligence. The judge found for the defendant. A report to the Appellate Division was dismissed, and the plaintiff appealed. At the trial each party presented requests for rulings and the questions for decision arise from the action of the judge in dealing with them.\nThe judge made findings of fact which included the following: The defendant, as lessee, occupied and had exclusive control of the second floor of a building owned by the plaintiff. The first floor was occupied by the plaintiff. Sometime in the summer of 1950 the defendant installed a second hand water tank on its premises which was used as a part of a \""humidity system.” The tank was two feet square and seven feet high, and held from three hundred fifty to four hundred gallons of water. Three of the four vertical edges of the tank were seamless, and the fourth was welded. It was connected with the water system from which water ran continually until the tank was filled. In order to reduce the temperature of the water the defendant put cakes of ice in the tank through an opening in the top. About four weeks after the installation of the tank the welded seam opened at a point six feet from the top of the tank. From this opening, which was eleven to thirteen inches in length and one inch wide, escaping water leaked through the floor to the plaintiff’s premises and damaged thirty-two rolls of paper stored there. “[S]con after the break the defendant shut off the water running into the tank.” When the tank was installed \""no tests were put on it to determine the pressure it would stand and up to the time of the break, the defendant had no trouble with the tank nor had there been any leaking from it.” The cause of the break was unknown, and there was \""no evidence that the defendant knew of any defect in the equipment.” If there was a defect in the tank \""its nature and the time when it came into existence were matters of conjecture and . . . the most careful inspection on the part of the defendant” would not have discovered it.\nThe plaintiff presented two requests for rulings both of which were denied. The first request need not be discussed, for it concerns damages — an issue which, in view of our disposition of the case, is not material. The second request in effect asked the judge to apply the doctrine of Rylands v. Fletcher, L. R. 3 H. L. 330. But that principle has no application here, and the request was rightly denied. In Ainsworth v. Lakin, 180 Mass. 397, 400-401, it was said per Knowlton J., that the rule of Rylands v. Fletcher “applies to unusual and extraordinary uses [of land] which are so fraught with peril to others that the owner should not be permitted to adopt them for his own purposes without absolutely protecting his neighbors from injury or loss by reason of the use.” Where, however, the injury complained of is caused by a use that is “ordinary and usual and in a sense natural, as incident to the ownership of the land,” liability is imposed only for negligence. Ainsworth v. Lakin, supra, page 400. Kaufman v. Boston Dye House, Inc. 280 Mass. 161. Brian v. B. Sopkin & Sons, Inc. 314 Mass. 180, 182. The installation and use of the tank in the circumstances disclosed here were not extraordinary or unusual and involved no great threat of harm to others.\nThe defendant presented six requests, all of which were granted. Although variously worded the requests in substance called for rulings that the evidence would not warrant a finding for the plaintiff. We do not pause to discuss their correctness. Even though, as we do not decide, the judge erred in granting all or some of them, the error would not vitiate the decision, for they were rendered immaterial by the findings. Reading the findings as a whole, we are convinced that they amount to findings of fact that the defendant was not negligent and were intended to stand by themselves irrespective of the correctness of the rulings. Brodeur v. Seymour, 315 Mass. 527, 529-530. Connell v. Maynard, 322 Mass. 245. Horton v. Tilton, 325 Mass. 79.\nThe remaining contention that the facts found by the judge lead “unequivocally to negligence” is obviously untenable and requires no discussion.\nOrder dismissing report affirmed.\nThe requests were: “1. The evidence is insufficient, as a matter of law, to warrant the court in finding that the defendant was negligent. 2. The evidence is insufficient to warrant the court in finding that the doctrine of res ipso loquitur is applicable. 3. The evidence is insufficient to warrant the court in finding that the defendant knew, or in the exercise of reasonable care, ought to have known that the water tank was defective and the finding should be for the defendant. 4. The evidence is insufficient to warrant the court in finding that the defendant had reason to apprehend injury to the plaintiff until the water tank burst. 5. The evidence is insufficient to warrant the court in finding that the plaintiff is entitled to recover. 6. The evidence is sufficient to warrant the court in finding that the cause of the break in the defendant’s tank is a matter of surmise and conjecture and the plaintiff cannot recover.”"", ""type"": ""majority"", ""author"": ""Spalding, J.""}], ""attorneys"": [""Solomon Rosenberg & Jack M. Rosenberg, for the plaintiff."", ""Eugene C. McCabe, for the defendant.""], ""corrections"": """", ""head_matter"": ""Fibre Leather Mfg. Corp. vs. Ramsay Mills, Inc.\nBristol.\nOctober 29, 1952.\nDecember 30, 1952.\nPresent: Qua, C.J., Ronan, Wilkins, Spalding, & Williams, JJ.\nDangerous Use of Property. Water. Practice, Civil, Requests, rulings and instructions.\nThe mere maintenance by the occupant of an upper floor of. a building of a water tank with a capacity of several hundred gallons as part of a “humidity system” did not subject the occupant to absolute liability, irrespective of negligence on his part, for damage caused to goods of another on the floor below by water escaping from a break in the tank. [577]\nRulings made as requested by the defendant in an action in a District Court became immaterial in view of certain findings favorable to the defendant which from the record appeared to be findings of fact made on the evidence and intended to stand by themselves independently of such rulings. [577-578]\nTort. Writ in the Third District Court of Bristol dated March 7, 1951.\nThe action was heard by Taveira, J.\nIn this court the case was submitted on briefs.\nSolomon Rosenberg & Jack M. Rosenberg, for the plaintiff.\nEugene C. McCabe, for the defendant.""}, ""cites_to"": [{""cite"": ""325 Mass. 79"", ""case_ids"": [506359], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/325/0079-01""], ""opinion_index"": 0}, {""cite"": ""322 Mass. 245"", ""case_ids"": [502110], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/322/0245-01""], ""opinion_index"": 0}, {""cite"": ""315 Mass. 527"", ""case_ids"": [904105], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""529-530""}], ""case_paths"": [""/mass/315/0527-01""], ""opinion_index"": 0}, {""cite"": ""314 Mass. 180"", ""case_ids"": [932153], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""182""}], ""case_paths"": [""/mass/314/0180-01""], ""opinion_index"": 0}, {""cite"": ""280 Mass. 161"", ""case_ids"": [858411], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/280/0161-01""], ""opinion_index"": 0}, {""cite"": ""180 Mass. 397"", ""weight"": 2, ""case_ids"": [32068], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""400-401""}], ""case_paths"": [""/mass/180/0397-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""329 Mass. 575"", ""type"": ""official""}], ""file_name"": ""0575-01"", ""last_page"": ""578"", ""first_page"": ""575"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T16:32:57.776496+00:00"", ""decision_date"": ""1952-12-30"", ""docket_number"": """", ""last_page_order"": 620, ""first_page_order"": 617, ""name_abbreviation"": ""Fibre Leather Mfg. Corp. v. Ramsay Mills, 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+490939,"{""id"": 490939, ""name"": ""Winifred J. Willett vs. Andrew Pilotte (and a companion case)"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""29706b9acd9f00aeaa67dc9a4642598511af625fb5df87defad3dac9684cff59"", ""simhash"": ""1:3ce36df906161298"", ""pagerank"": {""raw"": 0.0000003116011872601903, ""percentile"": 0.8603125124283307}, ""char_count"": 10460, ""word_count"": 1845, ""cardinality"": 583, ""ocr_confidence"": 0.598}, ""casebody"": {""judges"": [], ""parties"": [""Winifred J. Willett vs. Andrew Pilotte (and a companion case).""], ""opinions"": [{""text"": ""Ronan, J.\nThe jury returned verdicts for the defendants in these actions, one against Pilotte and the other against Gendron, to recover damages for personal injuries caused by the plaintiff slipping upon ice while she was purchasing a Christmas tree from Gendron who was using for the sale of trees a location upon certain premises of a gasoline filling station in accordance with an arrangement which he had made with Pilotte, the lessee of the entire premises. The plaintiff excepted to portions of the instructions given to the jury.\nGendron was given oral permission about December 10, 1947, in consideration of $20 paid to Pilotte, to have the use of a space in the filling station premises for the sale of Christmas trees, with the understanding that so long as he did not interfere with the approaches to the gasoline and tire pumps he could take any part of the premises he desired. He took a space near the rest house where automobiles were parked, and at night when there wrere fewer automobiles parked there he could take more space. According to Gendron “he hired no fixed area” and “it was a sort of a loose arrangement whereby he would take whatever space seemed to be available.” Pilotte did not care what area Gendron took so long as he did not interfere with Pilotte’s business. He had no objection to Gendron’s customers walking up to the space where the trees were sold, and Gendron, his employees, and customers had the right to use the rest rooms. Pilotte understood that Gendron could have a two or three car space “not because of anything said or written,” and at times it might have been a four or two car space, “there was no hard and fast rule.” The whole area including the driveways into the station and around the pumps was under his supervision and control, and he had plows come in whenever there was snow or ice and had it cleared away.\nThe judge instructed the jury that the relation between Pilotte and Gendron was that of landlord and tenant, and upon that basis charged the jury as to the liability of each of the defendants. He refused to leave to the jury the issue whether the status of the defendants as to each other was that of licensor and licensee.\nThere was error.\nThe oral permission granted to Gendron to use some part of the premises for the purpose of selling trees did not give him any interest in the land. Nor did he acquire any exclusive possession of it. No definite area was designated for his use. Where he was to ply his trade depended upon what space might be available after the prior needs of Pilotte were satisfied. Gendron was to adapt himself as best he could to whatever location was left for a site for setting up and maintaining his Christmas tree stand during the two weeks he contemplated conducting the business. All he obtained from Pilotte was a privilege or a license to do so. Johnson v. Wilkinson, 139 Mass. 3. Shea v. Milford, 145 Mass. 525. DeMontague v. Bacharach, 181 Mass. 256. R. H. White Co. v. Jerome H. Remick & Co. 198 Mass. 41. Jones v. Donnelly, 221 Mass. 213. Grasselli Dyestuff Corp. v. John Campbell & Co. 259 Mass. 103. Gaertner v. Donnelly, 296 Mass. 260. Scioscia v. Iovieno, 318 Mass. 601. The interpretation of the oral contract which Pilotte and Gendron had made, when the terms have been found by the jury, presented a question of law. Roberts v. Lynn Ice Co. 187 Mass. 402, 408. The jury should have been instructed as to what it was necessary for the plaintiff to prove to constitute a licensor-licensee relation between the defendants and, if such was found, they should have been instructed as to the duties owed to the plaintiff.\nPilotte had for a consideration licensed Gendron to use a part of Pilotte’s premises to set up and sell Christmas trees together with the right to use the approaches upon the premises which led to the place where the trees were exhibited and displayed. The use granted to Gendron involved the passage by his customers to and from his business stand. It could be found that the plaintiff was a business visitor as to Pilotte as she was using the premises in the right of Gendron for a purpose for which Pilotte was paid. The plaintiff testified that she was about half way up the driveway toward the trees at a place where she was standing and being waited upon when she slipped on the ice. It is the duty of a paid licensor to exercise reasonable care to put and maintain his premises in a reasonably safe condition for those using them for the purpose for which they had been licensed. Wendell v. Baxter, 12 Gray, 494. Oxford v. Leathe, 165 Mass. 254. Rockport v. Rockport Granite Co. 177 Mass. 246. Shrigley v. Boston Symphony Orchestra, Inc. 287 Mass. 300. Orcutt v. Signouin, 302 Mass. 373.\nThere was evidence of negligence upon the part of Pilotte. It could be found that Pilotte had possession and control of the place of the accident. It was snowing at the time of the accident, but the fall of snow was so slight that one could see the ice which was hard packed containing ruts two or three inches deep. It therefore could be found that the ice was there long enough so that Pilotte knew or ought to have known of its existence, and that he should have removed it, sanded it, or taken some other measures to protect the customers of Gendron who might unknowingly encounter the danger. Frost v. McCarthy, 200 Mass. 445. Guinevan v. Checker Taxi Co. 289 Mass. 295. Lanagan v. Jordan Marsh Co. 324 Mass. 540.\nThere was a sign on the'filling station which bore the name of the defendant Pilotte. His employees wore a distinctive outer garment which bore in large letters the name of a gasoline company. Gendron and his employees wore civilian clothes. There is nothing suggesting, much less showing, that the plaintiff entered the premises and purchased the tree in reliance upon the thought that she was dealing with Pilotte. This meager evidence does not support the plaintiff’s contention that a finding was warranted that Pilotte was estopped to deny that he was conducting the tree business. Ventromile v. Malden Electric Co. 317 Mass. 132, 136.\nThe plaintiff was a customer of Gendron and he cannot escape liability merely because he was a licensee if negligence upon his part caused injury to the plaintiff. There was evidence that the trees were tied up into compact bundles and that when they were removed from the bundles the branches of the trees were spread out so that the customer could see their natural shape and form. An employee had brought six trees to where the plaintiff was standing, shook the trees, and spread them out, and she finally selected one, and after she took her money out of her pocketbook to pay for it she slipped and fell. She noticed as the trees were shaken and spread out that snow, ice, twigs, and needles fell to the ground. After she fell she observed that the place where she slipped was a patch three or four feet wide on a slant which was dirty looking covered with packed ice with ruts two to three inches deep covered with pine needles and debris from the trees. It was a question of fact whether the condition just described was due to the negligence of Gendron. Furthermore, if the accident happened outside of the area used by Gendron, it was his duty to warn her of any danger that she might encounter in using the driveway, -which he knew or might have known and which she would not be expected to know. A breach of the duty which Gendron owed to his customer could be found upon the evidence. Kelley v. W. D. Quimby & Co. Inc. 227 Mass. 93. Rouillard v. Canadian Klondike Club, Inc. 316 Mass. 11.\nIt could not be ruled as matter of law that the plaintiff was guilty of contributory negligence. An invitation to a customer carries with it an implication that the premises are in a reasonably safe condition for him to enter, Frost v. McCarthy, 200 Mass. 445, 447-448, and the fact that she knew or ought to have known that there was a patch of ice in her path which she attempted to pass over or stand upon was not conclusive or decisive that she was negligent. Mello v. Peabody, 305 Mass. 373. Watts v. Rhodes, 325 Mass. 697.\nThe exceptions of the plaintiff must be sustained in each case.\nSo ordered."", ""type"": ""majority"", ""author"": ""Ronan, J.""}], ""attorneys"": [""Clement McCarthy, for the plaintiff."", ""Richard K. Donahue, for the defendant Gendron."", ""Alfred Sigel, for the defendant Pilotte.""], ""corrections"": """", ""head_matter"": ""Winifred J. Willett vs. Andrew Pilotte (and a companion case).\nMiddlesex.\nOctober 7, 1952.\nJanuary 5, 1953.\nPresent: Qua, C.J., Honan, Wilkins, Spalding, & Counihan, JJ.\nReal Property, License. Negligence, Invited person, One owning or controlling real estate, Licensor, Snow and ice, Licensee, Contributory. Snow and Ice. Estoppel.\nAn oral permission' given by a lessee of the entire premises of a gasoline filling station to use temporarily for the sale of Christmas trees such space, otherwise undefined, as might be available on the premises without interference with the filling station business, together with access to that space, constituted the seller of the trees a licensee and not a tenant of the lessee. [612]\nA business customer of a licensee of premises using them in the licensee’s right for a purpose for which the licensor had been paid by the licensee was as to the licensor an invitee to whom the licensor owed a duty to exercise reasonable care to put and maintain the premises in a reasonably safe condition for such use. [613]\nEvidence of the circumstances in which, after a lessee of the premises of a gasoline filling station had for consideration licensed the use of space on the premises for the sale of Christmas trees, together with access to such space, a customer of the licensee, while on the premises purchasing a tree, slipped and fell on a patch of rutted ice covered with needles and debris from the trees warranted a finding of negligence on the part of both the licensor and the licensee toward the customer and did not require a ruling that the customer was guilty of contributory negligence. [613-615]\nEvidence did not warrant a finding that a lessee of the premises of a gasoline filling station, who had licensed the use of space on the premises for the sale of Christmas trees, was estopped as against a customer of the licensee to deny that he, the licensor, was conducting the business of selling trees. [613-614]\nTwo actions of tort. Writs in the Superior Court dated April 14, 1948.\nThe actions were tried before Morton, J.\nClement McCarthy, for the plaintiff.\nRichard K. Donahue, for the defendant Gendron.\nAlfred Sigel, for the defendant Pilotte.\nThe companion case is by the same plaintiff against Leonard E. 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+4915413,"{""id"": 4915413, ""name"": ""Charles Willson Franklin et al., Appellants, v. George J. Fischer et al., Respondents"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""ac22d21021003aab7e6480f4447210ab007e9984a0c64eb3d9d638d838d50be8"", ""simhash"": ""1:0746e0a4ca63dc69"", ""pagerank"": {""raw"": 0.0000004929753984719432, ""percentile"": 0.9344457920133568}, ""char_count"": 14617, ""word_count"": 2517, ""cardinality"": 750, ""ocr_confidence"": 0.705}, ""casebody"": {""judges"": [""Jeffers, C. J., Beals, Steinert, and Mallery, JJ., concur.""], ""parties"": [""Charles Willson Franklin et al., Appellants, v. George J. Fischer et al., Respondents.""], ""opinions"": [{""text"": ""Hill, J.\nThis is an action to cancel a lease and recover possession of leased premises, and for rentals due under the lease, with a cross-complaint asking for damages against the lessors for their failure to keep the premises in repair.\nThe leased premises consist of a service station, restaurant, and tourist cabins. By article 3, the lessee was to pay, as “full rental for the premises during the effective term of this Lease”: a gallonage charge for the use of the “automotive equipment, pumps and like items of personal property”; thirty-five per cent of , the gross receipts from the tourist cabins, for the use thereof; fifty per cent of the gross receipts of the Wurlitzer phonograph and phonograph records, for the use thereof; fifty per cent of the net receipts of “all other coin operated machines,” for the use thereof; five per cent of the gross sales from October 1st to March 31st each year, and seven per cent of the gross sales from April 1st to September 30th of each year, for the use of the restaurant and its equipment.\nArticle 14 of the lease is as follows:\n“It is agreed by the Lessor that after the first 12 months of this lease the minimum amount of Rental from all sources shall not be less than $400.00 per month during the six (6) months period beginning October 1, and ended March 31, and not less than $600.00 per month during the months beginning April 1, and ended September 30, each year during the term of this lease.”\nIt is the failure by the assignees of the lessees to pay the minimum rentals referred to in article 14 on which the lessors base their right to cancel the lease and recover the rentals due thereunder.\nThe trial court concluded that: (1) Article 14 did not obligate the lessees to pay the minimum rentals therein provided because, by the language of the article, they did not covenant or agree to pay such minimum rentals; and, (2) if article 14 was by its terms binding upon the lessees, there had been an oral modification whereby the lessors had agreed with the assignees of the lessees that article 14 would not be enforced if they took an assignment of the lease, which oral modification agreement was made prior to the time that the assignees paid the lessees three thousand dollars for the assignment of the lease. The trial court therefore refused to cancel the lease or to restore the lessors to possession, and awarded the assignees of the lessees damages for the unreasonable delay of the lessors in making certain repairs. The lessors appeal.\nIf there was a valid modification of the lease making article 14 inoperative, it becomes unnecessary to determine whether the lessees were obligated to pay the minimum rentals provided for therein.\nWas there a valid modification? We have a hotly contested issue of fact as to what took place at a meeting in Mr. Franklin’s office on the evening of March 27,1947. Seven people were present practically all of the time: Mr. and Mrs. George J. Fischer (the respondents), Mr. and Mrs. Henry Fischer, Mr. and Mrs. J. J. Adams, and Mr. Charles W. Franklin (one of the appellants); and an eighth, Mr. W. H. Kirby, was present part of the time.\nMr. and Mrs. Adams were the original lessees, and it was contemplated that they would assign their interest in the lease to the four Fischers. To do so, it was necessary to have the consent of Mr. Franklin, as one of the lessors. Mr. Kirby was the notary, and was called after all the others were in Mr. Franklin’s office. He took the acknowledgments of Mr. and Mrs. Adams to the assignment, and the acknowledgment of Mr. Franklin to the consent to the assignment (he having secured Mrs. Franklin’s signature and taken her acknowledgment earlier in the day). Also, he prepared a third document (going into an outer office for that purpose) denominated “Acceptance of Assignment,” which all four of the Fischers then signed and acknowledged.\nMrs. Adams did not testify. Mr. Kirby and Mr. Adams heard no mention of article 14 of the lease. Mr. Franklin testified positively that he was not asked to and did not agree to waive the provisions of article 14; that the subject was mentioned only once, and that was just as the Fischers were going out the door, when Mrs. George Fischer turned and asked, “ ‘What if we can’t make the minimum rental payments? What are you going to do?’ ” and he replied, “ T do not know.’ ”\nEach of the four Fischers said that article 14 was discussed with Mr. Franklin that evening, and that he said in effect that it would not be operative. They were not all in accord as to whether that discussion was before or after they accepted the assignment and became obligated under the lease; however, the testimony of George H. Fischer was definite and specific that, before they accepted the assignment, Mr. Franklin had promised that they would not be held to the minimum rentals provided for in article 14.\n, While George H. Fischer was a “fast” witness on direct examination and most reluctant on cross-examination, the trial court accepted his version of what had occurred (substantially corroborated as it was by the other three Fischers) in preference to the testimony of Mr. Franklin and Mr. Adams. This is a situation in which the trial judge was in an infinitely better position than is the appellate court to determine what credence should be given the various witnesses, and we cannot say that the evidence preponderates against the trial court’s finding that the lease was modified by an agreement that article 14 would be inoperative. The judgment must therefore be affirmed unless there is merit in the appellants’ contentions that there was no consideration for the oral modification, and that the modification agreement was void by reason of the fact that it was not in writing and was not acknowledged, as required by statute, Rem. Rev. Stat., § 10618 [P.P.C. § 719-1].\nWhether or not the substitution of the assignees, hereinafter referred to as the respondents, for the original lessees, was a benefit to the lessors, hereinafter referred to as the appellants, is immaterial under the circumstances here existing. It must be regarded as established that the respondents paid three thousand dollars to the original lessees, and that they would not have done so if the appellants had not agreed that article 14 would not be enforced. The consideration for the oral modification was the detriment to the respondents in paying three thousand dollars and taking over the property. They have changed their situation to such an extent that they cannot be adequately compensated in damages or placed in their original position. It is well established that a consideration may consist as well in a detriment to the person to whom a promise is made as in a benefit to the other party. 32 Am. Jur. 150, Landlord and Tenant, § 150.\nThe same payment and circumstances constituted a complete performance of the respondents’ part of the modification agreement and removed the agreement from the statute of frauds. Without repeating it, we approve again the statement from Garbrick v. Franz, 13 Wn. (2d) 427, 431, 125 P. (2d) 295, found on pages 418-419 of Vance Lbr. Co. v. Tall’s Travel Shops, 19 Wn. (2d) 414, 142 P. (2d) 904. Consequently, we find no merit in the appellants’ contention that there was no consideration for the oral modification or that it was void because it did not comply with the statute of frauds.\nWe are also of the opinion that there was no abuse of discretion on the part of the trial court when it permitted the respondents to amend their answer to present the defense of an oral modification of the lease, and that no prejudice is shown. It was necessary in order that the real matter in dispute might be determined. Rule of Practice 6 (2), 18 Wn. (2d) 34-a.\nThe appellants now advance the contention that appellant Helen Franklin knew nothing of the oral modification and that, therefore, the modification cannot be binding upon her nor upon the marital community consisting of herself and appellant Charles Willson Franklin. We have combed the record for any suggestion that this theory was presented to the trial court, and find none. It appears for the first time in the reply brief. If that was to be an issue in the case, the respondents were entitled to an opportunity to establish ratification or to show any conduct amounting to an estoppel on the part of Mrs. Franklin to contest the validity of the modification. As stated in Benedict v. Hendrickson, 19 Wn. (2d) 452, 143 P. (2d) 326:\n“Notwithstanding this explicit mandate of the statute [Rem. Rev. Stat., § 6893], this court has upheld contracts and encumbrances executed and acknowledged by the husband alone. These decisions rest upon the doctrine of estoppel — typical instances being either (a) where, having knowledge of the contents of a proposed contract, the wife requests her husband to enter into it and she afterwards accepts the fruits of it [citing cases], or (b) where, after execution by the husband, she ratifies it. [Citing cases.]”\nThat portion of the judgment dismissing the appellants’ action whereby they sought to cancel the lease and regain possession of the premises, is affirmed.\nThere remains for consideration only the assignment of error that the trial court erred in awarding the respondents the sum of eighty dollars as damages for the appellants’ failure to keep the roof in repair and one hundred fifty dollars as damages for their failure to supply water, and in allowing an attorney’s fee of three hundred fifty dollars.\nThe respondents’ right to recover damages is based upon the appellants’ breach of their covenant “to keep underground equipment and roofs of buildings in repair.”\nThe roof over the restaurant leaked; the appellants were notified thereof by a letter dated April 29, 1948. The fact that “the state health board has closed the resturant because of the condition of the water supply” was brought to the appellants’ attention by a letter dated June 8, 1948. The evidence shows that the appellants proceeded to have both situations remedied as rapidly as possible under the existing circumstances.\nUnder the general rules of law applicable to such situations, a lessee, before any damages can be recovered from a lessor for breach of a covenant to keep in repair, would have to establish timely notice to the lessor of the need for repairs, and that the lessor failed to make them within a reasonable time under the circumstances. The rule is well stated by Judge Hay in Asheim v. Fahey, 170 Ore. 330, 133 P. (2d) 246, 145 A. L. R. 861, in these words:\n“In the absence of a special agreement to make repairs upon the demised premises, a landlord is under no duty to do so. 32 Am. Jur., Landlord and Tenant, section 705. He may, of course, by the terms of his lease, covenant to make repairs, but the law in that connection is that he must have timely notice of the need for repairs before he is obliged to make them. If, after such notice and a reasonable opportunity to make the repairs, the landlord fails to do so, and damage to the tenant or his invitees results, the landlord may be held liable. Ashmun v. Nichols, 92 Or. 223, 234, 180 P. 510; Teel v. Steinbach Estate, 135 Or. 501, 504, 296 P. 1069.”\nSee, also, 32 Am. Jur. 587, 589, Landlord and Tenant, §§ 710, 713; annotations, 28 A. L. R. 1525 and Ann. Cas. 1912B, 353.\nThe respondents not only failed to bring themselves within the general rule entitling them to recover for breach of a covenant to repair, but article 10 of the lease limits their right to recovery to those situations in which the lessors’ breach or default in performance of any covenant or obligation continues for a period of thirty days after notice thereof. No breach of any covenant to repair continued for thirty days after notice. The trial court erred in allowing the respondents any damages for breach of the covenant to keep in repair.\nThe attorney’s fee is authorized by the lease.. The final paragraph of article 10 provides that:\n“In any action between the parties hereto, their successors or assigns, for a breach or for the enforcement of any of the terms or conditions of this Lease, a reasonable attorney’s fee, to be fixed by the court, shall be added to and be made a part of the recoverable cost in such action, in favor of the successful party.”\nThe appellants, having asked for an attorney’s fee of three hundred fifty dollars in accordance with this provision of the lease, cannot well object to an allowance to the “successful party” in that amount.\nThat portion of the judgment which reads:\n“It is further ordered, adjudged, and decreed that the defendants [respondents] have judgment against the plaintiffs [appellants] in the sum of $80.00 for damages sustained because of the plaintiffs failure to keep the roof in repair and damages in the sum of $150.00 for plaintiffs failure to supply water”;\nwill be stricken therefrom; and the judgment is in all other respects affirmed.\nThe respondents ask for an attorney’s fee of seven hundred fifty dollars for services on this appeal. The right to other than the statutory attorney’s fee rests upon the provision in the contract of the parties last quoted, which we believe does not contemplate an attorney’s fee in other than the superior court. Neither side has briefed or argued the question of whether this court can or should make an award of an attorney’s fee for services on an appeal under such a contract provision. It will be noted, however, that in construing Rem. Rev. Stat., § 1157a [P.P.C. § 172-11], which provides that in certain types of lien foreclosures, “. . . The court may allow ... a reasonable attorney’s fee in the action,” and Rem. Rev. Stat., § 1141 [P.P.C. § 180-25], which provides that “. . . The court may allow ... a reasonable attorney’s fee in the superior and supreme courts,” we have consistently refused to make any allowance of attorneys’ fees in addition to that made by the superior court. Standard Lbr. Co. v. Fields, 29 Wn. (2d) 327, 354, 187 P. (2d) 283. See Flint v. Bronson, 197 Wash. 686, 692, 86 P. (2d) 218, where our cases on this point are reviewed.\nThe respondents, having prevailed on the major issue involved in this appeal, i.e., whether they were obligated to meet the minimum rentals referred to in article 14 of the lease, are entitled to their costs.\nJeffers, C. J., Beals, Steinert, and Mallery, JJ., concur."", ""type"": ""majority"", ""author"": ""Hill, J.""}], ""attorneys"": [""Crollard & Crollard, for appellants."", ""Lloyd D. Cunningham, for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 30992.\nDepartment One.\nJuly 29, 1949.]\nCharles Willson Franklin et al., Appellants, v. George J. Fischer et al., Respondents.\nCrollard & Crollard, for appellants.\nLloyd D. Cunningham, for respondents.\nReported in 208 P. (2d) 902.""}, ""cites_to"": [{""cite"": ""208 P. (2d) 902"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""86 P. (2d) 218"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""197 Wash. 686"", ""case_ids"": [1346699], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""pin_cites"": [{""page"": ""692""}], ""case_paths"": [""/wash/197/0686-01""], ""opinion_index"": 0}, {""cite"": ""187 P. (2d) 283"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""29 Wn. (2d) 327"", ""case_ids"": [2508342], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""354""}], ""case_paths"": [""/wash-2d/29/0327-01""], ""opinion_index"": 0}, {""cite"": ""28 A. L. R. 1525"", ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R."", ""opinion_index"": 0}, {""cite"": ""135 Or. 501"", ""weight"": 2, ""case_ids"": [2007520], ""category"": ""reporters:state"", ""reporter"": ""Or."", ""pin_cites"": [{""page"": ""504""}], ""case_paths"": [""/or/135/0501-01""], ""opinion_index"": 0}, {""cite"": ""92 Or. 223"", ""weight"": 2, ""case_ids"": [2379740], ""category"": ""reporters:state"", ""reporter"": ""Or."", ""pin_cites"": [{""page"": ""234""}], ""case_paths"": [""/or/92/0223-01""], ""opinion_index"": 0}, {""cite"": ""145 A. L. R. 861"", ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R."", ""opinion_index"": 0}, {""cite"": ""170 Ore. 330"", ""weight"": 2, ""case_ids"": [1071321], ""category"": ""reporters:state"", ""reporter"": ""Or."", ""case_paths"": [""/or/170/0330-01""], ""opinion_index"": 0}, {""cite"": ""143 P. (2d) 326"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""19 Wn. (2d) 452"", ""case_ids"": [2591692], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/19/0452-01""], ""opinion_index"": 0}, {""cite"": ""18 Wn. (2d) 34"", ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""opinion_index"": 0}, {""cite"": ""142 P. (2d) 904"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""19 Wn. (2d) 414"", ""case_ids"": [2590712], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/19/0414-01""], ""opinion_index"": 0}, {""cite"": ""125 P. (2d) 295"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""13 Wn. (2d) 427"", ""case_ids"": [2562239], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""431""}], ""case_paths"": [""/wash-2d/13/0427-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""34 Wash. 2d 342"", ""type"": ""official""}], ""file_name"": ""0342-01"", ""last_page"": ""350"", ""first_page"": ""342"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T21:43:11.991632+00:00"", ""decision_date"": ""1949-07-29"", ""docket_number"": ""No. 30992"", ""last_page_order"": 368, ""first_page_order"": 360, ""name_abbreviation"": ""Franklin v. 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+4933418,"{""id"": 4933418, ""name"": ""Puget Investment Company, Appellant, v. August H. Wenck et al., Respondents and Cross-appellants"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""83636b36854aebd02030eed2a337caec15589de1bfd7b9b3b3436e709734fd8b"", ""simhash"": ""1:bb97d500f7b81b49"", ""pagerank"": {""raw"": 0.00000025841268571788117, ""percentile"": 0.8174824092060966}, ""char_count"": 29945, ""word_count"": 5057, ""cardinality"": 1129, ""ocr_confidence"": 0.659}, ""casebody"": {""judges"": [], ""parties"": [""Puget Investment Company, Appellant, v. August H. Wenck et al., Respondents and Cross-appellants.""], ""opinions"": [{""text"": ""Hamley, J.\nThis is an action by a lessor against the lessee to recover damages resulting from the asserted breach of covenants to repair and maintain the building, and to use the premises in accordance with applicable laws and ordinances.\nPuget Investment Company is the owner of a one-story and basement building of mill construction with brick walls, situated at 1415-1417, 1421-1425 Ninth avenue, Seattle. The building was constructed in 1923 or 1924, and has for many years been used for garage purposes. It is now known as the Paramount Garage. On March 28, 1946, the company leased the building to August H. Wenck, Ezra Royce and Barney Royce, copartners, doing business as Gray Line Tours. The lessees will be hereinafter referred to in the singular as lessee, defendant, or respondent.\nThe lease was for a term of one and one-half years, commencing July 1, 1946, and ending December 31, 1947. A monthly rental of three hundred fifty dollars was stipulated in the lease. The building, which was about twenty-three years old at the time the lease was entered into, was then in a bad state of repair. These conditions were known to the lessee before the lease was executed. Shortly after taking possession, the lessee expended in excess of three thousand dollars in making repairs and adding improvements to the building. During the term of the lease, the street level floor was used by the lessee as a private garage. The basement level was sublet, with the consent of the lessor, to one Jensen, who used it as a public garage and automobile repair shop.\nOn December 20, 1947, ten days before the expiration of the term, the lessor’s attorneys wrote to the lessee, calling attention to paragraphs (5) and (6) of the lease, and stating that\n“ . . . you are required under these paragraphs to do a large amount of work on the premises before the expiration of your lease.”\nParagraph (5) of the lease pertains to repairs and maintenance and the condition in which the premises were to be when returned to the lessor. Paragraph (6) requires the lessee to “keep and use said premises in accordance with applicable laws and ordinances.” The letter of December 20th suggested that a conference be held to discuss the matter. It is stated in the letter that there had been previous discussions of the matter, but this is denied by the lessee.\nThe lessee vacated the premises at the end of the term without having made any of the repairs demanded in the letter of December 20, 1947. Shortly thereafter the lessor instituted this action. The complaint states two causes of action, only the first of which is involved in this appeal. Paragraph YII of the complaint lists eighteen items of work which, it is alleged, defendant should have done under paragraphs (5) and (6) of the lease. Damages in the sum of $15,309 (not itemized) were alleged to result from defendant’s failure to do this work. An additional one hundred dollars was claimed by reason of defendant’s alleged action in removing and storing a certain neon sign.\nThe matter came on for trial before the court without a jury. Extensive testimony and numerous exhibits were received. We make brief reference to the individual items, for the purpose of indicating the character of the claims and the principal mitigating factors relied upon by defendant.\nItems Nos. 1 to 3, as listed in the complaint, called for the installation of electrical equipment—conduit, wire, boxes and fixtures—which was wholly lacking when defendant took possession. Plaintiff contended that the second and third of these items were required to comply with the electric code of the city of Seattle. Item No. 4 called for the replacement of an electrical panel and the repair of electrical switches. The evidence was in conflict as to whether this equipment was in working condition when defendant surrendered the premises.\nItem No. 5 called for the installation of a new automatic sprinkler system in the basement, at a cost of $3,543.19, to replace one which was old, obsolete and not usable when defendant took possession. Plaintiff asserted that this installation was necessary to comply with the city building code. Item No. 6 related to glass breakage. Item No. 7 called for painting the interior of the premises, at a cost of $870. A good part of the interior had apparently been painted several years before. Defendant produced evidence to the effect that such interior painting in garage buildings of this class is unnecessary and serves no useful purpose as a protective measure or otherwise.\nItem No. 8 called for the repair of the ramp door to make it self-closing. Plaintiff contended that this work was necessary in order to comply with the city building code. The evidence does not reveal whether this door had been self-closing at any time during the lease. Item No. 9 called for the repair of wood floor and beams at the north door on the main floor. Item No. 10, involving an expenditure of $1,-593.77, called for the installation of a rolling fire door between the auto repair shop and the garage in the basement. It was claimed that this installation was necessary to comply with the building code. Item No. 11 was waived by plaintiff.\nItem No. 12 involved the replacement of both first floor front doors at a cost of $843.34. Defendant’s witness testified that these doors could be repaired at small cost. Item No. 13 related to the replacement of the basement door at the alley. Defendant at no time used this door and it was nailed up throughout the term of the lease. Plaintiff’s witness estimated the cost of a new door at $339.49. Defendant’s witness estimated the cost of replacing the door at from $150 to $175.\nItem No. 14 called for the removal of existing partitions for the basement toilet, the installation of new partitions, and rebuilding and installing a sheet metal duct. It was not definitely established whether this facility was in the building at the time defendant took possession. There did not seem to be any evidence of disrepair, but it was.asserted that these changes were necessary to comply with the building code.\nUnder item No. 15, plaintiff claimed $57.12 as the cost of removing certain rubbish. Witnesses for defendant denied that this was defendant’s rubbish and also minimized the work involved in obtaining its removal. Items Nos. 16 and 18 called for structural repairs consisting of the replacement of columns, beams and joists. The total amount claimed under these two items was $1,995.31. Item No. 17 called for the replacement of two thousand square feet of flooring in the north section of the building. The testimony was in conflict as to the state of repair of most of the flooring. Defendant’s witnesses testified that the flooring, as repaired by defendant, was adequate for the normal purposes of the building.\nThe evidence showed that the conditions requiring these repairs, with the possible exception of some of the glass, existed at the time the lease was signed and were due to decay and wear and tear which had already taken place; that many of the repairs were of a more or less permanent nature; that some of them have structural characteristics; that some items pertain more to improvements than to replacements or repairs; and that most, if not all, of them were principally for the benefit of the lessor.\nThe evidence further showed that the building was in better condition at the end of the lease term than it was at the beginning. There had been some wear and tear during the term (excepted in the covenant to repair), and some glass breakage, for which the court allowed recovery. On the other hand, the condition of the building had been substantially bettered by the repairs and improvements which defendant made at the beginning of the lease.\nSeveral experienced garagemen testified that this building would be classified as a third-class garage. According to this testimony, a first-class garage is one with concrete walls and floors, electrically operated doors, and wider ramps and more convenient arrangements throughout. Except with respect to compliance with certain laws and ordinances, the testimony was uncontradicted that the building, as repaired by defendant at the commencement of the term, was in an adequate state of repair to meet all the reasonable needs and requirements of defendant.\nThe evidence also showed that, after defendant vacated the premises, plaintiff had all of the repairs made, as listed in the complaint and set out above, except items Nos. 1, 2, 3, 7,11, and 14. On the basis of the testimony as to the actual cost of the repairs made, and the estimated cost of repairs not made, plaintiff during the trial reduced its demand from $15,409 to $10,933.89. This included an allowance of $148.32 instead of the originally claimed one hundred dollars for removal of the neon sign. It included no allowance under item No. 11, as plaintiff waived that claim. At the close of plaintiff’s case, defendant admitted liability in the amount of three hundred fifty dollars, and deposited that amount in the registry of the court.\nThe trial court took the case under advisement at the close of the trial on May 4, 1949. On August 26, 1949, a comprehensive memorandum decision was filed, in which the facts and applicable law were reviewed at length. The trial court allowed full recovery on items Nos. 6 and 9 and the $148.32 damages claimed for removal of the neon sign. The trial court also allowed fifty dollars of the $843.34 claimed under item No. 12; one hundred twenty-five dollars of the $339.49 claimed under item No. 13; and fifteen dollars of the $57.12 claimed under item No. 15. The remaining items were entirely disallowed. Findings of fact, conclusions of law and judgment for plaintiff in the sum of $738.53 were thereupon entered. Plaintiff has appealed, and defendant has cross-appealed.\nAppellant’s assignments of error present two principal questions. The first of these is whether paragraph (5) of the lease required respondent to make the repairs as listed in the complaint to an extent greater than recognized in the judgment entered. This paragraph of the lease reads as follows:\n“ (5) Unless otherwise provided in this lease, lessee, having ascertained the physical condition of said premises from a careful and complete inspection thereof, accepts said premises in present condition, no exceptions. At the commencement of the term of this lease lessee shall place and thereafter shall keep and maintain said premises in a neat, clean and sanitary condition and in a first class state of repair, all at lessee’s expense; provided, however, that lessee’s obligation to repair shall not extend to the outside walls, roof and foundation of the building, if any there be, in which said premises are located unless repairs thereto be necessitated by lessee’s negligence. Pursuant to said obligation lessee shall promptly replace any glass in or hereafter installed in said premises whether the same be in windows, the front, doors or other places, which becomes broken or damaged, provided, however, that if lessee at lessee’s expense takes out and maintains insurance against breakage and damage of said glass in an amount and in a company satisfactory to lessor or agent and lessor is named as the assured in the policy, then lessee shall be relieved of the obligation of replacing broken or damaged glass. At the expiration of the term of this lease or its earlier termination, lessee shall redeliver possession of said premises to lessor and lessee covenants and agrees that at the time of said expiration or termination said premises will be in the best physical condition in which they were at any time during the lease term, ordinary wear and tear and damage by fire not caused by lessee’s negligence and other casualty not so caused, excepted.”\nIt will be observed that the above-quoted paragraph contains three provisions, the first relating to the condition of the premises when the lessee takes possession; the second relating to the lessee’s duty to repair and maintain the premises; and the third relating to the condition the premises are to be in when returned at the end of the term. The issue before us brings into question only the second provision, relating to the lessee’s duty to repair and maintain the premises. To the extent that the lessee had such a duty, then it was concededly obligated, under the third provision, to turn back the premises in the state of repair called for.\nUnder the second provision of paragraph (5), respondent covenanted that at the commencement of the term it would “place” and thereafter “keep and maintain” the premises in a .neat, clean and sanitary condition and in a “first class state of repair”; it being provided that such obligation to repair did not extend to outside walls, roof and foundation of the building, unless such repairs were\"" necessitated by respondent’s negligence.\nAppellant contends that all of the repairs listed in the complaint (except item No. 11 which was waived) were necessary in order to place the building in a “first class” state of repair. Respondent, on the other hand, contends that it made all repairs at the beginning of the term which were necessary to place the building in a “first class state” of repair. The primary issue on this branch of the case, therefore, is the construction to be given the term “first class state of repair” as used in this lease.\nIt is perfectly competent for the parties to a lease to place upon the lessee the obligation of making very substantial and even structural repairs at the commencement of, or during the course of, the lease term. Such a covenant may call for repairs not necessary to the lessee’s use of the premises, and of primary benefit to the lessor. However, when this is the intention, the covenant is usually specific in itemizing the work to be done. Here there was no itemization of repairs to be made by the lessee at the commencement of the term, except with respect to glass breakage. The trial court allowed this item in full.\nThe making of repairs which will substantially improve the condition and value of the premises, when required under the covenants of a lease, constitutes a part of the benefit the lessor expects to derive from the lease, along with the payment of rentals. Accordingly, where a comprehensive covenant of this kind is intended, there is usually a provision giving the tenant free occupancy for a specified period, or some indication that stipulated monthly payments have been lessened because of the other benefits the lessor is to receive. For example, the lease involved in Yakima Valley Motors v. Webb Tractor & Equipment Co., 14 Wn. (2d) 468, 128 P. (2d) 507, recites that, in consideration of no monthly installments being required until a specified date, the tenant would spend not less than one thousand dollars in cleaning up the premises and making specified repairs and replacements. A year’s rental of a six-year term was thus waived.\nIn the instant case the lease does not waive rentals for any part of the term, or in any other way indicate that the monthly rentals were reduced in consideration of the lessee making substantial repairs for the primary benefit of the lessor. The reserved rental of three hundred fifty dollars a month amounts to $6,300 for the eighteen-months term. Appellant now claims an additional $10,933.89 because of respondent’s failure to -make such repairs. This would increase appellant’s monetary benefits under the lease one hundred seventy-three per cent above the total rental for the term. In reviewing a similar contention in Second United Cities Realty Corp. v. Price & Schumacher Co., 242 N. Y. 120, 124, 151 N. E. 150, where the cost of the repairs would have about equalled the total reserved rent, the court said:\n“That such a liability was to be cast upon the tenant by. this lease could hardly have been within the contemplation of the parties.”\nThe term “first class state of repair” has no precise and generally recognized meaning applicable under any and all circumstances. The meaning to be ascribed to such a term is to be drawn not only from a study of the leasing instrument, but also from a consideration of the surrounding circumstances; the type, age and condition of the building; the uses to which it is adapted; the use which the lessee is to make of the building; the character of repairs in question; and the lessee’s need of such repairs. See Codman v. Hygrade Food Products Corp., 295 Mass. 195, 3 N. E. (2d) 759, 106 A. L. R. 1354, where the court was called upon to construe the somewhat similar terms “in good tenantable repair” and “in good condition.” See, also, 32 Am. Jur. 675, Landlord and Tenant, § 790; and the annotations in 45 A. L. R. 12 and 106 A. L. R. 1358.\nIn the instant case the building has long been used only as a public or private garage; it was in a somewhat dilapidated condition when respondent took possession; respondent expended on repairs and improvements a sum equal to almost half of the reserved rent for the entire term; the testimony is uncontradicted that, as so repaired, the building was entirely satisfactory for respondent’s purposes. The trial court concluded that, under those circumstances, the repairs which were made (except as to items for which additional allowance was made) placed the building in a “first class state of repair” within the meaning of paragraph (5) of the lease.\nWe are in accord with the trial court’s conclusions. Courts will not extend or enlarge the obligation of a lessee beyond the plain meaning of the language used and the intention existing at the time it was made. Armstrong v. Maybee, 17 Wash. 24, 48 Pac. 737, 61 Am. St. 898; Anderson v. Ferguson, 17 Wn. (2d) 262, 135 P. (2d) 302; 51 C. J. S. 1087, Landlord and Tenant, § 368. Ambiguities in a lease must be resolved in favor of the lessee. Anderson v. Ferguson, supra. Moreover, since the instrument was prepared by the lessor, it must be construed most strongly in favor of the lessee. King v. Richards-Cunningham Co., 46 Wyo. 355, 28 P. (2d) 492.\nApplying these familiar rules of construction, we are of the view that the term “first class state of repair,” as here used, meant only such repairs as were reasonably necessary for the conduct of a private or public garaging business during the lease term in the kind of building in question. The items of repair which were disallowed did not fall in this category—some were improvements instead of repairs; some were suitable to a modern first-class garage but not to a third-class garage; some were structural repairs beneficial to the lessor but not required for the purposes of the lessee during the term of the lease. Where items were allowed in part, we have examined the record, and conclude that the preponderance of the evidence does not call for revision.\nIn reaching this conclusion we have not overlooked the five decisions of this court cited and relied upon by appellant. These are Armstrong v. Maybee, supra; Arnold-Evans Co. v. Hardung, 132 Wash. 426, 232 Pac. 290, 45 A. L. R. 9; Yakima Valley Motors v. Webb Tractor & Equipment Co., supra; Anderson v. Ferguson, supra; and Publishers Bldg. Co. v. Miller, 25 Wn. (2d) 927, 172 P. (2d) 489.\nThe Yakima Valley Motors case is the only one of these involving a covenant requiring the lessee not only to maintain the building in the condition received, but to substantially improve the condition of the premises for the primary benefit of the lessor. It was there found that the lessee had made the required improvements, but had thereafter permitted the building to become run down during the term of the lease, and had returned the building in that condition to the lessor. Since this was a breach of the covenant to return the building in its repaired condition, the lessee was held liable. There was no question as to what repairs were required of the lessee—they were specified in the lease. Nor was there any question as to whether the lessee had originally made the required repairs. In both of these particulars the Yakima case is distinguishable from the instant case.\nThe four other cases involved only the obligation of the lessee to make repairs made necessary by conditions arising during the lease term. It was the general holding in these cases that, in the absence of any qualifying language, a general covenant of a tenant to repair obligates him to make all repairs necessitated by conditions arising during the term, even to the point of rebuilding in case the premises are destroyed. In the Anderson case it was held that this common-law rule is harsh and should not be applied unless the language of the lease clearly requires it. In the instant case, unlike the four cases last referred to, there is no question as to repairs made necessary by fire, explosion or other catastrophe, or by wear and tear, occurring during the lease term. Hence the general common-law rule announced and applied in those cases has no application here. In our view, none of these five cited cases is pertinent to the issue before us.\nWe therefore hold that paragraph (5) of the lease did not require respondent to make repairs to a greater extent than recognized in the judgment entered.\nThe other question presented by appellant’s assignments of error is whether paragraph (6) of the lease required respondent to make repairs to an extent greater than recognized in the judgment under review.\nAs indicated in the summary of the individual items set out above, appellant contends that the repairs listed under items Nos. 2, 3, 5, 8,10 and 14 were called for not only under paragraph (5) of the lease, relating specifically to repairs, but also under paragraph (6), requiring compliance with applicable laws and ordinances. This latter paragraph of the lease reads as follows:\n“ (6) Lessee shall at all times keep and use said premises in accordance with applicable laws and ordinances and in accordance with applicable directions, rules and regulations of public officials and departments, at the sole expense of lessee. Lessee shall not overload and shall permit no waste of, or damage or injury to the premises and at lessee’s sole expense shall keep all drainage pipes free and open, shall protect water, heating and other pipes so that they do not freeze or become clogged, and shall repair all leaks in said pipes. Lessee shall pay all damages caused by the failure of lessee to perform any of the foregoing obligations. Lessee shall further keep all sidewalks and areaways abutting upon said premises free and clear of snow, ice and obstructions.”\nRepresentatives of the Seattle fire department inspected the premises from time to time. On October 10, 1947, less than three months before the expiration of the term, the fire department sent letters to respondent and his subtenant, Jensen. These letters called attention to certain conditions asserted to be in violation of city ordinances. The letter sent to respondent lists eight items, only one of which is involved in this action. This is the matter of covering unused flue openings, and was the item No. 11 listed in the complaint. Item No. 11 was waived by appellant during the course of the trial. The letter to Jensen also lists eight items, three of them corresponding to items Nos. 5, 8 and 10, as listed in the complaint.\nThe fire department letters mention nothing in connection with items Nos. 2, 3 and 14 of the complaint, which appellant also contends involved ordinance violations. However, for present purposes we will assume that all of the items of the complaint referred to on this branch of the case involve work which was required in order for the lessee to fully and strictly comply with applicable laws and ordinances of the city of Seattle.\nThere is no question but that, if city authorities had forbidden respondent’s use of the premises until these corrections were made, respondent would have had the responsibility of making such changes if it desired to continue using the premises. It is also clear that if respondent’s violation of applicable laws and ordinances bad occasioned appellant any expense in the nature of fines, abatement proceedings, or the like, respondent would have been obliged to reimburse appellant. These obligations of the lessee are definitely established by paragraph (6) of the lease.\nBut here the lessee has been able to make such use of the premises as it desired without strict compliance with such laws and ordinances. The letters from the fire department referred to only three of the six items now at issue, and as to them the lessee and its subtenant were not ordered to cease operations until the changes were made. They were only asked to give these matters their “earliest attention.” Had the changes been immediately undertaken, it is doubtful it they could have been completed before the end of the lease term.\nAppellant, as owner and lessor, has been subjected to no penalty or expense because of respondent’s assumed violation of such laws. It is true that appellant will have to make these changes itself, at its own expense, if it desires to now operate the building as a garage. Appellant has, in fact, made these changes since the end of the term, except as to items Nos. 2 and 14. But this expense has not been occasioned by respondent’s violation of the laws and ordinances, and would have been required even if the property had stood vacant and unleased during the actual term of the lease.\nWe do not believe that a covenant of this kind should be construed as an affirmative obligation to repair, alter or improve. It is intended only to place upon the lessee rather than the lessor the responsibility for making any such repairs, alterations or improvements which the lessee finds necessary in order to enjoy the use of the premises; to indemnify the lessor for any expenses resulting directly from unlawful use of the premises; and to provide the lessor with a basis for requiring the lessee to cease any unlawful activity which may occasion expense for the lessor or damage to the reversion.\nAppellant has cited Lodge Room Co. v. Pacific Bond & Inv. Co., 84 Wash. 150, 146 Pac. 376, in support of its position. The lease there in question contained a clause prohibiting the tenant from carrying on any business not in conformity with law. The tenant found that, under applicable laws, it would be impossible to utilize the upper floor of the building until a fire escape was constructed. The tenant built the fire escape and then brought an action against the landlord for reimbursement. Judgment was entered for the tenant. We reversed because the lease itself made it plain that some alterations would be necessary to fit the premises for the proposed use, and that the tenant would pay for such alterations. Thus the case turned principally on a specific covenant to make initial repairs, and only incidentally on the • covenant to conform with law. The tenant in the Lodge Room Co. case was forced, by the authorities, to make the improvement before it could use the premises. It did make that improvement. There was, accordingly, no question presented as to the tenant’s liability for the cost of repairs or alterations not made during the term.\nSpeaking of the covenants requiring compliance with the orders of civil authorities, it is said in Corpus Juris Secundum:\n“Courts are loath to extend provision of this character beyond their legitimate sphere, so that they have been held not to include a structural change, or extraordinary and unforeseen building alterations,, or such as would be tantamount to a reconstruction of the building itself, or such as are not within the terms of the covenant as properly construed.” 51 C. J. S. 1096, Landlord and Tenant, § 368.\nWe conclude that paragraph (6) of the lease in question does not obligate respondent to reimburse appellant for the cost of any of the repairs or alterations specified in items Nos. 2, 3, 5, 8, 10 and 14, of paragraph VII of the complaint.\nRespondent has cross-appealed, contending that the trial court erred in allowing recovery on any item except No. 6, relating to replacement of sixty pieces of glass. Respondent does not challenge the other allowances on their merits. On the contrary, respondent states in its brief:\n“In all fairness, however, it must be conceded that the disposition of the case made by the trial court seems reasonable and just.”\nBut respondent asserts that appellant should have given notice and made demand on respondent prior to the trial with respect to the individual items of repair. Had such demand been made, respondent argues, it would have enabled respondent to discharge such obligation without being subjected to the inconvenience and expense of litigation.\nThe lease in question contained no provision requiring notice and demand by the lessor relative to damages resulting from breached covenants. The letter of December 20, 1947, gave general notice that repair work was required pursuant to paragraphs (5) and (6) of the lease. Although the letter invited a conference on the matter, it drew no written response and no conference was held. It seems doubtful, under the circumstances, whether any more specific notice or demand would have been fruitful.\nWhere a demand before suit would avail nothing, commencing suit is a sufficient demand. Hopkins v. International Lbr. Co., 33 Wash. 181, 73 Pac. 1113; Kimball v. Farmers’ & Mechanics’ Bank, 50 Wash. 610, 97 Pac. 748; 1 C. J. S. 1067, 1068, Actions, §§ 26, 27. The assignments of error on the cross-appeal are without merit.\nThe judgment is affirmed.\nSimpson, C. J., Robinson, Mallery, and Hill, JJ., concur."", ""type"": ""majority"", ""author"": ""Hamley, J.""}], ""attorneys"": [""Kellogg, Reaugh & Smith, for appellant."", ""Little, Leader, LeSourd & Palmer, for respondents and cross-appellants.""], ""corrections"": """", ""head_matter"": ""[No. 31323.\nDepartment Two.\nJuly 20, 1950.]\nPuget Investment Company, Appellant, v. August H. Wenck et al., Respondents and Cross-appellants.\nKellogg, Reaugh & Smith, for appellant.\nLittle, Leader, LeSourd & Palmer, for respondents and cross-appellants.\nReported in 221 P. (2d) 459.""}, ""cites_to"": [{""cite"": ""221 P. (2d) 459"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""97 Pac. 748"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""50 Wash. 610"", ""case_ids"": [546030], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/50/0610-01""], ""opinion_index"": 0}, {""cite"": ""73 Pac. 1113"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""33 Wash. 181"", ""case_ids"": [2447386], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/33/0181-01""], ""opinion_index"": 0}, {""cite"": ""146 Pac. 376"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""84 Wash. 150"", ""case_ids"": [598917], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/84/0150-01""], ""opinion_index"": 0}, {""cite"": ""172 P. 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+4939454,"{""id"": 4939454, ""name"": ""Columbia Concrete Pipe Company, Respondent, v. Clayton C. Knowles et al., Appellants"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""9a72279ba0ddf6b4820ca1a59c57ae3098f43aed17e4799520cf6a65f9618075"", ""simhash"": ""1:bec684055f42d2ba"", ""pagerank"": {""raw"": 0.00000020719534936635357, ""percentile"": 0.7578704395507229}, ""char_count"": 27102, ""word_count"": 4718, ""cardinality"": 972, ""ocr_confidence"": 0.651}, ""casebody"": {""judges"": [], ""parties"": [""Columbia Concrete Pipe Company, Respondent, v. Clayton C. Knowles et al., Appellants.""], ""opinions"": [{""text"": ""Beals, J.\nThe plaintiff in this action, Columbia Concrete Pipe Company, a corporation, filed its complaint October 2, 1947, alleging its corporate existence; that, during the month of August, 1945, the defendants, Clayton C. and Jane Doe Knowles, husband and wife, became indebted to plaintiff in the sum of $1,414.87 for goods delivered to them by plaintiff, and that no payment had been made upon the account, plaintiff praying for judgment against defendants for the amount above stated, with interest and costs.\nThe defendants answered the complaint, denying plaintiff’s corporate existence, admitting that merchandise was delivered to them by plaintiff, but denying all indebtedness to the plaintiff.\nBy way of an affirmative defense and counterclaim (also referred to in the answer as a cross-complaint), the defendants alleged that, during the summer of 1945, plaintiff delivered merchandise, consisting principally of concrete pipe, and installed the same on defendants’ land to convey pumped water for irrigation purposes; that plaintiff had guaranteed the pipe to be fit for the use above referred to and for which plaintiff installed the pipe; that the pipe was improperly installed; that it was not usable for carrying pumped water for irrigation, and that, by reason of defects in the pipe line and the negligent installation thereof, as pleaded in their answer, defendants had suffered and were continuing to suffer damage to the land and crops thereon, their damages amounting to ten thousand dollars (which amount was, apparently, later raised to the sum of $14,630). Defendants prayed that plaintiff’s action be dismissed, and that they be awarded judgment for the damages demanded.\nPlaintiff replied, denying the allegations of the affirmative defense set forth in the answer.\nThe action was tried to the court and resulted in the entry of findings of fact and conclusions of law in plaintiff’s favor, followed by a judgment in favor of plaintiff for the sum demanded in its complaint.\nFrom the judgment rendered against them, the defendants have appealed. They have also appealed from the court’s refusal to award defendants judgment against the plaintiff, as demanded in their “counterclaim and cross-complaint.” In their brief, appellants make the following assignment of errors:\n“(1) The trial court erred in making Finding of Fact No. 4 in finding that during the year 1945 there were only ‘minor leaks’ occurring in said pipe line, and in finding that said leaks were repaired ‘pursuant to the agreement between the parties hereto.’\n“(2) The court erred-in Finding of Fact No. 5 that the reasonable' and agreed price for said labor and materials was the sum of $1,414.87.\n“(3) The court erred in its Finding of Fact No. 6 that Respondent has not breached any warranty as to fitness of use and purpose for which the pipe line was intended and that Appellants have failed in proof of damage resulting therefrom.\n“ (4) The trial court erred in granting judgment against the Appellants in any sum whatsoever and in failing to grant a judgment in favor of the Appellants and against Respondent for the sum of $14,630.00, which represents damages sustained by Appellants as a direct and natural result of Respondent’s breach of an express and implied warranty and gross negligence.\n“(5) The court erred in finding that Respondent Company was a corporation at the commencement of this action, and entitled to maintain suit.”\nWe shall refer to Clayton C. Knowles as though he were the sole appellant.\nFrom the evidence, it appears that, during the year 1944, appellant purchased sixty-three acres of farm land located in the Methow valley in Okanogan county, the land being then irrigated by water taken from a canal on the west side of the property and carried, by gravity flow, through galvanized pipe. Appellant’s father, Charles Knowles, moved to the farm in the spring of 1944 and was in charge of the farming operations thereafter. Appellant resided on the farm from about June 1, 1945, until the middle of August following, when he moved to Morton, Washington, where he lived until January, 1947, at which time he removed to California.\nWhile appellant was on the farm in 1945, the season being extremely dry, he decided to procure additional water for irrigation purposes by pumping from the Methow river on the east side of the property, and consulted George Wagenman, who then represented respondent as its “field man.” Appellant stated that he wanted a pipe line that would carry fifteen hundred gallons of water per minute, under pressure, from the river to the edge of that portion of the farm growing alfalfa, and, from that point, one thousand gallons per minute to the end of the line, to be there turned into an open ditch for irrigating another portion of the farm. The proposed pipe line was to run across appellant’s property from east to west, and to be so installed that water (when available) could also be taken by gravity flow from the canal on the west side of the farm, replacing the existing irrigation system.\nWagenman examined the land, and recommended the use of ten-inch concrete pipe, informing appellant that respondent would not guarantee the pipe line unless it installed the same. Appellant agreed, and ordered the pipe installed, stressing the need for haste as the crops required water. After further discussion, it was agreed that appellant would dig the ditch for the installation of the pipe and accomplish the backfilling after the pipe had been laid. This portion of the agreement was later modified, and respondent accomplished the backfilling after laying the pipe.\nAppellant procured a machine referred to as a “road patrol” and used it in digging the ditch. Appellant and his father both testified that Wagenman did not tell them how deep the trench should be dug, and that he did not inspect it after it was prepared. It appears that respondent’s foreman, who was in charge of the installation of the pipe line, told Wagenman that the ditch was not deep enough for proper installation, but it does not appear that this criticism was mentioned either to appellant or to his father. Concerning this matter, Wagenman testified, on direct examination, as follows:\n“Q. Did you ever give Mr. Knowles instructions as to the way it should be dug? A. I told him that we would like fifteen inches of cover over the pipe when a job is complete. Q. Was it necessary for you to do any work in connection with the digging of the ditch? A. Well, this road patrol leaves a V-shaped ditch in the bottom and we went along and squared that up. . . . Q. Going back to the ditch that was dug by Mr. Knowles. What was the depth of the ditch dug by him? A. Oh, I imagine in certain places, only twelve inches deep. Q. What is ordinarily required for depth in laying a ten-inch pipe? A. Oh, twenty-seven to thirty inches. Q. And did Mr. Knowles do the backfill of the pipe? A. No. Q. Mr. Wagenman, did you call Mr. Knowles’ attention to the depth of the ditch at the time that it was dug? A. Well, I don’t remember but we usually do in cases like that. It is the practice. Q. Was the ditch satisfactory in depth as far as you were concerned? A. Well, we don’t like to lay in shallow ditches but he was in a hurry to get it in so we let it go. Q. He was satisfied with the ditch as it was dug? A. Yes.”\nOn cross-examination, the witness testified as follows:\n“Q. Did you inspect this ditch before you put any pipe in there? A. No, I don’t believe I did. Q. Were you there when the first length of pipe was put in? A. No. Q. Who was there? A. Our laying crew. Q. From the time the defendant started to dig this ditch until the pipe was laid did you ever see the ditch? A. I just don’t remember.”\nMeanwhile, the pump to take water from the river had been installed and, from tests made by pumping water into a flume, appeared to operate satisfactorily. Thirty feet of galvanized pipe connected the pump to the concrete pipe line. The concrete pipe laid by respondent consisted of three-foot lengths, joined with concrete collars. Approximately 1,270 feet of this concrete pipe were installed. Neither pipe nor collars were of reinforced concrete.\nJuly 18, 1945, the pump was operated (by appellant’s father) for the first time after its connection with the concrete pipe line. Soon after the pump had been started, at approximately half speed, the connection of the concrete pipe with the galvanized portion of the line broke. Before the pump could be turned off, a hole was washed in the soil, which was fifteen feet in depth, twelve feet long, and six feet wide, according to the testimony of Wagenman, who inspected the damage the following day. He stated that, in his opinion, the pump had shifted, and asked that it be anchored. Up to this point, there is little, if any, conflict in the testimony. ■\nWe shall now discuss the evidence introduced on behalf of respondent.\nGeorge Wagenman testified that, at the time of the installation of the pipe line, he was in the employ of respondent as a field man, and was in charge of the installation. At the time of the trial, he was manager of respondent’s Okanogan branch. Mr. Wagenman testified that the pipe was installed, at his direction, by other employees of respondent, and that he was not present when the pump was first operated, July 18th, but visited the farm the next day and saw the hole created when the pipe broke. He testified that, at this time, the pump was not anchored, and that the break occurred at the point of connection of the metal pipe with the concrete pipe. After appellant had filled the hole created by the washout, Mr. Wagenman directed the reconnection of the line. He told appellant that the pump should be anchored, which appellant accomplished. Shortly after the repair occasioned by the first break, the line broke again at the same point, which break respondent also repaired.\nThe witness testified that he visited the farm several times to investigate leaks which appellant had reported; that about twelve “collars” were leaking, but that the leaks were not sufficient to require that the water be turned off. He sent a man to the farm in the fall of 1945 to make repairs, but appellant’s father, who was in charge of the farm, did not wish the water turned off at that time, saying that he would notify respondent when the pump was turned off. However, no request for further repairs was made until the spring of 1946, when appellant purchased an additional twenty feet of metal pipe to install. Respondent’s crew connected the pipe and repaired the line- and, after July, 1946, respondent was not called upon to make further repairs.\nOn cross-examination, Mr. Wagenman admitted that he did not inspect the ditch before the pipe was laid, but stated that he knew that appellant would use a “road patrol” to dig the ditch and that such a machine dug a “V-shaped” ditch, whereas the pipe should be laid in a square ditch. He also testified that he did not visit the farm while the pipe was being laid. We quote from the testimony of the witness:\n“Q. Who put this backfill over the concrete pipe? A. Our laying crew. Q. Did they come in and report to you that it would not work because the backfill was not deep enough? A. Mr. Brantner said, the ditch was not deep enough. Q. What did you do when he told you that? A. There was not much they could do. Mr. Knowles was anxious to get his water so they went ahead with the work. Q. Did you know at that time that it wouldn’t work? A. If the back-fill had been kept on it would have worked. Q. When Mr. Brantner reported to you that the ditch was not deep enough that was about a week before the pump was started? A. No, it was a little longer than that. Possibly two weeks. Q. Did you tell him to stop work until the ditch was deep enough? A. No. Q. Did you make any effort to inform the Knowles there was a possibility that the ditch wouldn’t work because of that? A. In my conversation when I went over I told Clayton that it would have to have a twelve-inch cover and he said he would get the road patrol in and have it done. Q. I mean after that time, did you tell Knowles that the ditch was not deep enough? A. I imagine we did. It is customary that we did but I don’t remember. Q. Do you know whether you told him? A. No.”\nThe witness further testified that the concrete pipe line was not reinforced; that no reinforced collars were installed until repairs were later made, the original collars having cracked due to contraction and expansion of the pipe because it was too close to the surface, and that respondent’s men went to the farm four or five times in 1946 to make necessary repairs to the pipe line.\nWinnie Brantner testified that he was employed by respondent in 1944, and that he was the “boss and layer” during the pipe line installation at appellant’s farm and supervised the connection of each three-foot piece of pipe. In regard to the depth of the ditch in which the pipe was laid, he testified:\n“Q. What did you observe about the condition of the ditch in which you laid the pipe? A. Well, the ditch was rather shallow. Q. Did you advise anyone that the ditch was shallow? A. I am sure about that. I advised the boss [Wagenman] that it was. Q. Do you know at what depth the ten-inch concrete pipe was laid? A. Well, it was not very deep. I wouldn’t say just what depth. Q. Were you there when the fill was made? A. Yes. Q. Do you recall the approximate depth of the concrete pipe after the fill was made? A. There was two-inch coverage. Q. Over the top of the pipe? A. Yes. Q. Did the coverage make a mound above the ground level? A. No, it was about level. Q. There was no heaping of the dirt over the pipe? A. No.”\nOn cross-examination, the witness stated that he was a carpenter by trade and, prior to the fall of 1944, had had no experience as a pipelayer, admitting that his experience in such work was quite limited. He testified further as follows:\n“Q. You testified that you told the boss this ditch was too shallow. A. Yes. Q. Did you notice that the ditch was too shallow before you started laying the pipe? A. Yes. Q. Did you tell Mr. Knowles the ditch was too shallow? A. I don’t recall that I did. Q. You do recall telling your boss? A. Yes. Q. Did your boss give you any instructions about what you should do about that ditch? What did your boss tell you to do? A. He didn’t say. He sent some men over there with me to clean it out. Q. Clean out the ditch? A. Yes. Q. Did you clean out the ditch? A. We squared the ditch up, yes.”\nIn respondent’s brief, it is stated that its witnesses, Wagenman, Brantner, and Hutchins, testified “that at numerous times during the summer of 1945 and 1946, they personally examined the concrete pipe line and observed water being pumped through said line under pressure.” The statement of facts does not support the foregoing statement. Wagenman testified that, on one occasion, he observed the pump operate for about two minutes, after which appellant’s father turned it off. Brantner testified that, after the concrete pipe was laid, “I returned there and did some patching once,” which was during the summer of 1945. He testified that, on this occasion, he worked on the repair of a dozen or more leaks, “mostly collar leaks—cracked collars, we call them.” Otis Hutchins, a pipelayer for the company, testified that he did not assist in laying the pipe on the Knowles farm, but that, during the summer of 1945, he helped repair the pipe line two or three times. The witness stated that on one occasion, in October, 1945, he heard the pump running when he was repairing a leak some two hundred yards distant, and that the line was in operation “up to the flume.”\nAppellant testified that respondent’s agent was advised that a crop had already been planted when the agreement for the installation of the pipe line was made; that it was agreed that the work would be completed in two weeks, but that the line was not in working order for some time after that period; that Wagenman did not .tell the witness how deep the trench should be dug, nor did he examine the same when it was completed; that he never told the witness that the ditch was not deep enough, and that the galvanized pipe line which had carried water by gravity flow from the canal was put out of commission when the concrete pipe was laid.\nAppellant testified that, when the pump was started, at about half capacity, to send water through the concrete pipe for the first time, the line leaked badly at many joints; that his father turned off the water when the break in the line occurred that caused the washout, and that appellant complained to Wagenman, who sent men to fix the line, but that, whenever the water was turned on, leaks would appear at the joints of the concrete pipe and were sometimes so violent as to create holes of considerable size in the soil. Appellant testified that two-thirds of the alfalfa crop was lost and that the potato and oat crops were also short, due to lack of water. He further testified that he had caused the pump to be securely fastened after the first washout.\nClarence Apple, who dealt in machinery and pumps and had sold the pump in question to appellant, testified that he saw the pump in operation before and after its connection to the concrete pipe line; that it did not vibrate, and that, when he inspected it the second time, it was firmly anchored in an uncracked concrete block.\nAppellant’s father, Charles C. Knowles, testified that he operated the farm from and after the spring of 1944; that he and appellant discussed the matter of the pipe line with Wagenman, who guaranteed the pipe if respondent installed it; that Wagenman gave no instructions concerning the depth or shape of the ditch; that, when the pump was first used after its connection to the concrete pipe line, it was turned on slowly, and that many bad leaks immediately appeared in the line. He also testified regarding the break in the line and the resulting washout. The witness testified that, during the summer, respondent’s employees several times tried to repair the line, but that it always leaked, the jets sometimes shooting thirty feet' in the air, and that the line at no time was adequate to irrigate the entire tract.\nPhilip Loucks testified that, in February, 1947, he entered into a contract with appellant to purchase the farm, and had lived there and operated it since that time; that two thousand dollars of the purchase price was supposed to be for the pipe line (and pump), which appellant told him was not working properly, but agreed to have it repaired. The witness testified that the pipe line was not usable under pressure of water pumped from the river, but that, since his purchase of the property, sufficient water for irrigation purposes had been furnished by gravity flow from the canal, the water being carried through the concrete pipe line. It appears that the seasons referred to had not been dry, and that the water level in the canal was high enough to allow water to flow therefrom through the pipe line. We quote from the testimony of this witness:\n“Q. Tell the Court whether or not that pipe is all right under gravity. A. There is three or four lengths between the standpipe and the steel pipe where there is enough leakage to irrigate half an acre. Q. You are referring to leakage out of the concrete pipe? A. Yes. Q. In other words, on gravity flow, that pipe leaks so bad that you can irrigate over half an acre on the leakage? A. Yes. Q. Is that the only place the concrete leaks? A. That is the only place it leaks that much. It leaks along the pipe line but it does not spout out.”\nFrom the evidence, it appears that respondent’s employee Wagenman, who was in charge of the work, knew that appellant would use a “road patrol” to dig the ditch. Wagenman testified that respondent’s employee Brantner told him that “the ditch was not deep enough,” but it appears that respondent’s agents, after squaring the ditch, proceeded with the laying of the pipe therein, without calling appellant’s attention to the fact that the ditch was too shallow. Wagenman also testified that “if the backfill had been kept on it [the pipe line] would have worked.” The placing of the backfill was accomplished by respondent’s employees as part of respondent’s contract to lay the pipe. The record does not show definitely how much backfill was put in place, as one of respondent’s employees (Brantner, who was in charge of the installation) testified that the pipe was covered by approximately two inches of earth, even with the general ground level, and that there was no heaping of dirt over the pipe, while Wagenman stated that “it was backfilled to about twelve inches. The dirt was heaped over the pipe.” If a higher backfill (above the ground level) would have protected the pipe line and prevented leaks, it would seem that, under respondent’s contract, such a covering might have been placed in position.\nWhen the first break occurred, at the point where the metal and cement pipes joined, Wagenman informed appellant that the pump should be anchored, which appellant promptly accomplished. At this time, respondent’s employee also advised that the steel - pipe from the pump should be lengthened, whereupon appellant added twenty feet of metal pipe, which respondent’s employees connected to the concrete pipe.\nFour apparently disinterested witnesses testified that they occasionally passed or viewed appellant’s farm and noted that the pipe line was leaking very extensively, one witness comparing it to a fountain, and another to a sprinkling system.\nThe trial court found that the respondent was a corporation and had paid its annual license fee for the year 1947 and subsequent years; that in June, 1945, the parties orally contracted that “the plaintiff was- to deliver to the defendants an irrigation system”; that between July 7 and July 14,1945, “the plaintiff did install a concrete irrigation pipe line for the defendants”; that “thereafter, during the year 1945, the plaintiff did repair minor leaks occurring in the line pursuant to the agreement between the parties hereto”; that the “reasonable and agreed price for the material and labor furnished for the installation” by respondent was $1,414.87, which the appellants had failed to pay, and\n“That the plaintiff has not breached any warranty as to fitness of use and purpose for which the concrete irrigation pipe line was intended and the defendants have failed in their proof of any damage resulting therefrom.”\nThe court concluded that respondent was entitled to judgment as demanded in its complaint.\nIt does not appear, from the evidence, that the parties ever discussed the cost of the proposed pipe line. It may be assumed that they did so, but the record is silent upon that question. Respondent introduced in evidence its statement, with invoices for material and labor. Appellant denied all indebtedness to respondent and sought an affirmative judgment, by way of damages in a large amount.\nThe evidence discloses, beyond question, that respondent knew what appellant wanted and undertook to install a pipe line that would answer appellant’s purposes. It clearly appears from Mr. Wagenman’s testimony that he knew the particular result which appellant expected to accomplish by the installation of the pipe line, and that appellant relied upon the statements made to him that the pipe line respondent suggested would be adequate.\nFrom the evidence, it appears that the pipe line never did satisfactorily or even reasonably accomplish the purpose for which appellant ordered its installation.\nRem. Rev. Stat., § 5836-15, subd. 1 [P.P.C. § 860-9] (Uniform Sales Act), reads as follows:\n“Subject to the provisions of this act and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows:\n“(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose. . . . ”\nIn the case of Long v. The Five-Hundred Co., 123 Wash. 347, 212 Pac. 559, this court said:\n“The order here was not for a truck of a specific kind or manufacture, but was an order for a truck suitable for hauling saw logs and timber products. The appellant produced the particular truck and sold it to the respondents, knowing the purpose for which it was intended to be used. The facts, therefore, bring the case within the rule of the case of Hausken v. Hodson-Feenaughty Co., 109 Wash. 606, 187 Pac. 319, the rule recognized in the second of the cited cases as being the converse of the rule there held applicable. In other words, there was here a sale of a particular article for a particular purpose, and the rule of implied warranty of fitness for the purpose is applicable.”\nIt is a generally recognized rule of law that an implied warranty of fitness of goods for a particular purpose, known to the vendor, arises when the purchaser, who is not informed as to the best article to accomplish his purpose, relies upon the advice of the seller. Davenport Ladder Co. v. Edward Hines Lbr. Co., 43 F. (2d) 63.\nThe foregoing rule should be applied in the case at bar.\nAppellant assigns error upon the court’s finding that respondent was a corporation authorized to do business in the state of Washington during the year 1947, when this action was commenced. This assignment of error is without merit.\nCareful examination of the record convinces us that the trial court erred in entering judgment in respondent’s favor for the amount sued for. From the evidence, it appears beyond question that the concrete pipe line never met appellant’s requirements for irrigating his farm with water pumped from the river.\nIt appears that appellant suffered damage as the result of the defective operation of the pipe line. However, we do not undertake to determine the amount of any such damage.\nThe judgment appealed from is reversed, and the cause remanded to the superior court, with instructions to grant a new trial. The new trial will be upon the evidence contained, in the record as already made, and, on motion, the case will be reopened for the purpose of receiving any further competent and material evidence which may be offered by either party.\nUpon the new trial, the court will determine, inter alia, the value (if any) to appellant of the concrete pipe line as installed, and also the amount of damages (if any) suffered by appellant due to defective operation of the pipe line.\nSimpson, C. J., S chwellenb ach, Grady, and Donworth, JJ., concur."", ""type"": ""majority"", ""author"": ""Beals, J.""}], ""attorneys"": [""Bernice Bacharach, for appellants."", ""Mansfield & Watson, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 31149.\nDepartment One.\nJune 20, 1950.]\nColumbia Concrete Pipe Company, Respondent, v. Clayton C. Knowles et al., Appellants.\nBernice Bacharach, for appellants.\nMansfield & Watson, for respondent.\nReported in 219 P. (2d) 557.""}, ""cites_to"": [{""cite"": ""219 P. (2d) 557"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""43 F. 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+4976967,"{""id"": 4976967, ""name"": ""I. O. Nopson, Appellant, v. Eugene R. Wockner et al., Respondents"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""41d0268b9817050dc585944c26bfd0cf0deb2b85e0004c20642c9fdb7008d031"", ""simhash"": ""1:a4b7a4a0a96c0311"", ""pagerank"": {""raw"": 0.00000023204797387249237, ""percentile"": 0.7899344710830631}, ""char_count"": 4418, ""word_count"": 732, ""cardinality"": 319, ""ocr_confidence"": 0.65}, ""casebody"": {""judges"": [], ""parties"": [""I. O. Nopson, Appellant, v. Eugene R. Wockner et al., Respondents.""], ""opinions"": [{""text"": ""Olson, J.\nThe issue in this appeal is whether or not the trial court correctly applied the doctrine of res ipsa loquitur.\nPlaintiff’s action was based upon allegations that defendants negligently caused his automobile to be damaged by fire while it was in their exclusive possession.\nThe trial court found that plaintiff delivered his automobile to the defendants for a two-thousand-mile service, and to have the rear floor mat cemented to the floor; that defendants used a product universally used for this purpose, known as 3M cement; that this cement is inflammable in character, although it is not customary or usual for it to explode or ignite while being applied; that the defendants were applying it in the usual and customary manner employed throughout the automobile industry, when a fire started, damaging plaintiff’s automobile. The court concluded that the defendants exercised reasonable care in performing this work and were not negligent in any regard. It entered judgment dismissing plaintiff’s action.\nIn his appeal from that judgment, plaintiff’s argument is confined solely to his contention that the doctrine of res ipsa loquitur .compels his recovery.\nWhen plaintiff’s evidence established that an instrumentality under the exclusive control of the defendants caused an injurious occurrence, which ordinarily does not happen if those in control of the instrumentality use ordinary care, the court gave effect to the inference, permissible from the occurrence itself, that it was caused by defendants’ want of care. Shay v. Parkhurst, 38 Wn. (2d) 341, 344, 229 P. (2d) 510 (1951), and cases cited. At the conclusion of plaintiff’s case, the court overruled a demurrer to the evidence and denied a motion for nonsuit, despite the absence of proof of any specific act of negligence of the defendants which caused the damage. The defendants then went forward with the evidence and described the nature of the material used and the manner in which the work was done.\nAt the conclusion of the evidence, the court decided upon the whole case that the plaintiff had not sustained the burden of proof, that is, that the evidence did not preponderate in plaintiff’s favor upon the issue of the defendants’ negligence, and dismissed the case.\nWithout the aid of the doctrine, plaintiff would not have survived a motion for nonsuit at the conclusion of his case. If applied as he contends, it would require defendants to produce evidence explaining the accident or pay. Such an obligation might impose strict liability without fault. Prosser on Torts 305, § 44. Here fault, negligence of the defendants, is the basis for recovery. All that the doctrine requires of the defendants to defeat the prima facie case established against them with its aid, is the production of evidence which, if believed, permits the trier of the facts to say that it was as probable that they were not negligent as. that they were. The permissible inference of negligence to be drawn from the circumstances of the case must be balanced against the evidence of the defendants, and has weight so long as reasonable men can still draw the inference from the facts in evidence. Prosser on Torts 308, § 44. The strength of the inference to be drawn varies with the cir-circumstances of the case. Id. 304. For a discussion of Washington cases on the doctrine see Morner v. Union Pac. R. Co., 31 Wn. (2d) 282, 196 P. (2d) 744 (1948); Nopson v. Seattle, 33 Wn. (2d) 772, 207 P. (2d) 674 (1949), including Judge Hill’s dissenting opinion, p. 793, and 13 Wash. L. Rev. 215, 27 Wash. L. Rev. 147.\nThe doctrine was correctly applied in this case. If, on the whole case, the trier of the facts cannot conclude, as he could not here, that the evidence preponderates in favor of the plaintiff, recovery cannot be allowed. D’Amico v. Conguista, 24 Wn. (2d) 674, 684, 167 P. (2d) 157 (1946).\nIn view of this conclusion, it is unnecessary for us to consider the defendants’ contention that they are not liable, in any event, because of the relationship of bailor and bailee which they contend exists between plaintiff and defendants.\nThe judgment is affirmed.\nSchwellenbach, C. J., Hill, Hamley, and Finley, JJ., concur."", ""type"": ""majority"", ""author"": ""Olson, J.""}], ""attorneys"": [""Knapp & Powers, for appellant."", ""Pomeroy, Yothers, Luckerath & Harris, for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 31925.\nDepartment Two.\nJune 19, 1952.]\nI. O. Nopson, Appellant, v. Eugene R. Wockner et al., Respondents.\nKnapp & Powers, for appellant.\nPomeroy, Yothers, Luckerath & Harris, for respondents.\nReported in 245 P. (2d) 1022.""}, ""cites_to"": [{""cite"": ""245 P. (2d) 1022"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""167 P. (2d) 157"", ""year"": 1946, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""24 Wn. (2d) 674"", ""case_ids"": [2538007], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""684""}], ""case_paths"": [""/wash-2d/24/0674-01""], ""opinion_index"": 0}, {""cite"": ""27 Wash. L. Rev. 147"", ""category"": ""journals:journal"", ""reporter"": ""Wash. L. Rev."", ""opinion_index"": 0}, {""cite"": ""13 Wash. L. Rev. 215"", ""category"": ""journals:journal"", ""reporter"": ""Wash. L. Rev."", ""opinion_index"": 0}, {""cite"": ""207 P. (2d) 674"", ""year"": 1949, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""33 Wn. (2d) 772"", ""case_ids"": [4906843], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/33/0772-01""], ""opinion_index"": 0}, {""cite"": ""196 P. (2d) 744"", ""year"": 1948, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""31 Wn. (2d) 282"", ""case_ids"": [2498126], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/31/0282-01""], ""opinion_index"": 0}, {""cite"": ""229 P. (2d) 510"", ""year"": 1951, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""38 Wn. (2d) 341"", ""case_ids"": [2417036], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""344""}], ""case_paths"": [""/wash-2d/38/0341-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""40 Wash. 2d 645"", ""type"": ""official""}], ""file_name"": ""0645-01"", ""last_page"": ""647"", ""first_page"": ""645"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T19:08:50.571923+00:00"", ""decision_date"": ""1952-06-19"", ""docket_number"": ""No. 31925"", ""last_page_order"": 669, ""first_page_order"": 667, ""name_abbreviation"": ""Nopson v. 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+498129,"{""id"": 498129, ""name"": ""Bernard W. Pineo, Junior, & another vs. Earl R. White"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""da9792915200310fefbffa979789fbd28693a268e663e05cd90a9076b3bc124f"", ""simhash"": ""1:87f2eba661ac7646"", ""pagerank"": {""raw"": 0.0000008525633896122258, ""percentile"": 0.9765250792613778}, ""char_count"": 9894, ""word_count"": 1756, ""cardinality"": 561, ""ocr_confidence"": 0.638}, ""casebody"": {""judges"": [], ""parties"": [""Bernard W. Pineo, Junior, & another vs. Earl R. White.""], ""opinions"": [{""text"": ""Ronan, J.\nThe plaintiffs alleged in their bill of complaint that they gave on August 1, 1941, to the defendant and his wife a note, the payment of which was secured by a mortgage on real estate owned by the plaintiffs; that the grantees in said mortgage were “Mildred N. White and Earl R. White, husband and wife, as joint tenants”; that the note together with interest has been paid in full; that the note and mortgage have been surrendered to the plaintiffs by Mildred N. White; and that the latter has executed a release and discharge of the said mortgage but her hus- ' band, the defendant, refuses to join in said release and discharge. The bill prays1 that the defendant be ordered to sign and acknowledge a release and discharge of the mort- • gage. The defendant demurred on the ground that the discharge executed by Mildred N. White constitutes a valid discharge of the mortgage by virtue, of G. L. (Ter. Ed.) c. 183, § 54. The plaintiffs appealed from an interlocutory decree sustaining the demurrer. The suit was also submitted to the judge upoi^ a statement of agreed facts, and he entered a final decree dismissing the bill without prejudice.. The plaintiffs appealed from this decree.\nThe proceedings in the Superior Court were irregular. A judge may hear a casej upon the merits before ruling on a demurrer. A hearing dn the merits may disclose that a plaintiff has not made out a case and a final decree may properly be entered without considering the demurrer. If a case is proved upon the merits, then an amendment to the bill may be permitted if necessary to conform to the facts proved. Pearson v. Mulloney, 289 Mass. 508, 511. Olszewski v. Sardynski, 316 Mass. 715, 717. The judge did not adopt this course. After sustaining the demurrer, there being no attempt to amend the bill, the judge should have entered a decree dismissing the bill. A trial on the merits was improperly had after the demurrer had been sustained. The sufficiency of the bill was the only question presented to the Superior Court, and that is the only question raised by the record. We disregard the decision made upon the merits and proceed to review the ruling on the demurrer.\nA mortgage of real estate is, as between the parties, a conveyance in fee, defeasible upon the performance of the conditions therein stated. Brown v. General Trading Co. 310 Mass. 263, 266. Krikorian v. Grafton Co-operative Bank, 312 Mass. 272. Cooperstein v. Bogas, 317 Mass. 341. The payment of the mortgage note at or before maturity, or the due performance of any other condition that is expressed in the mortgage, terminates the interests of the mortgagee without any formal release or discharge and revests the legal title in the mortgagor. Flye v. Berry, 181 Mass. 442. Crowley v. Adams, 226 Mass. 582. Fuller v. Fuller, 234 Mass. 187. Depon v. Shawye, 263 Mass. 206. Bailey v. Way, 266 Mass. 437. Upon the fulfilment of the \"" conditions of the mortgage, the mortgagor is entitled to the note and a discharge of the mortgage in order to remove a cloud upon the record title to his premises. Saunders v. Dunn, 175 Mass. 164. Hart v. Louis S. Levi Co. 303 Mass. 477. Perry v. Oliver, 317 Mass. 538.\n• “A conveyance or devise of land to two or more persons or to husband and wife, except a mortgage . . ., shall . create an estate in common and not in joint tenancy . . . unless it manifestly appears from the tenor of the instrument that it was intended to create ah estate in joint tenancy.” G. L. (Ter. Ed.) c. 184, § 7. This statute does not create or abolish a tenancy by the entirety. It simply expresses th'e public policy of the Commonwealth that joint tenancies are looked upon with disfavor as not being consistent with conditions of modern society. Burnett v. Pratt, 22 Pick. 556. Park v. Parker, 216 Mass. 405. Even before the words “or to husband and wife” were added to the statute by St. 1885, c. 237, § 1, a conveyance to husband and wife as joint tenants created a tenancy by the entirety. Pray v. Stebbins, 141 Mass. 219. Hoag v. Hoag, 213 Mass. 50. It is also to be noted that mortgages to two or more persons are excepted from the statute, and that the interests the mortgagees take are to be determined by the common law. Appleton v. Boyd, 7 Mass. 131. Park v. Parker, 216 Mass. 405.\nA mortgage to husband and wife jointly creates a tenancy by the entirety, and the note and mortgage belong to the wife alone upon the death of her husband and his estate has no interest therein. Draper v. Jackson, 16 Mass. 480. Boland v. McKowen, 189 Mass. 563. The mortgage in the present ’case was held by the defendant and his wife as tenants by the entirety. The characteristics of a tenancy by the entirety have been frequently stated by this court. We need not repeat what has been said. Many of the cases are collected in Licker v. Gluskin, 265 Mass. 403, 404-405. See also Splaine v. Morrissey, 282 Mass. 217; Franz v. Franz, 308 Mass. 262; Wingrove v. Leney, 312 Mass. 683. The husband has the right to the rents and profits and the usufruct of the property during covertiire, and the wife cannot transfer any interest in property that she holds as a tenant by the entirety and neither can her interest as such tenant be attached or sold upon execution . for the payment of her debts. Licker v. Gluskin, 265 Mass. 403. The husband is entitled to possession, Childs v. Childs, 293 Mass. 67, Wingrove v. Leney, 312 Mass. 683; and his interest may be attached and sold on execution. Raptes v. Pappas, 259 Mass. 37. The husband enjoys many incl-. dents of ownership during coverture, while the exercise of similar incidents by the wife lies dormant. She is not aided by statutes conferring benefits upon married women in reference to her property. Her interest is not subject to the statutes providing for attachments on land. G. L. (Ter. Ed.) c, 209, § 1; c. 236, § 1. Pray v. Stebbins, 141 Mass. 219, 224. Phelps v. Simons, 159 Mass. 415. Voigt v. Voigt, 252 Mass. 582. Licker v. Gluskin, 265 Mass. 403.\nSuch being the relative rights of the husband and wife in the property which they hold'as tenants by the entirety, we pass to the inquiry whether the wife alone during coverture can give a good release of a mortgage on real estate which she holds as a tenant by \""the entirety. The defendant contended that such a release was valid under G. L. (Ter. Ed.) c. 183, § 54. That statute provides that a mortgage may be discharged upon the margin of the record of the mortgage at the registry of deeds by one of two or more joint holders of the mortgage. A mortgage may be discharged by a written acknowledgment of payment or satisfaction by one of two or more joint holders and the “instrument shall have the same effect as a deed of release.” The defendant and his wife may in a sense be said to be joint holders of the mortgage, but their interests were not strictly those of joint tenants but were “one indivisible estate in them both and the survivor of them.” Wales v. Coffin, 13 Allen, 213, 215. Hoag v. Hoag, 213 Mass. 50. The Legislature could hardly have intended that a joint holder should include a tenant by the entirety, as a joint holder is given the power to release and discharge the mortgage — a right that a tenant by the entirety never has possessed for “each is secure against an impairment of rights through the sole act of the other.” Donahue v. Hubbard, 154 Mass. 537, 538. Woodard v. Woodard, 216 Mass. 1, 2. Bernatavicius v. Bernatavicius, 259 Mass. 486. A statute is not to be interpreted as effecting a material change in or a repeal of the common law unless the intent to do so is clearly expressed. Zoulalian v. New England Sanatorium & Benevolent Association, 230 Mass. 102. Commissioner of Corporations & Taxation v. Dalton, 304 Mass. 147. Boston v. Quincy Market Cold Storage & Warehouse Co. 312 Mass. 638.\nWe conclude that the instrument signed by the wife alone is not sufficient to release and discharge the mortgage. There was error in the decree sustaining the demurrer and in the decree dismissing the bill, and both decrees must be reversed.\nSo ordered."", ""type"": ""majority"", ""author"": ""Ronan, J.""}], ""attorneys"": [""J. W. McIntyre, V. J. Deponte & E. F. Henry, for the plaintiffs, submitted a brief."", ""No argument nor brief for the defendant.""], ""corrections"": """", ""head_matter"": ""Bernard W. Pineo, Junior, & another vs. Earl R. White.\nBristol.\nOctober 31, 1946. —\nDecember 2, 1946.\nPresent: Field, C.J., Dolan, Ronan, Wilkins, & Spalding, JJ.\nMortgage, Of real estate: to husband and wife, discharge. Tenants by the Entirety. Real Property, Tenancy by the entirety. Equity Pleading and Practice, Demurrer.\nStatement by Ronan, J., as to hearing of a suit in equity on the merits before hearing of a demurrer filed with the answer.\nIt was irregular procedure to hear a suit in equity on the merits after a demurrer, filed with the answer, had been sustained and there had been no amendment of the.bill. ‘\nUpon a record in a suit in equity which included an interlocutory decreé sustaining a demurrer to the bill and an appeal of the plaintiff therefrom without amendment of the bill, a final decree dismissing the bill after a hearing on the merits following the sustaining of the demurrer, and an appeal from the final decree, the only question before this court was the sufficiency of the bill: the decision on the merits was dis- ■ regarded.\nThe interests of- holders of a mortgage of real estate running to two or more are to be determined by the common law: and a mortgage “to husband and wife, as joint tenants” is held by them as tenants by the entirety.\nRestatement by Ronan, J., of the characteristics of a tenancy by the entirety.\nA real .estate mortgage held by husband and wife as tenants by the entirety is not discharged by a release and discharge executed by the wife alone.\nBill in equity, filed in the Superior Court on January 29, 1946.\nA demurrer to the bill was filed with the answer. The suit was heard on demurrer and on the merits by Sullivan, J.\nJ. W. McIntyre, V. J. Deponte & E. F. Henry, for the plaintiffs, submitted a brief.\nNo argument nor brief for the defendant.""}, ""cites_to"": [{""cite"": ""312 Mass. 638"", ""case_ids"": [483055], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/312/0638-01""], ""opinion_index"": 0}, {""cite"": ""304 Mass. 147"", ""case_ids"": [873472], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/304/0147-01""], ""opinion_index"": 0}, {""cite"": ""230 Mass. 102"", ""case_ids"": [71158], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/230/0102-01""], ""opinion_index"": 0}, {""cite"": ""259 Mass. 486"", ""case_ids"": [854876], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/259/0486-01""], ""opinion_index"": 0}, {""cite"": ""216 Mass. 1"", ""case_ids"": [88042], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""2""}], ""case_paths"": [""/mass/216/0001-01""], ""opinion_index"": 0}, {""cite"": ""154 Mass. 537"", ""case_ids"": [806985], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""538""}], ""case_paths"": [""/mass/154/0537-01""], ""opinion_index"": 0}, {""cite"": ""13 Allen, 213"", ""case_ids"": [2114898], ""category"": ""reporters:state"", ""reporter"": ""Allen"", ""pin_cites"": [{""page"": ""215""}], ""case_paths"": [""/mass/95/0213-01""], ""opinion_index"": 0}, {""cite"": ""252 Mass. 582"", ""case_ids"": [746168], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/252/0582-01""], ""opinion_index"": 0}, {""cite"": ""159 Mass. 415"", ""case_ids"": [799628], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/159/0415-01""], ""opinion_index"": 0}, {""cite"": ""259 Mass. 37"", ""case_ids"": [854795], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/259/0037-01""], ""opinion_index"": 0}, {""cite"": ""293 Mass. 67"", ""case_ids"": [479947], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/293/0067-01""], ""opinion_index"": 0}, {""cite"": ""312 Mass. 683"", ""weight"": 2, ""case_ids"": [483089], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/312/0683-01""], ""opinion_index"": 0}, {""cite"": ""308 Mass. 262"", ""case_ids"": [3839244], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/308/0262-01""], ""opinion_index"": 0}, {""cite"": ""282 Mass. 217"", ""case_ids"": [3834047], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/282/0217-01""], ""opinion_index"": 0}, {""cite"": ""265 Mass. 403"", ""weight"": 3, ""case_ids"": [3825314], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""404-405""}], ""case_paths"": [""/mass/265/0403-01""], ""opinion_index"": 0}, {""cite"": 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""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T16:27:22.486993+00:00"", ""decision_date"": ""1946-12-02"", ""docket_number"": """", ""last_page_order"": 544, ""first_page_order"": 539, ""name_abbreviation"": ""Pineo v. 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+498171,"{""id"": 498171, ""name"": ""Albert Carbone vs. Trustees of New York, New Haven & Hartford Railroad Company (and a companion case)"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""4aa31f164d7bb7bc0ca12a1d8c37e73dcf4c5f4b27cbf967cbeace6879cdc1d6"", ""simhash"": ""1:e2628db91236deef"", ""pagerank"": {""raw"": 0.00000021161036247295984, ""percentile"": 0.7639115253437556}, ""char_count"": 10809, ""word_count"": 1883, ""cardinality"": 567, ""ocr_confidence"": 0.635}, ""casebody"": {""judges"": [], ""parties"": [""Albert Carbone vs. Trustees of New York, New Haven & Hartford Railroad Company (and a companion case).""], ""opinions"": [{""text"": ""Spalding, J.\nThese are two actions of tort in which the judge, at the close of the plaintiffs’ opening, ordered verdicts for the defendants subject to the plaintiffs’ exceptions. The declarations in the two cases are substantially the same. In the first count of each the plaintiff alleges negligence by reason of a violation of G. L. (Ter. Ed.) c. 48, § 16; the second counts allege negligence arising out of a violation of G. L. (Ter. Ed.) c. 160, § 235, as amended. While the declarations do not specifically mention the statutes, it is obvious that they were drawn with reference to them.\nIn his opening, counsel for the plaintiffs read to the jury the provisions of G. L. (Ter. Ed.) c. 160, § 235, as amended, and of G. L. (Ter. Ed.) c. 48, § 16. He then stated that he would prove that at some time prior to April 30, 1942, the defendants had cut and piled up brush on their railroad location; that between April 1 and December 1 of that year they did not clear the location of dead leaves, dead grass, and other inflammable material; that some time in the early afternoon of April 30 the plaintiff Carbone, “who . . . [operated] a farm at some distance from this woodland, was advised by some of his workmen that his wood was on fire ” ; and that Carbone and others attempted to extinguish the fire “but it got beyond their control and got in onto . . . [the plaintiff] Nichols’s woodland, and from there into Carbone’s woodland,” burned about two hundred fifty cords of cord wood and about five hundred fence posts thereon, and damaged a sizable tract of land. Counsel then stated that he would offer in evidence photographs, which were taken as soon after the fire as possible, “to show that part of the location which was burned and from which it spread onto the woodland of the plaintiffs in these two actions.”\nThe following colloquy then occurred: “The Judge. If it is not clear on the record, may I say that as part of your opening you say that you have no evidence of what caused the fire? Counsel for the plaintiffs. That is true. The Judge. As to who caused it, or why? Counsel for the plaintiffs. That is true.” The Judge then said to the jury, “I am going to direct a verdict for the defendant . . . because I feel that although, if the facts were proved as set forth in the opening you would be warranted in finding that a failure to remove slash might be a breach of a penal statute and therefore evidence of negligence, without any evidence as to what caused the fire I do not believe that the plaintiffs can maintain their actions. For that reason, I direct a verdict for the defendant in each action.”\nThe judge erred in directing verdicts for the defendants.\nWe lay to one side the contention of the defendants that G. L. (Ter. Ed.) c. 48, § 16, is not applicable to railroads and that G. L. (Ter. Ed.) c. 160, § 235, as amended, was intended to occupy the field exclusively on the matter of a railroad’s duty to keep its location free of brush and similar material. The opening did not reveal any facts tending to show a violation of G. L. (Ter. Ed.) c. 48, § 16, but disclosed only a violation of G. L. (Ter. Ed.) c. 160, § 235, as amended, the relevant portions of which provide that “ Every corporation operating a steam railroad . . . shall, between April first and December first in each year, keep the full width of all of its locations over which . . . [its] engines are operated, to a point two hundred feet distant from the centre line on each side thereof, clear of dead leaves, dead grass, dry brush or other inflammable material,” with certain exceptions not here máterial. No penalty is prescribed for its violation. Nevertheless, we are of opinion that a violation of it would be evidence of negligence as to all consequences that were intended to be prevented. Kralik v. LeClair, 315 Mass. 323, 326. And we have no doubt that one of these consequences, if not the chief one, was the protection of other property against damage by fire.\nIt is true that in all of the cases that have come to our attention where violation of a statute has been held to be evidence of negligence, the statute under consideration was penal. Expressions may be found in many of these cases from which it might be inferred that this principle is confined to penal statutes, ordinances, by-laws or regulations. But these expressions cannot be taken to place such a limitation on the rule, for in the cases in which they appear that question was not before the court. On principle there should be no such limitation. The Legislature in enacting § 235 imposed a duty on railroad corporations with respect to certain inflammable material on their locations. We see no reason why a breach of that duty should not be treated as evidence of negligence. It would be strange if a court which holds that the violation of a rule of a corporation is evidence of negligence (Stevens v. Boston Elevated Railway, 184 Mass., 476) were to hold that similar consequences should not attend the violation of a statute merely because no penalty was prescribed. See Restatement: Torts, §§ 286, 287; Prosser on Torts, § 39.\nThe ordering of the verdicts cannot be supported on the ground stated by the trial judge. That the cause of the fire did not appear was not necessarily fatal to recovery. Geraci v. A. G. Tomasello & Son, Inc. 293 Mass. 552. In that case, although the cause of the fire was not shown, the plaintiff was allowed to recover on proof that the fire started at a place where the defendant had negligently allowed inflammable material (gasoline or oil) to accumulate. In the present cases the opening showed negligence on the part of the defendants in not complying with § 235. If this negligence was causally related to the fire that damaged the plaintiffs’ property, the plaintiffs were entitled to go forward with their evidence. The opening leaves this aspect of the case in some doubt. But we are disposed to resolve it in favor of the plaintiffs in the circumstances here disclosed.\nWhile the practice of ordering a verdict on an opening that fails to state a case is a well recognized part of our law (Farnham v. Lenox Motor Car Co. 229 Mass. 478, 482; Sandler v. Green, 287 Mass. 404, 406), nevertheless it is a power which, for obvious reasons, should be exercised with great caution. It is customary and proper, before disposing of a case upon an opening, to make sure that the case has been fully stated. See Mulvaney v. Worcester, 293 Mass. 32, 33. In the cases before us the judge, as the colloquy quoted above shows, ordered the verdicts not on the ground that the inflammable material was not causally related to the fire, but rather for the reason that the cause of the fire was not known. The plaintiffs were invited to supply omissions with respect to the latter issue, but not the former. In view of this they might reasonably have inferred that their opening had shown sufficient causal connection between the inflammable material and the fire, and that it was not necessary to say anything further on that issue. The defendants do not in this court seriously contend that the opening failed on that issue, but seek to support the ruling of the judge chiefly on the ground that the cause of the fire was not shown.\nWe are of opinion in these circumstances that the opening ought not to be interpreted as showing no causal connection between the inflammable material and the fire, and that the plaintiffs ought to have been allowed to go forward with their evidence.\nThis is the opinion of a majority of the court.\nExceptions sustained.\n“Every owner, lessee, tenant or occupant of lands or of any-rights or interests therein, except electric, telephone and telegraph companies, who cuts or permits the cutting of brush, wood or timber on lands which border upon woodland, or upon a highway or railroad location, shall dispose of the slash caused by such cutting in such a manner that the same will not remain on the ground within forty feet of any woodland, highway or railroad location.”\nTypical of such statements is the following: The “violation of a criminal statute is evidence of negligence ... as to all consequences that the statute was intended to prevent.” Bourne v. Whitman, 209 Mass. 155, 166-167. Similar expressions may be found in Gordon v. Bedard, 265 Mass. 408, 411, Falk v. Finkelman, 268 Mass. 524, 527, Wainwright v. Jackson, 291 Mass. 100, 102, Baggs v. Hirschfield, 293 Mass. 1, 3, Kralik v. LeClair, 315 Mass. 323, 326, and Deignan v. Lubarsky, 318 Mass. 661, 664."", ""type"": ""majority"", ""author"": ""Spalding, J.""}], ""attorneys"": [""E. T. Simoneau, for the plaintiffs, submitted a brief."", ""N. W. Deering, for the defendants.""], ""corrections"": """", ""head_matter"": ""Albert Carbone vs. Trustees of New York, New Haven & Hartford Railroad Company (and a companion case).\nMiddlesex.\nNovember 7, 1946.—\nJanuary 31, 1947.\nPresent: Field, C.J., Lummus, Qua, Dolan, Ronan, Wilkins, & Spalding, JJ.\nFire. Negligence, Violation of law; Railroad: fire; Inflammable substance. Railroad, Fire. Practice, Civil, Ordering verdict.\nThe mere fact that no penalty is prescribed for violation by a railroad corporation of G. L. (Ter. Ed.) c. 160, § 235, as amended, does not preclude such a violation being treated as evidence of negligence on the part of the corporation.\nA failure by a railroad corporation to clear its location of dead leaves, dead grass and other inflammable material as required by G. L. (Ter. Ed.) c. 160, § 235, as amended, would be evidence of negligence which, if shown to be causally related to the spread of a fire which started in the inflammable material and spread to woodland near the location, would warrant a finding of liability of the corporation to the owner of the woodland for the damage caused thereto by the fire, even though the cause of the start of the fire did not appear.\nAn exception at the trial of an action to the ordering of a verdict for the defendant upon the plaintiff's opening to the jury was sustained where, although the opening left somewhat in doubt the sufficiency of the expected evidence upon an issue which this court considered the material issue, the trial judge did not question its sufficiency but, after ascertaining from counsel for the plaintiff that he would offer no evidence upon another issue which this court considered immaterial, based the ordering of the verdict upon the lack of expected evidence on the.latter issue.\nTwo actions of tort. Writs in the Superior Court dated October 21, 1943.\nThe actions were tried together before Morton, J., who ordered verdicts for the defendants upon the plaintiffs’ opening to the jury. The plaintiffs alleged exceptions.\nThe cases were argued at the bar in November, 1946, . before Field, C.J., Lummus, Qua, Dolan, & Spalding, JJ., and afterwards were submitted on briefs to all the Justices.\nE. T. Simoneau, for the plaintiffs, submitted a brief.\nN. W. Deering, for the defendants.\nThe companion case is by Charles E. Nichols against the same defendants.""}, ""cites_to"": [{""cite"": ""318 Mass. 661"", ""case_ids"": [929743], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""664""}], ""case_paths"": [""/mass/318/0661-01""], ""opinion_index"": 0}, {""cite"": ""293 Mass. 1"", ""case_ids"": [479916], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""3""}], ""case_paths"": [""/mass/293/0001-01""], ""opinion_index"": 0}, {""cite"": ""291 Mass. 100"", ""case_ids"": [495020], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""102""}], ""case_paths"": [""/mass/291/0100-01""], ""opinion_index"": 0}, {""cite"": ""268 Mass. 524"", ""case_ids"": [845325], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""527""}], ""case_paths"": [""/mass/268/0524-01""], ""opinion_index"": 0}, {""cite"": ""265 Mass. 408"", ""case_ids"": [3825328], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""411""}], ""case_paths"": [""/mass/265/0408-01""], ""opinion_index"": 0}, {""cite"": ""209 Mass. 155"", ""case_ids"": [3469100], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""166-167""}], ""case_paths"": [""/mass/209/0155-01""], ""opinion_index"": 0}, {""cite"": ""293 Mass. 32"", ""case_ids"": [479957], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""33""}], ""case_paths"": [""/mass/293/0032-01""], ""opinion_index"": 0}, {""cite"": ""287 Mass. 404"", ""case_ids"": [924097], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""406""}], ""case_paths"": [""/mass/287/0404-01""], ""opinion_index"": 0}, {""cite"": ""229 Mass. 478"", ""case_ids"": [3455122], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""482""}], ""case_paths"": [""/mass/229/0478-01""], ""opinion_index"": 0}, {""cite"": ""293 Mass. 552"", ""case_ids"": [479876], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/293/0552-01""], ""opinion_index"": 0}, {""cite"": ""184 Mass., 476"", ""case_ids"": [824519], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/184/0476-01""], ""opinion_index"": 0}, {""cite"": ""315 Mass. 323"", ""weight"": 2, ""case_ids"": [904162], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""326""}, {""page"": ""326""}], ""case_paths"": [""/mass/315/0323-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""320 Mass. 710"", ""type"": ""official""}], ""file_name"": ""0710-01"", ""last_page"": ""714"", ""first_page"": ""710"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T16:27:22.486993+00:00"", ""decision_date"": ""1947-01-31"", ""docket_number"": """", ""last_page_order"": 766, ""first_page_order"": 762, ""name_abbreviation"": ""Carbone v. Trustees of New York, New Haven & Hartford 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+498177,"{""id"": 498177, ""name"": ""Winifred Bailey vs. M. Harry Golburgh"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""87e273dace739e2ce76e674e837018a3b577923f298b4191de8dac317a6cbc12"", ""simhash"": ""1:1180846bd8dc00de"", ""pagerank"": {""raw"": 0.00000013732758113084267, ""percentile"": 0.6389138903465028}, ""char_count"": 4824, ""word_count"": 858, ""cardinality"": 320, ""ocr_confidence"": 0.642}, ""casebody"": {""judges"": [], ""parties"": [""Winifred Bailey vs. M. Harry Golburgh.""], ""opinions"": [{""text"": ""Spalding, J.\nIn this action of tort the jury returned a verdict for the plaintiff on the first and second counts and the case is here on the defendant’s exception to the denial of his motion for a directed verdict.\nThe jury could have found the following facts: In July, 1943, the plaintiff became a tenant at will of the owner of an apartment house numbered 95 Gordon Street in the Allston district of Boston. In September of that year the defendant became the owner of the premises and the plaintiff continued to occupy them as a tenant at will. At the entrance to the premises is a porch or vestibule, and three steps leading to a public sidewalk. This entrance was the one ordinarily used by tenants and it was agreed that it was in the control of the defendant. In the center of the ceiling of the portico was an electric light fixture. At the time the plaintiff moved into the premises in July, 1943, this “fixture was in position and perfectly all right.” When the defendant “took over the premises in . . . September, 1943, the condition of the fixture was, the same as when . . . [she] first moved in.” Later, in November, the plaintiff noticed that the fixture was different; it was “loose and hanging down with about a length of wire about seven or eight inches, and the fixture was on the end of it.” In the ceiling there was a hole where the fixture had been and this condition existed on March 21, 1944, when the accident occurred.\nPrior to the accident the plaintiff had on several occasions noticed water coming through that hole on rainy days and she had brought this to the attention of the defendant’s janitor “about three times during the winter.” Water coming from the hole would “come down in a regular stream in front of the door” and then “spread out down over the steps to the sidewalk.”\nAt 9:45 p.m. on March 21, 1944, the plaintiff while leaving the premises slipped and fell on an accumulation of ice that had formed on the top step and “protruded down over onto the sidewalk.” She slipped at “about the center of the top step.” The ice “formed from the water leaking through and around the hole in the portico.” It had snowed from 10:48 p.m. on March 19 to 1 a.m. on March 21.\nThe plaintiff was entitled to go to the jury on the second count. To recover the plaintiff was required to prove that her injury was caused by the defendant’s failure to exercise reasonable care to keep the part of the premises remaining in his control in as safe condition as it was in or appeared to be in at the beginning of the tenancy. Silver v. Cushner, 300 Mass. 583, 58A-585. Rogers v. Dudley Realty Corp. 301 Mass. 104, 105. From the facts recited above the jury could have found that the condition of that part of the defendant’s premises became defective subsequent to the time of the letting and that the defendant failed to exercise reasonable care to remedy it. It also could have been found that this condition contributed to cause the plaintiff’s injuries.\nIn view of the conclusion reached it is not necessary to consider whether, as the plaintiff has argued, the evidence would have warranted a verdict on the ground that the defendant had assumed the duty of keeping the steps free of ice and had failed to perform it. See Nash v. Webber, 204 Mass. 419, 424-425; Erickson v. Buckley, 230 Mass. 467. Compare McNeill v. Home Savings Bank, 313 Mass. 664, 667.\nExceptions overruled.\nIn the first count the plaintiff alleged that she was injured by reason of an unnatural, accumulation of ice which the defendant had carelessly and negligently suffered to remain on his premises for an unreasonable length of time. In the second count it is alleged that the defendant allowed a certain portion of his premises to remain in such a condition that water could flow in an unnatural manner onto the front porch thereof so that ice formed there for an unreasonable time."", ""type"": ""majority"", ""author"": ""Spalding, J.""}], ""attorneys"": [""F. P. Hurley, for the defendant."", ""J. Saklad, (H. J. Levi with him,) for the plaintiff.""], ""corrections"": """", ""head_matter"": ""Winifred Bailey vs. M. Harry Golburgh.\nSuffolk.\nApril 2, 1946. —\nOctober 30, 1946.\nPresent: Field, C.J., Lummus, Qua, Honan, & Spalding, JJ.\nLandlord and Tenant, Common porch, Landlord’s liability to tenant or his family or his invitee.\nA finding of liability on the part of the owner of an apartment house to a tenant for injuries sustained through slipping on an accumulation of ice on an entrance porch used in common by tenants and in the control of the owner was warranted by evidence that the ice was formed from water coming through a hole in the ceiling of the porch which had developed after the beginning of the tenancy, had continued for about four months and had been brought to the attention of the owner’s janitor several times during that period.\nTort. Writ in the Superior Court dated June 15, 1944.\nThe action was tried before Kirk, J.\nF. P. Hurley, for the defendant.\nJ. Saklad, (H. J. Levi with him,) for the plaintiff.""}, ""cites_to"": [{""cite"": ""313 Mass. 664"", ""case_ids"": [484524], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""667""}], ""case_paths"": [""/mass/313/0664-01""], ""opinion_index"": 0}, {""cite"": ""230 Mass. 467"", ""case_ids"": [71189], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/230/0467-01""], ""opinion_index"": 0}, {""cite"": ""204 Mass. 419"", ""case_ids"": [5680036], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""424-425""}], ""case_paths"": [""/mass/204/0419-01""], ""opinion_index"": 0}, {""cite"": ""301 Mass. 104"", ""case_ids"": [866154], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""105""}], ""case_paths"": [""/mass/301/0104-01""], ""opinion_index"": 0}, {""cite"": ""300 Mass. 583"", ""case_ids"": [864332], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/300/0583-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""320 Mass. 309"", ""type"": ""official""}], ""file_name"": ""0309-01"", ""last_page"": ""311"", ""first_page"": ""309"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T16:27:22.486993+00:00"", ""decision_date"": ""1946-10-30"", ""docket_number"": """", ""last_page_order"": 363, ""first_page_order"": 361, ""name_abbreviation"": ""Bailey v. 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+4985077,"{""id"": 4985077, ""name"": ""Eleanor C. Muck, Individually and as Administratrix, et al., Respondents, v. Snohomish County Public Utility District No. 1, Appellant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""26c01df0f00005c7ed4116efb299e2771eb3c2cebf406b6c80fbfa874b46ba86"", ""simhash"": ""1:723034a73fdf6276"", ""pagerank"": {""raw"": 0.000000316277934616901, ""percentile"": 0.8633931939661347}, ""char_count"": 15264, ""word_count"": 2643, ""cardinality"": 827, ""ocr_confidence"": 0.665}, ""casebody"": {""judges"": [], ""parties"": [""Eleanor C. Muck, Individually and as Administratrix, et al., Respondents, v. Snohomish County Public Utility District No. 1, Appellant.""], ""opinions"": [{""text"": ""Hill, J.\nThis is an action in negligence, to recover for the wrongful death of a man electrocuted while assisting in the placing of a temporary, or test, television antenna. The caption is misleading. As submitted to the jury, this is an action by Eleanor C. Muck, as administratrix of the estate of Otto Max Muck, for the benefit of herself as the widow of the deceased and for the benefit of their minor son. From a judgment on the verdict of the jury in favor of the administratrix the defendant appeals, urging numerous reasons why it was entitled to a judgment of dismissal notwithstanding the verdict of the jury. There is therefore but one respondent, the administratrix.\nThe evidence most favorable to the respondent, so far as material to the questions raised on this appeal, was that Otto Max Muck was employed as sales manager of a retail electrical appliance store. The store was engaged in selling and servicing various household electrical appliances, radios, and television sets. Mr. Muck had general supervision of the retail sales division of the store and, as part of his job, bought stock, handled the advertising, including the window displays, and employed salesmen.\nIt was the practice of the store to allow prospective customers to try out television sets in their homes for a few days without obligation to purchase. This necessitated the setting up of a temporary, or test, antenna some twenty-five feet in height, which stood on the ground and was fastened to the side of the house. If a sale resulted, a permanent antenna was installed on the roof by another firm, which specialized in that work.\nOn the day he was killed, Mr. Muck accompanied Edward Olson, the service man employed by the store, whose duties included delivering television sets and setting up temporary antennas, to the home of Meinard Ulrich, where a console television set was to be left for demonstration purposes and a temporary antenna set up. Mr. Olson testified that the only reason Mr. Muck accompanied him was to assist in carrying the bulky television set into the house, and that if he, Olson, had been going to deliver and install a smaller, table-model television set, he would not have needed assistance. This was the second time Mr. Muck had accompanied him on such a mission.\nA short distance from the Ulrich house, the delivery truck stalled. Mr. Muck stayed with the truck to get it started, and Mr. Olson went on to the Ulrich house with the portable temporary antenna, which consisted of five 5-foot sections of steel tubing that could be fitted together to make a 25-foot pole, together with the antenna proper, made up of a 4-foot beam and four or five 70-inch aluminum crossbeams. By the time Mr. Muck got the truck started and approached the house, Mr. Olson had assembled the antenna and had placed a screw eye in the end of one of the house rafters, to be used to fasten the antenna to the house.\nThere was a wire fence very close to the house, and Mr. Olson had laid the 25-foot pole across this fence, the end of the pole which was to be on the ground being near the house and the end to which the aluminum crossbeams were to be attached projecting across the fence into a lane. To set the aluminum crossbeams in place, Mr. Olson crossed the fence into the lane. When he raised the antenna into a vertical position on the house side of the fence, he was still on the side of the fence away from the house. We will let him tell the story in his own words from that point:\n“Well, I found that it was in sort of an awkward position to let go of the antenna, so I was figuring just what to do. At that time, I saw Mr. Muck coming. He was through with the truck and I saw him coming, and I said, ‘Will you take hold of this pole while I go up on the ladder and tie it to the antenna?’\n“He stepped over the fence while I held the pole; he stepped over the fence and said, T hope I don’t tear my trousers.’ That’s what he said, and he took hold of the pole. I stepped about three or four steps further down the fence, which was lower at that point, and stepped over the fence and started to go over toward the ladder. At that time, I heard him make a sound and I noticed the antenna started to fall.”\nThe antenna had come into contact with a 2400-volt primary line maintained by the appellant directly over the Ulrich house, and Mr. Muck had been electrocuted.\nThe appellant first urges that Mr. Muck came under the workmen’s compensation act, as one who was engaged in extrahazardous employment in that he was engaged in “. . . installing . . . radios . . . and motor delivery, including drivers and helpers ...” (RCW 51.12.010; cf. Rem. Supp. 1947, § 7674), and that his widow and minor child have no remedy except to avail themselves of their rights under that act. In reply to that contention, the respondent urges that our workmen’s compensation act covers only enumerated extrahazardous occupations, that a television set is not a radio, and that, if the installation of television sets is extrahazardous, it has not as yet been designated as such by the legislature.\nHowever, we prefer to hold that, in any event, it has been determined by the verdict of the jury, under instructions of the court, that Mr. Muck was not engaged in duties required of him either by his contract of employment or by specific direction of his employer. The jury was justified in believing that it was not necessary for Mr. Olson to have any assistance in setting up a temporary antenna and that Mr. Muck accompanied him for the sole purpose of helping to carry the console television set into the house. The factual issues, being decided adversely to the appellant on substantial evidence, dispose of the contention that Mr. Muck was engaged in duties required by his contract of employment or by specific direction of his employer. Cugini v. Department of Labor & Industries, 31 Wn. (2d) 852, 199 P. (2d) 593 (1948), in which we cite and quote D’Amico v. Conguista, 24 Wn. (2d) 674, 167 P. (2d) 157 (1946); see, also, Purinton v. Department of Labor & Industries, 25 Wn. (2d) 364, 170 P. (2d) 656 (1946).\nThe present case is in many respects far stronger than Cugini v. Department of Labor & Industries, supra. There Cugini, the employer, was engaged in an extrahazardous business (logging and trucking) and the injured workman worked during the daytime as a log loader and boom man, and was acting as a watchman (or so it was contended and assumed for the purposes of the decision) at the time of his injury, which was caused by exploding dynamite which he was using for some purpose. The business of the employer and the occupation of the employee were both extra-hazardous, yet we there held that, because the employee was not, at the time he was injured, in the actual performance of any duties required by his contract of employment, he was not covered by the act.\nHere we have a business (a retail store handling electrical household appliances, radios and television sets) which is not classified as extrahazardous (although certain phases of it are so classified, such as the installation and servicing of radios, and motor delivery, including the duties of drivers and helpers) and an employee whose occupation as sales manager is not defined as extrahazardous. The trial court correctly told the jury that, to sustain its defense that Mr. Muck came under the provisions of the workmen’s compensation act, the appellant had to prove that Mr. Muck was engaged in the performance of extrahazardous employment required of him by his contract of employment or by specific direction of his employer.\nAn act of negligence by the appellant upon which the respondent relies to sustain the verdict was the maintenance of a high-tension line over the Ulrich house with a clearance of less than six feet, in violation of a rule promulgated by the public service commission of the state of Washington in 1914, pursuant to authority vested in it by law. Laws of 1913, chapter 130, p. 397; 3 Rem. & Bal. Code, §§ 4976-1 to 4976-6, inclusive (now Rem. Rev. Stat., §§ 5435 to 5440). (Authority to promulgate such rules is vested in the director of labor and industries by the Laws of 1921, chapter 7, § 80, p. 43. RCW 43.22.050; cf. Rem. Rev. Stat., § 10838. In the preparation of RCW, the revisers evidently were of the opinion that the Laws' of 1913, chapter 130, as amended, had been superseded by the Laws of 1935, chapter 169, p. 574. RCW 19.28.010 to 19.28.350, inclusive; cf. Rem. Rev. Stat. (Sup.), §§ 8307-1 to 8307-18, inclusive. Whether the rule referred to is presently applicable is not material, as the case was tried by all parties on the assumption that the rule is still in effect.)\nAppellant urges that the respondent cannot avail herself of the violation of the rule promulgated by the public service commission because the regulation is for the benefit of people working on houses and not for the benefit of those standing on the ground. Appellant cites no authority to support that argument, and the certified copy of the rule which is in evidence carries the finding that the adoption of the rule in question, together with others, was required by “the public security and public interest.” The limitation which appellant seeks to place as to those for whose benefit the rule was adopted is without justification. Similar regulatory statutes are said to have been passed for the protection of the public. Arnold v. Ohio Gas & Electric Co., 28 Ohio App. 434, 162 N. E. 765 (1928); Tri-County Electric Cooperative v. Clair, 217 S. W. (2d) (Tex. Civ. App.) 681 (1949). As said by Cardozo, J., in Martin v. Herzog, 228 N. Y. 164, 171, 126 N. E. 814 (1920):\n“A statute designed for the protection of human life is not to be brushed aside as a form of words, its commands reduced to the level of cautions, and the duty to obey attenuated into an option to conform.”\nCertainly such a regulation is for the benefit of those working on and around the houses over which the high voltage wires are maintained.\nAppellant then says that, if it was negligent, its negligence was not a proximate cause of Mr. Muck’s death because, if there had been a 6-foot clearance as required by the rule referred to, the accident would still have happened. That theory was submitted to the jury by a proper instruction. The evidence shows that a 6-foot clearance would have placed the appellant’s wire 27.55 feet above the ground, and that the atenna was twenty-five feet in height. The jury was entitled to conclude that if appellant’s wire had conformed to the regulation there would have been no accident, and that its failure to conform to the regulation was a proximate cause of the death of Mr. Muck.\nAppellant next urges that it is responsible for only such results of its negligence as could reasonably be anticipated, and that Mr. Muck’s “swinging a 25-foot antenna in the air near the wires was something which was not reasonably anticipated.” This theory, also, the trial judge submitted to the jury under an appropriate instruction. The concluding sentence of that instruction was:\n“A condition reasonably to be apprehended or anticipated does not imply that the exact condition proven has to have been expressly contemplated, but only that the defendant should reasonably have apprehended that someone working on or around said house rightfully might come in contact with the wire and thereby suffer serious injury or death.”\nThe principle there stated finds ample support in our opinion in Card v. Wenatchee Valley Gas & Electric Co., 77 Wash. 564, 137 Pac. 1047 (1914), and the cases therein cited. In that case, a 20-foot length of pipe came in contact with a wire seventeen feet above the ground, with fatal results.\nAppellant received all the consideration to which it was entitled on this point when its theory was submitted to the jury.\nAppellant next urges that the negligence of Mr. Olson, who put the antenna together and asked Mr. Muck to hold it while he, Olson, climbed over the fence, was an intervening act of negligence which broke the chain of causation, and hence appellant’s negligence was not the proximate cause. That defensive theory was not presented to the jury, nor was there any suggestion then nor is there now that it should have been. It does not appear from the record before us that appellant’s counsel at any time suggested to the trial court that appellant was contending that Mr. Olson’s negligence was a superseding negligence which broke the chain of causation. The case must be decided on the record made in the court below (Lally v. Graves, 188 Wash. 561, 63 P. (2d) 361 (1936)); and an appellant cannot seek a reversal here on a theory never presented to or considered by the trial court. Smith v. King County, 28 Wn. (2d) 917, 184 P. (2d) 562 (1947); Stansbury v. Department of Labor & Industries, 36 Wn. (2d) 330, 217 P. (2d) 785 (1950).\nParenthetically, we will say that the contention is patently without merit as the basis for judgment of dismissal notwithstanding the verdict, which is the only relief that appellant asks on this appeal, because the most that appellant could have asked was that its theory be submitted to the jury, and it was within the province of the jury to determine whether Mr. Olson was negligent and, if so, whether it was a superseding or merely a concurring negligence. Eckerson v. Ford’s Prairie School Dist. No. 11, 3 Wn. (2d) 475, 101 P. (2d) 345 (1940); Berglund v. Spokane County, 4 Wn. (2d) 309, 103 P. (2d) 355 (1940); Swanson v. Gilpin, 25 Wn. (2d) 147, 169 P. (2d) 356 (1946); Bronk v. Davenny, 25 Wn. (2d) 443, 171 P. (2d) 237 (1946).\nAnd finally, appellant urges that Mr. Muck was guilty of contributory negligence. The evidence was that Mr. Muck, in response to a request by Mr. Olson, grabbed hold of the antenna. There is no showing that Mr. Muck even knew that there were any wires overhead. Whether the wires, which could have been seen, should have been seen by him, and whether, having been seen, they should have been indicia of danger to a reasonably prudent and cautious man, were questions for the jury. The defense of contributory negligence was submitted to the jury under proper instructions, and that, again, was as much as the appellant was entitled to.\nEvery defensive theory suggested to the trial court was submitted to the jury with meticulous fairness and care. None of them presented questions of law which could have been determined adversely to the respondent. See Tri-County Electric Cooperative v. Clair, supra, a very recent decision (1949) which reviews a number of similar cases in which the questions of negligence, proximate cause, and contributory negligence were related to the height at which highly charged electric wires were maintained above the ground.\nThe judgment is affirmed.\nSchwellenbach, C. J., Hamley, Finley, and Olson, JJ., concur.\nOctober 1, 1952. Petition for rehearing denied."", ""type"": ""majority"", ""author"": ""Hill, J.""}], ""attorneys"": [""Skeel, McKelvy, Henke, Evenso'n & Uhlmann and Altha P. Curry, for appellant."", ""Hall, Cole & Lawrence and Stanley F. Atwood, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 32050.\nDepartment Two.\nAugust 14, 1952.]\nEleanor C. Muck, Individually and as Administratrix, et al., Respondents, v. Snohomish County Public Utility District No. 1, Appellant.\nSkeel, McKelvy, Henke, Evenso'n & Uhlmann and Altha P. Curry, for appellant.\nHall, Cole & Lawrence and Stanley F. Atwood, for respondent.\nReported in 247 P. (2d) 233.""}, ""cites_to"": [{""cite"": ""247 P. (2d) 233"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""171 P. (2d) 237"", ""year"": 1946, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""25 Wn. (2d) 443"", ""case_ids"": [2531714], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/25/0443-01""], ""opinion_index"": 0}, {""cite"": ""169 P. (2d) 356"", ""year"": 1946, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""25 Wn. (2d) 147"", ""case_ids"": [2533380], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/25/0147-01""], ""opinion_index"": 0}, {""cite"": ""103 P. (2d) 355"", ""year"": 1940, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""4 Wn. (2d) 309"", ""case_ids"": [5281088], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/4/0309-01""], ""opinion_index"": 0}, {""cite"": ""101 P. (2d) 345"", ""year"": 1940, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""3 Wn. (2d) 475"", ""case_ids"": [5278506], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/3/0475-01""], ""opinion_index"": 0}, {""cite"": ""217 P. (2d) 785"", ""year"": 1950, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""36 Wn. (2d) 330"", ""case_ids"": [4938168], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/36/0330-01""], ""opinion_index"": 0}, {""cite"": ""184 P. (2d) 562"", ""year"": 1947, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""28 Wn. (2d) 917"", ""case_ids"": [2513679], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/28/0917-01""], ""opinion_index"": 0}, {""cite"": ""63 P. (2d) 361"", ""year"": 1936, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""188 Wash. 561"", ""case_ids"": [1283446], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/188/0561-01""], ""opinion_index"": 0}, {""cite"": ""137 Pac. 1047"", ""year"": 1914, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""77 Wash. 564"", ""year"": 1914, ""case_ids"": [615441], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/77/0564-01""], ""opinion_index"": 0}, {""cite"": ""126 N. E. 814"", ""year"": 1920, ""category"": ""reporters:state_regional"", ""reporter"": ""N.E."", ""opinion_index"": 0}, {""cite"": ""228 N. Y. 164"", ""year"": 1920, ""case_ids"": [1965519], ""category"": ""reporters:state"", ""reporter"": ""N.Y."", ""pin_cites"": [{""page"": ""171""}], ""case_paths"": [""/ny/228/0164-01""], ""opinion_index"": 0}, {""cite"": ""162 N. E. 765"", ""year"": 1928, ""category"": ""reporters:state_regional"", ""reporter"": ""N.E."", ""opinion_index"": 0}, {""cite"": ""28 Ohio App. 434"", ""year"": 1928, ""case_ids"": [1310697], ""category"": ""reporters:state"", ""reporter"": ""Ohio App."", ""case_paths"": [""/ohio-app/28/0434-01""], ""opinion_index"": 0}, {""cite"": ""170 P. (2d) 656"", ""year"": 1946, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""25 Wn. (2d) 364"", ""case_ids"": [2532321], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/25/0364-01""], ""opinion_index"": 0}, {""cite"": ""167 P. (2d) 157"", ""year"": 1946, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""24 Wn. (2d) 674"", ""case_ids"": [2538007], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/24/0674-01""], ""opinion_index"": 0}, {""cite"": ""199 P. (2d) 593"", ""year"": 1948, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""31 Wn. (2d) 852"", ""case_ids"": [2496274], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/31/0852-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""41 Wash. 2d 81"", ""type"": ""official""}], ""file_name"": ""0081-01"", ""last_page"": ""89"", ""first_page"": ""81"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T16:01:05.692265+00:00"", ""decision_date"": ""1952-08-14"", ""docket_number"": ""No. 32050"", ""last_page_order"": 105, ""first_page_order"": 97, ""name_abbreviation"": ""Muck v. Snohomish County Public Utility District No. 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+499805,"{""id"": 499805, ""name"": ""Frank W. Tucker & another vs. William H. Poch"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""d4038263b99ea46bc0c46d622f0ae2e8520a1b539a239d582140b3ca32d985c3"", ""simhash"": ""1:a5db35188e310c0a"", ""pagerank"": {""raw"": 0.0000005027405152966955, ""percentile"": 0.9366544149871286}, ""char_count"": 7572, ""word_count"": 1326, ""cardinality"": 470, ""ocr_confidence"": 0.645}, ""casebody"": {""judges"": [], ""parties"": [""Frank W. Tucker & another vs. William H. Poch.""], ""opinions"": [{""text"": ""Spalding,\nJ. This is an appeal by the defendant from a-final decree ordering him to remove a fence which he had., erected in a passageway running between his land and land of the plaintiffs, and permanently enjoining him from interfering with the plaintiffs’ right to use the passageway. The case was referred to a. master whose report was confirmed by an interlocutory decree from which no appeal was taken. The master’s findings thus became conclusive. between the parties. Perry v. Oliver, 317 Mass. 538.\nFacts found by the master are these: The plaintiffs are tenants in common of a lot of land on Harvard Street in Dedham. The defendant is the owner of an adjoining lot on the same street. Between the two lots is a passageway eighteen feet wide which runs from Harvard Street toward the rear of the lots for a distance of one hundred two feet. The boundary line between the lots runs through the middle of the passageway so that nine feet of it is on each lot. In 1873 the plaintiffs’ predecessor in title acquired his parcel from persons who also owned the lot now owned by the defendant. By the terms of the deed the grantors reserved a right of passage over a nine foot strip in the granted premises, and a similar right was given to the grantee over a nine foot strip on the land of the grantors. These two strips comprised the passageway now in controversy, and it was provided in the deed that it was “to be kept open for the benefit of abutters forever.” On June 6, 1907, the lot now owned by the plaintiffs was owned by their mother, Emily L. Tucker, and the defendant’s lot was owned by George E. Wilson. On that date the owners exchanged instruments, which were duly recorded, whereby each released “all right of way” in that part of the passageway which was on the land of the other.\nThe defendant acquired title to his lot in 1917 from the estate of George E. Wilson. The plaintiffs became the owners of their lot through inheritance from their mother in 1921. “From the date of the purchase of the property by the . . . [plaintiffs’] father in 1873 down to some date in 1945 this passage, or drive, way 102 feet in length and 18 feet wide, had been used by them and the owners of the adjoining property freely, openly and in common; no obstructions of any kind being placed therein by either party during this period; there was never any dispute or discussion between the parties as to their respective rights in it.”\nAt some time in 1945 the relations between the parties “became strained,” and the defendant erected a fence which runs along the middle of the passageway throughout its entire length. This “tended to defeat the purpose for which this driveway was originally intended to serve and which it had served.” Failing in their efforts to induce the defendant to remove the fence, the plaintiffs instituted these proceedings.\nThe plaintiffs contend that they acquired by adverse use the right to use that part of the passageway which is on the defendant’s land. Such use, it is argued, began in 1907, when the express easements were extinguished, and continued without interruption until 1945. Thus the question for decision is whether on the facts found by the master the plaintiffs have acquired an easement by prescription in the defendant’s property.\nThe plaintiffs had the burden of proving that the use of the passageway under consideration had been open, uninterrupted and adverse for a period of not less than twenty years. Sargent v. Ballard, 9 Pick. 251, 254. Powell v. Bagg, 8 Gray, 441, 443. Edson v. Munsell, 10 Allen, 557, 568. Deerfield v. Connecticut River Railroad, 144 Mass. 325, 338. Bigelow Carpet Co. v. Wiggin, 209 Mass. 542, 547. Gad-reault v. Hillman, 317 Mass. 656, 661. G. L. (Ter. Ed.) c. 187, § 2. Restatement: Property, §§ 457, 458. The findings of the master show an open and uninterrupted use of the passageway by the plaintiffs for the requisite period of twenty years. It remains to consider whether the findings go far enough to establish a use which was adverse to the defendant, that is, under a claim of right. We are of opinion that they do. \""The rule in Massachusetts is that wherever there has been the use of an easement for twenty years unexplained, it will be presumed to be under claim of right and adverse, and will be sufficient to establish title by prescription and to authorize the presumption of a grant unless controlled or explained.” Truc v. Field, 269 Mass. 524, 528-529. To the same effect are Barnes v. Haynes, 13 Gray, 188, Blake v. Everett, 1 Allen, 248, 251, White v. Chapin, 12 Allen, 516, 519-520, Van Allen v. Sweet, 239 Mass. 571, and Fortier v. H. P. Hood & Sons, Inc. 307 Mass. 292, 298. See Washburn, Easements & Servitudes (4th ed.) page 156; Tiffany, The Law of Real Property (3d ed.) § 1196a. There are no findings here which rebut the presumption of adverse use arising from the open and uninterrupted use of the passageway for the required period. The findings do not show that the plaintiffs’ use of the way \""was under some license, indulgence or special contract inconsistent with a claim of right” by them. White v. Chapin, 12 Allen, 516, 519-520. In the absence of such'findings it is to be inferred under the rule stated above that the plaintiffs’ use was under a claim of right. The case at bar is distinguishable from Bartlett v. Roosevelt, Inc. 258 Mass. 494, 496, relied on by the defendant, where there was an express finding by the master that the use was \""not under any color of title or any claim of right.”\nThe defendant urges that the plaintiffs have not come into court with clean hands. As to this contention the master found that the plaintiffs \""erected a fence beginning on the boundary line between the land owned by the respective parties and distant 102.2 feet northerly from Harvard Street, continuing to the eastward across the driveway a distance of .nine feet and extending northerly again a distance of fifteen feet to an old fence.” By comparison with a plan incorporated in the report of the master it appears that the erection of such fence in no way interfered with any rights of the defendant in the passageway now in controversy.\nIt follows that, the decree appealed from, was right and must be\nAffirmed with costs.\nFor a discussion and collection of cases dealing with the rights arising from the reciprocal use by adjoining owners of passageways partly on the land of each see 98 Am. L. R. Í098, et seq."", ""type"": ""majority"", ""author"": ""Spalding,""}], ""attorneys"": [""J. S. Kennedy, for the defendant."", ""V. R. Brogna, for the plaintiffs.""], ""corrections"": """", ""head_matter"": ""Frank W. Tucker & another vs. William H. Poch.\nNorfolk.\nMay 8, 1947. —\nMay 29, 1947.\nPresent: Field, C.J., Lummus, Dolan, Honan, & Spalding, JJ.\nAdverse Possession and Prescription.\nThe fact, that for more than twenty years following an exchange of instruments by owners of adjoining parcels of land which released, each to the other, rights, previously established by deed, in a passageway located on both parcels along their common boundary, the way had been used in common by them and their successors in title openly and uninterruptedly without an obstruction or dispute by any owner or owners of either parcel, in the absence of any evidence that such use by the owner or owners of one of the parcels was under some license, indulgence or special contract inconsistent with a claim of right, required an inference that such use was under a claim of right and adverse; and in such circumstances a prescriptive right to such use was established.\nBill in equity, filed in the Superior Court on July 23, 1946.\nThe case was heard by Swift, J., on a master’s report.\nJ. S. Kennedy, for the defendant.\nV. R. Brogna, for the plaintiffs.""}, ""cites_to"": [{""cite"": ""258 Mass. 494"", ""case_ids"": [3820441], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""496""}], ""case_paths"": [""/mass/258/0494-01""], ""opinion_index"": 0}, {""cite"": ""307 Mass. 292"", ""case_ids"": [903051], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""298""}], ""case_paths"": [""/mass/307/0292-01""], ""opinion_index"": 0}, {""cite"": ""239 Mass. 571"", ""case_ids"": [3807111], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/239/0571-01""], ""opinion_index"": 0}, {""cite"": ""12 Allen, 516"", ""weight"": 2, ""case_ids"": [1196934], ""category"": ""reporters:state"", ""reporter"": ""Allen"", ""pin_cites"": [{""page"": ""519-520""}, {""page"": ""519-520""}], ""case_paths"": [""/mass/94/0516-01""], ""opinion_index"": 0}, {""cite"": ""1 Allen, 248"", ""case_ids"": [2095269], ""category"": ""reporters:state"", ""reporter"": ""Allen"", ""pin_cites"": [{""page"": ""251""}], ""case_paths"": [""/mass/83/0248-01""], ""opinion_index"": 0}, {""cite"": ""13 Gray, 188"", ""case_ids"": [2087798], ""category"": ""reporters:state"", ""reporter"": ""Gray"", ""case_paths"": [""/mass/79/0188-01""], ""opinion_index"": 0}, {""cite"": ""269 Mass. 524"", ""case_ids"": [3826047], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""528-529""}], ""case_paths"": [""/mass/269/0524-01""], ""opinion_index"": 0}, {""cite"": ""317 Mass. 656"", ""case_ids"": [927215], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""661""}], ""case_paths"": [""/mass/317/0656-01""], ""opinion_index"": 0}, {""cite"": ""209 Mass. 542"", ""case_ids"": [3470133], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""547""}], ""case_paths"": [""/mass/209/0542-01""], ""opinion_index"": 0}, {""cite"": ""144 Mass. 325"", ""case_ids"": [774192], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""338""}], ""case_paths"": [""/mass/144/0325-01""], ""opinion_index"": 0}, {""cite"": ""10 Allen, 557"", ""case_ids"": [2117017], ""category"": ""reporters:state"", ""reporter"": ""Allen"", ""pin_cites"": [{""page"": ""568""}], ""case_paths"": [""/mass/92/0557-01""], ""opinion_index"": 0}, {""cite"": ""8 Gray, 441"", ""case_ids"": [2079207], ""category"": ""reporters:state"", ""reporter"": ""Gray"", ""pin_cites"": [{""page"": ""443""}], ""case_paths"": [""/mass/74/0441-01""], ""opinion_index"": 0}, {""cite"": ""9 Pick. 251"", ""case_ids"": [2058420], ""category"": ""reporters:state"", ""reporter"": ""Pick."", ""pin_cites"": [{""page"": ""254""}], ""case_paths"": [""/mass/26/0255-01""], ""opinion_index"": 0}, {""cite"": ""317 Mass. 538"", ""case_ids"": [927324], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/317/0538-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""321 Mass. 321"", ""type"": ""official""}], ""file_name"": ""0321-01"", ""last_page"": ""325"", ""first_page"": ""321"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T16:27:57.875015+00:00"", ""decision_date"": ""1947-05-29"", ""docket_number"": """", ""last_page_order"": 377, ""first_page_order"": 373, ""name_abbreviation"": ""Tucker v. 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+500021,"{""id"": 500021, ""name"": ""Boylston Housing Corporation vs. Frank O'Toole & others"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""752433a76bfd42fee7c1d9a74021593fc461d1e88eaaea5f5983a5a74bdc68e4"", ""simhash"": ""1:7ef683c0bc8424d0"", ""pagerank"": {""raw"": 0.0000005186309059462228, ""percentile"": 0.940056350775663}, ""char_count"": 61961, ""word_count"": 10569, ""cardinality"": 1378, ""ocr_confidence"": 0.626}, ""casebody"": {""judges"": [], ""parties"": [""Boylston Housing Corporation vs. Frank O’Toole & others.""], ""opinions"": [{""text"": ""Field, C.J.\nThis suit in equity was brought in the Superior Court. The plaintiff is the Boylston Housing Corporation. The suit, as alleged in the bill, was brought against “Frank O’Toole, Ernest A. Johnson and Edwin E. Graves, . . . individually and as they are respectively the president, the secretary-treasurer, and the general agent of the Building & Construction Trades Council of Boston & Vicinity, a voluntary unincorporated association and all the other officers and members thereof who are numerous and most of whom are to your plaintiff unknown and who are fairly represented by said officers and have a common interest with them in the suit; Edward Lanphier and Edward I. Kelley, . . . individually and as they are respectively the financial secretary and the business representative of Local #4 of the Elevator Constructors’ Union, a voluntary unincorporated association and all the other officers and members thereof who are numerous and most of whom are to your plaintiff unknown and who are fairly represented by said officers and have a common interest with them in the suit” — ■ herein referred to as the labor defendants — and Otis Elevator Company, a corporation, and W. S. Tyler Company, a corporation, defendants. By amendment the words “Building and Construction Trades Council of the Metropolitan District” were substituted for the words “Building & Construction Trades Council of Boston & Vicinity,” and the words “Local #4 of the International Union of Elevator Constructors” were substituted for the words “Local #4 of the Elevator Constructors’ Union.” After the entry of the final decree hereinafter referred to, the death of the defendant Edwin E. Graves was suggested, and his administratrix was substituted for him as a party defendant.\nFrom undisputed evidence it appeared —■ and it is not controverted — that the members of the Building and Construction Trades Council of the Metropolitan District — • herein referred to as the council — were delegates from various trades unions, of which there were fifty-nine, the members of which were engaged in the building crafts in and around Boston, that one of the unions was composed of members of the craft dealing with or working on the installation and construction of electric elevators and was named Local #4 of the International Union of Elevator Constructors — herein referred to as Local #4, that the “adjustment board” was one of the committees of the council, that the defendants O’Toole, Johnson and Graves were respectively the president, the secretary-treasurer, and the general agent of the council, and that the defendants Lan-phier and Kelley were respectively the financial secretary and the business representative of said Local #4.\nWhen this suit was brought on July 29, 1940, the plaintiff “was engaged in remodelling a four-story building at 1089 Boylston Street [Boston], by converting it into a five-story building with forty-three suites with kitchenettes. This was to be accomplished by constructing a new entrance in to what had been the basement and a general internal rearrangement which did not affect the walls or solid structural parts of the original building.” “The work was in charge of Harry Moskow, a brother of the president and treasurer of the plaintiff, and was begun about the last of December, 1939, or the first of January, 1940.” The plaintiff sought by this suit to have the “defendants” temporarily and permanently enjoined from interfering with the work of remodelling this apartment house, particularly from interfering with the carrying out of a contract of the defendant Otis Elevator Company with the plaintiff to install in said. building an electric elevator, and from interfering with the carrying out of a contract of the defendant W. S. Tyler Company with the plaintiff to install in said building five elevator fronts and entrances and an elevator car. The plaintiff sought also to have the “defendants” temporarily and permanently enjoined from interfering with the work of the plaintiff on any other building. An interlocutory decree was entered, after hearing, temporarily enjoining the labor defendants from “interfering with and preventing the fulfillment of • the contract between the plaintiff and the defendant Otis Elevator Company and the contract between the plaintiff and the defendant W. T. [S.] Tyler Company.” There was no appeal from this interlocutory decree. The defendant\"" W. S. Tyler Company, by amendment, inserted in its answer a counterclaim for breach by the plaintiff of its contract With this defendant. Thereafter the suit was heard on the merits. At the opening of the hearing on the merits, counsel for the plaintiff conceded that the work on the apartment house at 1089-1091 Boylston Street had been completed, but stated that “the corporation is engaged in the building business and intends to continue in the building business, and for that reason seek[s3 to have the injunction made permanent against their [the defendants’ or some of the defendants’3 interference with the maintenance [by the plaintiff3 of an open shop.” After hearing, a final decree was entered dismissing the bill against all the defendants, but ordering “judgment” for the defendant W. S. Tyler Company on its counterclaim against the plaintiff. From this final decree the plaintiff appealed. There is a “statement of findings, rulings and order for decree” by the judge. The evidence at the hearing on the merits is reported.\nFirst. We consider first whether the plaintiff is entitled to recover damages against the labor defendants or any of them.\n1. Since the work on this apartment house was completed before the hearing on the merits, there was not at that time and is not now any occasion for injunctive relief against any of the labor defendants with respect to the work on this apartment house. However, it is elementary “that a plaintiff who had good ground for injunctive relief when the bill was filed, but who has lost his right thereto pending the suit, may have the bill retained for an award of damages.” Simon v. Schwachman, 301 Mass. 573, 583-584, and cases cited. This principle is applicable even though the bill contains no prayer for damages. The bill in the present case contains a prayer for “such other and further relief as may be proper.” Under such a prayer, damages may be awarded. See E. Kronman, Inc. v. Bunn Bros. Inc. 258 Mass. 562, 568. Indeed, a prayer for general relief is read into the bill. G. L. (Ter. Ed.) c. 214, § 12. Hubrite Informal Frocks, Inc. v. Kramer, 297 Mass. 530, 535.\n2. The question for determination is whether the plaintiff is entitled to the relief of damages against the labor defendants, or any of them, springing “out of what . . . [the plaintiff] was entitled to when the bill was filed.” See E. Kronman, Inc. v. Bunn Bros. Inc. 258 Mass. 562, 568. The case was heard upon this issue. The decision of this issue depends upon whether on allegations of the bill established by proof these defendants were guilty of conduct unlawful against the plaintiff causing damage to the plaintiff. Since the case is before this court upon a report of the evidence, this court must reach its own conclusion, but in reaching its own conclusion findings of fact by the judge not inconsistent with each other, so far as they depend upon oral evidence are to be taken as true unless plainly wrong.\n3. The plaintiff seeks to recover damages from the labor defendants for loss of rents of the apartment house, caused by delay in the completion of the elevator therein from April 8, 1940, to October 31, 1940, and delay in the completion of the front entrance. There was evidence of' loss of rents resulting from delay in the completion of the elevator, and we assume in favor of the plaintiff that it sustained some loss of rents by reason of such delay, and proceed to consider whether such delay was caused in whole or in part by the wrongful conduct of the labor defendants or any of them. Whether any loss of rents resulted from delay in the completion of the front entrance to the building, apart from delay in the completion of the elevator, is conjectural upon the evidence. For the purpose of determining damages, it is unnecessary to consider the lawfulness of unlawfulness of conduct of the labor defendants that did not contribute to delay in the completion of the elevator.\n4. The plaintiff contends that the trial judge at the hearing of this suit for the entry of the final decree was precluded, by a decree, entered by another judge of the Superior Court upon a finding of facts made by him including a finding that certain of the labor defendants “are actively preventing the fulfillment of the Otis Co. and the Tyler Co. contracts and unless restrained will continue to do so” and after a decree of a justice of this court upon a report under G. L. (Ter. Ed.) c. 214, § 9A (6), inserted by St. 1935, c. 407, § 4, that the case “does not involve or grow out of a labor dispute within the meaning of G. L. (Ter. Ed.) c. 149, § 20C, inserted by St. 1935, c. 407, § 1,” from considering the matter of wrongful conduct of these labor defendants. This contention cannot be sustained. A judge hearing a suit on its merits is not required to order a permanent injunction or precluded from dismissing a bill by reason of a prior interlocutory decree ordering a temporary injunction even if such decree is not appealed from. Even if the decree of the justice of this court was final, the decree in the Superior Court for a temporary injunction was not a final decree and did not constitute an adjudication of the facts upon which it was based under the doctrine of res judicata. New York Central & Hudson River Railroad v. T. Stuart & Son Co. 260 Mass. 242, 248. And no doctrine of the “law of the case” or the “law of the trial” precluded the judge who heard the suit on its merits for the entry of a final decree from reconsidering the facts upon which the interlocutory decree was based. Peterson v. Hopson, 306 Mass. 597, 601-602.\n5. In the reconstruction of its building, as the judge properly found, the plaintiff “was hiring such labor as it could by the hour from nonunion sources . . . and for such portions of the work as could not be so performed was employing contractors without reference to their status as union or nonunion.” The work upon the elevator was covered in part by each of two contracts. One of these contracts was between the plaintiff and the defendant Otis Elevator Company. This contract was made on February 8, 1940, and was a contract that this defendant would “furnish and erect” the “elevator installation” according to certain specifications, which did not include furnishing and installing the elevator entrances or furnishing the elevator car. By this contract the defendant Otis Elevator Company agreed that the “apparatus shall be in complete running order by April 8, 1940,” but the agreement for completion by that date was subject to the performance of other work, particularly to the hoistway being made ready for uninterrupted use by this defendant, and to the elevator car being furnished so that it could be installed by the defendant. The other contract was between the plaintiff and the defendant W. S. Tyler Company. This contract was made on May 4, 1940, and was a contract that this defendant would furnish and install the elevator entrances and would furnish and deliver the elevator car, and that the \""factory will ship materials three and one half weeks after receipt of approved details and the erection of the entrances will require eight working days and elevator entrances must be completed and erected in place by June 10, 1940.”\n6. With respect to the progress of the work, the judge found —. and his findings were not plainly wrong — that it \""appeared that for the performance of . . . [the contract of February 8, 1940, of the plaintiff with the defendant Otis Elevator Company, already referred to] the use of the hoist-way was necessary for from four and a half to five weeks. The defendant Otis Elevator Company started manufacturing material within a week and no delay was caused in this respect. On March 27, 1940, word was received from Moskow that the hoistway was ready and the work of installation could have been begun then or a little before but union men were not available, and continued unobtainable . . . until after injunctive relief was granted to the plaintiff on September 23,1940 . . ..” (Italics supplied.) The \""hoistway was ready for the Otis Elevator Company to begin work on March 25, 1940.” \""The situation remained unchanged in respect to the Otis Elevator Company from March 25, 1940, to July 29, when the plaintiff filed this bill.” The \""filing of this bill resulted on September 23, 1940, in a preliminary injunction requiring the defendants to desist from interfering with the performance of the contracts with Otis Elevator Company and W. S. Tyler Company . . . and both were completed by October 31.” \""The contract [between the plaintiff and the defendant Otis Elevator Company] was to be completed by April 8, 1940, but the premises were not ready for the installation of elevators until March 25, and about four and a half weeks were required to complete it, making April 25 the earliest date upon which it could have been completed if there had been no difficulty in obtaining labor. On that date the elevator cage which was to be constructed by the W. S. Tyler Company, was not even contracted for, and when the contract was made on May 4, completion was to be by June 10.” The materials that, under the contract with the defendant W. S. Tyler Company, were “to be installed or erected” and were to “be shipped three and one half weeks after the receipt of approved details” “were fabricated and ready for shipment within the required period. They were not shipped because they could not be put in place until guide rails had been put in the elevator shaft by the Otis Elevator Company. There was no time when they could have been installed until their actual installation about October 7, 1940.” It follows from these findings that delay in completion of the elevator before April 25, 1940, was not caused by the nonavailability of union men for the work of installing it, that is, by the nonavailability of members of Local #4, for members of that union were the only union men competent for that work.\n7. The liability of the labor defendants or any of them for damages to the plaintiff for delay in the completion of the elevator depends, therefore, upon whether such delay after April 25, 1940, resulted wholly or in part from the nonavailability of members of Local #4 for that work and whether such nonavailability resulted from conduct of any or all of the labor defendants that was wrongful toward the plaintiff. Assuming in favor of the plaintiff that delay after April 25, 1940, in the completion of the elevator resulted wholly or in part from the nonavailability of members of Local #4 for work in installing the elevator, it is not shown that such nonavailability resulted from conduct of any or all of the labor defendants that was wrongful toward the plaintiff.\n8. It does not appear that any member of Local #4 was bound by contract to enter the employment of the defendant Otis Elevator Company for work in installing the elevator. Clearly, no such member was under such a contractual obligation to the plaintiff. Nor was any such member under such a contractual obligation to the defendant Otis Elevator Company. There was no such contractual obligation apart from the “closed shop” agreement which the judge properly found existed between Local #4 and the defendant Otis Elevator Company. The terms of such a collective agreement between an employer and a labor union may, in some circumstances, become a part of the contract of employment between the employer and an individual member of the labor union (Whiting Milk Co. v. Grondin, 282 Mass. 41, 44), but the “closed shop” agreement in the present case, so far as disclosed by the evidence, though purporting to restrict employment by the defendant Otis Elevator Company to members of Local #4 in the territory in and around Boston, contained no provision purporting to bind individual members of Local #4 to enter the employment of the defendant Otis Elevator Company. Consequently, it is unnecessary to consider whether the officers of Local #4 could have made such an agreement binding upon the individual members of Local #4. See W. A. Snow Iron Works, Inc. v. Chadwick, 227 Mass. 382, 390-391. Compare National Overall Dry Cleaning Co. v. Yavner, ante, 434, 438. The members of Local #4, acting singly, therefore, were not precluded by any contract from refusing to enter the employment of the defendant Otis Elevator Company for the work of installing the elevator.\n9. The existence of a contract by the defendant Otis Elevator Company with the plaintiff, to which members of Local #4 were not parties, to install the elevator imposed no greater duty upon members of Local #4, acting singly, to enter the employment of the defendant Otis Elevator Company than they would have had in the absence of such. a contract, on the ground that failure or refusal of such a member to enter such employment would interfere with the performance of the contract. The parties to this contract could not by agreement between themselves impose upon members of Local #4 a duty, which did not exist in the absence of such contract, to enter the employment of the defendant Otis Elevator Company. Interference with the performance of this contract by the mere refusal of individual members of Local #4 to do what they were not bound to do, that is, to enter the employment of the defendant Otis Elevator Company, would not be actionable irrespective of the intention that prompted such refusal. H. D. Watts Co. v. American Bond & Mortgage Co. 267 Mass. 541, 555-556. Ross v. Wright, 286 Mass. 269, 273-274.\n10. Since no individual member of Local #4 was bound by contract to enter the employment of the defendant Otis Elevator Company for work in installing the elevator in the plaintiff’s building, no such member, in the absence of circumstances hereinafter considered, had any duty to enter such employment or would be guilty of any wrong to the plaintiff in refusing to enter such employment. Each such member, not being bound by contract to enter such employment, had the right in the absence of special circumstances to refuse to enter such employment “on any ground pleasing to himself” (Armstrong Cork & Insulation Co. v. Walsh, 276 Mass. 263, 273), including the ground that nonunion workmen were working on the building. “Every person has a legal right to dispose of his own labor as he wishes, and to work for whom he pleases. He may refuse to work with another because that person is distasteful to him, or for any other reason. Plant v. Woods, 176 Mass. 492, 498. Pickett v. Walsh, 192 Mass. 572, 582.” Mechanics Foundry & Machine Co. v. Lynch, 236 Mass. 504, 505. This right is not in' conflict with or subordinate to the right of the defendant Otis Elevator Company, or of the plaintiff, to a “free flow of labor” for employment by the defendant Otis Elevator Company for work on the plaintiff’s building. The “right to a free flow of labor” is a right “to which every member of the community is entitled for the purpose of carrying on the business in which he or it has chosen to embark” (Haverhill Strand Theatre, Inc. v. Gillen, 229 Mass. 413, 418), that is, the right of a member of the community “at all times to hire in the labor market, and to retain in . . . [its] employment, such workmen as . . . [it] might choose.” Folsom Engraving Co. v. McNeil, 235 Mass. 269, 277. See also W. A. Snow Iron Works, Inc. v. Chadwick, 227 Mass. 382, 389; Yankee Network, Inc. v. Gibbs, 295 Mass. 56, 60. The right of a prospective employer to a “free flow of labor,” however, is not a right to employ workmen who, for any reason, do not wish to enter such employment. It is merely a right to be free from unlawful interference with the employment of workmen who wish to enter such employment. Apart from contract, the right of a prospective employer to hire an individual workman who does not choose to be hired is no greater than the correlative right of such individual workman acting singly to refuse to be hired.\n11. No circumstances are shown that precluded individual members of Local #4 from refusing to enter the employment of the defendant Otis Elevator Company for work in installing the elevator in the plaintiff's building. It was not unlawful for such members to act through the defendant Kelley, the business agent of Local #4, in refusing to enter such employment. And they were not precluded from acting jointly in refusing to enter such employment. It is, of course, true that there “are things which it is lawful for an individual to do which it is not lawful for a combination of individuals to do.” Pickett v. Walsh, 192 Mass. 572, 582. See also Cornellier v. Haverhill Shoe Manufacturers’ Association, 221 Mass. 554, 561; A. T. Stearns Lumber Co. v. Howlett, 260 Mass. 45, 56. The basis for this principle is that a number of individuals acting in combination may have a power of harm or of coercion not possessed by any such individual acting singly. See Neustadt v. Employers’ Liability Assurance Corp. Ltd. 303 Mass. 321, 325. The gist of the wrong in concerted action where individual action would be lawful is conspiracy, and the fundamental question is whether there was a combination which “overstepped legal bounds in the object sought or the means used to carry it out.” Robitaille v. Morse, 283 Mass. 27, 31. But a refusal by the defendant members of Local #4 to enter the employment of the defendant Otis Elevator Company was conduct “such as any individual might employ in his business with impunity even though damage might result thereby to another . . . unless the defendants, acting jointly, had some unlawful object in view” in such refusal. Neustadt v. Employers’ Liability Assurance Corp. Ltd. 303 Mass. 321, 325. See also Foster v. Shubert Holding Co. 316 Mass. 470, 475. It is not shown that the members of Local #4 had any unlawful object in view in refusing to enter the employment of the defendant Otis Elevator Company. The judge found that there was no “conspiracy,” which imports that there was no combination among members of Local #4 for the object of injuring the plaintiff. And this finding was not plainly wrong. No such direct intention on the part of members of Local #4 was shown. Nor was it shown that injury to the plaintiff was the natural and necessary consequence of the refusal of members of Local #4 to enter such employment. See A. T. Stearns Lumber Co. v. Howlett, 260 Mass. 45. It was not shown that the plaintiff was prevented by such refusal from employing directly or, through contractors nonunion workmen for the job of remodelling the apartment house. It was not shown that the members of Local #4 by refusing to enter the employment of the defendant Otis Elevator Company for work on the plaintiff’s building were attempting to coerce the plaintiff to carry on the remodelling of this building as a closed union job. Furthermore, it was not shown that the members of Local #4 were attempting to create a monopoly in themselves of the work of installing elevators. The plaintiff does not contend that there was in fact any such monopoly. The judge’s finding with respect to “members of that union [Local #4] being the only craftsmen competent for that work” obviously refers to union workmen. His finding that “there was no . . . monopoly” as applied to work in installing the elevator was not plainly wrong. It was not shown that nonunion workmen were not available for this work, and there was evidence that there were concerns employing nonunion workmen with whom, so far as appears, the plaintiff might have contracted for the installation of the elevator, and it is not shown that the plaintiff was coerced by members of Local #4 to make a contract for this work with the defendant Otis Elevator Company or with any other concern employing only union workmen.\n12. The plaintiff was free to contract for the installation of the elevator with any concern willing to enter into a contract for that work. It elected to contract with the defendant Otis Elevator Company, but the fact that it so elected did not impose upon members of Local #4 any duty to enter into employment under that contract if for any reason they did not wish to do so. And it was not shown that such members in refusing to enter into employment for work under this contract were acting in combination for the object of injuring the plaintiff rather than in the exercise of their privilege to refuse to enter into any employment that, for any reason, was not pleasing to them. In the absence, as here, of an intention on the part of the members of Local #4 to injure the plaintiff, refusal by them even acting jointly to enter the employment of the defendant Otis Elevator Company for work under its contract with the plaintiff, though resulting incidentally in damage to the plaintiff, was not a wrong to the plaintiff and did not constitute a boycott. See Robitaille v. Morse, 283 Mass. 27, 32. An “essential element of the boycott is intentional injury to somebody.” Hoban v. Dempsey, 217 Mass. 166, 170.\n13. The judge found “that whatever trouble or delay was occasioned on the job was due to the adherence of the organizations of which they [the labor defendants] were members to a general policy not to allow union labor to work on nonunion or open jobs.” This finding, as applied to members of Local #4, imports that their refusal to enter the employment of the defendant Otis Elevator Company — so far as they did so by authorizing or acquiescing in the refusal of the defendant Kelley, the business agent of Local #4, to furnish members of Local #4 for such employment — was for the object of adhering to a general policy and not for the object of injuring the plaintiff or anyone. This “general policy” as applied to Local #4 was a policy that this organization would not furnish members thereof for “work on nonunion or open jobs,” but does not include a policy of coercing such members to refuse to work on such jobs. The finding that Local #4 adhered to this “general policy” does not import that it or its members coerced any of its members to refuse to work on any such job. And the evidence does not show such coercion of any members of Local #4 to refuse to enter the employment of the defendant Otis Elevator Company for work in installing the elevator in the plaintiff’s building. It is urged by the plaintiff that there was such coercion by reason of provisions in the constitution and by-laws of the council and in the constitution and by-laws of Local #4, among the latter a provision that any officer or member \""who violates the trade rules of the locality in which he is working . . . shall be fined, suspended or expelled, as the organization may decide.” But even if these provisions would be broad enough to apply to members of Local #4 who worked on nonunion or open jobs, it is not shown that disciplinary action thereunder was taken or threatened against any member of Local #4 sought to be employed for work on the elevator in the plaintiff’s apartment house. W. A. Snow Iron Works, Inc. v. Chadwick, 227 Mass. 382, 392. The present case differs in this respect from Martell v. White, 185 Mass. 255, L. D. Willcutt & Sons Co. v. Driscoll, 200 Mass. 110,112, A. T. Stearns Lumber Co. v. Howlett, 260 Mass. 45, 70-72, Armstrong Cork & Insulation Co. v. Walsh, 276 Mass. 263, 273, and Yankee Network, Inc. v. Gibbs, 295 Mass. 56, 58, 60-61. So far as appears the refusal of members of Local #4 to enter the employment of the defendant Otis Elevator Company was voluntary and was not for the object of injuring the plaintiff or anyone.\n14. From the fact that there was no \""conspiracy,” as the judge properly found, it follows that there was no \""strike.” Moreover, since the members of Local #4 were not employees of the defendant Otis Elevator Company, obviously they did not cease to work for this defendant upon its contract with the plaintiff or upon any other work for this defendant and did not combine to cease to do such work. The basic element of a \""strike” — the concerted cessation of work by employees for their employer — therefore was absent (see Simon v. Schwachman, 301 Mass. 573, 576; Jeffery-De Witt Insulator Co. v. National Labor Relations Board, 91 Fed. [2d] 134, 138; C. G. Conn, Ltd. v. National Labor Relations Board, 108 Fed. [2d] 390, 396-397; The Point Reyes, 110 Fed. [2d] 608, 609-610; Uden v. Schaefer, 110 Wash. 391, 394, 11 Am. L. R. 1001, 1003; Restatement: Torts, § 797, comment a) and it is not necessary to consider other essential elements of a “strike.” The situation in this respect is different from that in Yankee Network, Inc. v. Gibbs, 295 Mass. 56, for example, where there was a concerted cessation of work by employees for their employer for the purpose — which was accomplished — of preventing the carrying out of a contract of employment between the employer and another employee and of preventing this employee from working for the employer.\n15. It follows from what has been said that the plaintiff is not entitled to recover damages from any of the members of Local #4 referred to in the bill solely by description. Since it is not shown that members of Local #4, described in the bill merely as such members, even acting jointly or jointly with other members of Local #4 named in the bill, acted wrongfully toward the plaintiff, it is not necessary to consider as to any individual member referred to in the bill merely as such whether he participated in, authorized or ratified such joint action. See Quinton's Market, Inc. v. Patterson, 303 Mass. 315, 320-321.\n16. Two members of Local #4 are referred to in the bill, as amended, by name as defendants — Edward Lanphier and Edward I. Kelley, \""individually and as they are respectively the financial secretary and the business representative of Local #4 of the International Union of Elevator Constructors.” No facts are shown that render either of these defendants liable in damages to the plaintiff by reason of the nonavailability of members of Local #4 for the work of installing the elevator in the plaintiff’s apartment house under the contract of the defendant Otis Elevator Company with the plaintiff for such installation.\n17. The duties of the defendant Kelley as the business agent of Local #4 as prescribed by the by-laws of Local #4. included the duties to \""have a general supervision over the affairs of the organization,” to \""care for the interests of the organization in their dealings with other unions and with central bodies,” to \""investigate all complaints made to him and act in accordance with the instructions of the organization,” to \""make a written report at each regular meeting, showing the condition of trades,” to \""endeavor by all honorable means to secure employment for members out of work,” and to \""endeavor to visit all work in course of erec-tian and give instructions.” This defendant testified that it was one of his functions “to be in touch with the representatives of the various elevator manufacturers as jobs proceed,” and that he is the man “who personally is in touch with the manufacturers with respect to the supply of men.” Even if it was this defendant’s practice to furnish elevator manufacturers with members of Local #4 for employment, it is not shown that he had any authority from such members to furnish any individual member to the defendant Otis Elevator Company for employment that such member did not wish to enter. See W. A. Snow Iron Works, Inc. v. Chadwick, 227 Mass. 382, 391.\nThe judge was not plainly wrong in finding that the “construction manager [of the defendant Otis Elevator Company], Mr. Brown, [before the contract between the plaintiff and the defendant Otis Elevator Company was made on February 8, 1940] held a telephone conversation with the defendant Kelley, in which Brown inquired if he could get men for the job and was told that if any union crafts were permitted on the job by the Building Trades Council, elevator mechanics could work there,” and that on “March 27, 1940, word was received from Moskow that the hoistway was ready and the work of installation could have been begun then or a little before but union men were not available, and continued unobtainable, after frequent conferences with Kelley, until after injunctive relief was granted to the plaintiff on September 23, 1940, because at no time before that date did the Building Trades Council give its sanction to any of its affiliated unions for union men to work on the plaintiff’s job” (according to the evidence, the conferences with Kelley herein referred to were conducted or at least participated in by Brown), and that the “situation remained unchanged in respect to the Otis Elevator Company from March 25, 1940, to July 29, when the plaintiff filed this bill. Efforts were made both by Kelley and Otis Elevator Company to get permission from the Building Trades Council to use union men for the job, but that body continued in its refusal, although it may be inferred that if it could have been satisfied that there was no further work to be done by nonunion labor, permission might have been forthcoming.”\nIt is not shown that the defendant Kelley was guilty of any wrong to the plaintiff even if this defendant’s conversation and conferences with representatives of the defendant Otis Elevator Company amounted in substance to a refusal by him to furnish members of Local #4 for employment by the defendant Otis Elevator Company for the performance of work under its contract with the plaintiff. It is not shown that the defendant Kelley owed any duty to the plaintiff or to the defendant Otis Elevator Company to furnish members of Local #4 for employment for work in installing the elevator since it is not shown that he had authority from such members to furnish them, and it is not shown that refusal to furnish such members was in pursuance of a conspiracy to injure the plaintiff or constituted an unlawful interference with employment by the defendant Otis Elevator Company of members of Local #4. The refusal of the defendant Kelley to furnish members of Local #4 for work in installing the elevator, since he had no authority from them to furnish them for such employment, did not constitute an unlawful interference by him with employment by the defendant Otis Elevator Company of members of Local #4 for this work, even if it is not shown that he reported the application of the defendant Otis Elevator Company for members of Local #4 for such employment or that every member of Local #4 authorized or ratified such refusal. It appears, however, by uncontradicted evidence, which we accept as true, that he made comments on the situation on the job at a meeting of Local #4, and that the sense of Local #4 was in accordance with the policy of the council that members of Local #4 should not work upon the job.\nFurthermore, it is not shown that the defendant Kelley was guilty of any wrong to the plaintiff by participating in the action of the council or its adjustment board in refusing to sanction the employment of members of Local #4 for this work. It appears that at a meeting of the adjustment board he voted in favor of sanctioning such employment but was outvoted. The judge found properly that efforts were made by bim to get permission from the council to use union men for the job.\n18. It is not shown that the defendant Edward Lanphier was guilty of any wrong toward the plaintiff. It is not shown that as financial secretary of Local #4 he had any duty with respect to furnishing members of Local #4 for employment nor is it shown that he participated in the refusal to do so except as a member of Local #4 and it is not shown that he participated as such member. It is shown merely that he was present at a meeting of Local #4 in which the situation was commented on by the defendant Kelley, but it is not shown that he participated in the discussion of the situation at this meeting in which “the sense of . . . Local #4 was in accordance with the policy of the Building Trades Council.”\n19. The other labor defendants are “Frank O’Toole, Ernest A. Johnson and Edwin E. Graves [for whom his ad-ministratrix has been substituted as defendant] . . . individually and as they are respectively the president, the secretary-treasurer, and the general agent of the . . . [council] . . . and all the other officers and members thereof.” No one of these defendants is liable in damages to the plaintiff.\n20. The finding of the judge that there was no “conspiracy” imports that there was no conspiracy in which the officers and members of the council, referred to in the bill merely by such description and not by name, participated to injure either the plaintiff or the defendant Otis Elevator Company by rendering members of Local #4 unavailable for work under the contract for installing the elevator upon the plaintiff’s premises and was not plainly wrong. In the absence, as here, of any conspiracy, the members of Local #4 were free to refuse to enter the employment of the defendant Otis Elevator Company for such work for any reason that they pleased including the reason that such employment was not sanctioned by the council, and were free to leave to the council the determination whether members of Local #4 should enter such employment. It is not shown that any member or officer of the council, referred to in the bill as such and not by name, took any action with respect to the employment of members of Local #4 by the defendant Otis Elevator Company except as some of them voted at a meeting of the adjustment board of the council not to sanction employment of members of Local #4 for such work. It is not shown that any such member or officer of the council by so voting at a meeting of the adjustment board of the council was guilty of any wrong to the plaintiff or to the defendant Otis Elevator Company in the absence, as here, of any conspiracy to injure the plaintiff or the defendant Otis Elevator Company. This adjustment board was a committee of the council subject to the instructions of the council, and all its decisions and acts were subject to appeal to the council. It is not shown that any such appeal was taken by members of Local #4. It is not shown that the adjustment board had authority to compel by disciplinary action members of Local #4 to comply with its vote by not entering the employment of the defendant Otis Elevator Company on the plaintiff’s job or attempted to compel such compliance.\n21. The defendant O’Toole is not liable in damages to the plaintiff. He was the business agent of the Plasterers’ Union, a member of the adjustment board and member and president of the council. Though he attended some meetings of the adjustment board, it is not shown that he was present at the meeting at which it voted .not to sanction employment of members of Local #4 for work under the contract for installing the elevator upon the plaintiff’s premises. This defendant is not liable in damages to the plaintiff by reason of this action of the adjustment board in which he is not shown to have participated. It appears that the policy of the adjustment board with respect to the employment of union labor upon the plaintiff’s job was reported to the council and discussed by it at a meeting or meetings at which this defendant was present, but it is not shown that he individually or as a member of the council took any action to prevent the employment of members of Local, #4 by the defendant Otis Elevator Company, for work on the plaintiff’s job. Furthermore, the finding of the judge was not plainly wrong that the council “was composed of representations from the several unions concerned with the building trade and appears to have general supervision and control of matters affecting that trade but with no direct disciplinary authority.” It is not shown that the council or this defendant attempted to exercise any disciplinary authority over members of Local #4 with respect to their entering the employment of the defendant Otis Elevator Company under its contract with the plaintiff. In the absence, as here, of conspiracy to injure the plaintiff or the defendant Otis Elevator Company, it is not shown that this defendant was guilty of any wrong to either of them.\n22. The defendant Ernest A. Johnson is not liable in damages to the plaintiff. This defendant was a member of the adjustment board and a member and secretary-treasurer of the council. The case against Johnson is not different in substance from the case against the defendant O’Toole unless by reason of the fact that the defendant Johnson was present at the meeting of the adjustment board at which it was voted not to sanction the employment of members of Local #4 for work under the contract of the defendant Otis Elevator Company with the plaintiff in installing the elevator although it is not shown that the defendant Johnson voted either way upoii this question. Even if his presence at the meeting could be regarded as acquiescence in this vote, he was not guilty of any wrong to the plaintiff or to the defendant Otis Elevator Company in such acquiescence in the absence, as here, of any conspiracy in which he participated to injure either of them.\n23. The defendant Edwin E. Graves, or his administra-trix, is not liable in damages to the plaintiff . There is no basis in the facts shown for liability. This defendant was the general agent of the council whose duty it was “to note ■ and report the conditions in the building and construction' industry relating to the erection, alteration, demolition and repair of all work.” He was a member of the adjustment board. It does not appear that he was a member of the council. The judge found properly that very “early in the progress of the work, the defendant Graves visited the premises and learned from Moskow that it was to be an ‘open’ job, told him in some form of words that union men would not work on it, which was in accordance with the fixed policy of the union organizations not to permit union men to work on nonunion jobs,” and “Graves subsequently reported his conversation to the Building Trades Council.” Apparently this conversation occurred before the contract between the plaintiff and the defendant Otis Elevator Company was made. So far as the employment of nonunion workmen on the work of remodelling the building is concerned, this statement of the defendant Graves to Moskow at most did not go beyond — if it went as far as — an attempt to persuade the plaintiff to carry on the work of re-modelling the building as a closed union job excluding nonunion workmen from employment thereon. Such an attempt by the defendant Graves, whether as a mere volunteer or as the authorized or apparent spokesman for all members of/ the labor unions affiliated with the council, including Local #4, or for any more limited group, in which there was no element of coercion or attempted coercion, to persuade the plaintiff to carry on the work as a closed union job, was not a wrong to the plaintiff. There was no coercion or attempt to coerce the plaintiff in this conversation unless by reason of the statement by the defendant Graves to the effect that union workmen would not work on the job if nonunion workmen were employed thereon. While this statement might tend to influence the plaintiff not to employ nonunion workmen on the job, it cannot fairly be regarded as a threat to interfere with the employment of nonunion workmen thereon. It was not a wrong to the plaintiff for the defendant Graves to report this conversation to the council. No coercion by the defendant Graves of members of Local #4 not to enter the employment of the defendant Otis Elevator Company on the plaintiff’s job is shown. In the absence, as here, of a conspiracy to injure the plaintiff or the defendant Otis Elevator Company in which the defendant Graves participated, it is not shown that the, defendant Graves was guilty of any wrong to either of them.\n24. It follows that there was no error in dismissing the bill as against the labor defendants. This conclusion rests upon the finding of the judge, which is not plainly wrong, “I find that there was no strike; that there was no conspiracy or monopoly and that whatever trouble or delay was occasioned on the job was due to the adherence of the organizations of which they were members to a general policy not to allow union labor to work on nonunion or open jobs.” We interpret this finding to mean that the refusal to work was not the result of or in furtherance of any combination to compel the plaintiff to hire only persons who were members of some trade union. This decision is not intended to impair the authority of cases holding certain boycotts illegal.\nSecond. Damages against the defendant Otis Elevator Company.\n1. The plaintiff seeks to recover damages against the defendant Otis Elevator Company for loss of rents resulting from delay in completion of the performance of its contract for installation of the elevator.\n2. By this contract, previously described herein, the defendant Otis Elevator Company agreed to install an elevator and the plaintiff agreed to do certain things including furnishing an elevator car and preparing a legal hoistway, and agreed to complete all of this work in such time as not to delay this defendant’s work. The defendant agreed that the apparatus should be in complete running order by April 8, 1940.\n3. It is clear that the apparatus was not in running order by that time. Indeed, it appears not to have been completed until sometime in October, 1940. To what extent this delay was excused by the failure of the plaintiff to perform its part of the contract need not be considered for the contract provided that the defendant Otis Elevator Company “shall not be held responsible or liable for any loss, damage,, detention or delay caused by accidents, strikes,- lockouts, fire, explosion, theft, lightning, windstorm, earthquake, floods, storms, riot, civil commotion, malicious mischief, Act of God, or by any cause beyond its reasonable control, whether or not the same is herein specified, and in any event it shall not be liable for consequential damages.” We need not consider the other defences urged by the defendant for the only damages proved — the loss of rents — were consequential damages within the meaning of the contract.\n4. The plaintiff without objection introduced a copy of this contract at the hearing and it was before the judge in its entirety including the provision that the defendant Otis Elevator Company “in any event . . . shall not be liable for consequential damages” although this particular provision of the contract was not expressly pleaded. The rule of damages in an action for breach of contract is that the plaintiff “is entitled in general to damages sufficient in amount to compensate him for the loss actually sustained by him, and to put him in as good position financially as he would have been in if there had been no breach and he had completed the contract. He may not insist upon extraordinary or unforeseen elements of damage, but only such as flow according to common understanding as the natural and probable consequences of the breach and such as may be presumed to have been in the contemplation of the parties at the time the contract was made.” Bucholz v. Green Bros. Co. 272 Mass. 49, 54. See also Restatement: Contracts, § 330; Williston on Contracts (Rev. ed.) § 1356; Hadley v. Baxendale, 9 Exch. 341, 354-355. In no event is recovery permitted of damages not resulting from the breach of the contract, that is, not the consequences of such breach. On the other hand, it is apparent that the agreement that the defendant shall not be liable for consequential damages is not to be interpreted as meaning that the defendant shall not be liable for any damages whatsoever, and this conclusion is supported by the provision of the contract relieving the defendant from liability for damages resulting from various named causes. The natural interpretation of “consequential damages” as used in the contract is that it does not refer to damages that “flow according to common understanding as the natural and probable consequences of the breach,” that is, those arising naturally “according to the usual course of things, from such breach of contract itself,” Hadley v. Baxendale, 9 Exch. 341, 354, “usual” damages (see Williston on Contracts [Rev. ed.] § 1356), sometimes referred to as “general” damages, but that it refers to damages that “may be presumed to have been in the contemplation of the parties at the time the contract was made” by reason of special circumstances known to the parties though such damages do not “flow according to common understanding as the natural and probable consequences of the breach,” sometimes referred to as “special” damages. The case of Goddard v. Barnard, 16 Gray, 205 (citing Hadley v. Baxendale referred to above), denying recovery of special damages was decided on the ground that the contract itself, considered in the light of the circumstances known to the parties when it was made, showed that the parties did not contemplate the recovery of special damages for breach. See also Swift River Co. v. Fitchburg Railroad, 169 Mass. 326. Manning v. Fitch, 138 Mass. 273, is in accord with this principle although it was there held that evidence of circumstances known to the parties when the contract was made was held admissible on the issue of damages.\n5. We think that the provision against liability for “consequential” damages, naturally interpreted, provides against liability for damages that do not arise “according to the usual course of things, from such breach of contract itself,” that is, against liability for “special” damages that are the consequences of special circumstances known to the parties at the time the contract was made. See Washington & Old Dominion Railway v. Westinghouse Electric & Manuf. Co. 120 Va. 620.\n6. Under the provision so construed, damages for the loss of rents of apartments in the apartment house in which the elevator was to be installed ■— the only damages shown — are not recoverable since such damages do not arise “according to the usual course of things, from such breach of contract itself” but can arise only as the consequence of circumstances known to the parties.\nThird. Damages against the defendant W. S. Tyler Company for breach of its contract of May 4, 1940, hereinbefore referred to, to furnish and install the elevator entrances and furnish and deliver the elevator car, and recovery by this defendant under its counterclaim of the contract price from the plaintiff.\n1. The contract between the plaintiff and the defendant W. S. Tyler Company was for the contract price of $1,475. Earlier in this opinion this contract has been described, and the findings of fact with respect to performance thereof have been set forth. This contract provided that the \""factory will ship materials three and one half weeks after receipt of approved details and the erection of the entrances will require eight working days and elevator entrances must be completed and erected in place by June 10, 1940.”\n2. The plaintiff is not entitled to recover damages from this defendant for delay in completing the installation of the elevator from June 10, 1940, to October 7, 1940, when it was actually installed. According to the findings of the judge, which are not plainly wrong, it could not have been installed until about October 7, 1940. This impossibility of installing the elevator until October 7, 1940, resulted from the fact that it could not be so installed until guide rails had been put in the elevator shaft by the Otis Elevator Company under its contract with the plaintiff. Such impossibility was not caused by the defendant W. S. Tyler Company, and this defendant was not liable in damages for the resulting delay. And the resulting delay did not preclude recovery by this defendant under the counterclaim for the contract price. Wallis v. Wenham, 204 Mass. 83, 89. Ravage v. Johnson, 316 Mass. 558, 562. See also Suburban Land Co. Inc. v. Brown, 237 Mass. 166. And, as the judge found, the delay by this defendant in delivering the materials for the elevator caused no delay in the completion thereof. The contract,. however, contained an express provision for delivery of the materials at a fixed time. Though they were then fabricated and ready for shipment, they were not then shipped. The questions, therefore, arise whether the plaintiff is entitled to damages for delay in such shipment and whether such delay precluded recovery by this defendant of the contract price. The plaintiff cannot recover damages in this suit for non- ■ delivery of the materials at a fixed time since, if for no other reason, it “suffered no damage from the nondelivery” as the judge found, and this finding was not plainly wrong. And this defendant is not precluded by such nondelivery from recovering the contract price for, on the facts found by the judge, which are not plainly wrong, the plaintiff acquiesced in such nondelivery, whether such acquiescence is to be regarded as a waiver of this provision of the contract or a modification of the contract. The parties went to hearing on the merits without any question being raised as to the form of the counterclaim, and no such question and no question of variance have been raised or are now argued. This defendant is not precluded from recovering damages under its counterclaim on either of these grounds.\nFourth. There was no error in the failure to grant a permanent injunction. The work on the apartment house was completed before the hearing on the merits, and the evidence as to other or prospective operations by the plaintiff, even if admitted and believed, did not show such facts as entitle the plaintiff to a permanent injunction for the protection of such building operations.\nFifth. No question of the exclusion or admission of evidence is argued by the plaintiff, the appellant here, and we treat such questions as waived. If the plaintiff has saved any exception to the reading by the trial judge of the decree of a justice of this court and his rulings and order for a decree incorporating the report of the judge of the Superior Court under G. L. (Ter. Ed.) c. 214, § 9A (6), inserted by St. 1935, c. 407, § 4, upon an application for a temporary injunction, including the facts found by the trial judge which are made a part of this report, the plaintiff has not argued it and we treat it as waived.\nIt follows that the final decree must be affirmed with a single bill of costs of this appeal against the plaintiff for the labor defendants; also with costs of this appeal against the plaintiff for the defendant Otis Elevator Company, and with costs of this appeal against the plaintiff for the defendant W. S. Tyler Company.\nSo ordered.\nMr. Justice Spalding concurs in the result."", ""type"": ""majority"", ""author"": ""Field, C.J.""}], ""attorneys"": [""T. H. Mahony, (A. Moskow with him,) for the plaintiff."", ""M. Witte, (H. L. Barrett with him,) for O’Toole and others."", ""K. C. Parker, (W. G. Reed with him,) for W. S. Tyler Company and Otis Elevator Company.""], ""corrections"": """", ""head_matter"": ""Boylston Housing Corporation vs. Frank O’Toole & others.\nSuffolk.\nOctober 5, 1942. —\nJuly 3, 1947.\nPresent: Field, C.J., Lummus, Qua, Ronan, Wilkins, & Spalding, JJ.\nUnlawful Interference. Labor and Labor Union. Conspiracy. Contract, Inducing breach of contract, Of employment, Construction, Performance and breach, Building contract, Waiver. Boycott. Damages, For breach of contract. Equity Jurisdiction, Retention of suit for assessment of damages. Equity Pleading and Practice, Injunction. Res Ju-dicata. Law of the Trial. Waiver. Words, \""Consequential damages.”\nA suit in equity seeking to restrain certain labor organizations and designated officers thereof from alleged unlawful interference with a construction project of the plaintiff, where the project was completed before a hearing on the merits, properly was retained for assessment of damages, if any, caused by conduct of the defendants unlawful against the plaintiff, although the bill contained no prayer for damages.\nThe determination of the question, whether the plaintiff in a suit in equity against certain labor organizations and designated officers thereof was entitled to relief by damages, depended upon whether, on the allegations of the bill established by proof, the defendants, or any of them, were guilty of conduct unlawful against and causing the plaintiff damage.\nNo doctrine of the “law of the case” or the “law of the trial” or res judicata precluded a judge, hearing on the merits for assessment of damages a suit in equity in the Superior Court against certain labor organizations and designated oEcers thereof, from determining that the conduct of the defendants was not unlawful toward the plaintiff, although a justice of the Supreme Judicial Court upon a report under G. L. (Ter. Ed.) c. 214, § 9A (6), inserted by St. 1935, c. 407, § 4, had caused a decree to be entered that the case did not involve or grow out of a labor dispute within G. L. (Ter. Ed.) c. 149, § 20C inserted by St. 1935, c. 407, § 1, and a judge of the Superior Court had found that the defendants were actively preventing progress of a building project of the plaintiff and, unless restrained, would “continue to do so, ” and had granted a temporary injunction.\nRefusal by a member of a labor union to work for an elevator company which was under an elevator installation contract with a builder who employed nonunion workmen, was not unlawful conduct toward the builder where, although the installation was delayed through such refusal, no contract with the elevator company or with the builder, directly or through the union, required the union member to accept such employment.\nThe right of a prospective employer to a “free flow of labor” is not a right to employ workmen who, for any reason, do not wish to enter such employment, but is merely a right to be free from unlawful interference with the employment of workmen who do wish to enter such employment.\nUpon findings, justified by the evidence, that there was no “conspiracy” in a refusal by members of a labor union to work for an elevator company which was under an elevator installation contract with a builder employing nonunion workmen although the refusal was communicated to the elevator company by the business representative of the union, and that there was no attempted “monopoly” in the members of the union as applied to the work for which the elevator company sought to employ them, and in the absence of evidence that such conduct of the members of the union was intended to injure the builder although it resulted incidentally in damage to him through delay in the elevator installation, no wrong of the union members toward the builder by way of boycott or otherwise was established.\nMere choice by members of a labor union to adhere to a general policy of the union that it would not furnish members for work on nonunion or “open” jobs, in the absence of evidence showing coercion compelling such adherence by the taking of or threat of disciplinary action or otherwise, did not establish a wrong of the union members toward a builder incidentally damaged by such refusal.\nUpon the hearing for assessment of damages of a suit in equity by a builder against the members of certain labor unions and designated oEcers thereof, where the determining issue was whether in the circumstances conduct of union members, in refusing to work for an elevator company under contract with the plaintiff, a builder, for the installation of an elevator because the plaintiff employed nonunion workmen, was unlawful as to the plaintiff and entitled him to damages from the defendants for delay in the installation, findings by the judge that there was no strike, that there was no conspiracy to injure the plaintiff or monopoly in the refusal, and that whatever trouble or delay was occasioned to the plaintiff by the refusal was due to the adherence of the unions to a general policy not to allow union labor to work on nonunion or “open” jobs, justified a decree dismissing the suit.\nUnder provisions of a contract between a builder and an elevator company that the company should install an elevator for the building within a certain time but that it “in any event . . . shall not be liable for consequential damages,” the company was not liable for loss of rents caused by delay in performance by it.\nUpon findings by a judge justified by reported evidence, a manufacturer of elevator parts under contract with a builder was not liable for loss, if any, resulting from delay in installation of the parts after they were fabricated where such delay was caused, not by the manufacturer, but by conduct of another contractor installing other parts of the elevator for the builder; and the manufacturer was entitled to recover his contract price where delay in delivery of his parts to the job was acquiesced in by the builder.\nBill in equity, filed in the Superior Court on July 29, 1940, and afterwards amended.\nThe suit was heard on application for a preliminary injunction by Brogna, J., and in the Supreme Judicial Court by Dolan, J., under G. L. (Ter. Ed.) c. 214, § 9A (6), as inserted by St. 1935, c. 407, § 4. It was later heard on the merits in the Superior Court by Greenhalge, J. The plaintiff appealed from a final decree entered by his order.\nIn this court the case was argued at the bar in October, 1942, before Field,' C.J., Lummus, Qua, & Cox, JJ., and, after the retirement of Cox, J., was submitted on briefs to Ronan, Wilkins, & Spalding, JJ.\nT. H. Mahony, (A. Moskow with him,) for the plaintiff.\nM. Witte, (H. L. Barrett with him,) for O’Toole and others.\nK. C. Parker, (W. G. Reed with him,) for W. S. Tyler Company and Otis Elevator Company.""}, ""cites_to"": [{""cite"": ""237 Mass. 166"", ""case_ids"": [60245], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/237/0166-01""], ""opinion_index"": 0}, {""cite"": ""316 Mass. 558"", ""case_ids"": [925378], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""562""}], ""case_paths"": [""/mass/316/0558-01""], ""opinion_index"": 0}, {""cite"": ""204 Mass. 83"", ""case_ids"": [5679626], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""89""}], ""case_paths"": [""/mass/204/0083-01""], ""opinion_index"": 0}, {""cite"": ""120 Va. 620"", ""case_ids"": [1846512], ""category"": ""reporters:state"", ""reporter"": ""Va."", ""case_paths"": [""/va/120/0620-01""], ""opinion_index"": 0}, {""cite"": ""138 Mass. 273"", ""case_ids"": [762558], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/138/0273-01""], ""opinion_index"": 0}, {""cite"": ""169 Mass. 326"", ""case_ids"": [469503], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/169/0326-01""], ""opinion_index"": 0}, {""cite"": ""16 Gray, 205"", ""case_ids"": [2093561], ""category"": ""reporters:state"", ""reporter"": ""Gray"", ""case_paths"": [""/mass/82/0205-01""], ""opinion_index"": 0}, {""cite"": ""272 Mass. 49"", ""case_ids"": [3826068], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""54""}], ""case_paths"": [""/mass/272/0049-01""], ""opinion_index"": 0}, {""cite"": ""303 Mass. 315"", ""case_ids"": [869706], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""320-321""}], ""case_paths"": [""/mass/303/0315-01""], ""opinion_index"": 0}, {""cite"": ""110 Wash. 391"", ""case_ids"": [688218], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""pin_cites"": [{""page"": ""394""}], ""case_paths"": [""/wash/110/0391-01""], ""opinion_index"": 0}, {""cite"": ""200 Mass. 110"", ""case_ids"": [3494906], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""112""}], ""case_paths"": [""/mass/200/0110-01""], ""opinion_index"": 0}, {""cite"": ""185 Mass. 255"", ""case_ids"": [826524], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/185/0255-01""], ""opinion_index"": 0}, {""cite"": ""217 Mass. 166"", ""case_ids"": [89653], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""170""}], ""case_paths"": [""/mass/217/0166-01""], ""opinion_index"": 0}, {""cite"": ""316 Mass. 470"", ""case_ids"": [925449], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""475""}], ""case_paths"": [""/mass/316/0470-01""], ""opinion_index"": 0}, {""cite"": ""283 Mass. 27"", ""weight"": 2, ""case_ids"": [478327], ""category"": ""reporters:state"", ""reporter"": 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+5001206,"{""id"": 5001206, ""name"": ""Robert Lundquist, Respondent, v. Coca Cola Bottling Incorporated, Appellant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""6bfbe3213b5f0bef7aa449944c66905dc966e605034396a1addddf60a7d05f25"", ""simhash"": ""1:aecaca0a8f0da46e"", ""pagerank"": {""raw"": 0.00000036023311217402965, ""percentile"": 0.8877691324861025}, ""char_count"": 6547, ""word_count"": 1167, ""cardinality"": 466, ""ocr_confidence"": 0.689}, ""casebody"": {""judges"": [], ""parties"": [""Robert Lundquist, Respondent, v. Coca Cola Bottling Incorporated, Appellant.""], ""opinions"": [{""text"": ""Mallery, J.\nPlaintiff is a bus driver for the Seattle Transit Company. On June 2, 1951, he was twenty-five years of age, and in good health. He slept well, had a good appetite, and was never troubled with nausea.\nOn the day in question, plaintiff reported for work at the Seattle bus terminal, and went into the room provided for bus drivers, which contained a ping-pong table, a pool table, and a Coca Cola vending machine owned and operated by defendant. He inserted a coin in the vending machine and obtained a bottle of Coca Cola. He testified:\n“I opened it [the bottle of Coca Cola] and took a swallow. I walked back to the table where all the fellows were sitting around talking.\n“I noticed a peculiar taste. I couldn’t place the taste. I took another swallow, and I knew there was something wrong. I didn’t know what it was.\n“So, Mr. Pickett, he was sitting there on the other end of the table. I said to him, ‘If you don’t mind drinking out of my bottle, would you take a drink?’ I realized something was wrong with it, I think.'\n“He took a swallow of it, and made an awful face. He says, ‘What is it?’ I said, T don’t know.’\n“So, there is a drinking fountain right near the table. We dumped the rest of the beverage out down the drain. Well, there was something there. We couldn’t see what it was. Just this grey matter.\n“Upon holding the bottle up and looking through the bottom, you could see a body and legs there.\n“I think we both just about became nauseated at the same time. I went to the men’s room; so did Mr. Pickett.\n“I was violently ill right there. Mr. Umbreck, our Assistant Station Master, asked me if I was too ill to work my run.”\nDefendant does not now dispute that the foreign matter in the bottle was a decayed mouse. Notwithstanding his nausea, plaintiff went to work, though he had to stop his bus, during its regular run, and vomit. His nausea continued throughout the day. Thereafter, he could not sleep as soundly as before. His appetite was lessened, and his nerves were on edge so that, for example, the crying of his baby irritated him. By the time of trial, he had lost ten or thirteen pounds in weight. There is medical testimony, in the record, that these effects of his experience may last from five to seven years.\nThe plaintiff did not lose any wages or incur any medical expenses. His capacity for work was not adversely affected. The verdict of the jury, in the amount of fifteen hundred dollars, rests upon the subjective symptoms of pain and suffering only.\nThe trial court, invoking the provisions of RCW 4.76.030 [cf. Rem. Rev. Stat. (Sup.), § 399-1], ordered a new trial if the plaintiff refused to accept a reduction of the judgment to one thousand dollars. The plaintiff accepted the reduction. The defendant appealed.\nAppellant, in its assignment of error No. 1, contends that the trial court erred in refusing to give its requested instructions Nos. 3, 4 and 5, which would have required a verdict in its favor unless the jury found that the foreign matter in the Coca Cola bottle was there through (1) the negligence of appellant, (2) its failure to exercise reasonable care in the preparation of it, or (3) if the damage complained of was the result of an accident for which no one was to blame.\nUpon this assignment, appellant contends that the trial court misapprehended, the rule of Ringstad v. I. Magnin & Co., 39 Wn. (2d) 923, 239 P. (2d) 848, in its ruling that plaintiff had no burden of proving negligence on the part of the defendant.\nWe think, on the contrary, that the trial court followed the rule of that case, which is that a cause of action for breach of warranty, under the provisions of the uniform sales act, RCW 63.04.160 (1) (2) [cf. Rem. Rev. Stat., § 5836-15], does not require an allegation or proof of negligence. Flessher v. Carstens Packing Co., 93 Wash. 48, 160 Pac. 14; Nelson v. West Coast Dairy Co., 5 Wn. (2d) 284, 105 P. (2d) 76, 130 A. L. R. 606; and Jacob E. Decker & Sons v. Capps, 139 Tex. 609, 164 S. W. (2d) 828.\nAppellant’s third assignment of error is directed to the trial court’s refusal to give its requested instruction No. 2, upon the measure of damages to be awarded in this case. While appellant’s requested instruction may not have been erroneous, it was not error to refuse to give it if, as in this case, a proper instruction about which no complaint is made was given in its place.\nAppellant, in its fourth assignment of error, contends that the trial court should have permitted the jury to view the premises of the bottling company. .No purpose would be served in permitting appellant to disprove its negligence by an inspection of its premises, since negligence is not in issue. In any event, a view of the premises is within the discretion of the trial court. Finn v. Bremerton, 118 Wash. 381, 203 Pac. 971; and Vizzaro v. King County, 130 Wash. 398, 227 Pac. 497.\nRCW 4.76.030 [cf. Rem. Rev. Stat. (Sup.), § 399-1] reads as follows:\n“If the trial court, upon a motion for new trial, finds the damages awarded by a jury to be so excessive or inadequate as unmistakably to indicate that the amount thereof must have been the result of passion or prejudice, the trial court may order a new trial or enter an order providing for a new trial unless the party adversely affected consents to a reduction or increase of the verdict, and if such party files such consent and the opposite party thereafter appeals from the judgment entered, the party who filed such consent shall not be bound thereby, but upon the appeal the supreme court shall, without the necessity of a formal cross appeal, review de novo the action of the trial court in requiring such reduction or increase, and there shall be a presumption that the amount of damages awarded by the verdict of the jury was correct and such amount shall prevail, unless the supreme court finds from the record that the damages awarded in such verdict by the jury were so excessive or so inadequate as unmistakably to indicate that the amount of the verdict must have been the result of passion or prejudice.” (Italics ours.)\nWe indulge the presumption granted to the respondent by the statute that the verdict of the jury was correct. Accordingly, we restore the verdict, and direct that judgment be entered thereon.\nGrady, C. J., Hill, Weaver, and Olson, JJ., concur."", ""type"": ""majority"", ""author"": ""Mallery, J.""}], ""attorneys"": [""George H. Bovingdon, for appellant."", ""Robbins & Robbins, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 32259.\nDepartment One.\nMarch 5, 1953.]\nRobert Lundquist, Respondent, v. Coca Cola Bottling Incorporated, Appellant.\nGeorge H. Bovingdon, for appellant.\nRobbins & Robbins, for respondent.\nReported in 254 P. (2d) 488.""}, ""cites_to"": [{""cite"": ""254 P. (2d) 488"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""227 Pac. 497"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""130 Wash. 398"", ""case_ids"": [768406], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/130/0398-01""], ""opinion_index"": 0}, {""cite"": ""203 Pac. 971"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""118 Wash. 381"", ""case_ids"": [749801], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/118/0381-01""], ""opinion_index"": 0}, {""cite"": ""164 S. W. (2d) 828"", ""case_ids"": [2311482, 10222039], ""category"": ""reporters:state_regional"", ""reporter"": ""S.W.2d"", ""case_paths"": [""/tex/139/0609-01"", ""/sw2d/164/0828-01""], ""opinion_index"": 0}, {""cite"": ""139 Tex. 609"", ""case_ids"": [2311482], ""category"": ""reporters:state"", ""reporter"": ""Tex."", ""case_paths"": [""/tex/139/0609-01""], ""opinion_index"": 0}, {""cite"": ""130 A. L. R. 606"", ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R."", ""opinion_index"": 0}, {""cite"": ""105 P. (2d) 76"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""5 Wn. (2d) 284"", ""case_ids"": [5804642], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/5/0284-01""], ""opinion_index"": 0}, {""cite"": ""160 Pac. 14"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""93 Wash. 48"", ""case_ids"": [630215], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/93/0048-01""], ""opinion_index"": 0}, {""cite"": ""239 P. (2d) 848"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""39 Wn. (2d) 923"", ""case_ids"": [4974670], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/39/0923-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""42 Wash. 2d 170"", ""type"": ""official""}], ""file_name"": ""0170-01"", ""last_page"": ""173"", ""first_page"": ""170"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T20:51:59.771993+00:00"", ""decision_date"": ""1953-03-05"", ""docket_number"": ""No. 32259"", ""last_page_order"": 191, ""first_page_order"": 188, ""name_abbreviation"": ""Lundquist v. Coca Cola Bottling 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+5001415,"{""id"": 5001415, ""name"": ""O. A. Eliason et al., Respondents, v. R. O. Walker, Appellant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""429d85d475d15599288e79b7c982133eb37fa93e754a54da41197914784f17e9"", ""simhash"": ""1:b9d313abcd5c6398"", ""pagerank"": {""raw"": 0.00000020016239659023196, ""percentile"": 0.7430354047668416}, ""char_count"": 8054, ""word_count"": 1367, ""cardinality"": 488, ""ocr_confidence"": 0.639}, ""casebody"": {""judges"": [], ""parties"": [""O. A. Eliason et al., Respondents, v. R. O. Walker, Appellant.""], ""opinions"": [{""text"": ""Olson, J.\nPlaintiffs brought this action to rescind a contract for the purchase and installation of a furnace and heating system in their home. They alleged fraud, and the breach of an express and an implied warranty by' defendant. The trial court held that fraud was not proven, but entered findings of fact and judgment in plaintiffs’ favor upon the alleged breach of warranties. Defendant has appealed.\nDefendant is engaged in the business of installing furnaces and designing heating plants. When plaintiffs decided to build an addition to their house, to be used as a display room and workshop in their upholstery business, they consulted defendant to obtain a heating system adequate to heat both the house and the addition. Defendant represented that he would design and supply such a system. The installation was made in accordance with defendant’s design, and was practically completed early in October, 1951. In response to complaints by plaintiffs, defendant attempted to improve its operation. Finally, on December 26,1951, plaintiffs determined that the plant would not heat their premises adequately and ceased using it. January 3, 1952, they notified defendant of their rescission of the contract. He refused to accept their offered return of the heating equipment or to repay the purchase price to them.\nOf those facts found by the trial court, the pivotal one is that pertaining to the representation made by defendant. If his appeal is successful, he must sustain his challenge to this finding by showing that the evidence preponderates against it. This he attempts to do by contending that he did not represent that the plant would heat both the house and the addition in subzero weather. But this is not a sufficient answer because, if that qualification be added to his representation, the evidence is that the plant he installed was inadequate to heat the entire premises in mild weather. There was no subzero weather while the heating plant was in operation, except on the last night before the plaintiffs stopped using it, and at no time were their premises heated sufficiently. The temperature in the addition was seldom as high as fifty degrees Fahrenheit.\nDefendant’s further argument that he did not make the representation because the plant he installed was a “two-trunk system,” which he designed to heat either the house or the addition alternately, but not both at the same time, is not convincing. He changed the burner in the furnace, and increased the speed of operation of the fan to circulate the air, in an unsuccessful effort to heat the whole building. The damper he installed in a warm air duct to the addition, to close this duct and divert heat to the house, was not within easy access and could not be changed without úse of tools. At best, either the house or the addition was bound to be uncomfortably cold part or all of the time. This is not the result which defendant represented would occur.\nNor can the representation be denied by, or the inadequacy of the plant be charged to, plaintiffs’ failure to erect a partition around the furnace to insulate it from the thermostat. The fact that it was so close to the furnace that it caused the burner to stop operating too soon, was not the result of any action by plaintiffs. The instrument was placed at a point selected by defendant. Also, during the time the furnace ran continually, or nearly so, the premises were not heated adequately.\nThe trial court properly found that the representation in issue was made, and that the other essential elements of an express warranty were established, namely, that plaintiffs were induced to purchase the heating plant by, and did purchase it relying upon, this promise. See uniform sales act, § 12, RCW 63.04.130 [cf. Rem. Rev. Stat., § 5836-12].\nWe also sustain the finding that there was an implied warranty of fitness for a particular purpose in this contract of sale. Plaintiffs told defendant the purpose for which they required the heating equipment, and they relied upon his skill and judgment to supply a plant suitable for that purpose. Columbia Concrete Pipe Co. v. Knowles, 36 Wn. (2d) 602, 614, 219 P. (2d) 557 (1950); uniform sales act, § 15(1), RCW 63.04.160(1) [cf. Rem. Rev. Stat., § 5836-15(1)]. The express warranty of fitness is not inconsistent with the same warranty implied in this case, and does not negative it. Uniform sales act, § 15(6), RCW 63.04.160(6) [cf. Rem. Rev. Stat., § 5836-15(6)].\nThe warranty of fitness and its breach being established, the plaintiffs could rescind the contract, offer to return the heating equipment to defendant, and recover the amounts paid on the purchase price. Uniform sales act, § 69 (1) (d), RCW 63.04.700(1) (d) [cf. Rem. Rev. Stat., § 5836-69(1)(d)].\nPlaintiffs did not know of the breach of warranty when the heating plant was installed. When they complained to defendant, he stated that it could be adjusted to heat the building. After his repeated adjustments failed to accomplish • the required result, and plaintiffs learned that the plant was inadequate, they decided to rescind the sale and notified defendant of that election within a reasonable time. They did not waive their right to rescind. Diligence in rescission is a relative question, and whether or not there has been an unreasonable delay in a given case depends upon the particular circumstances of that case. Use of the heating equipment for a temporary period was necessary in order for plaintiffs to determine its adequacy. See 2 Restatement, Contracts, 597, § 349, comment c. Delay in the decision to rescind, induced by the promise of the seller to make the equipment comply with the warranty, cannot result in a waiver of the right to rescind. See Noel v. Garford Motor Truck Co., 111 Wash. 650, 654, 191 Pac. 828 (1920), and case cited.\nPlaintiffs also offered to return the equipment to defendant. The court found it was then in substantially as good condition as it was when it was delivered to them, and this finding is not challenged. Plaintiffs met all of the statutory requirements for rescission. Uniform sales act, §69(3), RCW 63.04.700(3) [cf. Rem. Rev. Stat., § 5836-69(3)]. See 2 Restatement, Contracts, 595, § 349.\nDefendant’s other assignments of error, directed to the findings of fact, are without merit because they are not now material, in view of our conclusion upon the finding on the controlling fact first discussed, and, in any event, the evidence does not preponderate against them and we will not disturb them.\nThe judgment is supported by the findings and is proper. It orders that the contract be rescinded, and awards plaintiffs (1) the purchase price of the equipment, with certain interest at the legal rate, (2) the cost of repairing the walls and floors of their house where air ducts were placed by defendant, and (3) rental for storing the equipment until removed by defendant, and allows a credit to defendant for certain equipment, if left on the premises for the future use of plaintiffs.\nUpon rescission of a contract, the parties shall be restored to the position they occupied before the contract was made, as far as is practicable. See 2 Restatement, Contracts, 596, § 349, comment a; also see Coovert v. Ingwersen, 37 Wn. (2d) 797, 799, 226 P. (2d) 187 (1951), C. H. Lowenthal Co. v. McCormack Brothers Co., 144 Wash. 229, 235, 257 Pac. 632 (1927), and cases cited.\nThe fact that a certain portion of the price of the heating plant was for labor expended by defendant in its installation, cannot reduce plaintiffs’ recovery of the price they paid to defendant. Defendant knew of this cost to him when he undertook the installation, and included it ih the price. Its loss was part of his risk, if he breached his warranty.\nThe judgment is affirmed.\nGrady, C. J., Mallery, Hill, and Weaver, JJ., concur."", ""type"": ""majority"", ""author"": ""Olson, J.""}], ""attorneys"": [""Samuel W. Fancher, for appellant."", ""Thomas F. Curran and Hennessey & Curran, for réspondents.""], ""corrections"": """", ""head_matter"": ""[No. 32337.\nDepartment One.\nApril 16, 1953.]\nO. A. Eliason et al., Respondents, v. R. O. Walker, Appellant.\nSamuel W. Fancher, for appellant.\nThomas F. Curran and Hennessey & Curran, for réspondents.\nReported in 256 P. (2d) 298.""}, ""cites_to"": [{""cite"": ""256 P. (2d) 298"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""257 Pac. 632"", ""year"": 1927, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""144 Wash. 229"", ""year"": 1927, ""case_ids"": [802223], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""pin_cites"": [{""page"": ""235""}], ""case_paths"": [""/wash/144/0229-01""], ""opinion_index"": 0}, {""cite"": ""226 P. (2d) 187"", ""year"": 1951, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""37 Wn. (2d) 797"", ""case_ids"": [4947770], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""799""}], ""case_paths"": [""/wash-2d/37/0797-01""], ""opinion_index"": 0}, {""cite"": ""191 Pac. 828"", ""year"": 1920, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""111 Wash. 650"", ""year"": 1920, ""case_ids"": [691143], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""pin_cites"": [{""page"": ""654""}], ""case_paths"": [""/wash/111/0650-01""], ""opinion_index"": 0}, {""cite"": ""219 P. (2d) 557"", ""year"": 1950, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""36 Wn. (2d) 602"", ""case_ids"": [4939454], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""614""}], ""case_paths"": [""/wash-2d/36/0602-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""42 Wash. 2d 473"", ""type"": ""official""}], ""file_name"": ""0473-01"", ""last_page"": ""478"", ""first_page"": ""473"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T20:51:59.771993+00:00"", ""decision_date"": ""1953-04-16"", ""docket_number"": ""No. 32337"", ""last_page_order"": 496, ""first_page_order"": 491, ""name_abbreviation"": ""Eliason v. 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+506360,"{""id"": 506360, ""name"": ""Herman H. Golding vs. 108 Longwood Avenue, Inc."", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""713286497ff957a8a7b562bc55e43d078d0c42a49f3662f85ab2d5a69ada3d1b"", ""simhash"": ""1:ba5a00961842069e"", ""pagerank"": {""raw"": 0.0000004501879079157947, ""percentile"": 0.9229493688628179}, ""char_count"": 8194, ""word_count"": 1440, ""cardinality"": 454, ""ocr_confidence"": 0.595}, ""casebody"": {""judges"": [], ""parties"": [""Herman H. Golding vs. 108 Longwood Avenue, Inc.""], ""opinions"": [{""text"": ""Wilkins, J.\nThis is a bill in equity to rescind a lease of an apartment in a building in the course of construction, because the rooms were smaller than represented, and to recover an advance payment of rent. The bill, as amended, is based upon fraud and, in the alternative, upon mutual mistake of fact. The defendant appealed from a final decree in favor of the plaintiff. The evidence is not reported.\nThe judge made voluntary findings of material facts, •which, as the result will not be affected, we assume were' intended to include all facts necessary for the determination of the issues, and treat as the equivalent of a report under G. L. (Ter. Ed.) c. 214, § 23, as amended. The defendant’s treasurer told the plaintiff that the rooms were to be of certain specific measurements. The dimensions given to the plaintiff were in fact distances shown on a blue print plan as running from the exterior walls to the center of partitions, but the plaintiff, who was given no copy of the plan, believed them to be inside measurements, and in that belief entered into the lease. The sizes of the rooms were one of the factors which induced him to sign. After the plaintiff learned that the rooms were to be smaller than he had been told, and before the apartment was completed and made ready for occupancy, he notified the defendant that he repudiated the lease because of the discrepancy in the sizes of the rooms. The judge also stated, “But I am unconvinced that this was the real reason for the repudiation,” and “I do not find that the defendant misstated the sizes of the rooms with the intention to deceive the plaintiff.”\nThe defendant rightly makes no contention that it was not bound by the statements of its treasurer. McCarthy v. Brockton National. Bank, 314 Mass. 318, 325.\nIt is first necessary to analyze the findings. It is not expressly said that the defendant gave the plaintiff the outside measurements as inside measurements. But that is implied in the finding that the plaintiff learned that the rooms were to be smaller than he had been told. There was, accordingly, a misstatement of fact as to area, which could be the basis of an action for deceit, should the other elements of such an action be present. Powers v. Rittenberg, 270 Mass. 221, 223-224. Forman v. Hamilburg, 300 Mass. 138, 139-140. The test to determine whether the plaintiff is to be relieved of his contract by reason of any fraudulent misrepresentation is the same as that applied in actions of tort for deceit. Plumer v. Luce, 310 Mass. 789, 801-802. The statement by the judge, “I do not find that the defendant misstated the sizes of the rooms with the intention to deceive the plaintiff,” is a finding that the burden of proof in this respect had not been sustained. Uccello v. Gold’n Foods, Inc., ante, 319, 321, 322. National Shawmut Bank v. Cumming, ante, 457, 461. The burden of proving intent to deceive was on the plaintiff. Kerrigan v. Fortunato, 304 Mass. 617, 620. Gedart v. Ejdrygiewicz, 305 Mass. 224, 228. Hence, there was no fraud in fact.\nWe must proceed in the absence of any finding as to the defendant’s knowledge of the misrepresentation. The defendant either did, or did not, know whether, the outside measurements which it gave as inside measurements of rooms in the building, of which it was making a lease as landlord, were in fact outside measurements. If it did know, there was fraud in law, even without intent to deceive. Flynn v. Colbert, 251 Mass. 489, 493. If it did not know, there still could be fraud in law, because the dimensions were facts susceptible of knowledge, and the treasurer’s statements could have been found to be a representation that he had knowledge of their truth. Harwood v. Security Mutual Life Ins. Co. 263 Mass. 341, 347. Howard v. Barnstable County National Bank, 291 Mass. 131, 136. Palmer v. Motley, 323 Mass. 129, 136. The representations, contrary to the defendant’s contentions, were material. See Rudnick v. Rudnick, 281 Mass. 205, 207. It could have been inferred that the statements were made with intent that the plaintiff rely upon them. It was expressly found that he did so rely, inferably justifiably, and was damaged. Schleifer v. Worcester North Savings Institution, 306 Mass. 226, 227-228, and cases cited. Although the sizes of the rooms were only one of the factors which induced the plaintiff to sign, this was enough. National Shawmut Bank v. Johnson, 317 Mass. 485, 490. The express finding on this point renders immaterial much of the defendant’s argument, which broadly asserts, without specification, that the judge found that the plaintiff would have signed the lease whatever the measurements. That the judge was “unconvinced” that the discrepancy in the sizes of the rooms was “the real reason for the repudiation” is immaterial. Where the elements of a cause of action for deceit could have been found to be present, the plaintiff did not have also to prove his motive for exercising his rights. Crim v. Umbsen, 155 Cal. 697, 702. Siegel v. Lewis, 74 Cal. App. (2d) 86, 90. See Bates v. Cashman, 230 Mass. 167; Moss v. Old Colony Trust Co. 246 Mass. 139, 150. We think that a case for equitable relief could have been found on the ground of fraud in law.\nThe decree did not specify on which ground it was entered. It was expressly found that the plaintiff believed that the measurements given were inside measurements. If this was also the belief of the defendant, there was a mutual mistake of fact, and a case for relief could have been found on that ground also. Spurr v. Benedict, 99 Mass. 463, 466-467. Long v. Athol, 196 Mass. 497, 501-502. Shapira v. Wildey Savings Bank, 213 Mass. 498, 500-501. Jeselsohn v. Park Trust Co. 241 Mass. 388, 391-392.\nDecree affirmed with costs."", ""type"": ""majority"", ""author"": ""Wilkins, J.""}], ""attorneys"": [""S. B. Stein, (C. Evans with him,) for the defendant."", ""A. W. Parker, (S. II. Rudman with him,) for the plaintiff.""], ""corrections"": """", ""head_matter"": ""Herman H. Golding vs. 108 Longwood Avenue, Inc.\nSuffolk.\nJanuary 6, 1950.\nMarch 8, 1950.\nPresent: Qua, C.J., Ronan, Wilkins, Spalding, & Counihan,• JJ.\nLandlord and Tenant, Rescission of lease. Fraud. Equity Jurisdiction,, Rescission. Motive. Equity Pleading and Practice, Findings by judge. Words, “Do not find.”\nThe test to determine whether a party to a lease is entitled to rescind it in equity on the ground that he was induced to enter into it by a fraudulent misrepresentation by the other party is the same as in an action of tort for deceit.\nA statement in the findings of the trial judge in a suit in equity, “I do not find ” a certain fact, was a finding that the burden of proving that fact had not been sustained.\nOne, who, before a building was completed, executed as lessee a lease of an apartment therein relying on a statement made to him by the lessor of the dimensions of the rooms in the apartment as shown on a' plan, was entitled to maintain a suit in equity for rescission of the lease on the ground of fraud in law where it appeared that the size of the rooms was material and one of the factors inducing the lessee to execute the lease, that the dimensions were ascertainable by the lessor, that the dimensions as stated to the lessee by the lessor were in fact the dimensions from outside walls to center of partitions, that the lessor intended the lessee to rely on the statement, and\"" that the lessee was given no copy of the plan and justifiably relied on the statement in the belief that the stated dimensions were the inside dimensions, even if the lessor did not know that the statement was a misrepresentation and did not intend to deceive the lessee and the trial judge was “unconvinced” that the lessee’s “real reason” for repudiating the lease was the discrepancy in the size of the rooms.\nOne’s motive in asserting a right to rescission in equity on the ground of fraud is immaterial.\nA lessee under a lease of an apartment was entitled in equity to rescission of the lease on the ground of mutual mistake of fact if both parties had entered into the lease in the belief that an incorrect statement made to the lessee by the lessor as to the size of the rooms in the apartment was true.\nBill in equity, filed in the Superior Court on March 21, 1949.\nThe suit was heard by Brogna, J.\nS. B. Stein, (C. Evans with him,) for the defendant.\nA. W. Parker, (S. II. Rudman with him,) for the plaintiff.""}, ""cites_to"": [{""cite"": ""241 Mass. 388"", ""case_ids"": [3810905], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""391-392""}], ""case_paths"": [""/mass/241/0388-01""], ""opinion_index"": 0}, {""cite"": ""213 Mass. 498"", ""case_ids"": [839808], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""500-501""}], ""case_paths"": [""/mass/213/0498-01""], ""opinion_index"": 0}, {""cite"": ""196 Mass. 497"", ""case_ids"": [56069], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""501-502""}], ""case_paths"": [""/mass/196/0497-01""], ""opinion_index"": 0}, {""cite"": ""99 Mass. 463"", ""case_ids"": [2139741], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""466-467""}], ""case_paths"": [""/mass/99/0463-01""], ""opinion_index"": 0}, {""cite"": ""246 Mass. 139"", ""case_ids"": [752338], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""150""}], ""case_paths"": [""/mass/246/0139-01""], ""opinion_index"": 0}, {""cite"": ""230 Mass. 167"", ""case_ids"": [71226], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/230/0167-01""], ""opinion_index"": 0}, {""cite"": ""74 Cal. App. (2d) 86"", ""case_ids"": [6044026], ""category"": ""reporters:state"", ""reporter"": ""Cal. App. 2d"", ""pin_cites"": [{""page"": ""90""}], ""case_paths"": [""/cal-app-2d/74/0086-01""], ""opinion_index"": 0}, {""cite"": ""155 Cal. 697"", ""case_ids"": [2009531], ""category"": ""reporters:state"", ""reporter"": ""Cal."", ""pin_cites"": [{""page"": ""702""}], ""case_paths"": [""/cal/155/0697-01""], ""opinion_index"": 0}, {""cite"": ""317 Mass. 485"", ""case_ids"": [927330], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""490""}], ""case_paths"": [""/mass/317/0485-01""], ""opinion_index"": 0}, {""cite"": ""306 Mass. 226"", ""case_ids"": [871837], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""227-228""}], ""case_paths"": [""/mass/306/0226-01""], ""opinion_index"": 0}, {""cite"": ""281 Mass. 205"", ""case_ids"": [3831871], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""207""}], ""case_paths"": [""/mass/281/0205-01""], ""opinion_index"": 0}, {""cite"": ""323 Mass. 129"", ""case_ids"": [504101], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""136""}], ""case_paths"": [""/mass/323/0129-01""], ""opinion_index"": 0}, {""cite"": ""291 Mass. 131"", ""case_ids"": [495046], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""136""}], ""case_paths"": [""/mass/291/0131-01""], ""opinion_index"": 0}, {""cite"": ""263 Mass. 341"", ""case_ids"": [851811], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""347""}], ""case_paths"": [""/mass/263/0341-01""], ""opinion_index"": 0}, {""cite"": ""251 Mass. 489"", ""case_ids"": [4026511], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""493""}], ""case_paths"": [""/mass/251/0489-01""], ""opinion_index"": 0}, {""cite"": ""305 Mass. 224"", ""case_ids"": [3837473], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""228""}], ""case_paths"": [""/mass/305/0224-01""], ""opinion_index"": 0}, {""cite"": ""304 Mass. 617"", ""case_ids"": [873507], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""620""}], ""case_paths"": [""/mass/304/0617-01""], ""opinion_index"": 0}, {""cite"": ""310 Mass. 789"", ""case_ids"": [3839558], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""801-802""}], ""case_paths"": [""/mass/310/0789-01""], ""opinion_index"": 0}, {""cite"": ""300 Mass. 138"", ""case_ids"": [864509], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""139-140""}], ""case_paths"": [""/mass/300/0138-01""], ""opinion_index"": 0}, {""cite"": ""270 Mass. 221"", ""case_ids"": [862533], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""223-224""}], ""case_paths"": [""/mass/270/0221-01""], ""opinion_index"": 0}, {""cite"": ""314 Mass. 318"", ""case_ids"": [932225], 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+510348,"{""id"": 510348, ""name"": ""Franklin I. Hodgerney vs. Joseph Baker"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""ea40f23f5d13caa5e22fe90b4a8029fb425dedb78ada03843f2979e9dcdbbd7c"", ""simhash"": ""1:90207de5a9a35750"", ""pagerank"": {""raw"": 0.0000002079253956600241, ""percentile"": 0.7588293757666953}, ""char_count"": 9016, ""word_count"": 1557, ""cardinality"": 508, ""ocr_confidence"": 0.627}, ""casebody"": {""judges"": [], ""parties"": [""Franklin I. Hodgerney vs. Joseph Baker.""], ""opinions"": [{""text"": ""Counihan, J.\nThis is an action of tort for personal injuries and property damage sustained by the plaintiff as a result of an accident whereby an automobile, owned by the defendant and alleged to have been negligently operated by him, collided with the plaintiff. The answer of the defendant was a general denial and an allegation that the plaintiff was guilty of contributory negligence. The collision occurred in the forenoon of December 1, 1940, on Main Street, a public highway in the town of Spencer.\nThe plaintiff owned and was duly licensed to operate a garage and gasoline filling station at the intersection of Main Street and Elm Street, and he maintained a gasoline pump at the outer edge of the sidewalk on Main Street. There was evidence from which the jury could find that just before the accident one Smith drove his automobile in front of the gasoline pump of the plaintiff where he stopped and ordered some gasoline. The plaintiff left the sidewalk with a hose from the gasoline pump and, placing the nozzle of the hose in the gasoline tank of the Smith automobile, proceeded to fill the tank of the Smith automobile. While doing this he was standing in the street close to the rear of the Smith automobile facing the rear end of the Smith automobile, and was not looking behind him in the direction from which the defendant’s automobile came. The defendant’s automobile came along Main Street, ran into the plaintiff as he was filling the gasoline tank, and pinned him between the front end of the defendant’s automobile and the rear end of the Smith automobile.\nThere was also evidence that the defendant was travelling in an easterly direction on Main Street at twenty to twenty-five miles an hour when he was forced to the right by two automobiles going in a westerly direction and passing an automobile truck. The defendant testified that he struck a patch of rough ice, lost control of his automobile, and slid into the plaintiff. He made no effort to turn to his left, to apply his brakes, or to sound his horn. The defendant, however, also testified that his automobile did not skid nor slow down before the accident.\nDuring the course of the trial there was introduced, against the objection and exception of the plaintiff, a bylaw of the town of Spencer which reads: “No person shall place or cause to be placed in any of the public streets or squares any dirt, rubbish, wood, timber or other material of any kind tending to obstruct streets without a written license from the superintendent of streets.”\nAt the close of the evidence the defendant filed a motion for a directed verdict. This motion was allowed by the judge and the plaintiff duly excepted.\nThe plaintiff duly filed his bill of exceptions, and on October 31, 1944, the day before the time for the presentation of the bill of exceptions to the proper judge for allowance under Rule 74 of the Superior Court (1932) would have expired, duly filed an affidavit with the clerk as required by said Rule 74 that he had on October 31, 1944, presented the bill of exceptions to the trial judge for allowance. On October 31, 1944, the same day, he wrote the defendant’s attorney as follows: “I am enclosing herewith copy of affidavit of presenting for allowance of the plaintiff’s bill of exceptions which has been filed in court. Yours very truly, E. R. Trafton.” The defendant then moved to dismiss the plaintiff’s bill of exceptions because the copy of the “affidavit of presentation” did not contain the signature of the plaintiff or his attorney nor of the magistrate who took the oath of the affiant. The motion was denied, and the defendant excepted, and brings a bill of exceptions.\nThe Defendant’s Exceptions.\nThere was no error in the denial of the defendant’s motion to dismiss the plaintiff’s bill of exceptions. Rule 74 of the Superior Court (1932) provides that under certain circumstances, unless “an affidavit is filed with the clerk that the bill of exceptions has been presented by a party to the proper justice for allowance, the bill of exceptions will be dismissed.” There is no provision in this rule requiring either notice or a copy to the adverse party when an affidavit of presentation is filed, and our attention has been directed to no cases which indicate that notice or copy to the adverse party when the affidavit is filed is required.\nWe do not believe that such an affidavit is a “pleading or motion” referred to in Rule 21 of the Superior Court (1932). By statute, G. L. (Ter. Ed.) c. 231, § 113, it is required that notice of the filing of the bill of exceptions be given the adverse party and that such notice must be given after the filing of a properly signed bill of exceptions. Walsh v. Feinstein, 274 Mass. 597. However, no statute or rule requires that a copy of the bill of exceptions be sent to the adverse party. Dutton v. Bennett, 256 Mass. 397. The cases of Thorndike, petitioner, 244 Mass. 429, Wilson v. Checker Taxi Co. 263 Mass. 425, Thorndike, petitioner, 270 Mass. 334, and other cases cited in the defendant's brief deal with a petition to establish a bill of exceptions, to which different rules and conditions have been applied. G. L. (Ter. Ed.) c. 231, § 117. Rule 6 of the Rules for the Regulation of Practice before the Full Court (1926). 252 Mass. 585, 587.\nThe Plaintiff’s Exceptions.\nThe plaintiff excepted to the admission of the by-law of the town of Spencer. The defendant argues that the vehicle parked near the gasoline pump constituted a violation of the by-law. We do not believe that this by-law prohibits the conduct in question. “A general term in a statute or ordinance takes meaning from the setting in which it is employed. The literal meaning of a general term in an enactment must be limited so as not to include matters ■that, although within the letter of the enactment, do not fairly come within its spirit and intent.” Kenney v. Building Commissioner of Melrose, 315 Mass. 291, 295. The parked vehicle could come only within “other material of any kind,” but from the context of the by-law as a whole, an automobile parked at the curb of a street does uot come within it. The words “or other material” must be read in conjunction with the words immediately preceding, and must be construed to mean material of a similar nature. Babcock Davis Corp. v. Paine, 240 Mass. 438, 441. Medford Trust Co. v. Priggen Steel Garage Co. 273 Mass. 349, 353. Beloin v. Bullett, 310 Mass. 206, 211. Assessors of Springfield v. Commissioner of Corporations & Taxation, 321 Mass. 186, 193. The by-law should have been excluded.\nIt was error to allow the defendant’s motion for a directed verdict. The case should have been submitted to the jury on the question of negligence of the defendant, such as failure to slow down, failure to put on brakes, and failure to sound horn, Birch v. Strout, 303 Mass. 28; Levin v. Twin Tanners, Inc. 318 Mass. 13, and the question of contributory negligence. Dube v. Keogh Storage Co. 236 Mass. 488, 492. Legg v. Bloom, 282 Mass. 303, 305. Thibault v. Nicholas Zeo, Inc. 301 Mass. 478. Ordinarily the issues of contributory negligence on the part of the plaintiff and of negligence' on the part of the defendant are for the jury. Simonson v. Angel, 256 Mass. 256. Beebe v. Randall, 304 Mass. 207, 209-210.\nDefendant’s exceptions overruled.\nPlaintiff’s exceptions sustained."", ""type"": ""majority"", ""author"": ""Counihan, J.""}], ""attorneys"": [""E. R. Trafton, for the plaintiff."", ""W. W. Buckley, for the defendant, submitted a brief.""], ""corrections"": """", ""head_matter"": ""Franklin I. Hodgerney vs. Joseph Baker.\nWorcester.\nSeptember 26, 1949.\nNovember 7, 1949.\nPresent: Qua, C.J., Lummus, Spalding, Williams, & Counihan, JJ.\nPractice, Civil, Exceptions: allowance and establishment. Municipal-Corporations, By-laws and ordinances. Way, Public: obstruction. Negligence, Motor vehicle, Contributory, Use of way. Words, “Other material of any kind.”\nNeither Rule 74 nor Rule 21 of the Superior Court (1932) requires that there be sent to the adverse party a notice or a copy of an affidavit filed with the clerk of the court that a bill of exceptions has been presented to the trial judge for allowance.\nA by-law of a town, that “No person shall place or cause to be placed in any of the public streets or squares any dirt, rubbish, wood, timber or other material of any kind tending to obstruct streets without a written license from the superintendent of streets,” did not prohibit the placing of an automobile in a public street adjacent to a gasoline pump maintained at the outer edge of the sidewalk.\nEvidence of the circumstances in which the proprietor of a gasoline pump maintained on the curb of a sidewalk was struck from behind by an automobile while he was standing in the street near the pump filling the tank of a customer’s automobile warranted a finding of negligence of the operator of the automobile which struck him and did not require a ruling of contributory negligence on his part.\nTort. Writ in the Central District Court of Worcester dated July 27, 1942.\nOn removal to the Superior Court the action was tried before Dowd, J.\nE. R. Trafton, for the plaintiff.\nW. W. Buckley, for the defendant, submitted a brief.""}, ""cites_to"": [{""cite"": ""304 Mass. 207"", ""case_ids"": [873596], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""209-210""}], ""case_paths"": [""/mass/304/0207-01""], ""opinion_index"": 0}, {""cite"": ""256 Mass. 256"", ""case_ids"": [853076], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/256/0256-01""], ""opinion_index"": 0}, {""cite"": ""301 Mass. 478"", ""case_ids"": [866157], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/301/0478-01""], ""opinion_index"": 0}, {""cite"": ""282 Mass. 303"", ""case_ids"": [3834174], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""305""}], ""case_paths"": [""/mass/282/0303-01""], ""opinion_index"": 0}, {""cite"": ""236 Mass. 488"", ""case_ids"": [75172], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""492""}], ""case_paths"": [""/mass/236/0488-01""], ""opinion_index"": 0}, {""cite"": ""318 Mass. 13"", ""case_ids"": [929806], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/318/0013-01""], ""opinion_index"": 0}, {""cite"": ""303 Mass. 28"", ""case_ids"": [869764], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/303/0028-01""], ""opinion_index"": 0}, {""cite"": ""321 Mass. 186"", ""case_ids"": [499730], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""193""}], ""case_paths"": [""/mass/321/0186-01""], ""opinion_index"": 0}, {""cite"": ""310 Mass. 206"", ""case_ids"": [3839978], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""211""}], ""case_paths"": [""/mass/310/0206-01""], ""opinion_index"": 0}, {""cite"": ""273 Mass. 349"", ""case_ids"": [3828252], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""353""}], ""case_paths"": [""/mass/273/0349-01""], ""opinion_index"": 0}, {""cite"": ""240 Mass. 438"", ""case_ids"": [58270], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""441""}], ""case_paths"": [""/mass/240/0438-01""], ""opinion_index"": 0}, {""cite"": ""315 Mass. 291"", ""case_ids"": [904077], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""295""}], ""case_paths"": [""/mass/315/0291-01""], ""opinion_index"": 0}, {""cite"": ""252 Mass. 585"", ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""587""}], ""opinion_index"": 0}, {""cite"": ""270 Mass. 334"", ""case_ids"": [862562], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/270/0334-01""], ""opinion_index"": 0}, {""cite"": ""263 Mass. 425"", ""case_ids"": [851678], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/263/0425-01""], ""opinion_index"": 0}, {""cite"": ""244 Mass. 429"", ""case_ids"": [750576], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/244/0429-01""], ""opinion_index"": 0}, {""cite"": ""256 Mass. 397"", ""case_ids"": [853148], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/256/0397-01""], ""opinion_index"": 0}, {""cite"": ""274 Mass. 597"", ""case_ids"": [3827738], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/274/0597-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""324 Mass. 703"", ""type"": ""official""}], ""file_name"": ""0703-01"", ""last_page"": ""707"", ""first_page"": ""703"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T16:29:50.706746+00:00"", ""decision_date"": ""1949-11-07"", ""docket_number"": """", ""last_page_order"": 753, ""first_page_order"": 749, ""name_abbreviation"": ""Hodgerney v. 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+510374,"{""id"": 510374, ""name"": ""Walter Douglas vs. Stuart B. Whittaker"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""6fc9bb8e275dc699e209fb822428998374bfcef7f1012a4cdafdb269a7ca9c38"", ""simhash"": ""1:9311e273b3d597c5"", ""pagerank"": {""raw"": 0.0000008299686333900334, ""percentile"": 0.975296243140044}, ""char_count"": 10709, ""word_count"": 1837, ""cardinality"": 675, ""ocr_confidence"": 0.594}, ""casebody"": {""judges"": [], ""parties"": [""Walter Douglas vs. Stuart B. Whittaker.""], ""opinions"": [{""text"": ""Ronan, J.\nThe plaintiff brought this action of tort to recover for personal injuries alleged to have been sustained when he came in contact with the defendant’s automobile. The plaintiff excepted to the granting of a motion for a directed verdict for the defendant after the opening statement of the plaintiff’s counsel.\nThe purpose of an opening statement is to introduce to the judge and jury the particular action which is about to be tried and to acquaint them with the specific case which has been previously described to them in a formal manner by a reading of the declaration. The opening is a sort of preface as to what the judge and jury are about to hear in the proof of the case. An opening may outline a case in a complete and comprehensive manner, embracing a multitude of details many of which are of little importance, or the opening may be brief, consisting of a few factual conclusions touching the essential issues. The extent that the evidence to be adduced in support of the action will be disclosed depends on which of these two types of opening is employed. Whether the opening shall be brief and to the point or lengthy with a minute recital of the proposed evidence depends upon the judgment of counsel. Before any ruling is made upon a motion for a directed verdict upon an opening, the judge must make certain that counsel has had a full opportunity to state fairly and in the main the evidence he relies upon to prove his case. For the purpose of ruling on the motion that evidence must be considered as true and also as if it had been introduced and had comprised all the. evidence. The motion should be denied if the statements of counsel, treated as facts, together with all rational inferences of which those facts are susceptible, can, upon any reasonable view of those facts and inferences, be deemed sufficient to support the plaintiff’s cause of action. On the other hand, if the opening plainly fails to show a cause of action the motion for a directed verdict may be granted. The .plaintiff in such a case has no just cause of complaint. The time of the court should not be wasted in hearing a lost cause and the public should not be put to unnecessary expense arising from the trial of a case already shown to be lacking in merit. The opening is to be examined with care and the power to dispose of the case on the opening must be exercised cautiously. It should not be exercised until it is op-; parent that the plaintiff cannot supply the evidence necessary to establish his case. Cases should be decided upon sworn evidence rather than upon an anticipatory statement of counsel which might bear little resemblance to the available evidence. In instances involving close questions, the safer course is to hear the evidence. The general principles governing the appropriate application of this procedure have been stated in our decisions with sufficient amplitude and clarity to make unnecessary further discussion.\nIn the instant case, an opening which would disclose that the plaintiff intended to introduce evidence which would show negligence upon the part of the defendant and resulting damage to the plaintiff would be sufficient, unless something in the opening, if introduced in evidence, would establish, as matter of law, contributory negligence of the plaintiff. No such thing appears in the opening in question. Neither is there any contention that the opening did not show that the damage resulted from the contact with the defendant’s automobile. The only question then that could possibly arise is whether, assuming the facts stated to be true, there is enough to make the defendant’s negligence a question of fact. Duff v. Webster, 315 Mass. 102,103. Kelly v. Railway Express Agency, Inc. 315 Mass. 301, 302. Mazzaferro v. Dupuis, 321 Mass. 718, 719.\nThe case as outlined in the opening appears to be one where the plaintiff, a ship’s carpenter, was standing upon a public way observing a fire when the defendant approached in his automobile and stopped it without giving any warning of its presence to the plaintiff and so close to him that, when he \""made an involuntary movement to turn around,” he \""fell over” the automobile and injured himself. It further appeared in the opening that the defendant told the plaintiff that the defendant did not give any signal because he thought it would scare the plaintiff and that the defendant was at fault in failing to give any signal.\nThe plaintiff and the defendant had equal and reciprocal rights upon the public way and each owed to the other the duty to exercise due care in the use of the way. The right of the defendant to have his automobile where it was at the time of the accident was subject to the limitation that the right be exercised with proper regard to the rights and safety of other travellers. The defendant could not totally ignore the presence of the plaintiff in the street, especially where it appeared that the defendant as he approached and stopped his vehicle knew that the plaintiff’s attention was directed to the fire. Dube v. Keogh Storage Co. 236 Mass. 488. Ferrairs v. Hewes, 301 Mass. 116. As far as the opening goes the defendant chose to stop so closely behind the plaintiff that when the latter turned around he came in contact with some part of the automobile. There was no necessity for the defendant to stop at that particular place and the defendant’s admission that he was at fault in stopping where he did, while persuasive but not conclusive evidence of his negligence, Nelson’s Express & Warehouse Co. Inc. v. Alexander Grant & Son, Inc. 320 Mass. 317, 318, negatives an inference that he brought the vehicle to a stop where he did by reason of traffic or other conditions. The defendant knew or should have known that the plaintiff would sometime change his position in the way and that if he endeavored to step backward or turn around he would come in contact with the automobile. The fact that the plaintiff when injured was making “an involuntary movement to turn around” would not necessarily bar recovery because the nature of the act which caused such “an involuntary movement,” Towle v. Morin, 295 Mass. 583, 585; Wright v. Carlson, 312 Mass. 584, 589, as described in the opening, might be found to be an innocent cause, of an intervening or a concurrent cause which would not prevent a jury from finding that, if the defendant was negligent, such negligence was the proximate cause of the plaintiff’s injury. Morrison v. Medaglia, 287 Mass. 46. Farewell v. Interstate Busses Corp. 307 Mass. 553.\nThis brings us to the question whether the defendant’s conduct, as described in the opening, could be found to be negligent. One who places, an obstacle in the path of another who is rightfully upon that path may be liable for injuries caused by tripping over the obstacle. Suppose another traveller came along the public way, stopped to watch the fire, and while standing there put a bundle on the ground behind and so close to the plaintiff that the latter as he turned around fell over it. Could it be ruled that this traveller was not negligent? In the case at bar, the statement that the plaintiff fell over the automobile, when considered with the fact that the plaintiff was complaining of , an injury to his shin, may properly be construed to mean that he fell over some part of the automobile which projected a distance above the ground sufficiently high to come in contact with a man’s shin. We think a jury could find that the defendant was negligent. Morris v. Whipple, 183 Mass. 27. Smith v. Edison Electric Illuminating Co. 198 Mass. 330, McGrath v. American Express Co. 219 Mass. 314. Tenney v. Reed, 262 Mass. 335. Bennett v. Cohen, 310 Mass. 714. Chase v. Marchant, 315 Mass. 684. Oliphant v. Interborough Rapid Transit Co. 262 N. Y. 460. Gulliver v. Blauvelt, 14 App. Div. (N. Y.) 523.\nExceptions sustained.\nStevens v. Nichols, 155 Mass. 472, 474. Hey v. Prime, 197 Mass. 474, 475. Berry v. Newton & Boston Street Railway, 209 Mass. 100. Lee v. Blodget, 214 Mass. 374, 377. Murphy v. Boston & Maine Railroad, 216 Mass. 178. Farnham v. Lenox Motor Car Co. 229 Mass. 478, 482. Energy Electric Co., petitioner, 262 Mass, 534, 538. Salem v. Batchelder, 267 Mass. 381. First National Bank v. Groves, 269 Mass. 161, 165. Kolas v. LaRochelle, 270 Mass. 49, 53. Meeney v. Doyle, 276 Mass. 218, 221. Gray v. Boston, 277 Mass. 166, 167. Williams v. Whitinsville Savings Bank, 283 Mass. 297, 300. Massachusetts Hospital Life Ins. Co. v. Nesson, 286 Mass. 216, 218. Poorvu v. Weisberg, 286 Mass. 526. Sandler v. Green, 287 Mass. 404, 406. Mulvaney v. Worcester, 293 Mass. 32, 33. Cahalane v. Dennery, 298 Mass. 34, 35. Sluskonis v. Boston & Maine Railroad, 299 Mass. 413. Rosenblum v. Economy Grocery Stores Corp. 300 Mass. 264. Deltufo v. Morganelli, 302 Mass. 604. Schleifer v. Worcester North Savings Institution, 306 Mass. 226. Farewell v. Interstate Busses Corp. 307 Mass. 553. Lawless v. Trustees of New York, New Haven & Hartford Railroad, 310 Mass. 211. Shapiro v. Segal, 316 Mass. 556. Waugh v. Great Atlantic & Pacific Tea Co. 317 Mass. 230. Grace v. Jordan Marsh Co. 317 Mass. 632. Passler v. Mowbray, 318 Mass. 231. Carbone v. Trustees of New York, New Haven & Hartford Railroad, 320 Mass. 710. Allen v. National Peanut Corp. 321 Mass, 665. Hentz v. Toppin, 322 Mass. 333. Chalfen v. Kraft, ante, 1.\nStatements in the opening were that the plaintiff “fell over the ear” of the defendant “and cut his leg . . . had a cut on his leg, his left leg . . It wasáa skinned shin.” — Reporter."", ""type"": ""majority"", ""author"": ""Ronan, J.""}], ""attorneys"": [""S. Stern, for the plaintiff."", ""A. E. LoPresti, for the defendant.""], ""corrections"": """", ""head_matter"": ""Walter Douglas vs. Stuart B. Whittaker.\nSuffolk.\nMarch 9, 1949.\nJune 9, 1949.\nPresent: Qua, C.J., Lummus, Honan, Wilkins, & Williams, JJ.\nNegligence, Motor vehicle. Proximate Cause. Practice, Civil, Opening . to jury, Ordering verdict.\nStatement by Ponan, J., as to the nature of an opening to the jury by the plaintiff’s counsel, and as to ordering a verdict for the defendant . • upon the opening.\nEvidence, that, while a pedestrian was standing on a public way observing a fire, the operator of an automobile, without any necessity from traffic conditions or otherwise and without any warning to the pedestrian, stopped the automobile so close behind him that, when he “made an t involuntary movement to turn around,” he “fell over” the automobile and injured himself, and that the operator admitted to the pedestrian fault, in failing to give any signal, would have warranted findings that ' the operator was negligent and that such negligence was a proximate cause of the pedestrian’s injuries.\nTort. Writ in the Superior Court dated July 23, 1946.\nThe action was tried before Burns, J.\nS. Stern, for the plaintiff.\nA. E. LoPresti, for the defendant.""}, ""cites_to"": [{""cite"": ""322 Mass. 333"", ""case_ids"": [502028], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/322/0333-01""], ""opinion_index"": 0}, {""cite"": ""321 Mass, 665"", ""case_ids"": [499984], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/321/0665-01""], ""opinion_index"": 0}, {""cite"": ""320 Mass. 710"", ""case_ids"": [498171], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/320/0710-01""], ""opinion_index"": 0}, {""cite"": ""318 Mass. 231"", ""case_ids"": [929872], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/318/0231-01""], ""opinion_index"": 0}, {""cite"": ""317 Mass. 632"", ""case_ids"": [927284], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/317/0632-01""], ""opinion_index"": 0}, {""cite"": ""317 Mass. 230"", ""case_ids"": [927219], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/317/0230-01""], ""opinion_index"": 0}, {""cite"": ""316 Mass. 556"", ""case_ids"": [925385], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/316/0556-01""], ""opinion_index"": 0}, {""cite"": ""310 Mass. 211"", ""case_ids"": [3840576], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/310/0211-01""], ""opinion_index"": 0}, {""cite"": ""306 Mass. 226"", ""case_ids"": [871837], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/306/0226-01""], ""opinion_index"": 0}, {""cite"": ""302 Mass. 604"", ""case_ids"": [867841, 867831], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/302/0604-01"", ""/mass/302/0604-02""], ""opinion_index"": 0}, {""cite"": ""300 Mass. 264"", ""case_ids"": [864462], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/300/0264-01""], ""opinion_index"": 0}, {""cite"": ""299 Mass. 413"", ""case_ids"": [12254772], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/299/0413-01""], ""opinion_index"": 0}, {""cite"": ""298 Mass. 34"", ""case_ids"": [887922], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""35""}], ""case_paths"": [""/mass/298/0034-01""], ""opinion_index"": 0}, {""cite"": ""293 Mass. 32"", ""case_ids"": [479957], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""33""}], ""case_paths"": [""/mass/293/0032-01""], ""opinion_index"": 0}, {""cite"": ""287 Mass. 404"", ""case_ids"": [924097], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""406""}], ""case_paths"": [""/mass/287/0404-01""], ""opinion_index"": 0}, {""cite"": ""286 Mass. 526"", ""case_ids"": [923073], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/286/0526-01""], ""opinion_index"": 0}, {""cite"": ""286 Mass. 216"", ""case_ids"": [922989], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""218""}], ""case_paths"": [""/mass/286/0216-01""], ""opinion_index"": 0}, {""cite"": ""283 Mass. 297"", ""case_ids"": [477885], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""300""}], ""case_paths"": [""/mass/283/0297-01""], ""opinion_index"": 0}, {""cite"": ""277 Mass. 166"", ""case_ids"": [861551], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""167""}], ""case_paths"": [""/mass/277/0166-01""], ""opinion_index"": 0}, {""cite"": ""276 Mass. 218"", ""case_ids"": [3830142], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""221""}], ""case_paths"": [""/mass/276/0218-01""], ""opinion_index"": 0}, {""cite"": ""270 Mass. 49"", ""case_ids"": [862591], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""53""}], ""case_paths"": [""/mass/270/0049-01""], ""opinion_index"": 0}, {""cite"": ""269 Mass. 161"", ""case_ids"": [3826064], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""165""}], ""case_paths"": [""/mass/269/0161-01""], ""opinion_index"": 0}, {""cite"": ""267 Mass. 381"", ""case_ids"": [844166], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/267/0381-01""], ""opinion_index"": 0}, {""cite"": ""262 Mass, 534"", ""case_ids"": [3823344], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""538""}], ""case_paths"": [""/mass/262/0534-01""], ""opinion_index"": 0}, {""cite"": ""229 Mass. 478"", ""case_ids"": [3455122], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""482""}], ""case_paths"": [""/mass/229/0478-01""], ""opinion_index"": 0}, {""cite"": ""216 Mass. 178"", ""case_ids"": [87993], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/216/0178-01""], ""opinion_index"": 0}, {""cite"": ""214 Mass. 374"", ""case_ids"": [81380], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""377""}], ""case_paths"": [""/mass/214/0374-01""], ""opinion_index"": 0}, {""cite"": ""209 Mass. 100"", ""case_ids"": [3470167], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/209/0100-01""], ""opinion_index"": 0}, {""cite"": ""197 Mass. 474"", ""case_ids"": [72894], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""475""}], ""case_paths"": [""/mass/197/0474-01""], ""opinion_index"": 0}, {""cite"": ""155 Mass. 472"", ""case_ids"": [808337], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""474""}], ""case_paths"": [""/mass/155/0472-01""], ""opinion_index"": 0}, {""cite"": ""14 App. Div. 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+510379,"{""id"": 510379, ""name"": ""Rosaline Chalfen vs. Barnet Kraft"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""8bf893a1961c802ca6d4e86de584009bf34d59006b43bb6039114d38c523a76a"", ""simhash"": ""1:82a2043d4fe2fdd1"", ""pagerank"": {""raw"": 0.00000028310001582213356, ""percentile"": 0.8391682294990943}, ""char_count"": 9170, ""word_count"": 1596, ""cardinality"": 521, ""ocr_confidence"": 0.621}, ""casebody"": {""judges"": [], ""parties"": [""Rosaline Chalfen vs. Barnet Kraft.""], ""opinions"": [{""text"": ""Wilkins, J.\nThis action of tort is in two counts, both of which allege that the plaintiff was rightfully on the premises numbered 198-200 Cherry Street, Chelsea, which were owned and controlled by the defendant, and that she was burned by reason of a fire in the building. Count 1 alleges that her injuries were caused by the defendant’s negligence in “superintendence, custody, maintenance, supervision, and control” of the building. Count 2 alleges that her injuries resulted from the defendant’s negligence in “permitting said building to be in a dangerous, defective, and unsafe condition.” The judge directed a verdict for the defendant on each count upon the plaintiff’s opening statement, and the plaintiff excepted.\nThe anticipated evidence outlined in the opening may be summarized as follows: The plaintiff, a “baby sitter” in the apartment of a Mrs. Simons, saw smoke coming through the door. She opened the door into the hallway, which she observed was full of smoke. She left with the baby, whom she gave to a man who was a tenant upstairs. She lost sight of this man, and in descending to the street suffered burns. The defendant is the owner of the building, a three-story brick structure, in the cellar of which was a boiler. The defendant “had a janitor whose duty it was to keep the boiler going and to take care of the heating equipment.” The “boiler was pretty close to the stairway leading down from the entrance. You come into a hallway and go down a half flight of stairs, turn around going down, and as you come down the stairs the boiler is just a short distance to the left and [there was] an opening under the stairway,” where were kept rubbish and papers, constituting a fire hazard. That was a condition of which the defendant knew or should have known if he had made reasonable inspection of the premises. The fire started from a cigarette thrown near that collection of paper. Neither the defendant nor his janitor had taken any steps to see to it that the stairway was clear and did not accumulate paper. Because of neglect in permitting this condition amounting to a fire hazard to exist over a period of time, this fire started. The condition was such that a fire could easily start and did start.\nThis colloquy then occurred: “The Judge: Have you anything to add to your opening? Counsel for the plaintiff: No. The Judge: Have you got a motion? Counsel for the defendant: Yes. Counsel for the plaintiff: May I add this. The plaintiff expects to prove that under the stairway there was an accumulation of paper. The Judge: You said that already, and that it was a fire hazard, but you haven’t said a word that the fire was started because of that fire hazard. Counsel for the plaintiff: I am saying that, and I thought I said it. When an inspection was made the following morning after the fire — The Judge: I don’t care what they found the next morning. It was what they found before the fire. Counsel for the plaintiff: I think the next morning’s evidence goes to show what the condition was before the fire, to establish cause and effect. The Judge: Do you know how long a lighted cigarette lasts when it is burning? Counsel for the plaintiff: I know, but I will have testimony from the fire department they found the remains of a lighted cigarette near the paper; that the paper had been pulled out from under the stairs; that the fire started under the stairway, and we expect to prove that. The Judge: All right, I will direct a verdict just the same.”\nWe assume that the facts, both specific and general, stated in the opening were true and would have been substantiated by testimony. Grace v. Jordan Marsh Co. 317 Mass. 632. The judge at first was of the opinion that counsel for the plaintiff had not stated that the fire started because of the hazard described. If there was any deficiency in the opening in this respect, the omission was supplied by the later statements of counsel for the plaintiff. See Mulvaney v. Worcester, 293 Mass. 32, 33. Whether supposed lack of causation was the reason for the judge’s ultimate action we need not inquire.\nThe defendant contends that it did not appear that he, although the owner, was in control of the area under the stairway. We cannot accede. The opening mentions two tenants only, the plaintiff’s employer and a man “upstairs.” On the other hand, the defendant hired a janitor “whose duty it was to keep the boiler going and to take care of the heating equipment,” and the boiler was in the cellar “pretty close to the stairway leading down from the entrance.” There was nothing tending to show affirmatively that any other person had possession or control of the cellar in general or of the area under the stairway in particular, and in the absence thereof the jury could reach the conclusion that the defendant had the possession and control which normally' accompany ownership. The case, in this aspect, falls within the authority of Moss v. Grove Hall Savings Bank, 290 Mass. 520, 523-524. See Yorra v. Lynch, 226 Mass. 153, 155. The defendant, if so found, would then be subject to the rule, long well settled, that a person in control of a building must exercise reasonable care to keep it in such condition that others will not be injured. Kirby v. Boylston Market Association, 14 Gray, 249, 250-251. Grasselli Dyestuff Corp. v. John Campbell & Co. 259 Mass. 103, 108-109. Brindis v. Haverhill Morris Plan Co. 266 Mass. 303, 306. Frizzell v. Metropolitan Coal Co. 298 Mass. 189, 191. This duty of care, which does not arise out of any technicality of the relationship of landlord and tenant, extends as much to an occupant of another part of the building, whether the negligent person be landlord or tenant, as it does to an adjoining proprietor or to a traveller on the highway. Moss v. Grove Hall Savings Bank, 290 Mass. 520, 524. Gilroy v. Badger, 301 Mass. 494, 496. Burke v. Zatoonian, 309 Mass. 541, 542. This principle would enure to the benefit of the plaintiff, who could be found to have been driven from her employer’s apartment into a position of danger by the smoke coming from a fire which was the result of a hazard permitted to exist through the defendant’s failure to exercise the degree of diligence required in the circumstances. It was a question for the jury whether the defendant should have contemplated that a probable happening from the maintenance of the rubbish and papers was a fire occasioned by the dropping of a lighted cigarette or in some other way. In this respect the case is governed by Geraci v. A. G. Tomasello & Son, Inc. 293 Mass. 552. See Carbone v. Trustees of New York, New Haven & Hartford Railroad, 320 Mass. 710, 713. Although the Geraci case dealt with highly inflammable materials, that is a circumstance for the tribunal of fact which does not affect the underlying principle of law.\nImmaterial are the various contentions of the defendant, which dwell upon the absence of any contractual duty of the defendant to the plaintiff’s employer, through whom, it is argued, the plaintiff’s rights are derivative, or which stress the absence of any invitation to the plaintiff to leave the apartment, and the like.\nThere was error in the direction of a verdict for the defendant.\nExceptions sustained."", ""type"": ""majority"", ""author"": ""Wilkins, J.""}], ""attorneys"": [""In this court the case was submitted on briefs."", ""H. Pollack & S. Mazer, for the plaintiff."", ""T. H. Mahony & S. Leader, for the defendant.""], ""corrections"": """", ""head_matter"": ""Rosaline Chalfen vs. Barnet Kraft.\nSuffolk.\nOctober 26, 1948.\nMarch 3, 1949.\nPresent: Qua, C.J., Lummus, Dolan, Wilkins, & Williams, JJ.\nNegligence, One owning or controlling real estate, Inflammable substance, Fire. Proximate Cause. Fire. Real Property, Possession.\nEvidence that the owner of a three-story brick building, occupied by two tenants only, hired a janitor whose duty it was to “keep a boiler in the cellar going and to take care of the heating equipment,” and absence of affirmative evidence that any other person had possession or control of the cellar in general or of an area under a stairway leading to it, would have warranted a finding that the owner had the possession and control of such area which normally accompany ownership, and that he was under a duty to exercise reasonable care to keep it in such a condition that others, including a “baby sitter” who was on the premises under employment by a tenant, would not be injured.\nEvidence that the owner of a three-story brick building knew, or, if he had made a reasonable inspection of the premises, should have known, of a collection of rubbish and papers constituting a fire hazard under a stairway leading to the cellar, that the owner was in control of the area under the stairway, that neither the owner nor his janitor had taken any steps to remove the hazard, and that a fire started in the papers and rubbish would have warranted findings that the owner was negligent in maintaining the hazard and that the fire was a result of his negligence; and upon such findings an action might be maintained against him for injuries caused by the fire to a “baby sitter” in the employ of one of the tenants on the premises.\nTobt. Writ in the Superior Court dated February 28, 1946.\nThe case was tried before Dillon, J.\nIn this court the case was submitted on briefs.\nH. Pollack & S. Mazer, for the plaintiff.\nT. H. Mahony & S. Leader, for the defendant.""}, ""cites_to"": [{""cite"": ""320 Mass. 710"", ""case_ids"": [498171], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""713""}], ""case_paths"": [""/mass/320/0710-01""], ""opinion_index"": 0}, {""cite"": ""293 Mass. 552"", ""case_ids"": [479876], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/293/0552-01""], ""opinion_index"": 0}, {""cite"": ""309 Mass. 541"", ""case_ids"": [891787], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""542""}], ""case_paths"": [""/mass/309/0541-01""], ""opinion_index"": 0}, {""cite"": ""301 Mass. 494"", ""case_ids"": [866444], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""496""}], ""case_paths"": [""/mass/301/0494-01""], ""opinion_index"": 0}, {""cite"": ""298 Mass. 189"", ""case_ids"": [887916], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""191""}], ""case_paths"": [""/mass/298/0189-01""], ""opinion_index"": 0}, {""cite"": ""266 Mass. 303"", ""case_ids"": [846854], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""306""}], ""case_paths"": [""/mass/266/0303-01""], ""opinion_index"": 0}, {""cite"": ""259 Mass. 103"", ""case_ids"": [854735], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""108-109""}], ""case_paths"": [""/mass/259/0103-01""], ""opinion_index"": 0}, {""cite"": ""14 Gray, 249"", ""case_ids"": [2091580], ""category"": ""reporters:state"", ""reporter"": ""Gray"", ""pin_cites"": [{""page"": ""250-251""}], ""case_paths"": [""/mass/80/0249-01""], ""opinion_index"": 0}, {""cite"": ""226 Mass. 153"", ""case_ids"": [48665], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""155""}], ""case_paths"": [""/mass/226/0153-01""], ""opinion_index"": 0}, {""cite"": ""290 Mass. 520"", ""weight"": 2, ""case_ids"": [493957], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""523-524""}, {""page"": ""524""}], ""case_paths"": [""/mass/290/0520-01""], ""opinion_index"": 0}, {""cite"": ""293 Mass. 32"", ""case_ids"": [479957], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""33""}], ""case_paths"": [""/mass/293/0032-01""], ""opinion_index"": 0}, {""cite"": ""317 Mass. 632"", ""case_ids"": [927284], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/317/0632-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""324 Mass. 1"", ""type"": ""official""}], ""file_name"": ""0001-01"", ""last_page"": ""5"", ""first_page"": ""1"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T16:29:50.706746+00:00"", ""decision_date"": ""1949-03-03"", ""docket_number"": """", ""last_page_order"": 51, ""first_page_order"": 47, ""name_abbreviation"": ""Chalfen v. 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+527000,"{""id"": 527000, ""name"": ""Commonwealth vs. Robert Gardner"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""6cfb5d56273c630dc9a7f8201284af31daadda720f090a2e00d2ffc6e4134fca"", ""simhash"": ""1:ab4fb0815fc32fb3"", ""pagerank"": {""raw"": 0.0000005963517253222397, ""percentile"": 0.9537212401186324}, ""char_count"": 11799, ""word_count"": 1954, ""cardinality"": 613, ""ocr_confidence"": 0.522}, ""casebody"": {""judges"": [], ""parties"": [""Commonwealth vs. Robert Gardner.""], ""opinions"": [{""text"": ""Spalding, J.\nThe defendant was found guilty upon indictments charging rape (Gr. L. c. 265, § 22) and unnatural and lascivious acts (G. L. c. 272, § 35). The cases come here by appeal under Gr. L. c. 278, §§ 33A-33G-, with numerous assignments of error.\n1. Two assignments of error (Nos. 12 and 13) allege that the court erred in denying the defendant’s motions for directed verdicts on both indictments. These assignments cannot be said to have been argued within the meaning of Rule 13 of the Rules for the Regulation of Practice before the Full Court, 345 Mass. 787. See Commonwealth v. Agiasottelis, 336 Mass. 12, 14; Lolos v. Berlin, 338 Mass. 10, 14. We have, however, examined the transcript of the evidence with care and are satisfied that the defendant’s motions for directed verdicts were rightly denied. No purpose would be served by a recital of the evidence.\n2. The defendant assigns as error (assignment No. 6) the allowance of questions put by the prosecutor to the physician (a gynecologist) who examined the victim shortly after the alleged attack took place. Prior to answering these questions, the witness had testified that the victim was crying and was somewhat hysterical when he first saw her, that she related certain information to him, and that he examined her clothing and noted that the pockets of her blouse were ripped and that the zipper on her skirt was broken. He also testified that she had a bruise on her left breast and bruises “bilaterally on both arms.” On the basis of a physical examination he concluded that she had engaged in intercourse within twelve hours of the examination. This evidence was admitted without objection. The witness was then asked: “Doctor, based upon your medical training and based upon your observations of the person of this young lady and based upon . . . [her] emotional state . . ., did you on that evening form an opinion as to whether or not there had been a forcible entry?” After stating that he had formed an opinion, the witness was permitted to state that he “thought that there was forcible entry.” This evidence was admitted subject to the defendant’s exceptions. Immediately thereafter, the judge asked the witness if he had been given ‘ ‘ a history from the patient as to what happened,” and the witness stated that he had. The judge, then asked him whether that statement by the victim had formed “any part or basis of . . . [his] opinion.” The witness answered, “Well, ... I would say yes.”\nThe questions put by the prosecutor should have been excluded. • It is not improbable that a jury would regard medical testimony that acts of intercourse had been accomplished by a “forcible entry” as tantamount to testimony that the victim was raped. Thus, the defendant argues (citing Holland v. Commonwealth, 272 S. W. 2d [Ky.] 458, 460), the questions were inadmissible because they permitted the witness to give an opinion on the ultimate question in issue; it was tantamount, he contends, to asking the witness if in his opinion the defendant was guilty. As we said in Commonwealth v. Chapin, 333 Mass. 610, 625, in considering an exception to the admission of a psychiatrist’s opinion of the defendant’s sanity at the time he committed the crime: “If the real ground of this assignment is that the answer to the question is the precise point to be determined by the jury, this is not a valid objection where the judge could find that the witness was qualified to express an opinion in the domain of professional knowledge which would be of assistance to the jury.” See Wigmore on Evidence (3d ed.) §§ 1920,1921; McCormick on Evidence, § 12. Here, however, the error in admitting the questions was that they permitted the witness to base his opinion on factors outside the area of his professional competence. More specifically, the questions invited the witness to consider the emotional state of the victim. The content of his prior testimony, moreover, suggests that the bruises on the victim’s arms and breast provided some basis for his eonclusion. And, immediately following the witness’s answers, the judge’s questions elicited the fact that his' opinion was in part based upon the victim’s own statement to him of what had happened. We are not persuaded that a gynecologist, or other expert, possesses skills or special experience which might enable him to determine, from factors such as these, that acts of intercourse amounted to rape. In fact, the witness admitted upon cross-examination that he could not have reached the conclusion he did solely on the basis of his physical examination of the victim. Where the jury are equally capable of drawing the conclusion sought from an expert witness, the expert’s testimony is inadmissible. See New England Glass Co. v. Lovell, 7 Cush. 319; Commonwealth v. Russ, 232 Mass. 58, 72-73; Jackson v. Anthony, 282 Mass. 540, 544.\nWe are of opinion that the possible prejudice to the defendant by the admission of this evidence was such that he is entitled to a new trial on the charge of rape. The question of the defendant’s guilt or innocence rested in large part upon whether the jury believed the victim’s version of what happened or the defendant’s. In these circumstances the witness’s opinion, presented as the unbiased testimony of an expert, could have substantially influenced the jury’s decision as to whom to believe.\n3. By assignment No. 14 the defendant contends that the failure of the court to allow motions for specifications entitles him to a new trial on both convictions. By proceeding to trial without having sought a decision on the motions, the defendant waived them. Preston v. Neale, 12 Gray, 222. Hill v. Trustees of Glenwood Cemetery, 323 Mass. 388, 393, and eases cited. Moreover, the indictments were in the form prescribed by statute and gave the defendant all the information necessary to prepare his de-fence. G. L. (Ter. Ed.) c. 277, § 79. See Commonwealth v. Binkiewicz, 342 Mass. 740, 747.\n4. Assignments Nos. 1 and 3 complain of the prosecutor’s statement in his opening that the victim feared that the defendant might have been the “Boston Strangler,” and of his later elicitation of testimony from the victim to this effect. Generally, counsel is free to state in his opening anything that he expects to be able to prove by evidence. Commonwealth v. Makarewicz, 333 Mass. 575, 583. The victim’s state of mind was relevant to the issue of consent (Commonwealth v. Dies, 248 Mass. 482, 489), and we do not perceive in the comments or testimony any insinuation that the defendant was in some way connected with the crimes or person known as the “Boston Strangler.”\n5. Assignment No. 7 challenges the denial of the defendant’s motion to introduce the record from the hospital where the victim was examined. It is apparent from the transcript that the defendant was seeking by this record to show that the victim was not a virgin prior to the alleged attack. Although evidence of a general reputation for un-chastity may be admitted in rape cases, evidence of instances of prior intercourse with other persons is inadmissible. Commonwealth v. Harris, 131 Mass. 336. See Miller v. Curtis, 158 Mass. 127, 131; Commonwealth v. Dies, 248 Mass. 482, 489. Nor was this evidence admissible to impeach the victim’s credibility, since she had not testified on the subject of her virginity.\n6. Assignments Nos. 8 and 11 concern the judge’s failure to exclude testimony relating to photographs of nude females, three of which were found in the defendant’s apartment, and one of which was in the possession of the victim. Before these exceptions were taken, the photographs had been put in evidence without objection and the victim had testified about the defendant’s use of them. Subsequently, a directed verdict was granted on the charge relating directly to the photographs, and this, the defendant argues, terminated their relevancy to the issues being tried. Assignment No. 8 goes to the admission of the victim’s testimony on redirect as to why she took one of the pictures with her. This subject had been reopened by the defendant in cross-examining the victim just prior to the challenged testimony. Moreover, the testimony was self-serving only in the sense that most testimony may he so characterized, and it was not, in view of the prosecutor’s rephrasing of the question, hearsay. See Commonwealth v. Fatalo, 345 Mass. 85, 86-87. Assignment No. 11 challenges the failure to exclude the question put to the defendant on cross-examination: “Were you going to somehow use them [the photographs] for a background in a painting, sir?” Although this facetious question should not have been asked, we cannot see how the defendant could have been prejudiced by it in view of both his own and the victim’s prior testimony concerning the photographs and their introduction in evidence.\n7. The defendant complains (assignment No. 10) of the failure to exclude a question put by the prosecutor to a de-fence witness who testified that he had investigated the case for the defendant. The witness was asked whether he would have included in his report information which would incriminate the defendant. In view of the broad range of inquiry open to counsel on cross-examination, the judge did not err in allowing this question. See Commonwealth v. Corcoran, 252 Mass. 465, 486.\n8. The judgment on the rape indictment (No. 13,904) is reversed and the verdict is set aside. The judgment on the indictment charging unnatural and lascivious acts (No. 13,903) is affirmed.\nSo ordered.\nThe defendant was also charged with the possession of obscene, indecent and impure photographs, but the judge directed a verdict for the defendant on this indictment.\nThe problems involved where an opinion rests on hearsay are discussed in Commonwealth v. Russ, 232 Mass. 58, 74. See also Commonwealth v. Sinclair, 195 Mass. 100, 108-109; Commonwealth v. McGruder, 348 Mass. 712, 714, and cases cited."", ""type"": ""majority"", ""author"": ""Spalding, J.""}], ""attorneys"": [""Paul G. Holian for the defendant."", ""Jack I. Zalkind, Assistant District Attorney (Robert Snider, Legal Assistant to the District Attorney, with him), for the Commonwealth.""], ""corrections"": """", ""head_matter"": ""Commonwealth vs. Robert Gardner.\nSuffolk.\nApril 4, 1966.\nMay 3, 1966.\nPresent: Wilkins, C.J., Spalding, Cutter, Kirk, & Spiegel, JJ.\nEvidence, Opinion: expert; Of state of mind; Relevancy and materiality; On redirect examination; On cross-examination. Waiver. Practice, Criminal, Waiver.\nAt the trial of an indictment for rape, where a gynecologist testified as to his examination of the alleged victim’s person and clothing, as to her emotional state observed by him, and that he had been given by her an account of “what happened,” it was reversible error in the circumstances to admit the witness’s opinion that there had been “forcible entry.” [665-667]\nThe defendant in a criminal ease waived motions for specifications by proceeding to trial without pressing them. [667]\nAt the trial of an indictment for rape, it was relevant to the issue of consent to show that the victim feared that the defendant might have been a certain notorious “Strangler.” [667-668]\nA hospital record was not admissible at the trial of an indictment for rape for the purpose of showing that the victim was not a virgin before the alleged attack. [668]\nNo error was shown at a criminal trial in the admission of testimony of a witness for the Commonwealth on redirect examination as to a subject opened by the defendant on cross-examination. [668]\nThere was no error at a criminal trial in allowing, on cross-examination of a defence witness who had investigated the case for the defendant, a question whether the witness would have included in his report information incriminating the defendant. [669]\nIndictments found and returned in the Superior Court on September 16,1964.\nThe cases were tried before Smith, J.\nPaul G. Holian for the defendant.\nJack I. Zalkind, Assistant District Attorney (Robert Snider, Legal Assistant to the District Attorney, with him), for the Commonwealth.""}, ""cites_to"": [{""cite"": ""348 Mass. 712"", ""case_ids"": [522349], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""714""}], ""case_paths"": [""/mass/348/0712-01""], ""opinion_index"": 0}, {""cite"": ""195 Mass. 100"", ""case_ids"": [54588], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""108-109""}], ""case_paths"": [""/mass/195/0100-01""], ""opinion_index"": 0}, {""cite"": ""252 Mass. 465"", ""case_ids"": [746196], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""486""}], ""case_paths"": [""/mass/252/0465-01""], ""opinion_index"": 0}, {""cite"": ""345 Mass. 85"", ""case_ids"": [48022], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""86-87""}], ""case_paths"": [""/mass/345/0085-01""], ""opinion_index"": 0}, {""cite"": ""158 Mass. 127"", ""case_ids"": [801991], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""131""}], ""case_paths"": [""/mass/158/0127-01""], ""opinion_index"": 0}, {""cite"": ""131 Mass. 336"", ""case_ids"": [2130095], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/131/0336-01""], ""opinion_index"": 0}, {""cite"": ""248 Mass. 482"", ""weight"": 2, ""case_ids"": [3814655], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""489""}, {""page"": ""489""}], ""case_paths"": [""/mass/248/0482-01""], ""opinion_index"": 0}, {""cite"": ""333 Mass. 575"", ""case_ids"": [488784], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""583""}], ""case_paths"": [""/mass/333/0575-01""], ""opinion_index"": 0}, {""cite"": ""342 Mass. 740"", ""case_ids"": [3855823], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""747""}], ""case_paths"": [""/mass/342/0740-01""], ""opinion_index"": 0}, {""cite"": ""323 Mass. 388"", ""case_ids"": [504044], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""393""}], ""case_paths"": [""/mass/323/0388-01""], ""opinion_index"": 0}, {""cite"": ""12 Gray, 222"", ""case_ids"": [2086076], ""category"": ""reporters:state"", ""reporter"": ""Gray"", ""case_paths"": [""/mass/78/0222-01""], ""opinion_index"": 0}, {""cite"": ""282 Mass. 540"", ""case_ids"": [3833255], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""544""}], ""case_paths"": [""/mass/282/0540-01""], ""opinion_index"": 0}, {""cite"": ""232 Mass. 58"", ""weight"": 2, ""case_ids"": [61554], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""72-73""}, {""page"": ""74""}], ""case_paths"": [""/mass/232/0058-01""], ""opinion_index"": 0}, {""cite"": ""7 Cush. 319"", ""case_ids"": [1967611], ""category"": ""reporters:state"", ""reporter"": ""Cush."", ""case_paths"": [""/mass/61/0319-01""], ""opinion_index"": 0}, {""cite"": ""333 Mass. 610"", ""case_ids"": [488924], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""625""}], ""case_paths"": [""/mass/333/0610-01""], ""opinion_index"": 0}, {""cite"": ""338 Mass. 10"", ""case_ids"": [515657], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""14""}], ""case_paths"": [""/mass/338/0010-01""], ""opinion_index"": 0}, {""cite"": ""336 Mass. 12"", ""case_ids"": [881764], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""14""}], ""case_paths"": [""/mass/336/0012-01""], ""opinion_index"": 0}, {""cite"": ""345 Mass. 787"", ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""opinion_index"": 0}], ""citations"": [{""cite"": ""350 Mass. 664"", ""type"": ""official""}], ""file_name"": ""0664-01"", ""last_page"": ""669"", ""first_page"": ""664"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T16:46:38.606668+00:00"", ""decision_date"": ""1966-05-03"", ""docket_number"": """", ""last_page_order"": 709, ""first_page_order"": 704, ""name_abbreviation"": ""Commonwealth v. 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+5304788,"{""id"": 5304788, ""name"": ""Michigan Millers Mutual Fire Insurance Company, Respondent v. Oregon-Washington Railroad and Navigation Company et al., Defendants, Great Northern Railway Company, Appellant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""e58f0d2470694d323ed348e08f8df87d0e0fd7a4af73c358725f18dd41f2891c"", ""simhash"": ""1:dcd0414885ee0f78"", ""pagerank"": {""raw"": 0.0000002989295362419295, ""percentile"": 0.8515965602627797}, ""char_count"": 23182, ""word_count"": 4088, ""cardinality"": 986, ""ocr_confidence"": 0.658}, ""casebody"": {""judges"": [], ""parties"": [""Michigan Millers Mutual Fire Insurance Company, Respondent v. Oregon-Washington Railroad and Navigation Company et al., Defendants, Great Northern Railway Company, Appellant.""], ""opinions"": [{""text"": ""Schwellenbach, J.\nThis is an appeal from a judgment rendered against appellant, Great Northern Railway Company, for damages resulting from a fire.\nIn the city of Garfield, the tracks of the Oregon-Washington Railroad and Navigation Company and its operating lessee, Union Pacific Railroad Company, run in a general easterly and westerly direction. Adjacent to the tracks, to the north, and on the railroad right of way, is situated the warehouse of the White Mill, Inc. The Great Northern tracks run parallel to and south of the Union Pacific tracks, a distance of a little over one hundred feet. Between the tracks flows Silver creek. The creek meanders between the two tracks, sometimes running close to the Union Pacific tracks, and sometimes close to the Great Northern tracks. The nearest point from the south bank of the creek to the mill is thirty-eight feet. As a result of the meandering of the creek, at times it is north of the line dividing the rights of way of the railroads, and at times it is south.\nFor some time prior to October 19, 1946, in the area between the two tracks, grass and weeds had been permitted to reach a height of about three feet, and willows in the creek had reached a height of six or eight feet. As early as July, complaints had been registered by the city authorities with the railroad companies concerning this condition, and their section crews then had mowed the grass, and had cut the willows and had laid them on the respective banks of the creek.\nThe two section crews met at Garfield at about nine o’clock on the morning of October 19th. Each crew consisted of a foreman and two men. Mr. Swanda, Union Pacific section foreman, testified that he had intended to burn at the eastern end of his section, but that he was flagged down by Mr. Raugust, Great Northern section foreman. Raugust testified:\n“Q. Where did you meet him? A. Well, just as he came in, you know, I walked over, you know, and as I approached he says: ‘Are you ready for us?’ So according to that he must have had some instructions to clean up. Q. Had you had instructions to clean up? A. Yes.' To clean that up and clean it out. Q. By cleaning out, just what do you mean? A.' Well, chop the brush out and get rid of them; you know burn it up, stuff, clean out.”\nSwanda testified:\n“A. He asked me if I would help — if we could burn in there and — burn the grass and weeds out, burn my side and he would burn his side. Q. And he asked you— A. I said just as well burn here as any and I stayed to help. Q. And he asked you if you would help him, is that correct? A. Well, yes, and assist him while we both had to burn it at the same time. Q. At that time did you tell Mr. Raugust about the orders you had received from your company? A. Yes. Q. Did Mr. Raugust tell you about the orders he had received from his company? A. I don’t remember if he did or not, but the city had been after him like they were me every week or ten days. Q. Now, then, after you met at that location, where did you go right after that? A. I unloaded my fire equipment there. I had a ten gallon can of water and two fire extinguishers. Q. And then where did you go? A. I backed up to the depot and shut my motorcar off. Q. And that was in accordance with the plan? A. Yes. Q. That you and Raugust had made, is that right? A. Yes, sir. Q. Then you started burning the right of way? A. Yes. Q. And you lit your right of way first? A. Yes, sir.” crew started first, going about two hundred feet before the Great Northern crew started. At one time a pole on the Great Northern right of way had caught fire up about ten feet, and a Great Northern man borrowed a fire extinguisher from a Union Pacific man to put the fire out.\nThe Union Pacific crew had two fire extinguishers and shovels, and the Great Northern crew had shovels. It was agreed that each crew would work from its own tracks down to the creek, regardless of the right of way line. There was a wind blowing from the east, which increased some in volume as the burning continued. The area burned was 960 feet long. The two crews started at a street bridge to the west of the warehouse and proceeded east, against the wind, to a Great Northern bridge, located to the east of the warehouse. The work was done by patch burning— that is, a. crew would burn a strip about fifty or one hundred feet wide, before igniting another strip. The Union Pacific\nMr. Raugust testified:\n“And part of the time, then, you were burning, were working and burning on the UP right of way, isn’t that correct? A. Well, I don’t know the line as far as that is concerned. We were burning there in conjunction. Q. You were burning in conjunction? A. Yes. Q. Now, what do you mean, burning in conjunction? A. Cleaning that creek out.”\nThe testimony is in conflict as to whether or not sparks emanated from the burning rights of way. Several city firemen testified that they saw sparks and burning embers rising from the burned area. The section men and several people living opposite the Great Northern tracks testified that they saw no flames, sparks, or embers, just smoke. It is undisputed that before this burning operation began that morning, no other smoke was seen in that area. However, one of the Great Northern section men testified under cross-examination that, in some places, flames would rise three or four feet in height, and that the wind was strong enough to blow the fires down to the creek.\nOn the morning in question, a crew of men were working at the mill, processing peas. They were working near door No. 2, which was open. About nine o’clock, quite a heavy smoke came through the door, and the foreman went outside and saw the section crews burning weeds on the rights of way. About 10:30, a heavy smoke was noticed coming from the basement, just west of the door. No flames were visible. The fire department was called, and some of the section men came over. One man tore a piece of siding off with a shovel, and then the flames shot out. The walls of the mill were sealed with sawdust. A few weeks earlier, the áiding had been partially repaired, but there remained numerous cracks, crevices, and warping in the siding offering a lodgment for a spark or an ember to get inside of the walls.\nAs a result of the fire, there was considerable damage to the building, and also to the peas which were stored therein. The insurance company paid the damage and obtained an assignment from the mill of its cause of action against the defendants.\nAt the time of the fire, there was in force a lease agreement, entered into June 25, 1946, between the Oregon-Washington Railroad and Navigation Company and its lessee, Union Pacific Railroad Company, collectively, as lessor, and White Mill, Inc., as lessee, leasing the premises occupied by the mill for an annual rental of $110. Section 13 of the lease provided:\n“It is understood by the parties hereto that the leased premises are in dangerous proximity to the tracks of the Lessor, and that by reason thereof there will be constant danger of injury and damage by fire, and the Lessee accepts this lease subject to such danger.\n“It is therefore agreed, as one of the material considerations for this lease and without which the same would not be granted by the Lessor, that the Lessee assumes all risk of loss, damage or destruction of or to buildings or contents of the leased premises, and of or to other property brought thereon by the Lessee or by any other person with the knowledge or consent of the Lessee and of or to property in proximity to the leased premises when connected with or incidental to the occupation thereof, and any incidental loss or injury to the business of the Lessee, where such loss, damage, destruction or injury is occasioned by fire caused by, or resulting from, the operation of the railroad of the Lessor, whether such fire be the result of defective engines, or of negligence on the part of the Lessor or of negligence or misconduct on the part of any officer, servant or employe of the Lessor, or otherwise, and the Lessee hereby agrees to indemnify and hold harmless the Lessor from and against all liability, causes of action, claims, or demands which any person may hereafter assert, have, claim or claim to have, arising out of or by reason of any such loss, damage, destruction or injury, including any claims, cause of action or demand which any insurer of such buildings or other property may at any time assert, or undertake to assert, against the Lessor.”\nAt the trial, the court dismissed the defendants Oregon-Washington Railroad and Navigation Company and Union Pacific Railroad Company (see United States Fire Ins. Co. v. Northern Pac. R. Co., 30 Wn. (2d) 722, 193 P. (2d) 868), and rendered judgment against Great Northern Railway Company in the sum of $8,275.99.\nError is assigned: (1) in holding the evidence sufficient to establish that the damage to warehouse and peas was caused by the burning of grass and brush by the defendants; (2) in holding the evidence sufficient to establish that the defendants were negligent; (3) in finding that the warehouse caught on fire as a proximate result of negligence of the defendants; (4) in finding that defendants were acting in concert and conjunction and according to a general plan in starting the fires and burning their rights of way; (5) in concluding that appellant is jointly and severally liable; (6) in holding that the appellant is not entitled to the benefits of section 13 of the lease; (7) in refusing to find that respondent’s assignor was contributorily negligent in permitting sawdust and shavings to be exposed by cracks and warps in the outer wall of the warehouse, and to fall and remain on the ground at the foot of the wall; (8) in refusing to grant appellant’s motion for nonsuit; (9) in granting judgment against appellant; and (10) in denying motion for new trial.\nProof that the fire in respondent’s warehouse started from the fires set on the rights of way of the Union Pacific and Great Northern railways is circumstantial. However, the testimony showed that at that time there were no other fires in the vicinity; there were no men smoking near where the fire broke out; there were no stoves, fires in the warehouse, nor were there any motors, wiring, switches or electrical equipment near enough to have caused the fire. There was evidence of a wind, which increased in velocity; of the burning by the crews; of flames as a result of the burning. The evidence is quite persuasive that the fire could not have originated from any other source. See Abrams v. Seattle & Mont. R. Co., 27 Wash. 507, 68 Pac. 78; Northwestern Mut. Fire Ass’n v. Northern Pac. R. Co., 68 Wash. 292, 123 Pac. 468, Ann. Cas. 1913E, 968; Hinckley v. Shell Co. of California, 127 Wash. 630, 221 Pac. 594.\nRem. Rev. Stat., § 5647 [P.P.C. § 115-87], provides:\n“If any person shall for any lawful purpose kindle a fire upon his own land, he shall do it at such time and in such manner, and shall take such care of it to prevent it from spreading and doing damage to other persons’ property, as a prudent and careful man would do, and if he fail so to do he shall be liable in an action to any person suffering damage thereby to the full amount of such damage.”\nJordan v. Welch, 61 Wash. 569, 112 Pac. 656, was an action for damage to respondent’s meadow, as the result of a fire started by sparks from a steam shovel operated by appellant, a railroad contractor. There, the fire had not been kindled on appellant’s land, and the statute was not applicable. However, after quoting the above statute, this court said:\n“While this statute has no special controlling force here, as this action is not within its terms, it is indicative of the declared policy of this state in requiring care and caution in handling and controlling such a destructive agency.”\nWe also said:\n“Thompson on Negligence, § 2277, says:\n“ ‘The circumstances may be such that the mere act of setting the fire will involve such obvious danger to adjoining property as affords of itself evidence of negligence.’\n“The season was dry, the fire was in August, the right of way and the respondent’s meadow were dry and easily ignited. The soil itself burned easily and, when once ignited, would burn below the surface until moisture was reached. Under such circumstances it was the duty of appellants to take precaution against the communicating of any fire to the right of way, or its spread to adjoining lands.”\nSee, also, Seibly v. Sunnyside, 178 Wash. 632, 35 P. (2d) 56.\nIn the instant case, a wind was blowing from the southeast. It increased in velocity as the burning progressed. The mill was in close proximity to the burning operation. Neither the city nor the mill had been notified that the burning would take place that day. The railroads did not have sufficient equipment, nor a sufficient crew, and did not display the proper care and caution in “handling and controlling such a destructive agency.” Under the circumstances, such lack of care constituted negligence.\nFurthermore, the trial court, which saw the witnesses, heard them testify, observed their demeanor while testifying, and weighed their testimony, found that the fire originated from the negligent burning of the rights of way by the railroad crews, and that such negligence was the proximate cause of the damage suffered by respondent’s assignor. We have held many times that the findings of the trial court will not be disturbed by us unless we can say that such findings are clearly not supported by the weight of the evidence. Wade v. Bartek, 30 Wn. (2d) 483, 191 P. (2d) 701.\nWe cannot say that the findings of the trial court that the damage was caused by the burning of defendants; that the defendants were negligent; and that their negligence was the proximate cause of the fire; and that respondent’s assignor was not contributorily negligent, are clearly not supported by the weight of the evidence.\nError is assigned on the finding that the two crews were acting in concert and according to a general plan. It is pointed out that each crew attended to its own burning, and that each fire was separate from the other. It is contended that there were two separate and distinct burning operations, which happened to take place on the same day. However, it must be remembered that each crew burned from its own tracks down to the creek, regardless of the right of way dine. At times the Great Northern crew was burning on the Union Pacific right of way, and the Union Pacific crew was burning on the Great Northern right of way. At the extreme right end of the area burned, the creek flows under the Great Northern bridge, and at that point the Union Pacific men were working right up to the shoulder of the Great Northern tracks. The work was done in this manner to more conveniently carry out the operation as planned.\nComplaints had been sent to both companies by the city officials. Prior to October 19th, each crew had cut the brush and had laid it on its bank of the creek. John Campbell, district road master of the Great Northern, testified:\n“The forces of each section crew were small, and the object was to get the men together and have more men to do the work so that it could be completed in the same day, that is, finished the same day.”\nIt was no accident that the crews met there that day. Raugust testified that when he approached Swanda the latter said, “Are you ready for us?” The fact that the Union Pacific crew started to burn first is indicative of a plan. About two hundred feet from where they started, there were some grain doors lying on the ground, and it was not until after they were cleared that the Great Northern crew started to burn. It happened that the only emergency necessitating active co-operation between the crews was when a pole on the Great Northern right of way caught fire and a Great Northern man borrowed a fire extinguisher from a Union Pacific man to put it out. Both crews were there, ready to assist the other. We are satisfied that the crews were working in concert, and that the burning by them was one project.\nHaving heretofore determined that the fire was the result of defendants’ negligence, it follows that the damage to the warehouse was caused by a joint tort, and the defendants became joint tort-feasors. Young v. Dille, 127 Wash. 398, 220 Pac. 782.\nWhen two or more persons act in concert, and their joint act is negligent, they are all liable in damages jointly and severally, to the person injured because of such negligent act. 52 Am. Jur. 450, Torts, § 111.\n“ . . . that where two or more owe to another a common duty and by a common neglect of that duty such other person is injured, then there is a joint tort with joint and several liability.” 1 Cooley on Torts 276, § 86. See, also, Swain v. Tennessee Copper Co., 111 Tenn. 430, 78 S. W. 93.\nAppellant contends that, if it should be found that it and the Union Pacific were joint tort-feasors, then the release of the United Pacific would also release it, relying upon the rule that the release of one joint tort-feasor releases all. The release of a wrongdoer constitutes a satisfaction and extinguishes the cause of action arising out of the wrong, and therefore operates equally to discharge those jointly guilty thereof. The lease was an agreement between the Oregon-Washington Railroad and Navigation Company and the Union Pacific Railroad Company, as lessor, and the White Mill, as lessee, and was personal between the contractors. By section 13, as one of the material considerations for the lease, the lessee agreed to hold harmless the lessor from any fire which might result from the operation of the railroad of the lessor. It was not intended to benefit anyone other than the lessor.\nIn the case at bar, the Union Pacific was dismissed solely and entirely because of the contractual relationship existing between it and the mill. This did not extinguish the cause of action arising out of the wrong. The Union Pacific was still a wrongdoer and would be answerable in damages for the. wrong, together with its joint tort-feasor, but for the contract. The fact that one joint tort-feasor is protected against liability does not affect the liability of the other tort-feasors. 52 Am. Jur. 455, Torts, § 117.\n“By the great weight of authority, a covenant not to sue one joint contractor or one joint tort-feasor is held not to amount to a release, and therefore such an agreement is held not to discharge the other joint contractors or tort-feasors.” 45 Am. Jur. 676, Release, § 4.\n“Where two persons would otherwise be liable for a harm, one of them is not relieved from liability by the fact that the other has an absolute privilege to act or an immunity from liability to the person harmed.” (Italics ours.) 4 Restatement of the Law 448, Torts, § 880.\nIn Western Express Co. v. Smeltzer, 88 F. (2d) 94, 112 A.L.R. 74, respondent was injured as the result of a collision between a truck in which he was riding and a truck operated by appellant’s employee. The action was against appellant. The jury found both drivers negligent. Appellant claimed error in the exclusion from evidence of a release executed prior to the accident, releasing the owner of the truck in which respondent was riding. ■ The release provided:\n“ ‘That in consideration of the carriage of the undersigned upon the Truck of said Orvil M. Metzler to Chicago and return, whether with or without charge for such carriage, each of the undersigned severally hereby voluntarily assume all risk of accident or damage to his or her person and property, and hereby release and discharge the said Orvil M. Metzler from every claim, liability or demand of any kind for or on account of any personal injury or damage of any kind sustained, whether caused by the negligence of said Orvil M. Metzler or otherwise.’ ”\nThe court held:\n“The general common law rule is that a release of one joint tort feasor after the cause of action arises, and in satisfaction thereof, releases all joint tort feasors from liability for the same tort. [Citing cases.] The rule is based on the theory that the release constitutes a satisfaction and extinguishes the cause of action. This is true even though there is a reserved intention to look to other wrongdoers for further damages or compensation. . . . Since the doctrine relied on rests upon the principle that an action grounded upon joint tort is one and indivisible and is extinguished by the release, the reason underlying the doctrine does not here exist. As the instrument extinguished no existing cause of action, the District Court correctly excluded it.”\nWilder v. Pennsylvania R. Co., 245 N. Y. 36, 156 N. E. 88, 52 A. L. R. 188, was an action against the Pennsylvania Railroad Company and the Pennsylvania Tunnel & Terminal Railroad Company, for damages sustained when the plaintiff fell on a soapy and slippery floor of the waiting room, owned by the latter company. She was about to board a train of the Pennsylvania System and travel on a pass which provided:\n“ ‘In consideration of the issuance of this free pass, I hereby assume all risks of personal injuries and all loss of or damage to property from whatever causes arising, and release the Company from liability therefor.’ ”\nThe Pennsylvania Tunnel & Terminal Railroad Company contended that the release of the Pennsylvania Railroad Company also released it as a joint tort-feasor. The court said:\n“In our opinion this view is untenable. The pass had none of the elements of a release. It was an agreement not to sue, made in consideration of the free use of railroad facilities. There was no claim in existence to be released at the time it was given. It spoke for the future, not the present or past. No liability existed, consequently there was none to be released. This contract, therefore, made on sufficient consideration with the Pennsylvania Railroad Company, did not apply to a joint tort feasor unless the contract expressly or by implication so provided.”\nThe court then held that the pass entitled the plaintiff to continuous passage between New York and Norfolk, Virginia, and that she, by virtue of her contract, assumed all risk of personal injury over all roads over which she might travel with the use of the pass, the agreement having been made for the benefit of all connecting companies which honored the pass.\nIn the New York case, the plaintiff contracted for the benefit of any road over which she might travel. Here, the contract was solely for the benefit of the lessor, and was not for the benefit of the Great Northern. As to whether or not appellant could recover contribution from its joint wrongdoer, we express no opinion, because that question is not before us.\nThe judgment is affirmed.\nMallery, C. J., Robinson, Simpson, and Hill, JJ., concur."", ""type"": ""majority"", ""author"": ""Schwellenbach, J.""}], ""attorneys"": [""A. J. Clynch, Clark A. Eckart, and Harry T. Davenport, for appellant."", ""Cashatt & Turner and Jerome Williams, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 30661.\nDepartment Two.\nDecember 31, 1948.]\nMichigan Millers Mutual Fire Insurance Company, Respondent v. Oregon-Washington Railroad and Navigation Company et al., Defendants, Great Northern Railway Company, Appellant.\nA. J. Clynch, Clark A. Eckart, and Harry T. Davenport, for appellant.\nCashatt & Turner and Jerome Williams, for respondent.\nReported in 201 P. (2d) 207.""}, ""cites_to"": [{""cite"": ""201 P. (2d) 207"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""52 A. L. R. 188"", ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R."", ""opinion_index"": 0}, {""cite"": ""156 N. E. 88"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.E."", ""opinion_index"": 0}, {""cite"": ""245 N. Y. 36"", ""case_ids"": [1979813], ""category"": ""reporters:state"", ""reporter"": ""N.Y."", ""case_paths"": [""/ny/245/0036-01""], ""opinion_index"": 0}, {""cite"": ""112 A.L.R. 74"", ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R."", ""opinion_index"": 0}, {""cite"": ""88 F. (2d) 94"", ""case_ids"": [975304], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""case_paths"": [""/f2d/88/0094-01""], ""opinion_index"": 0}, {""cite"": ""78 S. W. 93"", ""category"": ""reporters:state_regional"", ""reporter"": ""S.W."", ""opinion_index"": 0}, {""cite"": ""111 Tenn. 430"", ""case_ids"": [8536404], ""category"": ""reporters:state"", ""reporter"": ""Tenn."", ""case_paths"": [""/tenn/111/0430-01""], ""opinion_index"": 0}, {""cite"": ""220 Pac. 782"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""127 Wash. 398"", ""case_ids"": [8842033], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/127/0398-01""], ""opinion_index"": 0}, {""cite"": ""191 P. (2d) 701"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""30 Wn. (2d) 483"", ""case_ids"": [2503859], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/30/0483-01""], ""opinion_index"": 0}, {""cite"": ""35 P. (2d) 56"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""178 Wash. 632"", ""case_ids"": [869863], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/178/0632-01""], ""opinion_index"": 0}, {""cite"": ""112 Pac. 656"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""61 Wash. 569"", ""case_ids"": [555693], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/61/0569-01""], ""opinion_index"": 0}, {""cite"": ""221 Pac. 594"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""127 Wash. 630"", ""case_ids"": [8843181], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/127/0630-01""], ""opinion_index"": 0}, {""cite"": ""123 Pac. 468"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""68 Wash. 292"", ""case_ids"": [563369], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/68/0292-01""], ""opinion_index"": 0}, {""cite"": ""68 Pac. 78"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""27 Wash. 507"", ""case_ids"": [297844], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/27/0507-01""], ""opinion_index"": 0}, {""cite"": ""193 P. (2d) 868"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""30 Wn. (2d) 722"", ""case_ids"": [2502890], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/30/0722-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""32 Wash. 2d 256"", ""type"": ""official""}], ""file_name"": ""0256-01"", ""last_page"": ""267"", ""first_page"": ""256"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T21:06:31.250388+00:00"", ""decision_date"": ""1948-12-31"", ""docket_number"": ""No. 30661"", ""last_page_order"": 285, ""first_page_order"": 274, ""name_abbreviation"": ""Michigan Millers Mutual Fire Insurance v. Oregon-Washington Railroad & Navigation 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+552615,"{""id"": 552615, ""name"": ""Charles H. Potter et ux., Respondents, v. The City of Spokane, Appellant, Warehouse & Realty Company et al., Respondents"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""f0df70a5599f07af45c7f4abb29ae9ab03924c77fbe90f372f397786e0b16dd3"", ""simhash"": ""1:9f9dd6d130b847e6"", ""pagerank"": {""raw"": 0.00000012608437421773375, ""percentile"": 0.6124223844710638}, ""char_count"": 7877, ""word_count"": 1320, ""cardinality"": 449, ""ocr_confidence"": 0.573}, ""casebody"": {""judges"": [], ""parties"": [""Charles H. Potter et ux., Respondents, v. The City of Spokane, Appellant, Warehouse & Realty Company et al., Respondents.""], ""opinions"": [{""text"": ""Fullerton, J.\nOn August 24, 1908, the city of Spokane entered into a contract with the Warehouse & Realty Company, a corporation, by the terms of which the company agreed to construct for the city a dry stone fill across a certain depression in East Sprague avenue, a public street of the city of Spokane. The contract provided that the work should be performed according to certain plans and specifir cations described in the contract, and should be under the supervision, direction and control of the board of public works of the city, and its representative, the city engineer; and that, in case of improper construction and noncompliance with the contract, the board had the right to order a partial or entire reconstruction of the work, or to declare the contract forfeited and relet the same to another contractor, and to adjust the differences that should arise between the city and the contractor by reason of the change. Thereafter the Warehouse & Realty Company, with the consent of the city, sublet the contract to one John T. Huetter and one Joseph Zirngibl. The subcontractors entered upon the performance of the work and proceeded therewith until the greater part of the fill was completed. A part of the fill was immediately in front of the property of the respondents, Charles H. Potter and Nellie F. Potter, on which there had been erected a flour mill. The fill at this point spread or bulged out onto the respondents’ property, came in contact with the flour mill, and pushed it from its foundations, and otherwise substantially injured the building.\nThe respondents named above thereupon began this action to have so much of the fill as protruded upon their property abated as a nuisance, and to recover damages for the injury caused to their property by the encroachment of the fill thereon. To the action, both contracting firms as well as the city were made defendants. The negligent acts complained of were set forth in the complaint in the following language:\n“That the said defendants disregarding the location of the said south line of Sprague avenue, have erected and have each permitted to be erected an immense fill and improvement of the said Sprague avenue, by laying immense bowlders and rocks and stone constituting said fill and improvement in such a careless and negligent manner as to permit the same to encroach upon the property of the said plaintiffs Potter and wife and occupied by them and their co-plaintiffs, and have so negligently and carelessly permitted said improvement to be made and said stone to be laid as to permit the tremendous weight of said stone and bowlders to lean over- and against the said milling property, and thereby create a nuisance and a menace to the safety of said property and' making it impossible to carry on the business for which said', property was intended.”\nThe defendants answered separately. The answer off Huetter & Zirngibl was in effect a general denial. The answer of the city was a general denial and an affirmative plea to the effect that the Warehouse & Realty Company was an independent contractor, and that the city was not liable for-any damage that may have occurred by reason of the negligent performance of the work. The Warehouse & Realty Company answered, seeking to throw the blame for defective-work, if any there was, on the subcontractors. Replies were-filed putting in issue the affirmative matters in the answer, and a trial was had before the court sitting without a jury. The trial resulted in a judgment in favor of the respondents-for damages against the city in the sum of $1,000, and an order requiring the fill to be removed from the respondents’\"" property as a nuisance. No recovery was allowed against, the other defendants or either of them. The city appeals.\nOn the trial of the cause, the respondents introduced, without objection, evidence tending to show that the plan on which the fill was made was faulty, that no matter how careful the manner in which the work was performed, or how-closely the plans were followed, the fill would not stand in place, because construction according to the plans did not furnish sufficient cross-binding to hold it. The case was tried chiefly upon this issue, there being little or no evidence-on the affirmative of the proposition that the fill collapsed because of defective workmanship; in fact, it was shown that the work was done under the immediate supervision of the city’s engineer and inspectors, and the completed portions of' the work accepted by them from time to time as the work progressed. It was on this evidence that the court based its. judgment that the city alone was liable for the injury to the respondents’ property.\nThe city first complains that there was no issue on the question whether or not the plan of the work was defective, and that the court erred in holding the city liable upon a judgment founded upon that issue. It argues that the respondents based their right of recovery upon defective workmanship, rather than upon defective plans, and that the evidence of the plaintiff should have been confined to the trial of that question. An examination of the allegations alleging negligence above quoted will disclose that it is not very definite on the question here suggested. It pleads results rather than causes, but we think it sufficiently broad to allow evidence upon both these questions of defective plans and defective workmanship. But if this were not so, we do not find that the city objected at any time to the trial of this issue, and this being so, the complaint will in this court be deemed amended so as to frame the issue.\nThe principal contention is that the city is not liable to answer for the defect because the work was performed by an independent contractor. Whether both or either of the contracting companies were independent contractors we think may be doubted, but assuming that they were, the city is liable to the respondents in any event. The evidence abundantly showed that the bulging out and collapse of the fill was due to a defect in the plans of the work, and not to defective workmanship. In such a case, the person authorizing the work cannot escape liability for injuries incurred thereby by intrusting the work to an independent contractor. Kendall v. Johnson, 51 Wash. 477, 99 Pac. 310; Seattle Lighting Co. v. Hawley, 54 Wash. 137, 103 Pac. 6.\nOther errors are assigned, but because of the views announced on the questions discussed, they have become immaterial.\nThe judgment is affirmed.\nDunbar, C. J., Mount, and Parker, JJ., concur."", ""type"": ""majority"", ""author"": ""Fullerton, J.""}], ""attorneys"": [""Fred B. Morrill, R. L. McWilliams, and V. T. Tustin, for appellant."", ""Samuel R. Stern, for respondents Potter."", ""Cullen <§• Dudley and Happy, Winfree <§■ Hindman, for respondent Warehouse & Realty Company."", ""Post, Avery <§• Higgins, for respondents Huetter et al.""], ""corrections"": """", ""head_matter"": ""[No. 9201.\nDepartment One.\nApril 24, 1911.]\nCharles H. Potter et ux., Respondents, v. The City of Spokane, Appellant, Warehouse & Realty Company et al., Respondents.\nAppeal — Review—Pleadings—Amendment to Conform to Proof. A somewhat indefinite complaint for damages to property, by reason of the negligent construction of a fill in a street, will be deemed amended on appeal to conform to proof, admitted without objection, that the injury resulted from defective plans of the city, rather than defective workmanship.\nMunicipal Corporations — Improvements—Injury to Property— Defective Plans. Where property was damaged by the collapse of a fill because of defective plans, the city cannot evade liability by the fact that the work was done by independent contractors.\nAppeal from a judgment of the superior court for Spokane county, Kennan, J., entered April 16, 1910, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action for damages and for an injunction.\nAffirmed.\nFred B. Morrill, R. L. McWilliams, and V. T. Tustin, for appellant.\nSamuel R. Stern, for respondents Potter.\nCullen <§• Dudley and Happy, Winfree <§■ Hindman, for respondent Warehouse & Realty Company.\nPost, Avery <§• Higgins, for respondents Huetter et al.\nReported in 115 Pac. 176.""}, ""cites_to"": [{""cite"": ""115 Pac. 176"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""103 Pac. 6"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""54 Wash. 137"", ""case_ids"": [1297872], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/54/0137-01""], ""opinion_index"": 0}, {""cite"": ""99 Pac. 310"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""51 Wash. 477"", ""case_ids"": [544146], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/51/0477-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""63 Wash. 267"", ""type"": ""official""}], ""file_name"": ""0267-01"", ""last_page"": ""270"", ""first_page"": ""267"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T21:01:20.145252+00:00"", ""decision_date"": ""1911-04-24"", ""docket_number"": ""No. 9201"", ""last_page_order"": 302, ""first_page_order"": 299, ""name_abbreviation"": ""Potter v. 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+552848,"{""id"": 552848, ""name"": ""John Lynch, Appellant, v. Ninemire Packing Company, Respondent"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""47d49ce8f74496b9195fa42d44b2c6f7115275e9f9fd51b1bba96aff314c8bb4"", ""simhash"": ""1:56e0ab93363eee1d"", ""pagerank"": {""raw"": 0.00000043911753573315406, ""percentile"": 0.9196026486486277}, ""char_count"": 15171, ""word_count"": 2600, ""cardinality"": 757, ""ocr_confidence"": 0.574}, ""casebody"": {""judges"": [], ""parties"": [""John Lynch, Appellant, v. Ninemire Packing Company, Respondent.""], ""opinions"": [{""text"": ""Crow, J.\nAction by John Lynch against Ninemire Packing Company, a corporation, to recover damages for personal injuries. From a nonsuit and order of dismissal, the plaintiff has appealed.\nAppellant contends the trial judge erred in sustaining respondent’s motion for a nonsuit. The evidence shows the following facts: Respondent was operating a wholesale meat and packing establishment in Aberdeen, and had installed in its plant a large vat for rendering tallow. In the vat were two openings, one above for receiving the materials, and one below for discharging the same after rendering. The lower opening could be closed by adjusting a swinging trapdoor, around the edge of which burlap was inserted to prevent leaking. The door when closed was held by a clamp hooked over a rim on the vat, and securely fastened with an eye bolt passing through the clamp and door. The tallow was rendered by means of steam conducted into the closed vat from an engine and boiler which generated about eighty pounds pressure. The pressure in the vat was reduced and controlled at about forty to forty-five pounds by a suitable gauge provided for that purpose. The appellant was in exclusive charge of the vat, engine, boiler, and equipment. He had been thus employed for about eighteen months, but insists he was not an experienced or expert engineer.\nOn the evening of March 1, 1909, appellant adjusted, closed, and fastened the trapdoor over the lower opening. On the next morning he filled the vat from above with proper materials for rendering, closed the upper opening, turned on the steam, examined the gauge, noticed the pressure in the vat did not exceed forty to forty-five pounds, went into the engine room to look after the steam and boiler, returned to the vat, noticed that it was leaking, and to stop the leaking, tightened the clamp by turning the eye bolt. Shortly thereafter, while he was performing other necessary work near the vat, it suddenly exploded and caused him to be burned by hot tallow which escaped about him. The vat was thrown some two hundred feet, and after the accident it was discovered the clamp had been broken at the point where the eye bolt had passed through. No evidence was introduced sufficient to show whether the breaking of the clamp caused the explosion or the explosion caused its breaking. These various appliances had been successfully and continuously used for about two and a half years, no complaint being made of their fitness, suitability, or condition of repair.\nAppellant’s controlling contention is that the respondent, his master, did not provide him with a reasonably safe place in which to work, nor with reasonably safe appliances; and that the doctrine of res ipsa loquitur should be applied to this case, as one in which the accident itself suggests negligence on the part of the master. In support of these contentions he cites, Beall v. Seattle, 28 Wash. 593, 69 Pac. 12, 92 Am. St. 892, 61 L. R. A. 583; Klepsch v. Donald, 4 Wash. 436, 30 Pac. 991, 31 Am. St. 936; LaBee v. Sultan Logging Co., 47 Wash. 57, 91 Pac. 560, 20 L. R. A. (N. S.) 405; Id., 51 Wash. 81, 97 Pac. 1104; Cleary v. General Contracting Co., 53 Wash. 254, 101 Pac. 888, and Riggs v. Northern Pac. R. Co., 60 Wash. 292, 111 Pac. 162. He contends that, when it had been made to appear from the evidence that he was properly using an instrumentality furnished by his master, which failed to perform its functions and exploded without fault on his part, he had made a prima facie case of negligence on the part of the master, under the doctrine of res ipsa loquitur; and that it then devolved upon the respondent to show by competent evidence that it was without fault, or that the accident occurred without negligence on is part.\nIt is true that, in the cases cited, this court'applied the doctrine of res ipsa loquitur to the facts shown, and that in some of them the relation of master and servant existed. But in none of them did the servant have complete charge of the alleged defective appliances, in the sense that at the time he was exclusively using and controlling them. Appellant, as the respondent’s servant, had exclusive control and supervision of all the áppliances at the time of the explosion, and for a considerable period immediately prior thereto. The maxim of res ipsa loquitur is applied in negligence cases on the theory that the accident, in the light of surrounding circumstances, is of such a character as to raise a presumption of negligence from the occurrence itself; and on the further theory, that the injured party is not in a position to explain its cause; while the party charged, having more favorable opportunities, is in a position to thus explain and show himself free from negligence, if such be the case. If the circumstances do not suggest or indicate superior knowledge or opportunity for explanation on the part of the party charged, or if the plaintiff himself has equal or superior means of information, the doctrine will not apply.\nIn Beall v. Seattle, a pedestrian on a city sidewalk was injured by the explosion of a boiler wrongfully installed and maintained beneath the sidewalk, of which boiler he could not and did not have any knowledge. In Klepsch v. Donald, the plaintiff was injured by a stone thrown some distance from a blast with which he had no connection. In LaBee v. Sultan Logging Co., the plaintiff was injured by the breaking of a cable which had not been placed, inspected, or in any manner regulated by him. He was not using the cable at the time of the accident. It was broken by a strain imposed under the direction of a vice principal of the master, who was then upon the ground. In Cleary v. General Contracting Co., the plaintiff used a scaffold prepared for him by the defendant. He had nothing to do with its adjustment or construction. In Riggs v. Northern Pac. R. Co., a brakeman in the course of his employment seized a defective 'handhold, which he had not theretofore inspected or used. In the LaBee case, in 51 Wash. 82, 97 Pac. 1104, we said:\n“Where the facts of the case are such as to eliminate blame on the part of the servant, or his fellow servants, but show prima facie neglect on the part of some one, we think the master should be put to his proofs to show.that the blame is not his, just the same as he would be were the. injury to a stranger. Such a rule casts the burden upon the person who is in a position to know the facts, and who can make the proofs by direct and positive evidence, while the rule contended for by the appellant compels the resort to indirect and circumstantial evidence.”\nThis doctrine should not be applied to the facts before us. Appellant necessarily possessed superior knowledge as to the instrumentalities he was adjusting, operating, and using. Under such conditions, if a servant happens to be injured by the failure of an instrumentality to perform its ordinary functions, it is but just that some affirmative negligence be fixed upon the master to hold him liable, his knowledge of the true cause of such failure being inferior to, or at least not superior to, that of the servant. Appellant testified he had done nothing out of the ordinary, thereby seeldng to eliminate negligence on his part. If, however, the doctrine for which he contends is to be applied to such a case as this, the master would be at the mercy of a servant, who might do many things in the course of his employment, unknown to the master, which would contribute to or cause the accident.\nIn Losie v. Delaware & H. Co., 126 N. Y. Supp. 871, the court said:\n“The doctrine of res ipsa loquitur was not intended to exempt the plaintiff from the burden of proving affirmatively negligence, or circumstances making negligence a legitimate, if not an irresistible, inference. In the language of Judge Cullen in Griffen v. Manice, 166 N. Y. 188, 59 N. E. 925, 52 L. R. A. 922, 82 Am. St. Rep. 630, its ‘application presents principally the question of the sufficiency of circumstantial evidence to establish, or to justify the jury in inferring, the existence of the traversable or principal fact in issue, the defendant’s negligence.’ It is not the accident, but the manner and circumstances of the accident, that justifies the application of the maxim. The fact of the casualty and the attending circumstances may themselves furnish all the proof of negligence that it is necessary to offer; but when, as in this case, they do not, a plaintiff must prove facts and circumstances from which the jury may fairly infer negligence as the cause of the accident. ‘In no instance can the bare fact that an injury has happened, of itself and divorced from all surrounding circumstances, justify the inference that the injury was caused by negligence.’ Benedick v. Potts, 88 Md. 52, 40 Atl. 1067, 41 L. R. A. 478; Griffen v. Manice, supra.”\nIn the LaBee and other cases cited by appellant, we held that, under proper conditions and circumstances, we would not deny an application of the doctrine of res ipsa loquitur to negligence cases arising between master and servant. But when machinery, instrumentalities, or appliances are prepared for use and operated by the injured servant himself, without the direction, intervention, or supervision of the master, and the servant, being in exclusive charge, controls and directs them, it would then appear that the circumstances-were not such as to necessarily raise a presumption of negligence on the part of the master and subject him to the application of the maxim. The master, not being in control, would be at a much greater disadvantage in attempting to account for the accident and explain its true cause than would the servant. In Griffen v. Manice, 166 N. Y. 188, 59 N. E. 926, 82 Am. St. 630, 52 L. R. A. 922, the court, in discussing one theory upon which the maxim is based, said:\n“The maxim is also in part based on the consideration-that where the management and control of the thing which? has produced the injury is exclusively vested in the defendant, it is within his power to produce evidence of the actual cause that produced the accident, which the plaintiff is unable to present.”\nHere the management and control were not exclusively-vested in the respondent. In an action of this character, there-must be some reasonable showing of negligence to require the submission of that issue to the jury. Where the offending appliances or instrumentalities are shown to have been under the exclusive control of the defendant, and the accident in-its nature, circumstances, and surroundings is such as in ordinary course would not occur with reasonable care on the-part of the defendant, then, in the absence of an explanation by him, the accident itself might afford a-sufficient suggestion of negligence to require an application of the doctrine.. But no such condition appears in this cause. Here appellant, as an employee of respondent, was himself a part of the operating forces and was in a position to have done some act which might have caused or contributed to the explosion. The maxim of res ipsa loquitur may be termed a-rule of evidence, to the extent that, when properly applied, it raises a presumption of negligence • sufficient to make a prima facie case on behalf of the plaintiff, and call for an explanation from the defendant. Mr: Wigmore, in Vol. 4 of his admirable work on Evidence, at § 2509, page 3556, discussing the maxim, well suggests reasonable limitations to its application, saying:\n“With the vast increase, in modern times, of the use of powerful machinery, harmless in normal operation, but capable of serious human injury if not constructed or managed in a specific mode, the question has come to be increasingly common whether the fact of the occurrence of' an injury (unfortunately now termed ‘accident,’ by inveterate misuse) is to be regarded as raising a presumption of culpability on the part of the owner or manager of the apparatus. ‘Res ipsa loquitur’ is the phrase appealed to as symbolizing the argument for such a. presumption. In England, a rule of that sort has for a generation been conceded to exist, for some classes of cases at least. In the United States, the presumption has spread rapidly, although with much looseness, of phrase and indefiniteness of scope; as against a common carrier, the presumption against a bailee (ante, § 2508) has. perhaps helped to confirm the rule where injury to goods, or passengers is involved. What its final accepted shape will be can hardly be predicted. But the following considerations, ought to limit it: (1) The apparatus must be such that in the ordinary instance no injurious operation is to be expected unless from a careless construction, inspection, or user; (2) Both inspection and user must have been at the time of the injury in the control of the party charged; (3) The injurious occurrence or condition must have happened irrespective of any voluntary action at the time by the party injured. It may be added that the particular force and justice of the presumption, regarded as a rule throwing-upon the party charged the duty of producing evidence, consists in the ■ circumstance that' the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him but inaccessible to the injured person.”\nApplying the second limitation mentioned, it is apparent, that, at the time of this accident, inspection and user 'were not in control of the respondent. While we have heretofore held that, under proper circumstances and conditions, the maxim of res ipsa loquitur will be applied to the relation of master and servant in negligence cases, we have not held that. the mere existence of that relation calls for its application to all such cases. To do so would, in many instances, compel us to ignore the elementary principles on which the doctrine is based, and thereby unjustly place the master at the mercy of a servant who might himself be at fault.\nSome exceptions are taken to rulings of the trial court on the admissibility ■ of evidence, but we find no prejudicial error in that regard. The judgment is affirmed.\nDunbar, C. J., Morris, and Chadwick, JJ., concur."", ""type"": ""majority"", ""author"": ""Crow, J.""}], ""attorneys"": [""E. J. Adams, Dan Pearsall, and A. Emerson Cross, for appellant."", ""Bridges 8f Bruener and Morgan <$f Brewer, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 9237.\nDepartment Two.\nJune 2, 1911.]\nJohn Lynch, Appellant, v. Ninemire Packing Company, Respondent.\nMaster and Servant — Injury to Servant — Negligence—Res Ipsa Loquitur. The doctrine of res ipsa loquitur does not apply where a vat for rendering tallow exploded and injured an employee after it had been successfully and continuously used for two and a half years, where the injured servant had complete charge and control of all the appliances and the cause of the explosion could not be ascertained; since the circumstances do not raise a presumption of negligence against the master where he is not in control.\nAppeal from a judgment of the superior court for Chehalis county, Irwin, J., entered March 28, 1910, granting a nonsuit in an action for personal injuries sustained by an employee in a packing house through the explosion of a vat.\nAffirmed.\nE. J. Adams, Dan Pearsall, and A. Emerson Cross, for appellant.\nBridges 8f Bruener and Morgan <$f Brewer, for respondent.\nReported in 115 Pac. 838.""}, ""cites_to"": [{""cite"": ""115 Pac. 838"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""59 N. E. 926"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.E."", ""opinion_index"": 0}, {""cite"": ""41 L. R. A. 478"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A."", ""opinion_index"": 0}, {""cite"": ""40 Atl. 1067"", ""category"": ""reporters:state_regional"", ""reporter"": ""A."", ""opinion_index"": 0}, {""cite"": ""88 Md. 52"", ""case_ids"": [2175172], ""category"": ""reporters:state"", ""reporter"": ""Md."", ""case_paths"": [""/md/88/0052-01""], ""opinion_index"": 0}, {""cite"": ""82 Am. St. Rep. 630"", ""category"": ""reporters:state"", ""reporter"": ""Am. St. Rep."", ""opinion_index"": 0}, {""cite"": ""52 L. R. A. 922"", ""weight"": 2, ""category"": ""reporters:federal"", ""reporter"": ""L.R.A."", ""opinion_index"": 0}, {""cite"": ""59 N. E. 925"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.E."", ""opinion_index"": 0}, {""cite"": ""166 N. Y. 188"", ""weight"": 2, ""case_ids"": [2287102], ""category"": ""reporters:state"", ""reporter"": ""N.Y."", ""case_paths"": [""/ny/166/0188-01""], ""opinion_index"": 0}, {""cite"": ""126 N. Y. Supp. 871"", ""case_ids"": [3314637], ""category"": ""reporters:state"", ""reporter"": ""N.Y.S."", ""case_paths"": [""/nys/126/0871-01""], ""opinion_index"": 0}, {""cite"": ""51 Wash. 82"", ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""opinion_index"": 0}, {""cite"": ""111 Pac. 162"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""60 Wash. 292"", ""case_ids"": [529879], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/60/0292-01""], ""opinion_index"": 0}, {""cite"": ""101 Pac. 888"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""53 Wash. 254"", ""case_ids"": [542447], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/53/0254-01""], ""opinion_index"": 0}, {""cite"": ""97 Pac. 1104"", ""weight"": 2, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""51 Wash. 81"", ""case_ids"": [544187], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/51/0081-01""], ""opinion_index"": 0}, {""cite"": ""20 L. R. A. (N. S.) 405"", ""weight"": 2, ""category"": ""reporters:federal"", ""reporter"": ""L.R.A.N.S."", ""opinion_index"": 0}, {""cite"": ""91 Pac. 560"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""47 Wash. 57"", ""case_ids"": [1295703], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/47/0057-01""], ""opinion_index"": 0}, {""cite"": ""30 Pac. 991"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""4 Wash. 436"", ""case_ids"": [5263401], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/4/0436-01""], ""opinion_index"": 0}, {""cite"": ""61 L. R. A. 583"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A."", ""opinion_index"": 0}, {""cite"": ""69 Pac. 12"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""28 Wash. 593"", ""case_ids"": [5172764], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/28/0593-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""63 Wash. 423"", ""type"": ""official""}], ""file_name"": ""0423-01"", ""last_page"": ""430"", ""first_page"": ""423"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T21:01:20.145252+00:00"", ""decision_date"": ""1911-06-02"", ""docket_number"": ""No. 9237"", ""last_page_order"": 462, ""first_page_order"": 455, ""name_abbreviation"": ""Lynch v. Ninemire Packing 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+558728,"{""id"": 558728, ""name"": ""The State of Washington, Respondent, v. Charles Pryor, Appellant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""1fc16dcb448bc8ab42bf0343f12124e1818441a223a86dbdefa8ec743616ccd0"", ""simhash"": ""1:c2a35770b52e87c5"", ""pagerank"": {""raw"": 0.00000027075159662372275, ""percentile"": 0.8290174446463867}, ""char_count"": 8781, ""word_count"": 1476, ""cardinality"": 489, ""ocr_confidence"": 0.532}, ""casebody"": {""judges"": [], ""parties"": [""The State of Washington, Respondent, v. Charles Pryor, Appellant.""], ""opinions"": [{""text"": ""Ellis, J.\nThe appellant was convicted of the crime of 'abortion, attempted by the use of certain instruments upon the person of one Regna Abramson, and prosecutes this appeal from the judgment of the court thereon. Many errors are assigned, but as they are not of a nature likely to recur when the case is retried, we deem it unnecessary to review all of them. Neither do we find it necessary to review the competent evidence in relation to the crime actually charged, further than to say that it would' probably be sufficient to sustain the verdict, had we reason to believe that it formed the sole basis of that verdict, and had the accused been accorded that fair and impartial trial according to law which is the natural right of every person accused of any crime, whatever its nature. Whether guilty or innocent, the defendant was entitled to such a trial, and the state could demand nothing less. An examination of the record convinces us that it has not been accorded in this case.\nIn his opening statement to the jury, the assistant prosecuting attorney said, among other things, that the state would prove that the defendant threw the prosecuting witness upon the ground and had intercourse with her by force and against her will, and had compelled her to commit acts of sodomy with him upon five different occasions. The defendant objected to these statements and requested the court to instruct the jury to disregard them. The court overruled the objections and declined to so instruct.\nCounsel for the defense, in his preliminary statement to the jury, admitted that, shortly after they became acquainted, the defendant and the prosecuting witness began living together the same as if they were husband and wife. As a part of the state’s case in chief, the prosecuting witness was permitted, over objection of the defendant, to testify that the defendant, by force and threats, had ravished her many times, and had, on five different occasions, by threats with a revolver and handcuffs, compelled her to commit the crime of sodomy with him. '\nAfter this evidence, with all of its revolting details, had been admitted, the defendant still insisting upon his objections thereto, moved the court to strike it. The court then intimated that, if the defendant would admit that the complaining witness was pregnant by the defendant, the motion would be granted. The defendant, bartering away one right in the hope of preserving another, accepted the terms offered and admitted that the prosecuting witness was pregnant by him. The court then struck the evidence relative to the crimes of rape and sodomy, and instructed the jury to disregard it. Evidence of pregnancy of the woman by the defendant was clearly a part of the state’s case, as showing motive for the crime of abortion charged. The admission thus procured was in its nature extremely damaging to the defense. It cannot fairly be said that it was voluntary.\nIt requires no citation of authority to show that the accused did not have a fair trial. After the admission of the defendant’s illicit cohabitation with the ■ prosecuting witness, which was made in his preliminary statement to the jury, it is plain that evidence of rape was neither necessary nor proper. The defendant’s admission of illicit cohabitation had already supplied conclusively whatever evidence of motive for the crime of abortion that illicit intercourse, whether by force or otherwise, could furnish. Evidence of rape could not more conclusively establish the only material fact to which it could in any case have been directed, namely, illicit intercourse as showing motive. Its only added tendency was to inflame the minds of the jurymen against the defendant by unnecessarily introducing a distinct and degrading crime of which he was not charged in the information.\nThe evidence as to the crime of sodomy was even more plainly inadmissible, at any time or for any purpose. It could not tend to prove the crime of abortion nor could it tend to supply a motive for that crime. In cases of this kind, the only admissible evidence of other crimes than that charged in the indictment or information is evidence of such crimes as tend to establish an intent or to show a motive to commit the abortion. For example: to establish intent, evidence that the defendant has committed abortion on the same, or even on another woman, is admissible; and to establish motive, .it may be shown that the defendant was the author of the woman’s pregnancy or has had illicit. intercourse with her. 1 Ency. Evidence, pp. 54, 55. We have been cited to no authority, and have found none, holding that evidence of wholly distinct crimes not necessary to prove, nor tending to prove, either of those things is admissible in a trial for abortion.\nOn cross-examination of the defendant, the state’s attorney, notwithstanding the fact that the evidence had been stricken, questioned him concerning the alleged acts of sodomy. This was highly improper. While the court sustained an objection thereto, and instructed the jury to disregard this, its tendency was to keep before the minds of the jury the stricken evidence.\nThese errors were so vital, and the effect of the incompetent evidence, from its very nature, so prejudicial, that we cannot say that they were cured by the order to strike, and the instruction to disregard. If the testimony of the prosecuting witness as to the other two crimes not charged in the information was believed, it would inevitably create' a prejudice in the mind of any human being not lower in his moral makeup than the beasts- of the field. We have no assurance that the jury did not believe it. It would- be to the credit of the jury, rather than to its discredit, if, believing this testimony, it entertained a prejudice against the accused, ineradicable by any order striking the testimony, or by any instruction, however clear and forcible, to disregard it. A fair trial consists not alone in an observance of the naked forms of law, but in a recognition and a just application of its- principles. It may be that the defendant is guilty. On that we express no opinion. It must be remembered, however, that “though unfair means may happen to result in doing justice to the prisoner in the particular case, yet, justice so attained, is unjust and dangerous to the whole community.” Hurd v. People, 25 Mich. 404.\nThe circumstances of this case impel us to reaffirm and emphasize what is said in State v. Montgomery, 56 Wash. 443, 105 Pac. 1035, 134 Am. St. 1119:\n“It is not our purpose to condemn the zeal manifested by the prosecuting attorney in this case. We know that such officers meet with many surprises and disappointments in the discharge of their official duties. They have to deal with all that is selfish and malicious, knavish and criminal, coarse and brutal in human life. But the safeguards which the wisdom of ages has thrown around persons accused of crime cannot be disregarded, and such officers are reminded that a fearless, impartial discharge of public duty, accompanied by a spirit of fairness toward the accused, is the highest commendation they can hope for. Their devotion to duty is not measured, like the prowess of the savage, by the number of their victims.”\nThe judgment is reversed and a new trial ordered. '\nDunbar, C. J., Mount, Fullerton, and Morris, JJ., concur."", ""type"": ""majority"", ""author"": ""Ellis, J.""}], ""attorneys"": [""A. G. McBride and Jay C. Allen, for appellant."", ""John F. Murphy, Alfred H. Lundin, H. B. Butler, and T. J. L. Kennedy, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 10100.\nDepartment Two.\nFebruary 15, 1912.]\nThe State of Washington, Respondent, v. Charles Pryor, Appellant.\nCriminal Law — Trial — Misconduct of Counsel — Fair Trial. Upon a prosecution for abortion, the defendant is deprived of his right to a fair trial, where evidence was received that he had repeatedly ravished the prosecuting witness and compelled her to commit sodomy with him, and his motion to strike the same was granted only upon exacting an admission that the prosecuting witness was pregnant by him.\nAbortion — Evidence of Other Crimes — Sodomy—Admissibility. In a prosecution for abortion, evidence of the commission of sodomy with the prosecuting witness is inadmissible.\nCriminal Law — Misconduct of Counsel. Where, in a prosecution for abortion, improper evidence of acts of sodomy with the prosecuting witness has been stricken, it is highly improper for the state to cross-examine the defendant concerning the acts of sodomy, and it cannot be said that the prejudicial effect thereof and of the evidence is cured by sustaining objections thereto and instructing the jury to disregard the evidence.\nAppeal from a judgment of the superior court for King county, Gay, J., entered October 28, 1911, upon a trial and conviction of abortion.\nReversed.\nA. G. McBride and Jay C. Allen, for appellant.\nJohn F. Murphy, Alfred H. Lundin, H. B. Butler, and T. J. L. Kennedy, for respondent.\nReported in 121 Pac. 56.""}, ""cites_to"": [{""cite"": ""121 Pac. 56"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""105 Pac. 1035"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""56 Wash. 443"", ""case_ids"": [534355], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/56/0443-01""], ""opinion_index"": 0}, {""cite"": ""25 Mich. 404"", ""category"": ""reporters:state"", ""reporter"": ""Mich."", ""opinion_index"": 0}], ""citations"": [{""cite"": ""67 Wash. 216"", ""type"": ""official""}], ""file_name"": ""0216-01"", ""last_page"": ""220"", ""first_page"": ""216"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T18:59:14.782143+00:00"", ""decision_date"": ""1912-02-15"", ""docket_number"": ""No. 10100"", ""last_page_order"": 254, ""first_page_order"": 250, ""name_abbreviation"": ""State v. 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+5604960,"{""id"": 5604960, ""name"": ""MATTHEWS v. RUDY"", ""court"": {""id"": 10118, ""name"": ""Louisiana Court of Appeal"", ""name_abbreviation"": ""La. Ct. App.""}, ""analysis"": {""sha256"": ""af63c278a48578b4b5bc4f8e266966fceb3ec3d9b8bdbd754676637044c16177"", ""simhash"": ""1:e37e3844c6dcfb93"", ""pagerank"": {""raw"": 0.0000005930605530259538, ""percentile"": 0.9532434130329606}, ""char_count"": 11033, ""word_count"": 1909, ""cardinality"": 493, ""ocr_confidence"": 0.522}, ""casebody"": {""judges"": [], ""parties"": [""MATTHEWS v. RUDY""], ""opinions"": [{""text"": ""WEBB, J.\nIn this action plaintiff seeks to recover judgment against defendant for amounts alleged to be necessary to remedy alleged defects in a building constructed by the defendants, and damages alleged to have resulted to the building from such defects.\nPlaintiff alleges she purchased a lot from defendants on which there was a building, and that the building was guaranteed to be in first class condition, but that very soon after she took possession eaks developed in the roof and in the plumbing, and that the piers caved in, and that she had expended eight and 60-100 dollars to have the roof repaired; that the eaks in the roof had damaged the wall paper to the extent of eighty dollars, and ;he cost of repairing the plumbing and damages occasioned by the leak would imount to sixty-five dollars, and of leveling and repairing the piers would amount ;o seventy-five dollars.\nShe alleged that the dormer Windows had been covered with shingles and that sheet iron should have been used, the cost of such work being alleged at thirty-five dollars.\nShe further alleged the cause of the piers sinking was due to a storm sewer on the premises, the presence of which she' had not been advised of at the time of the sale.\nThe defendants answered denying the allegations as to any special warranty, and as to defects, and alleged that the building had been constructed by them under a contract with plaintiff in accordance with plans and specifications.\nThe defendants also pleaded the prescription of one year under Article 2546 C. C.\nThe cause seems to have been presented to the court with the view of advising it of all the facts surrounding the transaction between the parties by which the plaintiff acquired the property, and the court in passing upon the case considered the evidence, not only as it related to the allegations of the petition, and the rights of the parties as vendors and vendee, but also with relation to the law governing the rights as owner and contractor. The judgment of the district court rejected plaintiff’s demand and she appealed.\nOPINION\nThe evidence establishes that the defendants, who are general building contractors, were the owners of a lot, and an agreement was made between them and plaintiff under which defendants would construct a building upon the lot in accordance with plans and specifications prepared by them, and. after, tbe completion of tbe building tbe property' would be transferred to plaintiff at a price agreed upon for the whole; that when defendants came to construct the building, they, ascertained the lot had been filled in, and without advising plaintiff of this fact the foundation was laid as called for by the 'plap§, which appear to have been such as were customarily used for buildings of the character to be constructed where the foundation is laid upon the original soil.\nThe .evidence further shows that very soon after the plaintiff took possession, the roof of the house and dormer windows began to leak, and also that the plumbing leaked, and piers settled, causing damage to the building.\nIt is shown that when the first leaks in the roof appeared, plaintiff notified defendants, who made repairs, but that defendants refused to make other repairs of leaks, or to repair the plumbing or piers.\nThe evidence shows the leaks to have been caused by the shingles splitting, which appears to have been due to the quality of the shingles, which, however, were the quality called for by the specifications; and it is also established that the leaks in the plumbing were due to the piers giving way, which, in turn, was due to the foundation being laid upon “filled in” soil.\nThere was no evidence as to the special warranty, and the witnesses did not attribute the sinking of the piers to the storm sewer but to the conditions above.\nIn view of the answer of the defendants in which it was alleged the building had been ■ constructed under contract with plaintiff and in ■ accordance with plans and specifications, and of thé' evidence establishing the fact, we are of the opinion the rights and obligations of the parties are governed by the law relating to the construction of buildings by the job, etc. (Laurent vo. 26, No. 34; Baudry-Lacantinerie, vol. 2, No. 3954); and from this point of view we shall consider the case under the following heads:\n1. The leaks in the roof and dormer windows, and the right of the plaintiff to recover for repairs and damages.\n2. The leaks in the plumbing and the caving piers, and the right of plaintiff to recover for repairs and damages.\n(1) The evidence does not show the roof as a whole to be defective, that is, “that it cannot be repaired other than by replacing the roof”, although it indicates that a roof constructed with the quality of shingles used may be expected to develop leaks, and of course to call for repairs, and it may be that this was in the contemplation of the parties, as the defendants repaired the roof when the first leaks appeared, but contend that they were not obliged to make such repairs, and refused to make other repairs.\nIt must be conceded that a builder will not be permitted to shield himself from responsibility for making a bad roof, on the ground of the material being unsuited for the purpose.\n“The defense that bad shingles were furnished by the plaintiff will not avail the party in his excuse for making a bad roof, when he made no objection to their quality before putting them on. (Mouton vs. Droz, 16 La. 111.)\nHowever the evidence does not show the roof as a whole to have heen bad, or that the shingles were unfit for the purpose and we are of the opinion that plaintiff, by accepting the building without having a stipulation or agreement as to minor defects or such defects as could be easily repaired and which do not affect the work as a whole, must be held to have waived any claim for repairs or damages caused by the appearance of such defects.\nWhere defects are latent, the acceptance of the work will not ordinarily be considered as preventing the owner from demanding that the contractor should remedy same (Levy vs. Schwartz, 34 La. Ann. 214); but where the defects are of minor importance we are of the opinion that the acceptance of the work discharges the' architect and builder from responsibility, unless there is an agreement to the contrary. (See Police Jury vs. Johnson, 111 La. 282, 35 South. 550; Fuzier-Herman, Art. 1792, C. N. Nos. 51, 52.)\nWe are of the opinion that the plaintiff cannot recover for the cost of repairs of the leaks in the roof or the damage occasioned by such leaks.\nAs to the dormer windows,, the evidence does not establish that the shingles used to cover the windows, were not suited for the purpose, and the defects which appeared are, we think, in the same class as those appearing in the roof, and for the same reason plaintiff cannot recover.\n(2) As to this, the evidence, as stated, shows that the defect in the plumbing was caused by tbe piers giving way, which was the result of the foundation being laid upon “filled in” soil, and we are of the opinion that this was a defect which tends to affect the work as a whole, and the question is whether or not the appearance of the defect is under the law attributable to the fault of the defendants, architects and builders.\nThe law does not hold architects and builders responsible for the defects caused by the foundation giving way when it is due to latent defects in the soil (Bank vs. Fuselier, 9 Rob. 26; Powell vs. Markham, 18 La. Ann. 581); but where the defect results from an error in the plans or by reason’ of the foundation having been laid upon soil known to be insufficient to support the structure, or which should have been known to be insufficient by the experts, architects and builders who made the plans and constructed the building, they cannot avoid responsibility on the ground that the foundation gave way. (Art. 2762, C. C.; Ingle vs. Jones, 2 Wall. 1; 17 Law Ed. 762; Florida R. R. Co. vs. Smith, 21 Wall. 255; 22 Law Ed. 513.)\nThe evidence, we think, shows that defendants should have known that the foundation called for by the plans was insufficient, having regard to the soil upon which the building was to be constructed, and that the defects are attributable to their fault, under the provisions of Article 2762 of the Civil Code, to which the prescription of ten years is applicable, and not the prescription of one year.\nThere is a difference in the opinions of the witnesses as to the cost of remedying the defects and repairing the damage caused by the same; however, the only witness who appears to have examined the premises with reference to making the reparations fixes the amount for the plumbing at sixty-five dollars, and for levelling piers at seventy-five dollars, and we are of the opinion that his testimony is not overcome by the statements of the defendants that the amounts were excessive where it appears they had not made an examination of the premises for the purpose of ascertaining the amount which would be required to make the reparations.\nIt is therefore ordered, adjudged and decreed that the judgment appealed from be annulled and reversed, and that plaintiff have and recover judgment against defendants in the sum of one hundred and forty dollars, with legal interest thereon from January 1, 1922, and all costs of suit."", ""type"": ""majority"", ""author"": ""WEBB, J.""}], ""attorneys"": [""Melvin F. Johnson, of Shreveport, attorney for plaintiff, appellant."", ""Bullock and Warren, of Shreveport, attorneys for defendant, appellee.""], ""corrections"": """", ""head_matter"": ""No. 2026\nSecond Circuit\nMATTHEWS v. RUDY\n(April 10, 1926, Opinion and Decree)\n(Syllabus by the Editor.)\n1. Louisiana Digest — Builders and Buildings — Par. 24.\nWhere defects are latent, the acceptance of the work will not ordinarily prevent the owner from demanding that the contractor ■ should remedy same; but where the defects are of minor importance such as leaks in the roof and leaks over the dormer windows, the acceptance of the work discharges the architect and builder from responsibility unless there is an agreement to the contrary.\n2. Louisiana Digest — Builders and Buildings^ — Par.. 8.\nThe law does not hold architects and builders responsible for the defects caused by the foundation giving way when it is due to latent defects in the soil; but where the defects result from an error in the plans or by reason of the foundation having been laid upon soil known to be insufficient to supjfl port the structure they, cannot avoicH responsibility for tbe damage done tqB the plumbing by the sinking of thcB foundation. ■\n3. Louisiana Digest. — Prescription—Par. 78m 87. H\nThe prescription of ten years provided bs Article 2762 of the Civil Code appliej to buildings which are constructed on soil which allows them to sink and cause damage. The prescription of one year provided by Article 2546 of the Civil Code does hot apply.\nAppeal from the First Judicial District Court of Louisiana, Parish of Caddo.\nAction by Mrs. Lucy G. Matthews against S. Rudy, et al. There was judgment for defendant and plaintiff appealed.\nJudgment affirmed.\nMelvin F. Johnson, of Shreveport, attorney for plaintiff, appellant.\nBullock and Warren, of Shreveport, attorneys for defendant, appellee.""}, ""cites_to"": [{""cite"": ""21 Wall. 255"", ""weight"": 2, ""case_ids"": [3411740], ""category"": ""reporters:scotus_early"", ""reporter"": ""Wall."", ""case_paths"": [""/us/88/0255-01""], ""opinion_index"": 0}, {""cite"": ""2 Wall. 1"", ""weight"": 2, ""case_ids"": [8299788], ""category"": ""reporters:scotus_early"", ""reporter"": ""Wall."", ""case_paths"": [""/us/69/0001-01""], ""opinion_index"": 0}, {""cite"": ""18 La. Ann. 581"", ""case_ids"": [5206141], ""category"": ""reporters:state"", ""reporter"": ""La. Ann."", ""case_paths"": [""/la-ann/18/0581-01""], ""opinion_index"": 0}, {""cite"": ""9 Rob. 26"", ""case_ids"": [2509010, 2512892], ""category"": ""reporters:state"", ""reporter"": ""Rob."", ""case_paths"": [""/rob/9/0026-02"", ""/rob/9/0026-01""], ""opinion_index"": 0}, {""cite"": ""35 South. 550"", ""case_ids"": [2476596], ""category"": ""reporters:state_regional"", ""reporter"": ""So."", ""case_paths"": [""/la/111/0279-01""], ""opinion_index"": 0}, {""cite"": ""111 La. 282"", ""category"": ""reporters:state"", ""reporter"": ""La."", ""opinion_index"": 0}, {""cite"": ""34 La. Ann. 214"", ""category"": ""reporters:state"", ""reporter"": ""La. Ann."", ""opinion_index"": 0}, {""cite"": ""16 La. 111"", ""case_ids"": [1827432], ""category"": ""reporters:state"", ""reporter"": ""La."", ""case_paths"": [""/la/16/0111-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""4 La. App. 226"", ""type"": ""official""}], ""file_name"": ""0226-01"", ""last_page"": ""230"", ""first_page"": ""226"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 10, ""name"": ""La."", ""name_long"": ""Louisiana""}, ""last_updated"": ""2024-02-27T17:52:40.480694+00:00"", ""decision_date"": ""1926-04-10"", ""docket_number"": ""No. 2026"", ""last_page_order"": 256, ""first_page_order"": 252, ""name_abbreviation"": ""Matthews v. 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+561149,"{""id"": 561149, ""name"": ""Victoria A. Wood, Appellant, v. The City of Tacoma, Respondent"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""bd40d73c8028551ae86f3597f595d616426aaaec24d7f06218d7869ff1d2a5a2"", ""simhash"": ""1:7b3fa94052a0411e"", ""pagerank"": {""raw"": 0.0000007143815616754875, ""percentile"": 0.9670882356461709}, ""char_count"": 20896, ""word_count"": 3734, ""cardinality"": 892, ""ocr_confidence"": 0.544}, ""casebody"": {""judges"": [], ""parties"": [""Victoria A. Wood, Appellant, v. The City of Tacoma, Respondent.""], ""opinions"": [{""text"": ""Ellis, J.\nThis is an appeal from a judgment of non-suit and dismissal of an action to recover damages consequent upon the grading of, and construction of storm sewers in, certain streets in the city of Tacoma.\nAbout three years before any of the streets in the vicinity of her property had been graded, the appellant bought lots 5 to 10, inclusive, in block 4, of Elsmere addition to Tacoma. Block 4 fronts to the south on 60th street, and is bounded on the east by J street, on the west by K street, and on the north by the alley between blocks 3 and 4. We reproduce a plat from respondent’s brief the correctness of which seems not to be questioned, merely for the purpose of illustration and to show the location of streets in relation to the appellant’s lots. See nest page.\nElsmere addition is in an outlying part of the city. Some houses had been built there and in that neighborhood, apparently before any of the streets were graded or any drainage provided. The general slope of the land iif that vicinity is from the south and east to the north and west. Appellant’s lots occupy low ground, across which originally the natural drainage of the country to the south and east for a considerable distance flowed. Originally this surface water ran off of appellant’s lots and across block 3 to the northwest. At the time when the city began the grading here in question, improvements and filling by the owners of block 3 had obstructed the natural course of the water, so that it ran in a small ditch — it does not appear by whom dug— along the alley to K street, and thence north. There was also a ditch on the southerly side of 60th street which carried a part of the surface water to K street. This was apparently dug after the appellant had purchased and built on her lots; and, also, after that time, the city dug a ditch northward along K street to carry all this surface water to a large drain on 58th street. It appears that these ditches, and also other ditches and drains on this sloping territory, the location and character of which are not made clear by\nthe evidence, had been made, some of them by the city, and others by the owners of different properties. It seems to be admitted that no permanent system of drainage had been constructed or adopted by the city in this territory when appellant purchased her lots and built her house, nor up to the time of the grading complained of in this action. Up to that time, the drainage, such as it was, was merely temporary in character and construction and adapted to the natural surface of the ground.\nIn the fall of 1909, the city, by contract, began the grading of the streets and alleys in the vicinity of appellant’s property. The work apparently included all of these streets, excepting south 60th street. This grading was the initial improvement of these streets, the first change from the natural contour of the ground. Just before the heavy rains of November, the grading of K street had been completed; and between 60th and 59th streets, it had been necessary to raise the level of the street and sidewalks a little above the natural surface. At the same time, and as a part of the same work, the alley between blocks 3 and 4 was correspondingly raised. There was, therefore, a fill, variously estimated at from a foot to two feet, in the alley in the rear of appellant’s lots. This grading of the street and alley filled the ditch'in the alley and stopped up the K street end of the ditch on 60th street. At the same time, the city was constructing a storm sewer, from 64th street north along J street to 60th street, and along 60th to K street. ' The heavy rains stopped the work before it reached K street. It does not appear that this sewer was fully completed from 64th street down to 60th street, but it does appear that the pipes were laid at 60th and J street, and that there was a manhole at 61st street and another at 60th street.\nIn the grading of 61st street, there was a slight cut between K and- J streets, and the surplus dirt-was used in filling the lots in the vacant block 6, abutting on the north side of 61st street. This whole block was filled to about 18 inches above the street. When the heavy rains of November came, the water, following its usual course from the higher ground from the south and east, being arrested by this filling of block 6, collected in 61st street and vicinity forming a pond. A part of the filling on the lots near J street washed away, and some of the water which had collected in 61st street flowed into the unfinished storm sewer, and out again through the manhole at 60th and J street, thence down 60th street onto appellant’s lots, and was there retained by the filled grade of K street and of the alley in the rear of her lots, causing the injury complained of.\nIt is fairly deducible from the whole of the evidence that little if-any'more water was thus collected upon appellant’s lots than would have been the case had no water been allowed to collect in 61st street and had no storm sewer been constructed in J street. The water which came from 61st street would simply have collected in the first instance in 60th street and upon the appellant’s lots. It was merely delayed in its progress by the filling in of block 6, and reached appellant’s lots possibly a little later than otherwise by going around the block instead of crossing it diagonally. But even if there was an increase in the amount of water, it has been held not to create a liability unless the water be cast in a concentrated and destructive body upon the land. Davis v. Crawfordsville, 119 Ind. 1, 21 N. E. 449, 12 Am. St. 361; Jordan v. Benwood, 42 West Va. 312, 26 S. E. 266, 57 Am. St. 859, 36 L. R. A. 519; Hume v. Des Moines, 146 Iowa 624, 29 L. R. A. (N. S.) 126; Miller v. Morristown, 47 N. J. Eq. 62, 20 Atl. 61.\nThe real cause of the water collecting upon appellant’s lots was the raising of the grade of K street and the alley back of these lots, which stopped the drains in 60th street and the alley, thus impounding the water. The evidence fairly indicates that, but for this grading, the water would have passed off as formerly. The appellant herself makes this plain. With reference to the old drains in the alley in 60th street and K street, she testified:\n“Q. This is 60th street, as I understand you; what do you call this (referring to Identification A). There was a drain which you say the city made some time down there, and opened it down there in 60th street? A. Yes. Q. Was the ditch in K street at that time the same kind of a drain? A. No, it was a box. Q. Was it open on K, on this side? A. No they covered it up. Q. How far does it run? A. Run down as I understood down to 58th; they had a big ditch down 58th. Q. If it was not for putting that drain in there by somebody by Mr. Wright or somebody, all of this water would have come across your place? A. Yes. Q. So far as that is concerned, that relieved you some? A. Yes, after they graded the street last winter, they put the dirt in here (indicating on Exhibit). Q. That is what you complain of? A. Yes, I complain of them stopping the ditches and the natural drain. Q. Is it not a fact that the natural drain went down across the lots further? A. No, it went through the alley, not through Hadland’s lots at all.”\nIt is now established law in this state that damages cannot be recovered for consequential injuries to private property occasioned by the original grading of streets and alleys. The dedication of streets and alleys to the public use implies an agreement of the dedicator and his successors in interest that the city may establish grades and improve the streets and alleys thereto in aid of such use. Ettor v. Tacoma, 57 Wash. 50, 106 Pac. 478, 107 Pac. 1061; Fletcher v. Seattle, 43 Wash. 627, 86 Pac. 1046, 88 Pac. 843; Laws 1909, p. 151, § 1 (Rem. & Bal. Code, § 7815) ; 4 Dillon, Municipal Corporations (5th ed.), § 1684.\nIt is also the settled doctrine in this state that surface water caused by the falling of rain or the melting of snow, is to be regarded as an outlaw or common enemy against which every proprietor of land may defend himself, even if in consequence of such defense injury result to others. As to surface waters, this court has definitely adopted the rule of the common law, as - distinguished from the contrary rule of the civil law. Cass v. Dicks, 14 Wash. 75, 44 Pac. 113, 53 Am. St. 859; Harvey v. Northern Pac. R. Co., 63 Wash. 669, 116 Pac. 464; Gould, Waters (3d ed.), § 265; 30 Am. & Eng. Ency. Law (2d ed.), p. 330.\n' Erom the adoption by this court without qualification or restriction of these two doctrines, namely, that a municipal corporation is not liable for injuries consequent upon the initial grading and improvement of its streets, and that surface water is a common enemy against which any one may defend himself, arises the corollary that a city is not liable in damages for injuries to private property by the collection of surface water thereon, caused by the initial grading or improvement of its streets and alleys. Injuries resulting from the reasonable exercise of a legal power are consequential, and cannot be made the basis of recovery. Such is the rule in all those jurisdictions which have adopted without modification the common-enemy doctrine of the common law.\n“In the jurisdictions which adopt the common law rule, it is held that the rule applies fully to municipal or quasi-municipal corporations as to individuals, and that such a corporation does not incur any liability if in the improvement of its streets or highways it prevents the flow of surface water from adjacent lots; and the same has been held true with regard to the improvement of city lots owned by a municipality. On the other hand, it has been held that a landowner may, by erections or obstructions on his own lands, prevent the flowage of surface waters from a highway upon his land.” 30 Am. & Eng. Ency. Law (2d ed.), pp. 331-332.\nSee, also, 4 Dillon, Municipal Corporations (5th ed), §§ 1732, 1733; Elliott, Roads & Streets (3d ed.), § 556; Gould, Waters (3d ed.), § 269.\nThere is an exception to this rule of nonliability, which, though not indorsed by some of the courts, and which we do not find has often been applied to the initial grading of streets, we nevertheless believe to be sound in any case. A' city may not gather np surface water and discharge it upon land in a concentrated volume to the injury of the land without liability, whether the water be such as naturally would have flowed onto the land or not. The reason is that when collected and discharged in considerable volume upon the land at a given point it may erode and wash channels in the land thus becoming very destructive and injurious. Johnson v. White, 26 R. I. 207, 58 Atl. 658, 65 L. R. A. 250, and note to p. 262. The appellant contends that the evidence bi’ings this case within the exception. But we think not. It fails to show that the water was discharged upon the appellant’s lots in a concentrated volume. It escaped from the manhole in the street, and flowed upon the appellant’s land in a diffused form, as it would have done in any event. In such a case, the mere fact that the water was concentrated in its course to appellant’s land does not create a liability which would not otherwise exist. Clay v. St. Albans, 43 West Va. 539, 27 S. E. 368, 64 Am. St. 883.\nThere remains to be considered the question of negligence. It must be conceded that a municipal corporation, like an individual, is liable for injuries resulting from the negligent exercise of legitimate powers. There is no evidence whatever that, on the completion of the storm sewer on J and 60th street and the new drain on K street, they did not furnish adequate drainage for this district, including appellant’s property; nor was there any evidence that, if the improvement had been completed before the rainy season, any injury would have occurred. The evidence does not make a case of improper or negligent final construction, but merely shows a failure to provide adequate temporary drainage during the progress of the work and the delay made necessary by the rainy season. There is no negligence where there is no violation of duty. There was no absolute duty on the part of the city to furnish temporary drainage for appellant’s lots pending the grading and placing of drains in K street and the construction of the storm sewer on J and 60th streets; nor was it bound to do this if it would entail expense or cause any considerable interference with the prosecution of the work of grading the streets after it had been undertaken, or if it was incompatible with the plan of improvement adopted by the city. Nor was the city bound to do this at all, if the appellant had sufficient notice of the contemplated improvement of the streets, and the manner in which the work was to be done, to have enabled her to protect her lots by providing drainage herself, or by filling the lots, as the evidence shows she has since done. The fact that the old temporary ditches had been dug in the ungraded alley and in the ungraded 60th street, either by the city or with its permission, can make no difference. The city did not thereby abdicate its right to establish an initial grade for its streets and fill them to that grade even if in so doing it filled these ditches. Any other view would make the city liable to some one for some inconvenience every time it sought to grade a street for the first time, and thus render the statute nugatory. The rule in such a case which appeals to us as reasonable, and especially as in. consonance with our statute which does not permit recovery for damages for injuries resulting from the reasonable exercise of the power to grade streets for the first time (Rem. & Bal. Code, § 7815) is declared by the supreme court of Iowa, in a case cited by appellant, as follows:\n“The true rule here, as we understand it, is that, as the city had power to grade and gutter its streets, it is not liable for defective plans, for in adopting them it acts in a judicial capacity. But it is liable if it negligently carries out such plans, or if, without the adoption of any plans, it proceeds in a negligent manner to make embankments or fills, to the injury of an abutting or adjoining proprietor. As applied to the facts of the case, the city was not liable because of its establishment of grades for West Walnut and West Sixteenth streets, because its act in so doing was either legislative or judicial in character; but in bringing the streets to these grades established, it was bound to the exercise of ordinary care and prudence, and if it unnecessarily or negligently filled ditches and drains in West Sixteenth street, and thus cast surface water back upon plaintiff’s lots, without notice to her, and without her knowledge, and without giving her a reasonable time to bring her lots to grade, the city is liable, not because of defective plans, but by reason of negligence in doing a purely ministerial act; that is, of bringing the streets to the established grade, and, in so doing, filling the ditches and drains for the escape of surface water without providing an escape, either temporary or permanent, for the surface water. Moreover, there was evidence tending to show that it so filled the streets as to collect surface water and discharge it upon plaintiff’s lot. As plaintiff had the right to fill her lot by bringing it to the established grade, doubtless defendant was not obliged to provide permanent culverts, drains, or bridges, although that point we do not now decide. If, after her property is brought to grade, such culverts, ditches, or drains should be constructed, a question may then arise as to defendant’s duty in the premises.” Hume v. Des Moines, supra, 29 L. R. A. (N. S.) 127-136.\nThe evidence shows that the appellant had notice of the city’s intention before the old ditches were filled. She says she protested to the city officials, and in fact that she brought suit against the city in an attempt to stop the grading of K street. She made no attempt to protect her lots, either by filling, diking, or by opening.the old drains, which the city would doubtless have permitted after the drain in K street was completed. This was before the rains set in. The evidence sufficiently shows that this would have been permitted, since the city, in about two days after the first accumulation of water, as appellant admits, “drained it out the best they could,” by digging a ditch in the alley; and in the spring she says, “They drained it all out and finally put in a box.” The testimony of both the appellant and her husband shows that, neither before the fall rains nor after, did they, themselves do anything whatever, either to protect the property from water or to drain it off after it accumulated. Surface water being a common enemy, they had the same right to protect their property from it as the city had to protect its streets. 4 Dillon, Municipal Corporations (6th ed.), § 1733.\n“It is clear that there is no liability on the part of a municipal corporation for not exercising the discretionary or legislative powers it may possess to improve streets, and, as part of such improvement, to construct gutters or provide other means of draining for surface-waters, so as to prevent them from flowing upon the adjoining lots. And even when the work of grading the streets has been entered upon, there is not ordinarily, if ever, any liability to the adjoining owner arising merely from the non-action of the corporation in not providing means for keeping surface-waters from property situate below the established grade of the street. There are, indeed, cases which go further, and assert that there is no such liability where, in making improvements upon streets or elsewhere, authorized by law, surface-waters are purposely turned from one’s own land to that of another,— from the street directly upon the adjacent property owner.” 4 Dillon, Municipal Corporations (6th ed.), § 1734.\nIt would be worse than useless to attempt to harmonize the wilderness of decisions from other states on the questions here involved. Some of them follow the common law rule, others the opposite rule of the civil law, and still others a modified form of the one or the other. So far as we are able to discover by a careful reading of the authorities cited by the appellant, they nearly all arose upon a change of an established grade and not upon an initial grading of the street. In none of them was there a statute involved such as we have here. Manifestly they would not apply under the provisions of our statute which expressly limits recovery to injury by changes of grade. Moreover, they differ widely in their facts from the case before us. In view of the 'statute as construed in Ettor v. Tacoma, supra, and the rule as to surface water as announced in Cass v. Dicks, supra, we are compelled to hold that the evidence here fails to make a prima ;facie case against the city. The judgment is affirmed.\nDunbar, C. J., Crow, Morris, and Chadwick, JJ., concur."", ""type"": ""majority"", ""author"": ""Ellis, J.""}], ""attorneys"": [""Govnor Teats, Hugo Metzler, Leo Teats, and Ralph Teats, for appellant."", ""T. L. Stiles, F. R. Baker, and F. M. Carnahan, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 9833.\nDepartment Two.\nDecember 16, 1911.]\nVictoria A. Wood, Appellant, v. The City of Tacoma, Respondent.\nWaters — Diversion—Surface Waters — Damages. There is no liability for increasing the flow of surface water upon the land of another, where it is not cast upon the land in a concentrated and destructive body.\nMunicipal Corporations- — Improvements—Damages to Property —Original Grades — Surface Waters — Diversion. A city not being liable to property owners for damages from the original grading of streets, under Rem. & Bal. Code, § 7815, and surface water being an outlaw and common enemy against which any one may defend himself, a city is not liable for damages from the impounding upon lots of surface waters through the construction of fills in streets and alleys in making initial grades.\nSame. Surface waters discharged through a manhole in a sewer upon lots in a diffused form as it would have flowed in any event do not render the city liable for damages.\nMunicipal Corporations — Improvements—Damage to Property— Negligence — Liabilitt—Surface Waters. A city is not liable for temporary damages occasioned by negligence in making initial grades in streets and alleys, whereby surface water was impounded upon plaintiff’s lots, where the plaintiff had reasonable notice of the city’s intention to make the fills impounding the water and opportunity to defend her property by draining off the water or filling the property.\nAppeal from a judgment of the superior court for Pierce county, Clifford, J., entered June 18, 1910, in favor of the defendant, dismissing an action in tort, on granting a non-suit.\nAffirmed.\nGovnor Teats, Hugo Metzler, Leo Teats, and Ralph Teats, for appellant.\nT. L. Stiles, F. R. Baker, and F. M. Carnahan, for respondent.\nReported in 119 Pac. 859.""}, ""cites_to"": [{""cite"": ""119 Pac. 859"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""29 L. R. A. (N. S.) 127"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A.N.S."", ""opinion_index"": 0}, {""cite"": ""27 S. E. 368"", ""category"": ""reporters:state_regional"", ""reporter"": ""S.E."", ""opinion_index"": 0}, {""cite"": ""43 West Va. 539"", ""case_ids"": [8639467], ""category"": ""reporters:state"", ""reporter"": ""W. Va."", ""case_paths"": [""/w-va/43/0539-01""], ""opinion_index"": 0}, {""cite"": ""65 L. R. A. 250"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A."", ""opinion_index"": 0}, {""cite"": ""58 Atl. 658"", ""category"": ""reporters:state_regional"", ""reporter"": ""A."", ""opinion_index"": 0}, {""cite"": ""26 R. I. 207"", ""case_ids"": [5105326], ""category"": ""reporters:state"", ""reporter"": ""R.I."", ""case_paths"": [""/ri/26/0207-01""], ""opinion_index"": 0}, {""cite"": ""116 Pac. 464"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""63 Wash. 669"", ""case_ids"": [552695], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/63/0669-01""], ""opinion_index"": 0}, {""cite"": ""44 Pac. 113"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""14 Wash. 75"", ""case_ids"": [8530692], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/14/0075-01""], ""opinion_index"": 0}, {""cite"": ""88 Pac. 843"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""86 Pac. 1046"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""43 Wash. 627"", ""case_ids"": [295449], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/43/0627-01""], ""opinion_index"": 0}, {""cite"": ""107 Pac. 1061"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""106 Pac. 478"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""57 Wash. 50"", ""case_ids"": [532333], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/57/0050-01""], ""opinion_index"": 0}, {""cite"": ""20 Atl. 61"", ""category"": ""reporters:state_regional"", ""reporter"": ""A."", ""opinion_index"": 0}, {""cite"": ""47 N. J. Eq. 62"", ""case_ids"": [93026], ""category"": ""reporters:state"", ""reporter"": ""N.J. Eq."", ""case_paths"": [""/nj-eq/47/0062-01""], ""opinion_index"": 0}, {""cite"": ""29 L. R. A. (N. S.) 126"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A.N.S."", ""opinion_index"": 0}, {""cite"": ""146 Iowa 624"", ""case_ids"": [2170272], ""category"": ""reporters:state"", ""reporter"": ""Iowa"", ""case_paths"": [""/iowa/146/0624-01""], ""opinion_index"": 0}, {""cite"": ""36 L. R. A. 519"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A."", ""opinion_index"": 0}, {""cite"": ""26 S. E. 266"", ""category"": ""reporters:state_regional"", ""reporter"": ""S.E."", ""opinion_index"": 0}, {""cite"": ""42 West Va. 312"", ""case_ids"": [8639225], ""category"": ""reporters:state"", ""reporter"": ""W. Va."", ""case_paths"": [""/w-va/42/0312-01""], ""opinion_index"": 0}, {""cite"": ""21 N. E. 449"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.E."", ""opinion_index"": 0}, {""cite"": ""119 Ind. 1"", ""case_ids"": [1308871], ""category"": ""reporters:state"", ""reporter"": ""Ind."", ""case_paths"": [""/ind/119/0001-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""66 Wash. 266"", ""type"": ""official""}], ""file_name"": ""0266-01"", ""last_page"": ""276"", ""first_page"": ""266"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T22:34:03.734912+00:00"", ""decision_date"": ""1911-12-16"", ""docket_number"": ""No. 9833"", ""last_page_order"": 308, ""first_page_order"": 298, ""name_abbreviation"": ""Wood v. City of 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+565324,"{""id"": 565324, ""name"": ""Marie Purcell, Respondent, v. Stanton Warburton et al., Appellants"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""a1668309c01dfd4d29f29e37e207530c13290f58a3dcaf3d0978b1d7a95402d1"", ""simhash"": ""1:f86145b89874d7bf"", ""pagerank"": {""raw"": 0.00000027618468158107076, ""percentile"": 0.8336296826571742}, ""char_count"": 8616, ""word_count"": 1485, ""cardinality"": 434, ""ocr_confidence"": 0.548}, ""casebody"": {""judges"": [], ""parties"": [""Marie Purcell, Respondent, v. Stanton Warburton et al., Appellants.""], ""opinions"": [{""text"": ""Chadwick, J.\nOn the 1st day of February, 1910, the defendants leased to the plaintiff the fourth floor of the Warburton building, in the city of Tacoma, for the term of two years from that day, at a monthly rental of $125 per month, for lodging rooms and apartment purposes. The lease contained a covenant on the part of the defendants to heat the demised premises with steam heat for and during the whole term of the lease. The plaintiff entered into possession under the lease, and furnished the rooms, to be rented or sublet for lodgings or apartments as contemplated by the parties. The present action was thereafter instituted to recover damages for a breach of the covenant to furnish steam heat. The jury returned a verdict in favor of the plaintiff in the sum of $1,350, and from the judgment on the verdict, the defendants have appealed.\nWhile many errors are assigned in the admission of testimony and the giving of instructions and refusing to give instructions requested, the whole controversy in this court is over the rule or measure of damages in this class of actions and adherence to such rule or measure by the court in its rulings throughout the trial. On the question of damages, the court instructed the jury as follows:\n“If you find that the defendants failed to properly heat said leased premises, as I have hereinbefore told you it was their duty to do, such failure constituted a breach of their contract or covenant to heat, embodied in the lease, and the general rule is that a party injured by a breach of a contract is entitled to recover all such damages as might be reasonably and naturally expected to, and do in fact, flow from the breach. I instruct you that the measure of damages in this case, if you find for the plaintiff, is such an amount as will compensate her for all damages which you find from the evidence she sustained by reason of the defendants’ failure to heat, or sufficiently heat, the leased premises; that amount will consist in the difference, if any, between the rental value of the premises, furnished as they were, properly and sufficiently heated, and the rental value thereof, heated in the manner you find they were heated during the period of time from February 1st, 1910, to September 13th, 1911.”\nThe foregoing instruction was approved in Kohne v. White, 12 Wash. 199, 40 Pac. 794, and is, in our opinion, entirely free from objection. The two leading cases on the question under discussion are Myers v. Burns, 35 N. Y. 269, and Hexter v. Knox, 63 N. Y. 561. In the latter case, the court said:\n“We are of opinion that, within the same principle, the jury were properly instructed that the plaintiff was entitled to recover the value of the use of furnished rooms to the extent that the plaintiff was prepared to furnish them with the furniture stored, and intended to be used in the rooms in the new building. The plaintiff, by the delay, lost as to such rooms their use as furnished rooms. The defendant knew that the plaintiff’s furniture had been taken from No. 97 Spring street to enable him to remove the building on that lot, preparatory to erecting the new one, and that the new part was to be occupied by the plaintiff for the same purposes as he had occupied the building from which the furniture was taken. The loss of the use of the furniture from delay in completing the rooms in the new building was the natural result of the failure of the defendant to perform his covenant; and that this loss would occur if the defendant failed to complete the building in time, may justly be presumed from the evidence to have been contemplated by the defendant, when the lease was made, as one of the injuries which the plaintiff would sustain from his default, and was properly allowed as part of the damages sustained.”\nThe correct measure of damages is, therefore, the difference between the value of the use of the rooms as furnished by the plaintiff and heated as contemplated by the contract, and the value of their use as in fact heated by the defendants. And while counsel for respondent did not adhere strictly to this rule in' propounding his questions, we feel entirely safe in saying that his departure from it resulted in no substantial prejudice to the appellants. Witnesses • were asked to fix “the fair market value of the rooms;” “the net value of the rooms less running expenses,” etc. But in the end the result was the same — a distinction without a difference. Had the question been asked in the language of the rule we have adopted, the same testimony would have been elicited, followed by the same result.\nSome testimony crept into the record incidentally tending to show that some of the inmates of the house suffered personal discomfort or became ill by reason of the failure of the appellants to properly heat the rooms, and the failure of the court to instruct the jury that they should not take such discomfort or illness into consideration in determining the amount of their verdict is assigned as error. This testimony was relevant and proper, as it tended to show the state or condition of the rooms, and the explicit rule of damages laid down by the court of necessity eliminated all such elements of damage from the consideration of the jury. The same may be said of the failure of the court to instruct the jury that there could be no recovery if the rooms were kept as full as they would have been if properly heated and at the same rates.\nException is also taken to a written instruction given by the court after the close of the arguments. This instruction was given in plain contravention of the policy of the law, which requires instructions to be given in writing at the conclusion of the testimony and before the arguments of counsel, and the practice is not to be commended unless counsel are given further opportunity to argue the case in the light of the additional charge. But the supplemental charge in this case only related to four days of the entire term. Its correctness in the abstract is not questioned, and the error, if any, is without prejudice.\nThe court refused to submit certain interrogatories to the jury. We have so often decided that the submission of special interrogatories rests entirely in the discretion, of the trial court, that the question is no longer an open one here.\nThe foregoing disposes of the principal assignments of error. The verdict is supported by sufficient competent testimony, and no substantial error appearing, the judgment is affirmed.\nGose, Crow, and Parker, JJ., concur."", ""type"": ""majority"", ""author"": ""Chadwick, J.""}], ""attorneys"": [""Boyle, Warburton & Brockway, for appellants."", ""L. C. Whitney and John Leo, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 10359.\nDepartment One.\nSeptember 6, 1912.]\nMarie Purcell, Respondent, v. Stanton Warburton et al., Appellants.\nLandlord and Tenant — Breach of Covenant — Measure of Damages. Under a lease of rooms to be sublet for furnished lodgings, the measure of damages for breach of the lessor’s covenant to furnish heat is the difference between the value of the use of the rooms as furnished by the lessee and heated as contemplated by the contract, and the value of the use as in fact heated by the lessor.\nAppeal — Review—Harmless Error. Failure to strictly adhere to the correct rule of damages in propounding questions to a witness is harmless where the same testimony would have been elicited had the questions been asked in the correct form.\nLandlord and Tenant — Breach of Covenant — Evidence — Instructions. In an action for breach of a covenant in a lease to furnish heat for rooms to be sublet for lodgings, evidence to show that lodgers suffered discomfort and illness by reason of failure to properly heat the rooms is relevant, where proper instruction on the measure of damages eliminated all elements of damages suffered by the lodgers.\nSame — Instructions. In. such ease, refusal to instruct that there could be no recovery if the rooms were kept as full as when properly heated, is harmless.\nAppeal — Review—Harmless Error — Instructions. Error in giving a written instruction after the close of the argument, when the law requires that it be given before argument, is harmless, where it covered inconsequential matter, was correct in the abstract, and without prejudice.\nTrial — Special Interrogatories — Discretion. Error cannot be assigned on the refusal to submit special interrogatories to the jury, the matter being entirely discretionary.\nAppeal from a judgment of the superior court for Pierce county, Easterday, J., entered November 17, 1911, upon the- verdict of a j ury rendered in favor of the plaintiff, in an action for breach of covenant.\nAffirmed.\nBoyle, Warburton & Brockway, for appellants.\nL. C. Whitney and John Leo, for respondent.\nReported in 126 Pac. 89.""}, ""cites_to"": [{""cite"": ""126 Pac. 89"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""63 N. Y. 561"", ""case_ids"": [527220], ""category"": ""reporters:state"", ""reporter"": ""N.Y."", ""case_paths"": [""/ny/63/0561-01""], ""opinion_index"": 0}, {""cite"": ""35 N. Y. 269"", ""case_ids"": [16891], ""category"": ""reporters:state"", ""reporter"": ""N.Y."", ""case_paths"": [""/ny/35/0269-01""], ""opinion_index"": 0}, {""cite"": ""40 Pac. 794"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""12 Wash. 199"", ""case_ids"": [782119], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/12/0199-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""70 Wash. 129"", ""type"": ""official""}], ""file_name"": ""0129-01"", ""last_page"": ""133"", ""first_page"": ""129"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T20:48:29.969965+00:00"", ""decision_date"": ""1912-09-06"", ""docket_number"": ""No. 10359"", ""last_page_order"": 167, ""first_page_order"": 163, ""name_abbreviation"": ""Purcell v. 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+5879462,"{""id"": 5879462, ""name"": ""Berman & Sons, Inc. vs. Cynthia Jefferson"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""1bf5c3b0ee66355aee571b9d91eefb36c1acdc0a0973d496b08a12a27997d1ee"", ""simhash"": ""1:334493b0bb4d3b34"", ""pagerank"": {""raw"": 0.0000005912088928702075, ""percentile"": 0.9529710033287655}, ""char_count"": 22624, ""word_count"": 3702, ""cardinality"": 1085, ""ocr_confidence"": 0.895}, ""casebody"": {""judges"": [], ""parties"": [""Berman & Sons, Inc. vs. Cynthia Jefferson.""], ""opinions"": [{""text"": ""Liacos, J.\nCynthia Jefferson (tenant) leased for one year, beginning March 1, 1976, at $245 a month an apartment in Peabody from Berman & Sons, Inc. (landlord). From late August until October 8, 1976, a series of breaks in underground heating pipes caused the tenant to receive intermittent heat. The landlord repaired each leak promptly. On October 8, the pipe burst completely and the tenant was without heat until the pipe was repaired on October 20. Furthermore, from time to time, the apartment was without adequate hot water. These failures continued sporadically through June, 1977. The tenant withheld $35 from her November, 1976, rent. The landlord returned the check and in January, 1977, brought an action for summary process in the District Court of Peabody. The tenant answered and counterclaimed, alleging, inter alla, breach of the implied warranty of habitability. The judge denied the landlord’s claim for possession and awarded the tenant $310 damages. In February, 1977, the landlord appealed to the Superior Court, which heard the case on written stipulations. On October 23, 1978, the judge entered findings of fact, conclusions of law, and an order awarding the tenant $310 for breach of the warranty of habitability. The landlord appealed from the judgment. We granted the landlord’s application for direct appellate review. We affirm the judgment.\nThe Superior Court judge found there was insufficient evidence to conclude that the landlord acted intentionally, negligently, or in bad faith. He found and ruled that the losses of heat and hot water were material breaches of the warranty of habitability. The judge ruled further that the tenant is allowed to abate the rent from the date the landlord had notice of the breach of the warranty of habitability. We must decide (1) whether a tenant must pay full rent without abatement when the landlord, acting without fault or bad faith, fails to maintain a dwelling in habitable condition and (2) whether the tenant’s obligation to pay full rent persists until the landlord has had a reasonable time to repair the defect. We hold that the tenant’s obligation abates as soon as the landlord has notice that premises fail to comply with the requirements of the warranty of habitability. The landlord’s lack of fault and reasonable efforts to repair do not prolong the duty to pay full rent.\nIn Boston Hous. Auth. v. Hemingway, 363 Mass. 184 (1973), we found that social changes in landlord-tenant relations and legislative changes in landlord obligations and tenant remedies were inconsistent with medieval notions of the lease as a conveyance of property. The changes in social and legal circumstances changed the parties’ expectations. It was in this context that we chose to recast our theory of the landlord-tenant relationship in a form congenial with the Legislature’s tendency: “[A] lease is essentially a contract between the landlord and the tenant wherein the landlord promises to deliver and maintain the demised premises in habitable condition and the tenant promises to pay rent for such habitable premises. These promises constitute interdependent and mutual considerations. Thus, the tenant’s obligation to pay rent is predicated on the landlord’s obligation to deliver and maintain the premises in habitable condition.” Id. at 198. We held that a tenant is entitled to a rent abatement, in whole or in part, during the period that an apartment remains uninhabitable after the landlord has notice of the defects. Id. at 203.\nThe landlord argues that, on the present facts, he has done no wrong. He argues that to impose strict liability would penalize the landlord who is acting reasonably and would impose a duty impossible to meet. Moreover, he claims the expectations of the parties support the landlord’s position. Both landlord and tenant expect less than perfect upkeep of apartments; systems break down; maintenance takes time; the law should reflect this reality. Furthermore, Berman contends, the purpose of the warranty is “to provide tenants with a mechanism to encourage the repair of serious and dangerous defects” connected with a residential dwelling unit or the common areas. This purpose can be achieved without imposing strict liability on landlords.\nThese contentions have no place in the framework established in Hemingway. Considerations of fault do not belong in an analysis of warranty. Nowhere does the landlord point us to an analogous body of warranty law that incorporates a fault standard, nor has Berman persuaded us to make an exception here. The landlord may be correct in characterizing itself as an innocent party, and we are cognizant of the economic burdens that a landlord typically bears. Nevertheless, we note that the landlord’s liability without fault is merely an economic burden; the tenant living in an uninhabitable building suffers a loss of shelter, a necessity. More importantly, the warranty of habitability is not designed to penalize the landlord for misbehavior. In the rent abatement context, the doctrine imposes a duty quite apart from notions of moral sanction or deterrence.\nThe landlord would have us avert our eyes from the clear teaching of Hemingway. “ [T]he essential objective of the leasing transaction is to provide a dwelling suitable for habitation.” Boston Hous. Auth. v. Hemingway, supra at 196-197. A dwelling afflicted with a substantial Sanitary Code violation is not habitable. The essential objective of the warranty is to make sure that the tenant receives what she is paying for. The tenant may not excuse her obligation with mere reasonable efforts to pay rent. Nor may the landlord avoid his duty with mere reasonable efforts to provide a habitable dwelling. The contract between the parties, seen through the law’s clarifying lens, requires such symmetry.\nThe landlord argues that the existence of a serious defect in an apartment is a potential breach of the warranty; the breach becomes actual only after the landlord has been notified of the defect and has had a reasonable time to repair. In Hemingway, however, we set out a very different picture of the warranty: “ [The warranty] means that at the inception of the rental there are no latent [or patent] defects in facilities vital to the use of the premises for residential purposes and that these essential facilities will remain during the entire term in a condition which makes the property livable.” Boston Hous. Auth. v. Hemingway, supra at 199, quoting from Kline v. Burns, 111 N.H. 87, 92 (1971). Neither at the inception nor during the term of the lease did we leave room for a reasonable time to repair.* Admittedly a tenant must notify her landlord of defects as a prerequisite to a rent abatement, but the purpose of this requirement is not to assure the landlord a reasonable time to repair. The requirement is designed to minimize the time the landlord is in breach and hence mitigate the permissible period of abatement of rent. The rent abatement begins when notice is given, not at a reasonable time after notice. Time for repairs has no place in the calculus.\nOur position follows as a corollary of Hemingway. However, Hemingway is not the only source of guidance for rejecting the landlord’s theory. When the tenant’s loss of heat occurred, G. L. c. 239, § 8A, permitted the tenant to withhold rent for Code violations only if “the owner . . . had not taken reasonable steps to remedy such conditions.” St. 1973, c. 471. In 1977, the Legislature struck this provision. St. 1977, c. 963. The tenant may now withhold rent without considering whether the landlord is at fault or is taking reasonable steps to repair. As was the case in Hemingway, this statute provides for rent withholding, not rent abatement; but, as in Hemingway, we choose to permit a rent abatement as a matter of common law. We consider the result we reach here to be consistent not only with Hemingway, but also with the law dealing with breach of warranty and with express legislative policy.\nJudgment affirmed.\nWe have been aided in our consideration of the issues raised by this appeal by amicus briefs filed by the Greater Boston Real Estate Board and a coalition of legal assistance groups led by the Housing Allowance Project, Inc., and the Massachusetts Law Reform Institute.\nThe landlord and the tenant disagree as to whether the landlord effected repairs within a reasonable time after learning of the defect, and the trial judge made no finding. For the purposes of argument, however, we assume that the landlord did accomplish the repairs within a reasonable time.\nWe noted that the factual assumptions underlying the common law exception of Ingalls v. Hobbs, 156 Mass. 348 (1892), had come to describe the rule: “Modern tenants, rightfully expect that the premises they rent . . . will be suitable for occupation.” Boston Hous. Auth. v. Hemingway, 363 Mass. 184, 197 (1973). And we quoted the decision in Javins v. First Nat'l Realty Corp., 428 F.2d 1071, 1078-1079 (D.C. Cir. 1970), which describes the differences between the old agrarian and modern urban tenant’s expectations concerning repairs of a dwelling.\nFor example, the State Sanitary Code, adopted pursuant to authority granted in G. L. c. 111, § 5 (since amended, see G. L. c. 111, § 127A, for the current version), imposed on the landlord a duty to maintain an apartment in habitable condition, so the landlord could fairly expect and be expected to keep his rented premises habitable. Moreover, the Legislature had created tenant’s remedies for private enforcement of the Code, G. L. c. 111, §§ 127A-127H, and for self-help through rent withholding, G. L. c. 239, § 8A. The creation of private remedies negated any argument that the Legislature was content with purely public enforcement of the Code. The rent-withholding provision embodies a legislative judgment that the tenant’s rental obligation is bound up with the landlord’s obligation to provide habitable premises.\nThe trial judge found that the measure of damages was “the difference between the value of the apartment as warranted and the rental value of the apartment in its defective condition.” See McKenna v. Begin, 5 Mass. App. Ct. 304, 306 (1977). Apart from the question whether the tenant’s rent abates only after the landlord has had a reasonable time to repair, damages are not in dispute in this case.\nThe landlord seems further to suggest that the presence of an exculpatory clause in the tenant’s lease should be evidence of the tenant’s expectations. The clause stated that the landlord would provide hot water and reasonable heat, but that failure to do so would not give rise to a damage claim. As the landlord appears to concede, this clause is void. It is an attempt to limit the landlord’s duties and liabilities under the Sanitary Code and is therefore of no effect. Boston Hous. Auth. v. Hemingway, supra at 199. A tenant has a right to expect that the landlord will comply with the law. It is this right that we protect.\nAmicus Greater Boston Real Estate Board cites language in Back v. Wickes Corp., 375 Mass. 633, 640-641 (1978). We said that “[w]arranty liability is not absolute liability .... [A] manufacturer must anticipate the environment in which its product will be used, and it must design against the reasonably foreseeable risks attending the product’s use in that setting.” This quotation, of course, states the proximate cause limitation on the warranty of a manufacturer of goods. There is no suggestion that proof of fault or bad faith is a prerequisite for recovery under such a warranty. Furthermore, in contrast to a claim for injury to person or property, considerations of proximate cause do not affect validity of a claim for rent abatement.\nThe landlord suggests, and the amicus Greater Boston Real Estate Board argues at length, that to make the landlord the insurer of apartment maintenance will have deleterious economic effects on landlords and on the housing market generally. Increased costs derived from the warranty will result in increased rents. Older buildings, whose maintenance is hardest to ensure, tend to house low income tenants who cannot pay increased rents. Thus, imposing full warranty protection will ultimately reduce the stock of low income housing.\nThis argument assumes that tenants will frequently enforce the rent abatement remedy or that landlords will spend a great deal of money on preventive maintenance. Yet empirical evidence tends to show a very low rate of tenant enforcement. Abbott, Housing Policy, Housing Codes and Tenant Remedies: An Integration, 56 B.U.L. Rev. 1, 63 (1976). Hirsch, Hirsch & Margolis, Regression Analysis of the Effects of Habitability Laws Upon Rent: An Empirical Observation on the Ackerman-Komesar Debate, 63 Calif. L. Rev. 1098, 1130 (1975). A study has failed to find a statistically significant relationship between the presence of most habitability laws, including rent abatement, and increased rents. Hirsch, Hirsch, & Margolis, supra at 1130-1132. In addition, we question the virtue of relying on a theory of economic efficiency at the expense of legal analysis. Precedent, legislative policy, and common law principles support the result we reach today. See Michelman, Norms and Normativity in the Economic Theory of Law, 62 Minn. L. Rev. 1015, 1015 (1978) (“ [Wjell-conducted, systematic, convincing, behaviorally focused research can entrap as well as liberate, can help engender as well as dispel false belief about social reality, insofar as it invites the reduction of reality to observed regularities of behavior”).\nThe landlord relies in part on case law relating to tort liability for injuries caused by failure to repair defective premises. We have held that, when the defect occurs in the common areas, the landlord is subject to a duty of reasonable care. King v. G & M Realty Corp., 373 Mass. 658, 661-662 (1977). When the defect occurs in the rented premises, the question is not one of negligence, but one of breach of warranty. In the latter instance, the landlord must comply at least with minimum standards prescribed by the State building and sanitary codes. Whether the scope of the warranty is broader is an open question. Crowell v. McCaffrey, 377 Mass. 443, 451 (1979). But see Boston Hous. Auth. v. Hemingway, supra at 218 (Quirico, J., dissenting).\nCrowell left open a second question as well. “[W]e think the jury would have been warranted in finding that the landlord, by the exercise of reasonable care, . . . could have brought the premises into compliance. We do not pass on the question whether such a finding is essential to liability.” Crowell v. McCaffrey, supra at 452. Whatever standard of liability for personal injury under a theory of breach of warranty is appropriate, however, the tenant’s right to abate rent in the present ease arises from mutual obligations, not from an interest in freedom from harm. See W. Prosser, Torts § 92 (4th ed. 1971).\nIn support of this proposition, the landlord points out that three States require that a landlord have a reasonable time to repair. Hinson v. Delis, 26 Cal. App. 3d 62, 70 (1972). King v. Moorehead, 495 S.W.2d 65 (Mo. App. 1973). Berzitov. Gambino, 63 N.J. 460, 469 (1973). We note that these cases did not squarely present the issue and that the courts stated the proposition without explanation.\nSee King v. G & M Realty Corp., 373 Mass. 658, 661 n.6. See also Love, Landlord’s Liability for Defective Premises: Caveat Lessee, Negligence, or Strict Liability?, 1975 Wis. L. Rev. 19, 105 (“[T]he notice [and reasonable time to repair] requirement reflects the continuing vitality of the notion that a lease is a conveyance of property”).\nAmicus Real Estate Board presses an analogy based on G. L. c. 106, § 2-508 (2) of the Uniform Commercial Code, as appearing in St. 1957, c. 765, § 1: “Where the buyer rejects a non-conforming tender which the seller had reasonable grounds to believe would be acceptable with or without money allowance the seller may if he seasonably notifies the buyer have a further reasonable time to substitute a conforming tender.” The argument that the landlord has a comparable right to cure fails on two grounds. First, the seller may cure only if the buyer rejects or, arguably, revokes acceptance of the goods. Here the tenant did neither. By not vacating her apartment, she accepted the goods, then sought damages under the warranty. In that circumstance, § 2-508 (2) does not afford a right to cure. See, e.g., Bonebrake v. Cox, 499 F.2d 951, 957 (8th Cir. 1974).\nSecond, the amicus relies on the statement of official Comment 2 that “reasonable grounds can lie in prior course of dealing, course of performance or usage of trade . . . .” Here the landlord appears to have proceeded in a responsible manner consistent with landlords’ trade usage. However, the State Sanitary Code, not such usage, provides the proper yardstick for measuring the landlord’s conduct. The Hemingway court removed the landlord’s duties under the Code from the realm of private ordering. Boston Hous. Auth. v. Hemingway, supra at 199. Those duties cannot be waived, bargained away, or qualified by customary practice. The Code puts the landlord on notice that it must supply adequate heat and hot water. State Sanitary Code, Art. II, Regulations 5, 6 (1969) (current version at 105 Code Mass. Regs. 410.190, 410.200, 410.201). The landlord can have no reasonable grounds to believe that noncompliance will be acceptable.\nThe landlord’s knowledge of the defect is also sufficient. McKenna v. Begin, 3 Mass. App. Ct. 168,172-173 (1975). Crowell v. McCaffrey, 377 Mass. 443, 452 (1979), left open the question whether a landlord without notice or actual knowledge of a Code violation can be liable if “by the exercise of reasonable care, [he] could have discovered whatever violations of the codes . . . existed.”\n«[T]he possibility that the residence could be made habitable within a reasonable time,” is a factor in determining the materiality of a breach of warranty. Boston Hous. Auth. v. Hemingway, supra at 201. However, there is no mechanical relationship between this possibility and a characterization of the breach as “potential” or “actual.” Here the trial judge’s ruling that the landlord’s breach was material was not in error.\nAmicus Greater Boston Real Estate Board points to language in the State Sanitary Code to show that the Code contemplates a reasonable time to repair as a prerequisite for punishment of a violation. An enforcement agency’s order “shall indicate the time limit for compliance” and “may suggest action which, if taken, will effect compliance with this Chapter.” State Sanitary Code, Art. II, Regulation 33.4 (c) and (e), adopted in 67 Mass. Reg. 40 (1977) (currently codified in 105 Code Mass. Regs. 410.832 [B] [3] & [5]). Failure to comply with such an order is a prerequisite for a fine. Id. at 410.910.\nFirst, we note that the language quoted appears in a version of the State Sanitary Code not in effect at the time of events in this case. See 67 Mass. Reg. 21 (effective Aug. 1, 1977). The version in effect in 1976 required the enforcing agency to “allot a reasonable time for any action [the order] requires.” State Sanitary Code, Art. II, Regulation 33.4 (b) (1969). The 1977 amendment changed the “reasonable time” requirement to a specific time limit. State Sanitary Code, 105 Code Mass. Regs. 410.830. For a failure to provide heat, the Code now requires that the board of health, within twelve hours of the inspection, shall order the landlord to make a good faith effort to correct the violation within twenty-four hours. Id. at 410.830 (A) (2). We believe that this change indicates dissatisfaction with the vagueness of the term “reasonable time.”\nSecond, even though the Code has consistently provided some grace period during which the landlord may attempt to comply, there is a distinction between the Code’s criminal penalty and the rent abatement at issue here. The landlord “violates” the Code by failing to comply. State Sanitary Code, Art. II, Regulation 1 (1969) (currently codified in 105 Code Mass. Regs. 410.044). Only the penalty is delayed during the grace period. And under the new version of the Code, every enforcement order must be accompanied by notice to the landlord that “the conditions which exist may permit the occupant... to exercise one or more statutory remedies.” State Sanitary Code, 105 Code Mass. Regs. 410.832 (B) (6). We read the Code to imply that civil remedies for violations are available during the landlord’s time to repair. This result is consistent with the 1977 amendment to G. L. c. 239, § 8A."", ""type"": ""majority"", ""author"": ""Liacos, J.""}], ""attorneys"": [""Mitchel S. Ross for the plaintiff."", ""Joseph S. Murphy for the defendant."", ""Philip, S. Lapatin, for Greater Boston Real Estate Board, amicus curiae, submitted a brief."", ""Susan C. Cohen, Richard C. Allen, Gary Bellow, Barbara Hayden Fitts, Marc Lauritsen, Bella Schnall, Carole Wagan, Albert W. Wallis, ir James H. Wexler, for a coalition of legal assistance groups, amicus curiae, submitted a brief.""], ""corrections"": """", ""head_matter"": ""Berman & Sons, Inc. vs. Cynthia Jefferson.\nEssex.\nSeptember 14, 1979. —\nNovember 8, 1979.\nPresent: Hennessey, C.J., Quirico, Braucher, Liacos, & Abrams, JJ.\nLandlord and Tenant, Habitability, Lease as contract, Rent, State Sanitary Code. Housing.\nThe obligation of a tenant to pay full rent abates as soon as the landlord has notice that the premises fail to comply with the requirements of the implied warranty of habitability; the landlord’s lack of fault and his reasonable efforts to repair do not prolong the tenant’s duty to pay full rent. [198]\nA landlord must comply at least with minimum standards prescribed by the State building and sanitary codes in order to satisfy the implied warranty of habitability. [198-201]\nThe duties of a landlord under the State Sanitary Code cannot be waived, bargained away, or qualified by customary practice; the code puts a landlord on notice that he must supply adequate heat and hot water, and an award of damages to a tenant who did not vacate her apartment for breach of the implied warranty of habitability in this respect was affirmed. [201-202]\nAs a matter of common law, rent abatement begins when notice of a defect in the premises is given by the tenant to his landlord or previously comes to the landlord’s knowledge, not at a reasonable time after notice nor after a reasonable time to repair. [202-205]\nSummary process. Writ in the District Court of Peabody dated January 18, 1977.\nOn appeal to the Superior Court the action was heard by Adams, J.\nThe Supreme Judicial Court granted a request for direct appellate review.\nMitchel S. Ross for the plaintiff.\nJoseph S. Murphy for the defendant.\nPhilip, S. Lapatin, for Greater Boston Real Estate Board, amicus curiae, submitted a brief.\nSusan C. Cohen, Richard C. Allen, Gary Bellow, Barbara Hayden Fitts, Marc Lauritsen, Bella Schnall, Carole Wagan, Albert W. Wallis, ir James H. Wexler, for a coalition of legal assistance groups, amicus curiae, submitted a brief.""}, ""cites_to"": [{""cite"": ""67 Mass. Reg. 21"", ""category"": ""laws:admin_register"", ""reporter"": ""Mass. Reg."", ""pin_cites"": [{""parenthetical"": ""effective Aug. 1, 1977""}], ""opinion_index"": 0}, {""cite"": ""67 Mass. Reg. 40"", ""year"": 1977, ""category"": ""laws:admin_register"", ""reporter"": ""Mass. Reg."", ""pin_cites"": [{""parenthetical"": ""currently codified in 105 Code Mass. Regs. 410.832 [B] [3] & [5]""}], ""opinion_index"": 0}, {""cite"": ""3 Mass. App. Ct. 168"", ""year"": 1975, ""case_ids"": [3946900], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""172-173""}], ""case_paths"": [""/mass-app-ct/3/0168-01""], ""opinion_index"": 0}, {""cite"": ""499 F.2d 951"", ""year"": 1974, ""case_ids"": [1171085], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""957""}], ""case_paths"": [""/f2d/499/0951-01""], ""opinion_index"": 0}, {""cite"": ""1975 Wis. L. Rev. 19"", ""category"": ""journals:journal"", ""reporter"": ""Wis. L. Rev."", ""pin_cites"": [{""page"": ""105"", ""parenthetical"": ""\""[T]he notice [and reasonable time to repair] requirement reflects the continuing vitality of the notion that a lease is a conveyance of property\""""}], ""opinion_index"": 0}, {""cite"": ""63 N.J. 460"", ""year"": 1973, ""case_ids"": [1321184], ""category"": ""reporters:state"", ""reporter"": ""N.J."", ""pin_cites"": [{""page"": ""469""}], ""case_paths"": [""/nj/63/0460-01""], ""opinion_index"": 0}, {""cite"": ""495 S.W.2d 65"", ""year"": 1973, ""case_ids"": [10118438], ""category"": ""reporters:state_regional"", ""reporter"": ""S.W.2d"", ""case_paths"": [""/sw2d/495/0065-01""], ""opinion_index"": 0}, {""cite"": ""26 Cal. App. 3d 62"", ""year"": 1972, ""case_ids"": [4421319], ""category"": ""reporters:state"", ""reporter"": ""Cal. App. 3d"", ""pin_cites"": [{""page"": ""70""}], ""case_paths"": [""/cal-app-3d/26/0062-01""], ""opinion_index"": 0}, {""cite"": ""377 Mass. 443"", ""year"": 1979, ""weight"": 3, ""case_ids"": [334138], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""451""}, {""page"": ""452""}, {""page"": ""452""}], ""case_paths"": [""/mass/377/0443-01""], ""opinion_index"": 0}, {""cite"": ""373 Mass. 658"", ""year"": 1977, ""weight"": 2, ""case_ids"": [323975], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""661-662""}], ""case_paths"": [""/mass/373/0658-01""], ""opinion_index"": 0}, {""cite"": ""62 Minn. L. Rev. 1015"", ""year"": 1978, ""category"": ""journals:journal"", ""reporter"": ""Minn. L. Rev."", ""pin_cites"": [{""page"": ""1015"", ""parenthetical"": ""\"" [Wjell-conducted, systematic, convincing, behaviorally focused research can entrap as well as liberate, can help engender as well as dispel false belief about social reality, insofar as it invites the reduction of reality to observed regularities of behavior\""""}], ""opinion_index"": 0}, {""cite"": ""63 Calif. L. Rev. 1098"", ""year"": 1975, ""category"": ""journals:journal"", ""reporter"": ""Calif. L. Rev."", ""pin_cites"": [{""page"": ""1130""}], ""opinion_index"": 0}, {""cite"": ""56 B.U.L. Rev. 1"", ""year"": 1976, ""category"": ""journals:journal"", ""reporter"": ""B.U. L. Rev."", ""pin_cites"": [{""page"": ""63""}], ""opinion_index"": 0}, {""cite"": ""375 Mass. 633"", ""year"": 1978, ""case_ids"": [330421], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""640-641""}], ""case_paths"": [""/mass/375/0633-01""], ""opinion_index"": 0}, {""cite"": ""5 Mass. 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+591417,"{""id"": 591417, ""name"": ""C. F. Kaler et al., Respondents, v. Puget Sound Bridge & Dredging Company, Appellant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""dd3f4bec55cb3c83fa9681f88caa1535173ae7515aa3cddb83863ea6e71475d8"", ""simhash"": ""1:c8dfac79d53ad144"", ""pagerank"": {""raw"": 0.00000025023631847703787, ""percentile"": 0.8096916075029857}, ""char_count"": 11852, ""word_count"": 2066, ""cardinality"": 623, ""ocr_confidence"": 0.484}, ""casebody"": {""judges"": [], ""parties"": [""C. F. Kaler et al., Respondents, v. Puget Sound Bridge & Dredging Company, Appellant.""], ""opinions"": [{""text"": ""Chadwick, J.\nThis is a suit growing out of a municipal improvement in the city of Olympia, and known locally as the Swantown fill. The work was done under an invocation of the police power of the city, the ordinance reciting that it was “necessary and expedient on account of the public health, sanitation, the general welfare and the general improvement of the property located within the boundaries” of the district which are described in the ordinance. Two lots and a fraction which were included in the improvement district are owned by the plaintiffs. When the fill, which was made by a hydraulic dredger with silt and sand from the bottom of the bay, had so far progressed as to come up to plaintiff’s property, they asked and were granted the right to take a part of their property out of the district. They undertook at their own expense to build a bulkhead along the line agreed upon. The material used was old bridge flooring which was placed against some fence posts. As the work progressed, this gave way. A new line was agreed upon and a new bulkhead put in. The salt water and silt ran through and over the barrier and did considerable damage to the property of the plaintiffs. A trial was had and a verdict in the sum of $500 was returned in plaintiffs’ favor. The city was made a party to the suit, but it appearing on the trial that no claim had been presented within the time fixed .by law for the presentation of claims, it was dismissed out of the case, and the trial proceeded against the dredging company alone.\nIt is not denied that the ordinance and contract under which the work was done provided that it should be done strictly in accordance with the plans and specifications furnished by the city and under the direction of the city engineer, and the testimony shows that the changes made were sanctioned by that officer. One other fact material to our discussion is that the property of the plaintiffs was bounded on the north by a street, and on the west and south by property still within the improvement district and which the dredging company was bound to fill under its contract.\nThe arguments of counsel as set forth in the briefs have taken wide range, but the case, in so far as the liability of the appellant is concerned, can be quickly determined by reference to some of the cases heretofore decided by this court, and to one or two fundamental principles. One of the suggestions made by respondents, and which should be first determined, is that there has been a taking and damaging within the meaning of the constitution, art. 1, § 16, for which they are entitled to compensation; that the city being a trespasser, appellant could not escape liability because it had a contract to do that which was unlawful. Whether the damage suffered by respondents is such an injury as would sustain a recovery under the constitution, and to which the special statute covering the presentation of claims would not apply, is a question that cannot now be raised. Whatever the law may be, the trial court held that the city was not liable, and no appeal having been taken from that order, it has become the law of the case (8 Cyc. 791) and respondents must recover from the appellant, if at all, upon other grounds.\nThis court has held that it is within the police power of the city to fill low lying ground when necessary to protect the health, comfort and convenience of the municipality, and that any consequential damage suffered because thereof is in due process of law.\n“It would be manifestly destructive to the advancement or development of organized communities to put the public to the burden of rendering compensation to one, or to many, when the individual use is, or might be, a menace to the health, morals, or peace of the whole community.” Bowes v. Aberdeen, 58 Wash. 535, 109 Pac. 369, 30 L. R. A. (N. S.) 709.\nA proceeding in all respects similar to the one under discussion has been passed by this court as possessing no legal infirmity. Martin v. Olympia, 69 Wash. 28, 124 Pac. 214.\nConsequently, the city council having determined that it was necessary to fill and improve the property óf these’respondents, no damages could have been recovered if the city had made the improvement in accordance with the original plan. While the\"" city can improve property within the unsanitary district as determined by the ordinance, it does not follow that it can damage abutting property.\n“Legislation tending to the preservation of the public health is favored by the courts, and is regarded as a power inherent in a municipal corporation where population is congested. 28 Cyc. 709; Gundling v. Chicago, 176 Ill. 340, 52 N. E. 44, 48 L. R. A. 230. But the power must be exercised within a proper limit in this case, the filling of the district— and when the city goes beyond that limit, the legislature should provide, and it has in this case provided, for compensation to those whose property stands in the way. If it did not, it would result in the confiscation of unoffending property.” State ex rel. Stalding v. Aberdeen, 58 Wash. 562, 109 Pac. 379.\nSee, also, Donofrio v. Seattle, ante p. 178, 129 Pac. 1094; Ferry-Leary Land Co. v. Holt & Jeffery, 53 Wash. 584, 102 Pac. 445; Olson v. Seattle, 30 Wash. 687, 71 Pac. 201; State ex rel. Smith v. Superior Court, 26 Wash. 278, 66 Pac. 385.\nWhen the city, acting through its engineer, he' having authority to exempt property, excluded a part of respondents’ property, and drew new lines around it, it made the excluded lots abutting property, and it would become liable for such damages as might result to the abutting property from the manner in which the work was done. Now, admitting without deciding, that there was such damages for which the city could have been held, the question remains whether the city, which furnished the plan of the work and directed it in all particulars, having been dismissed out of the case, its contractor is liable. The negligence, if any, upon which a right of recovery could have been predicated, was the omission of the city to provide an adequate plan, or to make proper provision for carrying away the water and silt which, in the natural order of things, would seep through and over the bulkheads, and to care for the water that flowed from an artesian well which was on the premises. Because of these omissions, water was left standing on the lots, and trees and vegetation were killed. It is not shown that appellant has in any manner violated its contract with the city, or has failed to follow the plans and specifications, or refused to obey the orders and directions of the city engineer.\nNegligence implies a wilful fault. In keeping with this principle it has been held by this, and generally by other courts, that where the fault lies in the plan furnished by the superior and the work is done under his direction, the contractor is not liable, in the absence of negligence. If negligent, he is held for his negligence and not as a trespasser. This case in principle and in many of its facts is not unlike the case of Quinn v. Peterson & Co., 69 Wash. 207, 124 Pac. 502, where a recovery was denied. In Potter v. Spokane, 63 Wash. 267, 115 Pac. 176, it appeared that the damage for which a recovery was sought was caused by a defective bulkhead. It was held that, the plan being at fault, the contractor, who had done the work under a contract which “provided that the work should be performed according to certain plans and specifications described in the contract, and should be under the supervision, direction and control of the board of public works of the city, and its representative, the city engineer; and that in case of improper construction and noncompliance with the contract, the board had the right to order a partial or entire reconstruction of the work, or to declare the contract forfeited and relet the same to another contractor, and to adjust the differences that should arise between the city and the contractor by reason of the change was not liable.\nThe liability of the contractor was not expressly passed on in that case, or in Cooper v. Seattle, 16 Wash. 462, 47 Pac. 887, 58 Am. St. 46; but it would seem to follow from the reasoning of the court that the general rule would have been applied if it had been necessary to a decision. Peter Casassa brought suit against the city of Seattle and the Lewis & Wiley Company, contractors, for damages from slides suffered because of insufficient slopes to sustain a street grade. The city was held, but the contractor was exonerated, it appearing that the work was done under the direction of the city, and that there was no sufficient evidence of negligence to charge the contracting company. Casassa w. Seattle, 66 Wash. 146, 119 Pac. 13.\nThe general rule, as found by Mr. Dillon, is thus stated:\n“Where a city, acting within its general powers, contracts for the grading of a public street, and in accordance with the conditions of the contract and the law prescribing the same, the work is done under the immediate supervision of certain officers, whose official duty it is to superintend the work, and the damages result, not from any negligence or wrongdoing of the contractors, but from the performance of the work in the manner required by the contract, the contractors are the agents of the city, and the city is liable for such damages.” 4 Dillon, Municipal Corporations (5th ed.), 1655n.\nSee, also, 28 Cyc. 1280. We conclude that appellant was not an independent contractor, and that the liability for the damages sustained rested upon the city and not upon appellant.\nWe shall not discuss the other questions, some of which might in any event call for a new trial, as the foregoing is determinative of the case.\nReversed, with instructions to dismiss the suit.\nCeow, C. J., Gose, Paekee, and Mount, JJ., concur."", ""type"": ""majority"", ""author"": ""Chadwick, J.""}], ""attorneys"": [""John W. Roberts and George L. Spirk, for appellant.."", ""Thomas M. Vance and Harry L. Parr, for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 10835.\nDepartment One.\nMarch 20, 1913.]\nC. F. Kaler et al., Respondents, v. Puget Sound Bridge & Dredging Company, Appellant.\nJudgments — Persons and Matters Concluded — Law of the Case. Where, in an action against a city and a contractor, for damages to property through the filling up of low land under the police power, a nonsuit was granted as to the city, and no appeal was taken therefrom, a judgment against the contractor cannot be sustained on the theory that there was a taking or damaging of property without compensation first paid as required by Const., art. 1, § 16; since the nonsuit as to the city became the law of the case on that point.\nMunicipal Corporations — Improvements—Damage to Property— Defective Plans — Liability. While a city may fill low lands as a sanitary measure without liability for consequential damages suffered by the lands within the district filled, it is liable for injury to abutting property; and when lands originally within the district have, by the engineer having authority to exempt property, been excluded from the district, they became abutting property within the above rule.\nSame — Damage to Property — Defective Plans — Liability of Contractor. Where a city furnished the plan and directed the work of filling up low lands, and damages to abutting property resulted, not from any negligence or wrongdoing of the contractor, who performed the work in the manner required by the contract, the contractors stand in the relation of agents of the city and not as independent contractors, and the liability rests upon the city and not upon the contractors, who cannot be held after a nonsuit is granted as to the city.\nAppeal from a judgment of the superior court for Thurs-ton county, Mitchell, J., entered June 11, 1912, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for damages to property.\nReversed.\nJohn W. Roberts and George L. Spirk, for appellant..\nThomas M. Vance and Harry L. Parr, for respondents.\nReported in 130 Pac. 894.""}, ""cites_to"": [{""cite"": ""130 Pac. 894"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""119 Pac. 13"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""66 Wash. 146"", ""case_ids"": [561079], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/66/0146-01""], ""opinion_index"": 0}, {""cite"": ""47 Pac. 887"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""16 Wash. 462"", ""case_ids"": [5106607], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/16/0462-01""], ""opinion_index"": 0}, {""cite"": ""115 Pac. 176"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""63 Wash. 267"", ""case_ids"": [552615], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/63/0267-01""], ""opinion_index"": 0}, {""cite"": ""124 Pac. 502"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""69 Wash. 207"", ""case_ids"": [566840], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/69/0207-01""], ""opinion_index"": 0}, {""cite"": ""66 Pac. 385"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""26 Wash. 278"", ""case_ids"": [5167410], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/26/0278-01""], ""opinion_index"": 0}, {""cite"": ""71 Pac. 201"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""30 Wash. 687"", ""case_ids"": [5223684], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/30/0687-01""], ""opinion_index"": 0}, {""cite"": ""102 Pac. 445"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""53 Wash. 584"", ""case_ids"": [542394], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/53/0584-01""], ""opinion_index"": 0}, {""cite"": ""129 Pac. 1094"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""109 Pac. 379"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""58 Wash. 562"", ""case_ids"": [526313], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/58/0562-01""], ""opinion_index"": 0}, {""cite"": ""48 L. R. A. 230"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A."", ""opinion_index"": 0}, {""cite"": ""52 N. E. 44"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.E."", ""opinion_index"": 0}, {""cite"": ""176 Ill. 340"", ""case_ids"": [3157086], ""category"": ""reporters:state"", ""reporter"": ""Ill."", ""case_paths"": [""/ill/176/0340-01""], ""opinion_index"": 0}, {""cite"": ""124 Pac. 214"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""69 Wash. 28"", ""case_ids"": [566959], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/69/0028-01""], ""opinion_index"": 0}, {""cite"": ""30 L. R. A. (N. S.) 709"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A.N.S."", ""opinion_index"": 0}, {""cite"": ""109 Pac. 369"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""58 Wash. 535"", ""case_ids"": [526279], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/58/0535-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""72 Wash. 497"", ""type"": ""official""}], ""file_name"": ""0497-01"", ""last_page"": ""502"", ""first_page"": ""497"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T21:52:28.209533+00:00"", ""decision_date"": ""1913-03-20"", ""docket_number"": ""No. 10835"", ""last_page_order"": 536, ""first_page_order"": 531, ""name_abbreviation"": ""Kaler v. 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+591457,"{""id"": 591457, ""name"": ""Vittucci Importing Company, Respondent, v. The City of Seattle, Appellant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""f790511bc9aa858b82de158928b0ab51b7b5f2bb010375af2c3ef59343ae2388"", ""simhash"": ""1:c900bd4bdf7f4303"", ""pagerank"": {""raw"": 0.0000003237812719683798, ""percentile"": 0.8681328525331014}, ""char_count"": 9463, ""word_count"": 1565, ""cardinality"": 486, ""ocr_confidence"": 0.538}, ""casebody"": {""judges"": [], ""parties"": [""Vittucci Importing Company, Respondent, v. The City of Seattle, Appellant.""], ""opinions"": [{""text"": ""Main, J.\nThis is an action for damages to personal property. The appellant, the city of Seattle, is a municipal corporation of the first class. The respondent, the Vittucci Importing Company, is a private corporation, organized and existing under the laws of the state of Washington. At a certain point in the city of Seattle, Jackson street and Occidental avenue, both public thoroughfares, intersect at right angles. A sewer system is maintained and controlled by the city. In the center of Jackson street is laid a main sewer twenty inches in diameter. Radiating from this main sewer are lateral sewers for the accommodation of the adjacent property. At the southeast corner of these two streets stands a building which is devoted to wholesale purposes. In this . building respondent occupied store room No. 406, fronting on Occidental avenue, and the basement thereunder. An adjacent store room and basement were occupied by the Miller Furnace Company. Between the two basements there stood a board partition. The respondent was engaged in the wholesale grocery business, and had stored in the basement occupied by it a certain quantity of merchandise.\nOn October 24,1911, the main sewer, at a point a short distance west of the intersection of Jackson street and Occidental avenue, became obstructed. This arrested the flow of sewage and caused it to set back and pass up the lateral used for the accommodation of the building a part of which respondents occupied, thence into the basement occupied by the Miller Furnace Company, and from there through the wooden partition into the basement occupied by the respondent, and caused damage to the amount of $594.83. Thereafter, and within the required time, the respondent presented its claim for damages for this amount to the city of Seattle. This being rejected, suit was instituted. The cause was tried to the court and a jury. Upon the trial the respondent, after making certain preliminary proof, introduced evidence showing the obstruction of the sewer, the amount of the consequent damages, and that there had been no extraordinary conditions such as excessive rains or freshets which could have caused the obstruction; but did not introduce any evidence showing failure of a reasonable inspection on the part of the city or notice thereto of the obstruction. The appellant challenged the legal sufficiency of this evidence and moved for a dismissal of the action, which was denied. Thereupon the appellant introduced certain evidence, but did not controvert the facts above indicated as established by the respondent. Neither did it introduce any evidence showing inspection of the sewer prior to the injury. At the conclusion of the evidence, the appellant moved for a directed verdict. This was overruled. Thereupon the respondent moved for a directed verdict, which was granted. Motion for judgment notwithstanding the verdict, and motion for a new trial, being seasonably made and' overruled, an appeal was taken to this court.\nThe record in the case presents three questions: (1) what is the measure of the city’s duty in keeping its sewers in repair and free from obstructions; (2) is notice an essential element of liability; and (3) do the facts established make a prima facie showing of negligence.\nAs to the measure of duty, it is well settled that a municipal corporation is not an insurer of the condition of its sewers, and that, to charge it with damages occasioned by an obstruction therein, negligence must be proven. This proposition is not controverted. It is so well known as not to require the citation of authority in its support.\nOn the second question, that of notice, the authorities are not harmonious. Numerically speaking, the weight of authority appears to be to the effect that notice, either actual or constructive, is an essential element upon which to predicate liability. The opposite view, however, is' supported by very respectable authority, and seems to be sound in reason. The sewers are constructed and maintained by the city, and are under its exclusive control. It is the city’s duty to exercise ordinary care in causing an inspection of them from time to time, in order that needed repairs may be made therein and obstructions removed therefrom. The individual whose property may be subjected to destruction by a defective sewer has neither the duty nor the right of inspection; neither does he have the authority to repair. The first knowledge that he has or can have that an obstruction exists in the sewer is when his property suffers damage which is caused thereby. There appears to be no good reason why the city should be entitled to notice, either actual or constructive, of a defect or obstruction in one of its sewers as a necessary element of liability, when such defect or obstruction is such that it would have been discovered by reasonable inspection. Manifestly, the liability of a municipal corporation for defects or obstructions in its sewers should be measured by a different rule from that which applies to defects or obstructions on its streets or sidewalks. McCarthy v. Syracuse, 46 N. Y. 194; Vanderslice v. Philadelphia, 108 Pa. St. 102.\nThe former case states the principle as follows:\n“The mere absence of this notice does not necessarily absolve the city from the charge of negligence. Its duty to keep its sewers in repair, is not performed, by waiting to be notified by citizens that they are out of repair, and repairing them only when the attention of the officials is called to the damage they have occasioned by having become dilapidated or obstructed; but it involves the exercise of a reasonable degree of watchfulness in ascertaining their condition, from time to time, and preventing them from becoming dilapidated or obstructed. Where the obstruction or dilapidation is an ordinary result of the use of the sewer, which ought to be anticipated, and could be guarded against by occasional examination and cleansing, the omission to make such examination and to keep the sewers clear, is a neglect of duty which renders the city liable.”\nThe third inquiry is, Do the facts above stated make a prima facie showing of negligence on the part of the appellant? These facts establish, (1) the obstruction; (2) the amount of consequential damage to the respondent’s property ; and (3) that there existed no extraordinary conditions, such as excessive floods or freshets, that could have overloaded the sewer and thereby caused the obstruction. It is argued that these three elements presumptively establish negligence, and cast upon the appellant the burden of showing that it had exercised ordinary care in performing its duty of inspection. We think these facts make a prima facie showing of negligence, and cast upon the appellant the duty of showing that reasonable inspection had been made. Had the appellant met this burden and by competent evidence established that it had exercised ordinary care in the matter of inspection, this would have been a complete defense to the action. The city could not be held liable for defects or obstructions which a reasonable inspection would not have discovered. Whether or not there had been an inspection was a fact peculiarly within the knowledge of the appellant, and it would be an unreasonable rule that would require a citizen, as a necessary element of his cause of action in cases of this character, to establish by affirmative evidence the nonexistence of a fact of which he did not have knowledge and which in many cases he would be unable to ascertain and which is entirely within the knowledge of the city. If there had been an inspection, the city knew it and it should have met the prima facie case by showing that fact. There is nothing in the opinion in Hayes v. Vancouver, 61 Wash. 536, 112 Pac. 498, which is stare decisis as against the conclusions here reached.\nThere being no dispute as to the amount of the damage, and the appellant having introduced no evidence to meet the presumptive showing of negligence on the part of the respondent, the trial court did not commit reversible error in sustaining the motion for a directed verdict.\nThe judgment will therefore be affirmed.\nMount, Ellis, Morris, and Fullerton, JJ., concur."", ""type"": ""majority"", ""author"": ""Main, J.""}], ""attorneys"": [""James E. Bradford and C. B. White, for appellant."", ""John E. Ryan and Grover E. Desmond, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 10675.\nDepartment Two.\nFebruary 21, 1913.]\nVittucci Importing Company, Respondent, v. The City of Seattle, Appellant.\nMunicipal Corporations — Sewers—Damages From Obstruction —Negligence. A city is not liable for damages to property through the obstruction of a sewer unless negligence on its part be proven.\nSame — Duty of Inspection. A city owes the duty of reasonable inspection of its sewers, and its liability for damages to property by reason of obstructions does not depend upon notice to it by the property owner.\nSamp — Negligence—Evidence—Sufficiency. The fact thait a city sewer became obstructed, and overflowed and caused damage to property, and that there existed no extraordinary conditions such as floods or freshets, establishes a prima facie case of negligence against the city, and casts the burden on it of showing that it had exercised ordinary care in performing its duty of inspection.\nAppeal from a judgment of the superior court for King county, Ronald, J., entered April 25, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.\nAffirmed.\nJames E. Bradford and C. B. White, for appellant.\nJohn E. Ryan and Grover E. Desmond, for respondent.\nReported in 130 Pac. 109.""}, ""cites_to"": [{""cite"": ""130 Pac. 109"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""112 Pac. 498"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""61 Wash. 536"", ""case_ids"": [555713], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/61/0536-01""], ""opinion_index"": 0}, {""cite"": ""108 Pa. St. 102"", ""category"": ""reporters:state"", ""reporter"": ""Pa."", ""opinion_index"": 0}, {""cite"": ""46 N. Y. 194"", ""case_ids"": [2052659], ""category"": ""reporters:state"", ""reporter"": ""N.Y."", ""case_paths"": [""/ny/46/0194-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""72 Wash. 192"", ""type"": ""official""}], ""file_name"": ""0192-01"", ""last_page"": ""197"", ""first_page"": ""192"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T21:52:28.209533+00:00"", ""decision_date"": ""1913-02-21"", ""docket_number"": ""No. 10675"", ""last_page_order"": 231, ""first_page_order"": 226, ""name_abbreviation"": ""Vittucci Importing Co. v. 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+607946,"{""id"": 607946, ""name"": ""The State of Washington, Respondent, v. William N. Gay, Appellant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""8464e19348262c1d1c1c5303a71a17a3e914c403a9c608dc0f4d92a52bcf125b"", ""simhash"": ""1:be95ba74390878c5"", ""pagerank"": {""raw"": 0.000000994449684864631, ""percentile"": 0.9825350821611607}, ""char_count"": 35604, ""word_count"": 6180, ""cardinality"": 1172, ""ocr_confidence"": 0.543}, ""casebody"": {""judges"": [], ""parties"": [""The State of Washington, Respondent, v. William N. Gay, Appellant.""], ""opinions"": [{""text"": ""Fullerton, J.\nThe appellant was convicted of the crime of rape, alleged to have been committed upon the person of his sister, a female child of the age of fourteen years. From the judgment and sentence pronounced upon him, he appeals. His assignments of error can best be discussed in the order in which they are presented by his counsel.\nIn her examination in chief, the prosecuting witness, after testifying to some four different acts of intercourse between herself and the appellant, had at intervals separated by a considerable lapse of time, was permitted to testify, over objection, that she had made complaint of the assaults to a third person, and to give the name of the person to whom the complaint was made. Later on in her testimony, the exact time of making the complaint was shown, whereupon the court, on motion of the appellant, withdrew from the jury all of the testimony concerning the complaint, and instructed the jury not to consider it in making up their verdict; basing his ruling on the ground that the complaint was not made in such reasonable time as to have any probative force as evidence. The appellant contends that the court committed prejudicial error in this ruling, first, because evidence of complaints are not admissible in a prosecution for rape where the element of consent is not a necessary ingredient of the offense, and second, because the court allowed the prosecution to go beyond the rule in permitting the witness to name the person to whom the complaint was made.. The cases of State v. Hunter, 18 Wash. 670, 52 Pac. 247, and State v. Griffin, 43 Wash. 591, 86 Pac. 951, are principally relied upon as sustaining the contention.\nWe cannot, however, think the cases bear the construction the appellant puts upon them. The case of State v. Himter, was a prosecution for an attempt to commit rape upon the person of a female child of the age of eight years. At the trial, the mother of the child was permitted, over objection, to testify to'the fact that the child made complaint to her of the assault within an hour after it had been committed. This was assigned as error on an appeal after conviction, but the court sustained the conviction, saying that it was not “error to permit the mother to testify that the prosecutrix made complaint to her immediately, or at least within an hour, after the assault was committed.” The case is relied upon, also, as sustaining the second branch of the contention, but we think it supports the contrary rule. True the court did say, in the course of the opinion, that the “better rule is to restrict the evidence to the fact of complaint, and that anything beyond that is hearsay of the most dangerous character.” But the court was speaking concerning the particulars of the complaint, the facts and circumstances of the assault as detailed' by the person assaulted when making the complaint, not to the question whether the person to whom the complaint was made might or might not be named. Indeed, it is the common practice to prove the fact of complaint by the person to whom the complaint was made, and it was in this manner that the fact was proven in the particular case. Surely, if it be permissible to produce before the jury the very person to whom the complaint was made, it is equally permissible to permit- the person assaulted, when testifying to the fact that she made complaint of the assault, to name the person to whom the complaint was made.\nThe case of the State v. Griffin was, likewise, a prosecution for rape committed upon a female child under the age of consent. In that case, also, the court below admitted evidence of complaints made by the prosecutrix following the commission of the assaults upon her. But while the admission of this evidence was held error on the appeal of the cause, it was not so held because inadmissible under all circumstances, but because there were “months of inexcusable delay” between the time of the commission of the crime and the time the complaints were made, and because other circumstances indicated that the complaints were not made spontaneously, but in pursuance of an attempt to manufacture testimony. On the other hand, the court distinctly stated that such complaints, when seasonably made, tended to corroborate the prosecuting witness, and quoted approvingly from the case of Thompson v. State, 38 Ind. 39, wherein it was laid down as a settled postulate of the law, “That the prosecutor may show by the testimony of the prosecuting witness, or that of any other witnesses, that she made complaint of the outrage recently after its commission, and when, where, and to whom it was made.” As further proof that this court has never considered such testimony inadmissible in a prosecution for rape upon a female child under the age of consent, we call attention to the case of State v. Myrberg, 56 Wash. 384, 105 Pac. 622, decided subsequent to the cases relied upon by the appellant, wherein it was expressly held that it was proper to prove that the injured female made complaint when such complaint was seasonably made; holding a complaint to be seasonably made when made possibly between fifteen and twenty days after the commission of the offense. We cannot conclude, therefore, that evidence relating to the complaint- made by the prosecutrix of the assaults made upon her was intrinsically objectionable, but that it was objectionable, if objectionable at all, because made at a time too remote from the time of the commission of the offense to have weight as a probative fact.\nBut it is contended that the evidence was so far prejudicial as to be incapable of cure by its withdrawal from the consideration of the jury. To this point, the appellant cites State v. Pryor, 67 Wash. 216, 121 Pac. 56. That case, however, was an extreme case. The evidence admitted and subsequently withdrawn had reference to offenses degrading in their nature, in no way connected with the offense upon which the appellant was being prosecuted, and was withdrawn only on condition that the defendant would admit a fact necessary to be shown in order to convict him of the offense with which he was charged. Under these circumstances, the court could well conclude that the act of the court did not remove the prejudice occasioned by the admission of the improper evidence. But it was not therein intended to be held that no error in the admission of improper testimony can be cured by such means, and especially was it not meant to be held that evidence, not objectionable in itself, but improperly admitted because of a circumstance not shown when the testimony was offered, cannot be cured by withdrawing it from the consideration of the jury. The presumption in all cases is that the jury obeyed the instructions of the court, and this presumption must prevail until it is overcome by some showing that the fact is otherwise. To withdraw evidence subsequently discovered to be improperly admitted is a common practice in criminal as well as in civil causes, and the procedure is generally held to cure any error caused by its improper admission. State v. Manville, 8 Wash. 523, 36 Pac. 470; Yakima Valley Bank v. McAllister, 37 Wash. 566, 79 Pac. 1119, 107 Am. St. 823, 1 L. R. A. (N. S.) 1075. We think in the present case any error committed by the admission of the testimony objected to was cured by its subsequent withdrawal.\nThe second contention relates to the exclusion of certain proffered evidence. On the cross-examination of the prosecutrix she was asked if she had not sustained sexual relations with another brother at about the times of the alleged assaults made upon her by the appellant, and later on the brother was produced as a witness and similar questions were propounded to him. The court sustained objections to this line of testimony, and the appellant contends for error in the ruling, arguing that the testimony was competent for the purpose of impugning the veracity and credibility of the witness. It is the general rule that, in prosecutions for forcible rape, specific acts of unchastity on the part of the prosecutrix cannot be shown to affect her credibility, although her general reputation for chastity may be shown for that purpose. State v. Holcomb, 73 Wash. 652, 132 Pac. 416; People v. McLean, 71 Mich. 309, 38 N. W. 917, 15 Am. St. 263; People v. Abbott, 97 Mich. 484, 56 N. W. 862, 37 Am. St. 360; Underhill, Criminal Evidence (2d ed.), § 418; 3 Greenleaf, Evidence, § 214. The same rule applies to a case of statutory rape. State v. Workman, 66 Wash. 292, 119 Pac. 751. Evidence of this character has been held in some of the cases to be admissible for the purpose of showing consent, but consent is not a material inquiry in the instant case. The female child against whom the offense was committed was under the age of fifteen years, and by the provisions of the statute conclusively presumed to be incapable of giving consent. To carnally know a female child who is under that age is a crime in the eyes of the law, even though she be a wanton of the most degraded character.\nAs was said in the case of People v. Abbott, supra,\n“Respondent’s counsel drew from the girl the fact that at other times prior to the alleged offense she had had intercourse with several other men. The court admitted this testimony on the claim of counsel for respondent that it was competent as bearing upon the girl’s credibility. It was not competent, in this case, even for that purpose. If the girl had been of the age of consent, it might be competent to admit evidence of her general reputation for chastity, as bearing upon the probability of her story, but specific acts of unchastity could not be inquired into. People v. McLean, 71 Mich. 309. But here the law conclusively presumes that the girl could not give her consent, and every act of intercourse with her would be a crime committed against her, and such acts could not, therefore, affect her credibility. Her reputation for truth and veracity could be inquired into the same as of an adult, but she could not be impeached by her acts of intercourse.”\nBut if the rule were otherwise, there could be no reversible error in the ruling in the particular instance. The appellant had the benefit, if benefit it was, of the fact sought to be shown. Elsewhere in the cross-examination of the prosecutrix, had pertaining to another matter, it was made clearly to appear that the other brother, at the time concerning which the inquiry was made, had been guilty of carnal intimacy with her, and that the appellant had been informed of the fact. As the fact alone, not the manner in which it was presented to the jury, was the material matter, any error caused by the rejection of the testimony in the first instance was cured by its subsequent admission.\nAfter the prosecuting attorney had been informed of the probable intimacy of the appellant with the prosecutrix, he sent a deputy sheriif to the appellant’s place of residence with the request that he appear in Chelan on a certain day. The appellant appeared at the time appointed, met the prosecuting attorney, the prosecutrix, a committing magistrate, and two other persons, at the office of the committing magistrate. While there, the prosecutrix made charge's against him of criminal relations, and subsequently, after the prosecutrix had left the room, the prosecuting attorney questioned him as to their truth. At the trial, the persons present were severally called as witnesses for the state, and each testified that, in answer to the prosecutor’s questions, the appellant admitted the truth of the girl’s statements. On cross-examination, they further testified that the appellant appeared nervous and excited during the prosecutor’s examination. The appellant, while testifying in his own defense at the trial, denied making the admissions. The appellant’s wife testified in his behalf, and during the course of her examination, the court sustained an objection to the following question put to her by his counsel: “What is the disposition and nature of Mr. Gay [meaning the appellant] with reference to becoming excited in answering questions?” It is claimed that, owing to the somewhat peculiar nature of the case, the court committed reversible error in refusing to permit an answer to the question.\nWe cannot, however, think the ruling has that effect. While the court could properly have permitted' the witness to answer, an answer to the effect that he did become nervous and excited when questioned, or when answering questions, would have thrown but little light on the question of his guilt or innocence. That he. was nervous and excited at the time was, as we have shown, admitted by all of the witnesses testifying to the admissions. That his nervousness and excitement did not arise from the suddenness of, or surprise at, the accusation, appeared elsewhere in the testimony. It was shown that he knew, prior to the time he was summoned by the prosecuting attorney, of the accusations his sister had been making against him, and that he knew that it was concerning them that the prosecutor wished to see him. The only purpose of the question was to give rise to an inference that the appellant, because of his peculiar disposition, might have become excited at the meeting in the magistrate’s office, and answered the questions put to him unwittingly; but, as the fact of excitement itself appeared, all that could be gained by an answer to the question was accomplished.\nIt is next contended that there was no proof of a consummated offense in that there was no proof of actual penetration. But, without detailing the evidence at length, we think it sufficient to justify the jury in finding that there was some penetration. The prosecutrix testified, and it was testified that the appellant admitted at the meeting in the magistrate’s office preceding his arrest, that the appellant persisted in the act of intercourse until he was compelled to desist because of the pain it caused the prosecutrix. It is the general rule, and in this state the rule of the statute (Rem. & Bal. Code, § 2437; P. C. 135 § 369), that any penetration, however slight, is sufficient to satisfy the requirement in this regard. It is the rule, also, that penetration may be proved like any other fact, that is, either by direct or circumstantial evidence. Clearly, therefore, if the jury believed the evidence, they were warranted in finding that there was penetration within the meaning of the rule.\nSo with the further contention that the evidence did not justify the verdict. The prosecutrix testified to every element necessary to constitute a completed offense. In this she was corroborated by the witnesses who testified to the appellant’s admissions. The weight and sufficiency of the evidence was therefore for the jury, and this court is not privileged to say that they drew a wrong conclusion therefrom.\nAt the trial, as we have before stated, the prosecutrix testified to some three distinct acts of carnal intercourse occurring between herself and the appellant, in addition to the act set forth in the information. One of these acts, she testified, occurred in a house in which she was living with her mother, and at a time when her mother was in the house. On cross-examination, she was asked if she had not testified on her preliminary examination that the appellant had made but one attempt to have sexual intercourse with her, the same being the act charged in the preliminary complaint and set forth in the information. She answered by saying that she did not remember of being asked concerning any act other than the one charged, but that if she had been so asked she answered truthfully. On the appellant’s case the committing magistrate was called by way of impeachment, and testified that the prosecutrix did say at the preliminary hearing that there had been but one act of sexual intercourse between herself and the appellant, and this, in answer to a question put to her by the prosecuting attorney himself. After the return of the verdict, the appellant moved for a new trial, the second ground of the motion being surprise at the testimony of the prosecuting witness concerning acts of intercourse other than the one alleged, and unpreparedness to meet the testimony for that reason. The motion was accompanied by the affidavit of the appellant, averring his surprise at the testimony, and averring that the mother would, had she been present in court, have disputed and entirely disproved the testimony of the prosecuting witness concerning the act stated to have occurred at the house within which the mother was present, and that her testimony could be procured on a retrial of the cause. The appellant’s attorney, who had active charge of the conduct of the defense, also filed an affidavit to the fact of surprise, averring, however, that “since the trial he has been advised that one Emma Gay [the mother] could and would, if present in court, have testified to facts which would clearly establish beyond a reasonable doubt the impossibility of the act testified to as having taken place in the Long house in the month of June, 1912,” the house referred to by the prosecuting witness. The affidavit of the mother was not produced, nor does it appear that her affidavit could not then have been obtained. Nor was surprise claimed at the time of the trial, or a postponement of the trial or a continuance asked that the mother might be produced as a witness at the trial, although it appeared that she was at that time in the county of the place of trial, and only some twenty miles distant from such place.\nIn Reeder v. Traders’ Nat. Bank, 28 Wash. 139, 68 Pac. 461, the following was stated as the general rule applicable to new trials based on the ground of surprise:\n“It is a recognized principle that, when an application for a new trial on the ground of accident or surprise is made, it is not only necessary that the party should have been surprised, but that it was not the consequence of neglect or inattention on. the part of the party surprised; also that he used all reasonable efforts to overcome the evidence which worked the surprise, or that it was not within his power to have done so by the employment of reasonable diligence.\n“ ‘But he can never, after having submitted his cause, on finding that the verdict or judgment is against him, become surprised at what had previously happened during the trial and ask the court to relieve him from his own error, mistake, or omission.’ ”\nIn Pincus v. Puget Sound Brewing Co., 18 Wash. 108, 50 Pac. 930, the following language was used:\n“But in any event, if this testimony was so essential to the defendant’s case that it would warrant the granting of a new trial, then it was essential enough to have warranted the granting of a non-suit or of a continuance. If the matter had been presented to the court when it was discovered that the desired evidence could not be obtained, a motion for continuance should have been made and the same court that granted the motion to set aside the verdict would undoubtedly have granted a motion for a continuance, on terms or otherwise. And in any event, the plaintiff would have been entitled to a nonsuit. If he was surprised on the trial of his case, his remedy was as we have indicated; if he was not, he simply took chances on obtaining a verdict from the jury on the testimony which he had at hand; and having elected to submit his case to. the jury on such testimony, he cannot now be heard to complain that the testimony was insufficient, and that he could, on another trial, produce more and better testimony. If this practice were tolerated, no reliance could be placed upon a judgment, and it would become a favorite practice with litigants to obtain a second trial, if unfortunate in the first, by neglecting to procure all the testimony which might originally have been procured in the case.”\nMr. Bishop in his New Criminal Procedure, Vol. 1, at § 966d, says:\n“If during the trial a party is ‘surprised’, as the expression is, by some unforeseen turn in the case for which he is not prepared, — for example, through having been misled as to testimony — the court on request will grant such suspension or continuance as the emergency requires. Neglecting to apply for which, he cannot on defeat have a new trial; but if wrongfully refused, he may; and in emergencies less extreme, the court in its discretion will permit postponements after the trial has begun, for the parties to complete some needful preparation.”\nAnd at § 1280 of the same work:\n“Surprise -is a familiar ground for a new trial, both in criminal cases and civil. It must arise before verdict, not after; ordinarily the surprised party must have asked for the needful postponement or continuance to procure the required evidence, and have been refused; and the case must come also within the other principles familiar to the law of new trials.”\nSo, Mr. Wharton:\n“The mere fact of a party being surprised by the introduction of unexpected evidence, however, is no ground for a new trial, especially when the affidavit does not show that the ‘surprising’ evidence was not true, and that no effort was made on trial for continuance to meet the surprise.” Wharton, Criminal Pleading and Practice (9th ed.), § 884.\nIn Hope v. State, 124 Ga. 438, 52 S. E. 747, it was said:\n“When counsel for the accused learned that the witness upon whose statement he relied in reference to the proof of an alibi had misled him, he should have called the attention of the court to the matter and made a motion for the postponement of the case. As knowledge of this fact came to him pending the trial, he could not take the chances of a favorable verdict, and, after an unfavorable verdict, insist upon a new trial being granted on account of a fact which came to his knowledge before verdict.”\nIn State v. Gardner, 33 Ore. 149, 54 Pac. 809, the court stated the rule as follows:\n“The affidavits in support of the motion for a new trial show that Mabel Hitchman testified at defendant’s preliminary examination, and also before the grand jury, that the crime was committed May 20, 1897, and the indictment so alleged the fact. At the trial, however, she testified that the overt act occurred a month earlier, and this change is the surprise of which the defendant complains, and which his counsel insist affords ground for a new trial. At the time the testimony was so given no motion for a continuance was made, and defendant waited until after the verdict was rendered before making any effort to guard against the effect of the alleged surprise. The rule is well settled that to entitle a party to have a judgment set aside on account of surprise, it must appear he immediately applied for a postponement of the trial when the surprise occurred, and that he cannot speculate upon the chances of obtaining a favorable verdict, and after having failed in this respect, urge as a ground for a new trial any matter that occurred at the trial, and was known to, but waived by, him.”\nIt is true that in this state the wording of the statute relating to granting new trials on the ground of surprise in civil actions differs somewhat from that relating to granting new trials in criminal actions, and it may be contended that, because thereof, the rule we have applied to civil causes is not applicable to criminal causes. But we think the same rule should be applied to both. As indicated in the cases cited, it is the policy of the law to require claims of error to be made at the time the matter on which the claim is predicated occurs. The wisdom of the policy is well illustrated in the present case. Had the appellant called the attention of the court to the surprise at the time it occurred, the witness which he now offers to counteract the statements of the prosecutrix could have been brought before the court at most with but a few hours delay and with but trifling additional cost, while the procedure adopted, if allowed to prevail, will entail a new trial of the entire case. Reasonable diligence may be exacted of a defendant, and it is not reasonable diligence to fail at the trial to call attention to matters which can be there remedied, and which are then as much within the knowledge of the defendant as they can be at any subsequent time.\nFurthermore, it is a general rule that new trials will not be granted in order to supply evidence to sustain or impeach a witness. State v. Beeman, 51 Wash. 557, 99 Pac. 756. Here the evidence offered is of an impeaching nature. The act of intercourse related by the prosecutrix, which it is claimed the mother will contradict, was not the act charged in the information, or the act upon which the appellant was convicted. While, under the rule, it was permissible to show the act as tending to support the main charge, it was, in a sense, a collateral matter, the disproof of which would not disprove the particular offense charged.\nAgain, it is a general rule that newly discovered evidence is not a ground for a new trial where the evidence is merely cumulative and there is no reasonable probability that its admission would have changed the result. Leschi v. Territory, 1 Wash. Terr. 13; State v. Underwood, 35 Wash. 558, 77 Pac. 863; State v. Bridgman, 51 Wash. 18, 97 Pac. 1096. As we have before stated, the affidavit of the mother was not produced, and there is no certainty as to the precise matter to which she would have testified. The nature of the affidavit ■ of the appellant and his attorney, we have before indicated. We have also indicated in part the nature of the testimony upon which the verdict rested. In addition thereto the appellant while on the witness stand made a voluntary statement showing that his conduct toward the prosecutrix, at the time she testifies the act charged in the information was committed, was grossly indecent and reprehensible, although not amounting to a sexual assault. We cannot feel, therefore, that if the evidence of the witness had been produced at the trial, and she had testified as it is now claimed she would testify, the result would have been different; that the conviction rests not so much upon the direct testimony of the prosecuting witness as upon the corroborating testimony, and this would not have been affected by the evidence now thought to be material.\nA further ground for a new trial is based upon misconduct of the jury. The misconduct is predicated upon an affidavit of a juror reading as follows:\n“H. W. McDaniel, being first duly sworn, on his oath says: That he was one of the jurors who sat upon the trial of the state of Washington vs. William N. Gay, tried in the superior court of Chelan county, Washington, in the month of November, in the year 1913, said trial beginning on the 21st day of said month and terminating in a verdict of ‘Guilty,’ which said verdict was agreed upon at about the hour of two o’clock in the afternoon of the 25th of said month, after deliberating from about 10:30 p. m. of the 24th day of said month; that at the time of agreeing to said verdict this affiant did not believe and had not been convinced by the evidence produced upon the trial of said cause that the defendant was guilty as charged in the information of said cause, and he does not now believe that he was guilty, but that at the time he agreed to said verdict he believed that no verdict would be returned, in said cause, as the jury just prior to that time stood nine to three for conviction, but the jurors talked the situation over and it was stated by members of said jury that if a disagreement was had and no verdict returned that the defendant would be obliged to remain in jail for a considerable length of time awaiting a new trial, (he being at that time confined in jail) ; that if a verdict of ‘Guilty’ was returned, and with it a recommendation and request to the court for leniency in the sentence, that the defendant would receive a jail sentence and be permitted to enter upon the service thereof at once, and that he would have all or at least the major portion of said sentence served before a new trial of the cause could be had, and that it would be better for the defendant to so return a verdict of ‘Guilty’ and permit him thus to serve a jail sentence than for the jury to disagree and necessitate a new trial and this affiant voted for, and agreed to said verdict solely and wholly upon the belief that the conditions above detailed existed and that a jail sentence would be inflicted as the penalty in this cause, and that no other penalty would be inflicted, but he did not at that time believe the defendant was guilty of the crime charged against him; that the jurors G. B. Landeroth and Fred K. Weise, who served upon the jury with this affiant, were also of the opinion that said defendant was not guilty of the crime for which he had been tried and that the evidence failed to establish his guilt, but they expressed themselves as of the opinion that upon a recommendation to the court for mercy he would receive but a jail sentence and would be enabled to serve out, in the jail of Chelan county, Washington, all or a good' portion thereof before a new trial could be had, and that it would be better for defendant so to serve than to await a new trial and that because of these facts, and in consideration thereof, they would consent to vote for a verdict of ‘Guilty,’ although they did not believe that guilt was established by the testimony.”\nBut we think the matters stated in the affidavit are matters inhering in the verdict, and cannot be received to impeach the verdict. State v. Holmes, 12 Wash. 169, 40 Pac. 735, 41 Pac. 887; State v. Aker, 54 Wash. 342, 103 Pac. 420; State v. Lorenzy, 59 Wash. 308, 109 Pac. 1064, Ann. Cas. 1912 B. 153; Thompson, Trials (2d ed.), § 2618; 29 Cyc. 984.\n“The rule is of universal acceptance that jurymen will not be permitted to impeach their own verdict, and thus declare their own perjury, for one oath would but offset the other. Both public decency and public policy alike demand the rejection of such testimony.” State v. Cloud, 130 La. 955, 58 South. 827, Ann. Cas. 1913 D. 1192.\nIf the juryman making the affidavit actually believed that the evidence did not justify a verdict of guilty, it was a gross wrong on his part, for any consideration of personal convenience, or any consideration of convenience to the defendant, to compromise with the other members of the jury and agree on a verdict of guilty. The only verdict he could conscientiously render in keeping with his oath was one of not guilty. He therefore violated his oath, either in returning the verdict or in making the affidavit after the return of the verdict. When he so violated it cannot, of course, be ascei-tained without an inquiry into the privacy of the jury’s deliberations. But public policy forbids such inquiries. To permit it would encourage tampering with jurymen after their discharge, would' furnish to corrupt litigants a means of destroying the effect of a verdict contrary to their interests, and would weaken the public regard for this ancient method of ascertaining the truth of disputed allegations of fact. But few verdicts are reached in which some juryman does not yield in some degree his opinions and convictions to the opinions and convictions of others. And when he does so, even in criminal cases, it is to the interest of the public that he be not permitted thereafter to gainsay his act.\nOur conclusion is that the judgment should be affirmed, and it will be so ordered.\nCrow, C. J., Mount, Parker, and Morris, JJ., concur."", ""type"": ""majority"", ""author"": ""Fullerton, J.""}], ""attorneys"": [""Morris <§• Shipley, for appellant."", ""N. M. Sorenson and E. L. Baker, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 11976.\nDepartment Two.\nDecember 7, 1914.]\nThe State of Washington, Respondent, v. William N. Gay, Appellant.\nRape — Evidence of Complaints — Admissibility. In a prosecution for rape of a child under the age of consent it is admissible to allow the prosecutrix to testify that she made complaints within a reasonable time after the offense, even though the element of consent was not an ingredient of the offense.\nSame — Evidence of Complaints — Persons to Whom Made. In a prosecution for rape, it is admissible, in proving the making of complaints within a reasonable time, for the prosecutrix to name the person to whom she made the complaints.\nAppeal — Review—Harmless Error — Withdrawal of Evidence. Where, in a prosecution for rape, evidence of complaints made were admitted without showing the time of the complaints, the withdrawal of the evidence from the jury, as soon as the time was fixed and it appeared that the complaints were not seasonably made, cures error in admitting the testimony, the presumption being that the jury obeyed the instructions, unless overcome by a contrary showing.\nRape — Evidence—Prior Offenses — Admissibility. In a prosecution for the statutory rape of a child under the age of consent, in which consent is not a material inquiry, it is inadmissible to show previous acts of unchastity by the prosecuting witness committed with other men; since she could not give her consent, and the evidence of such acts could not affect her credibility.\nAppeal — Review—Harmless Error — Evidence. The exclusion of evidence to establish a certain fact is not prejudicial error, where the fact was established by other evidence.\nAppeal — 'Review — Harmless Error — Exclusion of Evidence. The fact that evidence was excluded which tended to show that the defendant was excited when he made admissions in answering questions put to him by the prosecuting attorney at an arranged meeting, is not prejudicial, where it had been shown by all the state’s witnesses that he was nervous and excited at the time in question, and that he knew beforehand the purpose of the meeting.\nRape — Evidence—Penetration'—Sufficiency. In a prosecution for rape, under Rem. & Bal. Code, § 2437, evidence of any penetration, however slight, is sufficient proof of consummation; and the fact may be proved by direct or circumstantial evidence.\nNew Trial — Surprise—Newly Discovered Evidence — Diligence. A new trial in criminal, as in civil eases, will not be granted for surprise at the state’s evidence, when no motion for delay or for a continuance was made to enable the defendant to procure the newly discovered evidence of a witness which was easily obtainable and would have met the evidence by which defendant was surprised.\nNew Trial — Newly Discovered Evidence — Impeaching Evidence. A new trial will not be granted for newly discovered evidence to impeach a witness, or upon a collateral matter, which would not disprove the main charge.\n• New Trial — Newly Discovered Evidence — Cumulative Evidence. A new trial will not be granted for newly discovered evidence which is merely cumulative, and, where there is no reasonable probability that it will change the result.\nNew Trial — Misconduct of Jury — Impeachment of Verdict. A new trial for misconduct of the jury cannot be granted upon an affidavit of a juror that he and certain other jurors did not believe in the guilt of the accused, but finally consented to a verdict of guilty under the belief that, on a recommendation of mercy, the accused would be given a jail sentence no longer than the time he would be compelled to remain in jail awaiting a new trial; since the matter inheres in the verdict, and the verdict in that respect cannot be impeached by a juror.\nAppeal from a judgment of the superior court for Chelan county, Grimshaw, J., entered December 11,1913, upon a trial and conviction of rape.\nAffirmed.\nMorris <§• Shipley, for appellant.\nN. M. Sorenson and E. L. Baker, for respondent.\nReported in 144 Pac. 711.""}, ""cites_to"": [{""cite"": ""144 Pac. 711"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""1913 D. 1192"", ""category"": ""reporters:state"", ""reporter"": ""Dall."", ""opinion_index"": 0}, {""cite"": ""130 La. 955"", ""weight"": 2, ""case_ids"": [2692904], ""category"": ""reporters:state"", ""reporter"": ""La."", ""case_paths"": [""/la/130/0955-01""], ""opinion_index"": 0}, {""cite"": ""1912 B. 153"", ""category"": ""reporters:state"", ""reporter"": ""Barb."", ""opinion_index"": 0}, {""cite"": ""109 Pac. 1064"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""59 Wash. 308"", ""case_ids"": [527869], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/59/0308-01""], ""opinion_index"": 0}, {""cite"": ""103 Pac. 420"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""54 Wash. 342"", ""case_ids"": [1297901], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/54/0342-01""], ""opinion_index"": 0}, {""cite"": ""41 Pac. 887"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""40 Pac. 735"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""12 Wash. 169"", ""case_ids"": [782072], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/12/0169-01""], ""opinion_index"": 0}, {""cite"": ""97 Pac. 1096"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""51 Wash. 18"", ""case_ids"": [544174], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/51/0018-01""], ""opinion_index"": 0}, {""cite"": ""77 Pac. 863"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""35 Wash. 558"", ""case_ids"": [5207797], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/35/0558-01""], ""opinion_index"": 0}, {""cite"": ""1 Wash. 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+6141088,"{""id"": 6141088, ""name"": ""UNITED STATES v. DOTTERWEICH"", ""court"": {""id"": 9009, ""name"": ""Supreme Court of the United States"", ""name_abbreviation"": ""U.S.""}, ""analysis"": {""sha256"": ""bb9580033338e74dbea6a0bb4e64df82b3bc686a9ca6c5508981a238cd3a46f0"", ""simhash"": ""1:ed59cb14ecaa3801"", ""pagerank"": {""raw"": 0.000007123372048610921, ""percentile"": 0.9993206167618267}, ""char_count"": 31696, ""word_count"": 5292, ""cardinality"": 1331, ""ocr_confidence"": 0.544}, ""casebody"": {""judges"": [""Mr. Justice Roberts, Mr. Justice Reed and Mr. Justice Rutledge join in this dissent.""], ""parties"": [""UNITED STATES v. DOTTERWEICH.""], ""opinions"": [{""text"": ""Mr. Justice Frankfurter\ndelivered the opinion of the Court.\nThis was a prosecution begun by two informations, consolidated for trial, charging Buffalo Pharmacal Company, Inc., and Dotterweich, its president and general,manager, with violations of the Act of Congress of June 25, 1938, c. 675, 52 Stat. 1040, 21 U. S. C. §§ 301-392, known as the Federal Food, Drug, and Cosmetic Act. The Company, a jobber in drugs, purchased them from their manufacturers and shipped them, repacked under its own label, in interstate commerce. (No question is raised in this case regarding the implications that may properly arise when, although the manufacturer gives the jobber a guaranty, the latter through his own label makes representations.) The informations were based on § 301 of that Act (21 U. S. C. §331), paragraph (a) of which prohibits “The introduction or delivery for introduction into interstate commerce of any . . . drug . . . that is adulterated or misbranded.” “Any person” violating this provision is, by paragraph (a) of § 303 (21 U. S. C. § 333), made “guilty of a misdemeanor.” Three counts went to the jury — two, for shipping misbranded drugs in interstate commerce, and a third, for so shipping an adulterated drug. The jury disagreed as to the corporation and found Dotterweich guilty on all three counts. We start with the finding of the Circuit Court of Appeals that the evidence was adequate to support the verdict of adulteration and misbranding. 131 F. 2d 500, 502.\nTwo other questions which the Circuit Court of Appeals decided against Dotterweich call only for summary disposition to clear the path for the main question before us. He invoked § 305 of the Act requiring the Administrator, before reporting a violation for prosecution by a United States attorney, to give the suspect an “opportunity to present his views.” We agree with the Circuit Court of Appeals that the giving of such an opportunity, which was not accorded to Dotterweich, is not a prerequisite to prosecution. This Court so held in United States v. Morgan, 222 U. S. 274, in construing the Food and Drugs Act of 1906, 34 Stat. 768, and the legislative history to which the court below called attention abundantly proves that Congress, in the changed phraseology of 1938, did not intend to introduce a change of substance. 83 Cong. Rec. 7792-94. Equally baseless is the claim of Dotterweich that, having failed to find the corporation guilty, the jury could not find him guilty. Whether the jury’s verdict was the result of carelessness or compromise or a belief that the responsible individual should suffer the penalty instead of merely increasing, as it were, the cost of running the business of the corporation, is immaterial. Juries may indulge in precisely such motives or vagaries. Dunn v. United States, 284 U. S. 390.\nAnd so we are brought to our real problem. The Circuit Court of Appeals, one judge dissenting, reversed the conviction on the ground that only the corporation was the “person” subject to prosecution unless, perchance, Buffalo Pharmacal was a counterfeit corporation serving as a screen for Dotterweich. On that issue, after rehearing, it remanded the cause for a new trial. We then brought the case here, on the Government’s petition for certiorari, 318 U. S. 753, because this construction raised questions of importance in the enforcement of the Federal Food, Drug, and Cosmetic Act.\nThe court below drew its conclusion not from the provisions defining the offenses on which this prosecution was based (§§ 301 (a) and 303 (a)), but from the terms of § 303 (c). That section affords immunity from prosecution if certain conditions are satisfied. The condition relevant to this case is a guaranty from the seller of the innocence of his product. So far as here relevant, the provision for an immunizing guaranty is as follows:\n“No person shall be subject to the penalties of subsection (a) of this section ... (2) for having violated section 301 (a) or (d), if he establishes a guaranty or undertaking signed by, and containing the name and address of, the person residing in the United States from whom he received in good faith the article, to the effect, in case of an alleged violation of section 301 (a), that such article is not adulterated or misbranded, within the meaning of this Act, designating this Act . . .”\nThe Circuit Court of Appeals found it “difficult to believe that Congress expected anyone except the principal to get such a guaranty, or to make the guilt of an agent depend upon whether his employer had gotten one.” 131 F. 2d 500, 503. And so it cut down the scope of the penalizing provisions of the Act to the restrictive view, as a matter of language and policy, it took of the relieving effect of a guaranty.\nThe guaranty clause cannot be read in isolation. The Food and Drugs Act of 1906 was an exertion by Congress of its power to keep impure and adulterated food and drugs out of the channels of commerce. By the Act of 1938, Congress extended the range of its control over illicit and noxious articles and stiffened the penalties for disobedience. The purposes of this legislation thus touch phases of the lives and health of people which, in the circumstances of modern industrialism, are largely beyond self-protection. Regard for these purposes should infuse construction of the legislation if it is to be treated as a working instrument of government and not merely as a collection of English words. See Hipolite Egg Co. v. United States, 220 U. S. 45, 57, and McDermott v. Wisconsin, 228 U. S. 115, 128. The prosecution to which Dot-terweich was subjected is based on a now familiar type of legislation whereby penalties serve as effective means of regulation. Such legislation dispenses with the conventional requirement for criminal conduct — awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger. United States v. Balint, 258 U. S. 250. And so it is clear that shipments like those now in issue are \""punished by the statute if the article is misbranded [or adulterated], and that the article may be misbranded [or adulterated] without any conscious fraud at all. It was natural enough to throw this risk on shippers with regard to the identity of their wares . . United States v. Johnson, 221 U. S. 488, 497-98.\nThe statute makes “any person” who violates § 301 (a) guilty of a “misdemeanor.” It specifically defines “person” to include “corporation.” § 201 (e). But the only way in which a corporation can act is through the individuals who act on its behalf. New York Central & H. R. R. Co. v. United States, 212 U. S. 481. And the historic conception of a “misdemeanor” makes all those responsible for it equally guilty, United States v. Mills, 7 Pet. 138, 141, a doctrine given general application in § 332 of the Penal Code (18 U. S. C. §550). If, then, Dotter-weich is not subject to the Act, it must be solely on the ground that individuals are immune when the “person” who violates § 301 (a) is a corporation, although from the point of view of action the individuals are the corporation. As a matter of legal development, it has taken time to establish criminal liability also for a corporation and not merely for its agents. See New York Central & H. R. R. Co. v. United States, supra. The history of federal food and drug legislation is a good illustration of the elaborate phrasing that was in earlier days deemed necessary to fasten criminal liability on corporations. Section 12 of the Food and Drugs Act of 1906 provided that, “the act, omission, or failure of any officer, agent, or other person acting for or employed by any corporation, company, society, or association, within the scope of his employment or office, shall in every case be also deemed to be the act, omission, or failure of such corporation, company, society, or association as well as that of the person.” By 1938, legal understanding and practice had rendered such statement of the obvious superfluous. Deletion of words — in the interest of brevity and good draftsmanship — superfluous for holding a corporation criminally liable can hardly be found ground for relieving from such liability the individual agents of the corporation. To hold that the Act of 1938 freed all individuals, except when proprietors, from the culpability under which the earlier legislation had placed them is to defeat the very object of the new Act. Nothing is clearer than that the later legislation was designed to enlarge and stiffen the penal net and not to narrow and loosen it. This purpose was unequivocally avowed by the two committees which reported the bills to the Congress. The House Committee reported that the Act “seeks to set up effective provisions against abuses of consumer welfare growing out of inadequacies in the Food and Drugs Act of June 30,1906.” (H. Rep. No. 2139,75th Cong., 3d Sess., p. 1.) And the Senate Committee explicitly pointed out that the new legislation “must not weaken the existing laws,” but on the contrary “it must strengthen and extend that law’s protection of the consumer.” (S. Rep. No. 152, 75th Cong., 1st Sess., p. 1.) If the 1938 Act were construed as it was below, the penalties of the law could be imposed only in the rare case where the corporation is merely an individual’s alter ego. Corporations carrying on an illicit trade would be subject only to what the House Committee described as a “license fee for the conduct of an illegitimate business.” A corporate officer, who even with “intent to defraud or mislead” (§ 303b), introduced adulterated or misbranded drugs into interstate commerce could not be held culpable for conduct which was indubitably outlawed by the 1906 Act. See, e. g., United States v. Mayfield, 177 F. 765. This argument proves too much. It is not credible that Congress should by implication have exonerated what is probably a preponderant number of persons involved in acts of disobedience — for the number of non-corporate proprietors is relatively small. Congress, of course, could reverse the process and hold only the corporation and allow its agents to escape. In very exceptional circumstances it may have required this result. See Sherman v. United States, 282 U. S. 25. But the history of the present Act, its purposes, its terms, and extended practical construction lead away from such a result once “we free our minds from the notion that criminal statutes must be construed by some artificial and conventional rule.” United States v. Union Supply Co., 215 U. S. 50, 55.\nThe Act is concerned not with the proprietory relation to a misbranded or an adulterated drug but with its distribution. In the case of a corporation such distribution must be accomplished, and may be furthered, by persons standing in various relations to the incorporeal proprietor. If a guaranty immunizes shipments of course it immunizes all involved in the shipment. But simply because if there had been a guaranty it would have been received by the proprietor, whether corporate or individual, as a safeguard for the enterprise, the want of a guaranty does not cut down the scope of responsibility of all who are concerned with transactions forbidden by § 301. To be sure, that casts the risk that there is no guaranty upon all who according to settled doctrines of criminal law are responsible for the commission of a misdemeanor. To read the guaranty section, as did the court below, so as to restrict liability for penalties to the only person who normally would receive a guaranty — the proprietor — disregards the admonition that “the meaning of a sentence is to be felt rather than to be proved.” United States v. Johnson, 221 U. S. 488, 496. It also reads an exception to an important provision safeguarding the public welfare with a liberality which more appropriately belongs to enforcement of the central purpose of the Act.\nThe Circuit Court of Appeals was evidently tempted to make such a devitalizing use of the guaranty provision through fear that an enforcement of § 301 (a) as written might operate too harshly by sweeping within its condemnation any person however remotely entangled in the proscribed shipment. But that is not the way to read legislation. Literalism and evisceration are equally to be avoided. To speak with technical accuracy, under § 301 a corporation may commit an offense and all persons who aid and abet its commission are equally guilty. Whether an accused shares responsibility in the business process resulting in unlawful distribution depends on the evidence produced at the trial and its submission — assuming the evidence warrants it — to the jury under appropriate guidance. The offense is committed, unless the enterprise which they are serving enjoys the immunity of a guaranty, by all who do have such a responsible share in the furtherance of the transaction which the statute outlaws, namely, to put into the stream of interstate commerce adulterated or misbranded drugs. Hardship there doubtless may be under a statute which thus penalizes the transaction though consciousness of wrongdoing be totally wanting. Balancing relative hardships, Congress has preferred to place it upon those who have at least the opportunity of informing themselves of the existence of conditions imposed for the protection of consumers before sharing in illicit commerce, rather than to throw the hazard on the innocent public who are wholly helpless.\nIt would be too treacherous to define or even to indicate by way of illustration the class of employees which stands in such a responsible relation. To attempt a formula embracing the variety of conduct whereby persons may responsibly contribute in furthering a transaction forbidden by an Act of Congress, to wit, to send illicit goods across state lines, would be mischievous futility. In such matters the good sense of prosecutors, the wise guidance of trial judges, and the ultimate judgment of juries must be trusted. Our system of criminal justice necessarily depends on “conscience and circumspection in prosecuting officers,” Nash v. United States, 229 U. S. 373, 378, even when the consequences are far more drastic than they are under the provision of law before us. See United States v. Balint, supra (involving a maximum sentence of five years). Eor present purpose it suffices to say that in what the defense characterized as “a very fair charge” the District Court properly left the question of the responsibility of Dotterweich for the shipment to the jury, and there was sufficient evidence to support its verdict.\nReversed.\n“The bill has been made shorter and less verbose than previous bills. That has been done without deleting any effective provisions.” S. Rep. No. 152, 75th Cong., 1st Sess., p. 2.\nIn describing the penalty provisions of § 303, tbe House Committee reported that the Bill “increases substantially the criminal penalties . . . which some manufacturers have regarded as substantially a license fee for the conduct of an illegitimate business.” H. Rep. No. 2139,75th Cong., 3d Sess., p. 4."", ""type"": ""majority"", ""author"": ""Mr. Justice Frankfurter delivered the opinion of the Court.""}, {""text"": ""Mr. Justice Murphy,\ndissenting:\nOur prime concern in this case is whether the criminal sanctions of the Federal Food, Drug, and Cosmetic Act of 1938 plainly and unmistakably apply to the respondent in his capacity as a corporate officer. He is charged with violating § 301 (a) of the Act, which prohibits the introduction or delivery for introduction into interstate commerce of any adulterated or misbranded drug. There is no evidence in this case of any personal guilt on the part of the respondent. There is no proof or claim that he ever knew of the introduction into commerce of the adulterated drugs in question, much less that he actively participated in their introduction. Guilt is imputed to the respondent solely on the basis of his authority and responsibility as president and general manager of the corporation.\nIt is a fundamental principle of Anglo-Saxon jurisprudence that guilt is personal and that it ought not lightly to be imputed to a citizen who, like the respondent, has no evil intention or consciousness of wrongdoing. It may be proper to charge him with responsibility to the corporation and the stockholders for negligence and mismanagement. But in the absence of clear statutory authorization it is inconsistent with established canons of criminal law to rest liability on an act in which the accused did not participate and of which he had no personal knowledge. Before we place the stigma of a criminal conviction upon any such citizen the legislative mandate must be clear and unambiguous. Accordingly that which Chief Justice Marshall has called “the tenderness of the law for the rights of individuals” entitles each person, regardless of economic or social status, to an unequivocal warning from the legislature as to whether hejs within the class of persons subject to vicarious liability. Congress cannot be deemed to have intended to punish anyone who is not “plainly and unmistakably” within the confines of the statute. United States v. Lacker, 134 U. S. 624, 628; United States v. Gradwell, 243 U. S. 476, 485.\nMoreover, the fact that individual liability of corporate officers may be consistent with the policy and purpose of a public health and welfare measure does not authorize this Court to impose such liability where Congress has not clearly intended or actually done so. Congress alone has the power to define a crime and to specify the offenders. United States v. Wiltberger, 5 Wheat. 76, 95. It is not our function to supply any deficiencies in these respects, no matter how grave the consequences. Statutory policy and purpose are not constitutional substitutes for the requirement that the legislature specify with reasonable certainty those individuals it desires to place under the interdict of the Act. United States v. Harris, 177 U. S. 305; Sarlls v. United States, 152 U. S. 570.\nLooking at the language actually used in this statute, we find a complete absence of any reference to corporate officers. There is merely a provision in § 303 (a) to the effect that “any person” inadvertently violating § 301 (a) shall be guilty of a misdemeanor. Section 201 (e) further defines “person” as including an “individual, partnership, corporation, and association.” The fact that a corporate officer is both a “person” and an “individual” is not indicative of an intent to place vicarious liability on the officer. Such words must be read in light of their statutory environment. Only if Congress has otherwise specified an intent to place corporate officers within the ambit of the Act can they be said to be embraced within the meaning of the words “person” or “individual” as here used.\nNor does the clear imposition of liability on corporations reveal the necessary intent to place criminal sanctions on their officers. A corporation is not the necessary and inevitable equivalent of its officers for all purposes. In many respects it is desirable to distinguish the latter from the corporate entity and to impose liability only on the corporation. In this respect it is significant that this Court has never held the imposition of liability on a corporation sufficient, without more, to extend liability to its officers who have no consciousness of wrongdoing. Indeed, in a closely analogous situation, we have held that the vicarious personal liability of receivers in actual charge and control of a corporation could not be predicated on the statutory liability of a “company,” even when the policy and purpose of the enactment were consistent with personal liability. United States v. Harris, supra. It follows that express statutory provisions are necessary to satisfy the requirement that officers as individuals be given clear and unmistakable warning as to their vicarious personal liability. This Act gives no such warning.\nThis fatal hiatus in the Act is further emphasized by the ability of Congress, demonstrated on many occasions, to apply statutes in no uncertain terms to corporate officers as distinct from corporations. The failure to mention officers specifically is thus some indication of a desire to exempt them from liability. In fact the history of federal food and drug legislation is itself illustrative of this capacity for specification and lends strong support to the conclusion that Congress did not intend to impose liability on corporate officers in this particular Act.\nSection 2 of the Federal Food and Drugs Act of 1906, as introduced and passed in the Senate, contained a provision to the effect that any violation of the Act by a corporation should be deemed to be the act of the officer responsible therefor and that such officer might be punished as though it were his personal act. This clear imposition of criminal responsibility on corporate officers, however, was not carried over into the statute as finally enacted. In its place appeared merely the provision that “when construing and enforcing the provisions of this Act, the act, omission, or failure of any officer, agent, or other person acting for or employed by any corporation . . . within the scope of his employment or office, shall in every case be also deemed to be the act, omission, or failure of such corporation ... as well as that of the person.” This provision had the effect only of making corporations responsible for the illegal acts of their officers and proved unnecessary in view of the clarity of the law to that effect. New York Central & H. R. R. Co. v. United States, 212 U. S. 481.\nThe framers of the 1938 Act were aware that the 1906 Act was deficient in that it failed “to place responsibility properly upon corporate officers.” In order “to provide the additional scope necessary to prevent the use of the corporate form as a shield to individual wrongdoers,” these framers inserted a clear provision that “whenever a corporation or association violates any of the provisions of this Act, such violation shall also be deemed to be a violation of the individual directors, officers, or agents of such corporation or association who authorized, ordered, or did any of the acts constituting, in whole or in part, such violation.” This paragraph, however, was deleted from the final version of the Act.\nWe cannot presume that this omission was inadvertent on the part of Congress. United States v. Harris, supra at 309. Even if it were, courts have no power to remedy so serious a defect, no matter how probable it otherwise may appear that Congress intended to include officers; “probability is not a guide which a court, in construing a penal statute, can safely take.” United States v. Wiltberger, supra at 105. But the framers of the 1938 Act had an intelligent comprehension of the inadequacies of the 1906 Act and of the unsettled state of the law. They recognized the necessity of inserting clear and unmistakable language in order to impose liability on corporate officers. It is thus unreasonable to assume that the omission of such language was due to a belief that the Act as it now stands was sufficient to impose liability on corporate officers. Such deliberate deletion is consistent only with an intent to allow such officers to remain free from criminal liability. Thus to apply the sanctions of this Act to the respondent would be contrary to the intent of Congress as expressed in the statutory language and in the legislative history.\nThe dangers inherent in any attempt to create liability without express Congressional intention or authorization are illustrated by this case. Without any legislative guides, we are confronted with the problem of determining precisely which officers, employees and agents of a corporation are to be subject to this Act by our fiat. To erect standards of responsibility is a difficult legislative task and the opinion of this Court admits that it is “too treacherous” and a “mischievous futility” for us to engage in such pursuits. But the only alternative is a blind resort to “the good sense of prosecutors, the wise guidance of trial judges, and the ultimate judgment of juries.” Yet that situation is precisely what our constitutional system sought to avoid. Reliance on the legislature to define crimes and criminals distinguishes our form of jurisprudence from certain less desirable ones. The legislative power to restrain the liberty and to imperil the good reputation of citizens must not rest upon the variable attitudes and opinions of those charged with the duties of interpreting and enforcing the mandates of the law. I therefore cannot approve the decision of the Court in this case.\nMr. Justice Roberts, Mr. Justice Reed and Mr. Justice Rutledge join in this dissent.\nUnited States v. Wiltberger, 5 Wheat. 76, 95.\nThe normal and necessary meaning of such a definition of “person” is to distinguish between individual enterprises and those enterprises that are incorporated or operated as a partnership or association, in order to subject them all to the Act. This phrase cannot be considered as an attempt to distinguish between individual officers of a corporation and the corporate entity. Lee, “Corporate Criminal Liability,” 28 Col. L. Rev. 1,181,190.\nCompare United States v. Cooper Corp., 312 U. S. 600, 606, and Davis v. Pringle, 268 U. S. 315, 318, holding that the context and legislative history of the particular statutes there involved indicated that the words “any person” did not include the United States. But in Georgia v. Evans, 316 U. S. 159, and Ohio v. Helvering, 292 U. S. 360, these considerations led to the conclusion that “any person” did include a state. See also 40 Stat. 1143, which specifically includes officers within the meaning of “any person” as used in the Revenue Act of 1918.\nIn Park Bank v. Remsen, 158 U. S. 337, 344, this Court said, “It is the corporation which is given the powers and privileges and made subject to the liabilities. Does this carry with it an imposition of liability upon the trustee or other officer of the corporation? The officer is not the corporation; his liability is personal, and not that of the corporation, nor can it be counted among the powers and privileges of the corporation.”\nFor an analysis of the confusion on this matter in the state and lower federal courts, see Lee, “Corporate Criminal Liability,” 28 Col. L. Rev. 1,181.\nIn that case we had before us Rev. Stat. §§ 4386-4389, which penalized “any company, owner or custodian of such animals” who failed to comply with the statutory requirements as to livestock transportation. A railroad company violated the statute and the government sought to impose liability on the receivers who were in actual charge of the company. It was argued that the word “company” embraced the natural persons acting on behalf of the company and that to hold such officers and receivers liable was within the policy and purpose of so humane a statute. We rejected this contention in language peculiarly appropriate to this case (177 U. S. at 309):\n“It must be admitted that, in order to hold the receivers, they must be regarded as included in the word 'company.’ Only by a strained and artificial construction, based chiefly upon a consideration of the mischief which the legislature sought to remedy, can receivers be brought within the terms of the law. But can such a kind of construction be resorted to in enforcing a penal statute? Giving all proper force to the contention of the counsel of the Government, that there has been some relaxation on the part of the courts in applying the rule of strict construction to such statutes, it still remains that the intention of a penal statute must be found in the language actually used, interpreted according to its fair and obvious meaning. It is not permitted to courts, in this class of cases, to attribute inadvertence or oversight to the legislature when enumerating the classes of persons who are subjected to a penal enactment, nor to depart from the settled meaning of words or phrases in order to bring persons not named or distinctly described within the supposed purpose of the statute.”\n“Whenever a corporation shall violate any of the penal provisions of the antitrust laws, such violation shall be deemed to be also that of the individual directors, officers, or agents of such corporation who shall have authorized, ordered, or done any of the acts constituting in whole or in part such violation.” 15 U. S. C. § 24.\n“The courts of bankruptcy ... are hereby invested . . . with such jurisdiction at law and in equity as will enable them to . . . (4) arraign, try, and punish bankrupts, officers, and other persons, and the agents, officers, members of the board of directors or trustees, or other similar controlling bodies, of corporations for violations of this Act.” 30 Stat. 545.\n“Any such common carrier, or any officer or agent thereof, requiring or permitting any employee to go, be, or remain on duty in violation of the next preceding section of this chapter shall be liable to a penalty . . .” 45 U. S. C. § 63.\n\""A mortgagor who, with intent to defraud, violates any provision of subsection F, section 924, and if the mortgagor is a corporation or association, the president or other principal executive officer of the corporation or association, shall upon conviction thereof be held guilty of a misdemeanor . . .” 46 U. S. C. § 941 (b).\nS. 88, 59th Cong., 1st Sess. Senator Heyburn, one of the sponsors of S. 88, stated that this was “a new feature in bills of this kind. It was intended to obviate the possibility of escape by the officers of a corporation under a plea, which has been more than once made, that they did not know that this was being done on the credit of or on the responsibility of the corporation.” 40 Cong. Rec. 894.\n34 Stat. 772, 21 ü. S. C. §4.\nSenate Report No. 493, 73d Cong., 2d Sess., p. 21.\nIbid., p. 22. This report also stated that “it is not, however, the purpose of this paragraph to subject to liability those directors, officers, and employees, who merely authorize their subordinates to perform lawful duties and such subordinates, on their own initiative, perform those duties in a manner which violates the provisions of the law. However, if a director or officer personally orders his subordinate to do an act in violation of the law, there is no reason why he should be shielded from personal responsibility merely because the act was done by another and on behalf of a corporation.”\nThis provision appears in several of the early versions of the Act introduced in Congress. S. 1944, 73d Cong., 1st Sess., § 18 (b); S. 2000, 73d Cong., 2d Sess., § 18 (b); S. 2800, 73d Cong., 2d Sess., § 18 (b); S. 5, 74th Cong., 1st Sess., § 709 (b); S. 5, 74th Cong., 2d Sess., § 707 (b), as reported to the House, which substituted the word “personally” for the word “authorized” in the last clause of the paragraph quoted above. A variation of this provision appeared in S. 5, 75th Cong., 1st Sess., §2 (f), and made a marked distinction between the use of the word “person” and the words “director, officer, employee, or agent acting for or employed by any person.” All of these bills also contained the present definition of “person” as including \""individual, partnership, corporation, and association.”"", ""type"": ""dissent"", ""author"": ""Mr. Justice Murphy,""}], ""attorneys"": [""Solicitor General Fahy, with whom Assistant Attorneys General Wendell Berge and Tom C. Clark, and Messrs. Oscar A. Provost, Edward G. Jennings, and Valentine Brookes were on the brief, for the United States."", ""Mr. Samuel M. Fleischman, with whom Mr. Robert J. Whisscl was on the brief, for respondent.""], ""corrections"": """", ""head_matter"": ""UNITED STATES v. DOTTERWEICH.\nNo. 5.\nArgued October 12, 1943.\nDecided November 22, 1943.\nSolicitor General Fahy, with whom Assistant Attorneys General Wendell Berge and Tom C. Clark, and Messrs. Oscar A. Provost, Edward G. Jennings, and Valentine Brookes were on the brief, for the United States.\nMr. Samuel M. Fleischman, with whom Mr. Robert J. Whisscl was on the brief, for respondent.""}, ""cites_to"": [{""cite"": ""229 U. S. 373"", ""case_ids"": [3665951], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""page"": ""378""}], ""case_paths"": [""/us/229/0373-01""], ""opinion_index"": 0}, {""cite"": ""215 U. S. 50"", ""case_ids"": [8286748], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""page"": ""55""}], ""case_paths"": [""/us/215/0050-01""], ""opinion_index"": 0}, {""cite"": ""282 U. 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+615496,"{""id"": 615496, ""name"": ""Manley Ettor et al., Appellants, v. The City of Tacoma et al., Respondents; Edwin Howard et al., Appellants, v. The City of Tacoma et al., Respondents"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""858bd2b72f36f773055e0dc1502278e70b6f7603e3940f6c970270b2c3cae600"", ""simhash"": ""1:ae7f6519b6f918ee"", ""pagerank"": {""raw"": 0.00000035288722600638364, ""percentile"": 0.8842011638516377}, ""char_count"": 19603, ""word_count"": 3462, ""cardinality"": 844, ""ocr_confidence"": 0.535}, ""casebody"": {""judges"": [], ""parties"": [""Manley Ettor et al., Appellants, v. The City of Tacoma et al., Respondents. Edwin Howard et al., Appellants, v. The City of Tacoma et al., Respondents.""], ""opinions"": [{""text"": ""Chadwick, J.\nThe judgment of this court, reported in Ettor v. Tacoma, 57 Wash. 50, 106 Pac. 478, 107 Pac. 1061, and Howard v. Tacoma, 57 Wash. 698, 106 Pac. 481, 107 Pac. 1064, was reversed by the Supreme Court of the United States. A remittitur has come down in each case commanding further proceedings not inconsistent with the decision of that court. Ettor v. Tacoma, 228 U. S. 148.\nThe defendant Chicago, Milwaukee & St. Paul Railway Company, of Washington, and the City of Tacoma were sued by plaintiffs as joint tort feasors. The liability of the railway company to respond in damages was not discussed by this court. It was argued in the briefs filed by the railway company in the Supreme Court of the United States, but that court did not pass upon the question. That court went no further in its opinion than to decide the particular question upon which our former opinions turn; that is, the validity and constitutionality of the act of the legislature of this state. Laws 1909, p. 151, § 1 (Rem. & Bal. Code, § 7815; P. C. 171 § 125). The railway company and the city filed separate answers, denying liability on grounds other than those based upon the statute of 1909. The parties defendant appeared separately, and filed briefs in this court. Their proffered defenses have never been passed upon. This being made to appear by motion, we believe that the defendants are entitled to have the questions raised by them passed upon, and that our consideration of them will not be a proceeding inconsistent with the decision of the Supreme Court of the United States.\nIn the year 1906, the railway company was seeking entrance into, and-terminal facilities at, the city of Tacoma. It had acquired certain property for terminal uses. The property was at that time platted ground, and a part of what was known as Indian addition to the city of Tacoma. It was not embraced within the corporate limits of the city. The railway company entered into a contract with the county commissioners of Pierce county wherein it agreed that, in consideration of the vacation of a part of “Mf’ and “N” streets, in the plat of Indian addition, it would, at its own- cost, grade a roadway thirty feet wide in the center of 26th street, in Indian addition. The work of grading was to be done under plans to be approved by the county engineer. These plans were prepared and submitted to the county engineer for approval. Pending the contract and the offer of the plans, a movement to bring Indian addition within the corporate limits of the city was put under way, and the county engineer suggested to the engineer of the railway company that he take the plans to the city engineer for his approval. This was done. The city engineer made some slight suggestions. He drew some marks upon the plat to indicate his ideas of what the grade should be.\nIn the spring of 1908, the railway company graded 26th street. The city engineer was upon or about the work from time to time. He had a copy of the contract with the county commissioners. The mayor and the commissioner of public works were aware that the work was going on, and upon one occasion, if not more, the commissioner made some suggestion-with reference thereto. Some of the city councilmen, probably a minority of them, visited the work and were aware of the fact that it was being done by the lailway company. The members of the committee on streets were also upon the ground, and had notice that the work was being done. In the progress of the work, a water main was broken. This was repaired by the city under the direction of the city engineer. The work was completed to the satisfaction of the city engineer, but was never formally accepted by the city. Thereafter, plaintiffs brought an action to recover damages under § 47, ch. 84, Laws 1893, p. 207, and § 48, ch. 153, Laws 1907, p. 336.\nUpon this state of facts, we are of the opinion that the railway company is not liable to answer in damages. The theory upon which it is sought to hold the railway company is that the city, being a tort feasor and having assumed to do or having permitted the work to be done under circumstances that would estop it to deny its responsibility and the agency of the railway company, its agent is bound to answer with the principal. It will be borne in mind that the railway company occupies no part of the street in front of appellants’ property. It has done no more than improve an unimproved street according to plans approved by and under the direction of the city engineer. We do not understand that it is charged that the work was negligently done. This court is committed to the doctrine that, where work is done by a contractor for the city in accordance with plans furnished by the city under its direction, and it is not made to appear that the work has been negligently done, the contractor is not liable. Kaler v. Puget Sound Bridge & Dredging Co., 72 Wash. 497, 130 Pac. 894; Casassa v. Seattle, 66 Wash. 146, 119 Pac. 13; Potter v. Spokane, 63 Wash. 267, 115 Pac. 176; Quinn v. Peterson Co., 69 Wash. 207, 124 Pac. 502; Stern v. Spokane, 73 Wash. 118,131 Pac. 476. In principle, the railway company is in the same situation as a compensated contractor. It had no interest other than to do the work and to receive its compensation, which it did in property instead of money.\nWe notice, however, that it is said by the plaintiffs in their brief filed in the Supreme Court of the United States, that:\n“When the city, by its engineer, ordered the work to be done in a certain manner, and vacated ‘M’ and ‘N’ streets, and the railway company accepted such vacation and built the grade as directed by the city, they impliedly agreed that their rights and liabilities the one to the other, should be as set out in the order of the board. One of these provisions was that the grading of the street should be at the railway company’s ‘own expense, and without cost or charges to or upon the said county of Pierce.’ Under the statute governing the city, which by the mutual acceptance of the parties succeeded in the contract to the county of Pierce, a part of this ex-, pense so contracted to be paid was payment of compensation to the property owners. The railway company has, therefore, by proceeding as though the original order of vacation were a contract between itself and the city, agreed to pay plaintiffs in error for the injury which they would sustain. The promise was obviously not only for the benefit of the city, but for the benefit of the property owners, and they may rely upon it in an action to recover such damages. This is not only the universal rule in the United States, but is made positive by the provisions of the Washington Code (Rem. & Bal. § 179.) that ‘every action shall be prosecuted in the name of the real party in interest,’ except as otherwise specially provided.”\nWe are unable to follow the reasoning of counsel. The words “own expense, and without cost or charges to or upon the said county of Pierce,” cannot be given the meaning contended for for two reasons: first, it is obvious that the expenses, costs, and charges contemplated was the cost of making the grade conform to the plans and specifications. The words “costs or charges” add nothing to the word “expense.” The word “expense” is used to define the promise of the railroad company, and the words “cost or charges” are used by the other contracting party to disclaim any liability to those who might do the work. Furthermore, at the time the contract was made, the payment of damages as for compensation for property taken or damaged could not have been within the contemplation of the parties. It has rarely, if ever, been held, and certainly not in this state, that a property owner abutting a public highway owned by the county and subject to the jurisdiction of the county commissioners, can recover damages for an improvement of the highway or for a change in its grade. At the time the words relied on were written, the county had jurisdiction over the street that was thereafter improved, and the law will presume that the parties contracted with reference to the facts and the law as they existed at the time.\nIt is earnestly contended by the city attorney that the city is not liable for the reason that the work was done under a contract made with the county which was lawful at the time it was made; that the plans were never formally adopted; that the approval of the city engineer of the plat was no more or less than a suggestion which in itself was so slight that it would not bind the city; that the superintendency of the city engineer was unauthorized; that the work was never formally accepted, and that a knowledge on the part of a minority of the councilmen would not amount to a ratification or work an estoppel on the part of the city.\nNo cases have been cited by counsel, nor have we been able to find any, covering the exact state of facts now before us. In consequence, we are put to the stress of searching out such fundamental principles as, in our judgment, are controlling. It is settled in this period of the law’s evolution that, when territory is annexed or brought into a city, the authority of the city is ipso facto extended over the new territory, and it becomes subject to the control and supervision of the municipal authority. Outside territory when annexed “shall thereupon become a part of such city and subject to all its laws and ordinances then and thereafter in force.” Rem. & Bal. Code, § 7449 (P. C. 77 § 129) ; Peterson v. Tacoma R. & Power Co., 60 Wash. 406, 111 Pac. 338, 140 Am. St. 936; Railroad Co. v. Defiance, 52 Ohio St. 262, 40 N. E. 89; St. Louis Gaslight Co. v. St. Louis, 46 Mo. 121; Trustees of Schools v. Board of School Inspection, 214 Ill. 30, 73 N. E. 412.\nIt would necessarily follow that contracts, theretofore entered into by the legislative or administrative body having jurisdiction over the new territory, and not then executed, or if of such character that their execution would be inconsistent with or tend to defeat the contracts, rights, powers, and duties of the annexing municipality, and not coming within some guarantee of the constitution, should be held to be extinguished by the act of annexation. The case of Peterson is controlling in principle. We there held that, where the limits of a city were extended so as to take in á part of a street railway then being operated through the city and upon a public road beyond the city limits under franchise from the county commissioners, the franchise was abrogated by the annexation and that the railway company was bound to carry passengers within the limits of the city as extended for one fare of five cents, as then provided in its contract with the city and as evidenced by an ordinance.\nThe city was not bound to act upon or acquiesce in a contract made by the county with the railway company; but the contract that was made was a lawful one, and might have been entered into by the city on its own account. This court has frequently held that, where a contract is not unlawful and for that reason ultra vires, the city will be bound by the same rules which govern individuals in dealing one with another. State ex rel. Maddaugh v. Ritter, 74 Wash. 649, 134 Pac. 492; Green v. Okanogan County, 60 Wash. 309, 111 Pac. 226; Franklin County v. Carstens, 68 Wash. 176, 122 Pac. 999; Criswell v. Directors School Dist. No. 24, 34 Wash. 420, 75 Pac. 984; Coliseum Inv. Co. v. King County, 72 Wash. 687, 131 Pac. 245; Turner Inv. Co. v. Seattle, 70 Wash. 201, 126 Pac. 426, 41 L. R. A. (N. S.) 781.\nThere is much confusion in the books in applying the principles of ratification and estoppel to municipal corporations. We confess our confusion in determining upon which ground we-should rest our decision. We believe that it may be rested upon either ground, but more securely upon the ground of ratification. That an unauthorized contract may be ratified by a city will not be denied, and needs no citation of authority. The only question for us is whether the conduct' of the city has been such as to make a ratification. We think there was sufficient notice to the various administrative officers of the city to make it chargeable with knowledge of the fact that the work was going on, it having extended, ás we now remember, over a period of two or three months. The contract with the county was a matter of public record. The city might have disclaimed the contract and denied the right of the railway company to proceed. A city is not bound to accept the encumbrance of an executory contract when annexing territory, but it may do so. For the purposes of this argument, we will assume, as the city attorney insists the fact to be, that the city council did not, by any affirmative act, ratify the contract under which the work was done. But it does not follow that the lack of an affirmative act will exempt the city. It may be bound by its inaction. It may be bound by a vote of its council, by the acceptance of benefits, by paying for services in connection with the work, or by bringing an action at law upon the contract, or by mere silence. McQuillin, Municipal Corporations, § 1258. But it does not follow that the city can escape the payment of damages, if any there be. The contract made by the county measures the relative rights of the city and the railway company. Not having arrested the work pending an assessment of damages, the city must be held to have adopted it as a proper municipal improvement and cannot now assert that it was not done under its authority. Kincaid v. Seattle, 74 Wash. 617, 134 Pac. 504, 135 Pac. 820. Under the law, as the Supreme Court of the United States has declared it to be at the time the work was done, the city must meet its liability.\nIn taxing the costs on appeal to the Supreme Court of the United States, the clerk of this court disallowed certain items that were expended in the preparation of the appeals. There is no statute covering the taxation of costs in a case like this, and we think the clerk did not err when he refused to tax items of expenditure as costs that were paid without the intervention of this court or of his office and which cannot be checked by reference to our statutes or to our practice in cases appealed to this court. If the items complained of are properly taxable, it would seem that they should have been so taxed in the other court. The order taxing costs is approved.\nThe Ettor case comes here from a judgment of nonsuit and dismissal. It will be remanded for a new trial.\nThe Howard case comes here from a judgment of dismissal entered upon a refusal to plead further after the entry of an order sustaining a demurrer to the complaint. It will be remanded with instructions to overrule the demurrer and for further proceedings.\nCrow, C. J., Gose, Ellis, and Main, JJ., concur."", ""type"": ""majority"", ""author"": ""Chadwick, J.""}], ""attorneys"": [""Boyle, Warburton & Brockway, for appellants."", ""T. L. Stiles and Frank M. Carnahan, for respondent City of Tacoma."", ""Geo. W. Korte, H. S. Griggs, and H. H. Field, for respondent Chicago, Milwaukee & St. Paul R. Co.""], ""corrections"": """", ""head_matter"": ""[Nos. 8379, 8381.\nDepartment One.\nJanuary 2, 1914.]\nManley Ettor et al., Appellants, v. The City of Tacoma et al., Respondents. Edwin Howard et al., Appellants, v. The City of Tacoma et al., Respondents.\nAppeal — Decision—Remand—Proceedings After Remand From United States Supreme Court. Where actions were dismissed, upon granting a nonsuit and sustaining a demurrer to the complaint, upon the single ground of the validity and constitutionality of a statute, and the judgments were affirmed on appeal without deciding any other question, the reversal of that decision by the Supreme Court of the United States, with remand for further proceedings not inconsistent therewith, does not preclude a new trial upon proffered defenses other than those passed upon on the appeals, where the decision of the Supreme Court of the United States did not pass on such defenses.\nMunicipal Corporations' — Improvements—Damages to Abutters —Liability of Contractor. A railroad company, grading a city street, in consideration of the vacation of certain streets, in accordance with plans furnished and under the direction of the city, stands in the situation of a compensated contractor, and’ is not liable to abutting owners for damages on account of the change in grade, where there was no claim that the work was negligently done or not in accordance with the plans.\nHighways — Contract for Grading County Road — Liability for Change of Grade — Rights of Abutters — Construction of Contract. A contract whereby a railroad company, standing in the'situation of a compensated contractor, agreed with a county to grade a street, in accordance with plans furnished by and under the direction of the county, “at its own expense and without cost or charges” to the county, contemplates only the expenses, costs, and charges of making the grade conform to the plans and specifications; and hence does not include the damages to abutting owners by reason of the change of grade, after the street had been included within city limits and the contract taken over or assumed by the city; especially since, at the time the contract was entered into, the land was outside the city limits and the parties contracted with reference to the rule in this state that the county was not liable to abutters for damages from a change of grade.\nMunicipal Corporations — Annexation of Territory — Effect. The annexation of territory to a city ipso facto extends the authority of. the city over the territory, under Rem. & Bal. Code, §7449, providing that it shall thereupon be subject to all laws of the city.\nSame — Annexation of Territory — Extinguishment of Unexecuted Contracts. Upon the annexation of territory to a city, a contract by the county commissioners for the grading of a street in the territory annexed, not then executed, is extinguished where its execution would tend to defeat the rights of the city, and where the contract did not come within some guarantee of the constitution, unless it was acquiesced in and acted upon by the city.\nSame — Public Improvements — Contracts—Ratification—Acquiescence in Contract On Annexation of Territory. Upon the annexation of territory to a city, the city may acquiesce in an unexecuted contract made by the county commissioners for the grading of a street, where it was not ultra vires, and might have been made by the city; and such a contract will be deemed ratified by the city and the improvement adopted as a proper municipal improvement, although not recognized by an affirmative act by .the city council, where the work was allowed to go on under the supervision of the city engineer, and with knowledge of the commissioner of public works and of the street committee of the city council, without anything being done to stop it.\nCosts — On Appeal — Taxation. On the reversal by the supreme court of the United States of a decision of the supreme court of the state, the clerk of this court may refuse to tax as costs items of expenditure in the preparation of the appeal to the Federal court that were paid without the intervention of this court or the clerk’s office, and which could not be checked by reference to our statutes or practice, and which appear to be taxable, if at all, in the Federal court.\nOn remittitur from the Supreme Court of the United States, commanding further proceedings, on appeals from judgment’s of the superior court for Pierce county, Chapman, J., entered April 8, and June 11, 1909, dismissing actions for damages for the original grading of a street.\nReversed.\nBoyle, Warburton & Brockway, for appellants.\nT. L. Stiles and Frank M. Carnahan, for respondent City of Tacoma.\nGeo. W. Korte, H. S. Griggs, and H. H. Field, for respondent Chicago, Milwaukee & St. Paul R. Co.\nReported in 137 Pac. 820.""}, ""cites_to"": [{""cite"": ""137 Pac. 820"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""135 Pac. 820"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""134 Pac. 504"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""74 Wash. 617"", ""case_ids"": [620616], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/74/0617-01""], ""opinion_index"": 0}, {""cite"": ""41 L. R. A. (N. S.) 781"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A.N.S."", ""opinion_index"": 0}, {""cite"": ""126 Pac. 426"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""70 Wash. 201"", ""case_ids"": [565303], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/70/0201-01""], ""opinion_index"": 0}, {""cite"": ""131 Pac. 245"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""72 Wash. 687"", ""case_ids"": [591435], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/72/0687-01""], ""opinion_index"": 0}, {""cite"": ""75 Pac. 984"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""34 Wash. 420"", ""case_ids"": [5212132], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/34/0420-01""], ""opinion_index"": 0}, {""cite"": ""122 Pac. 999"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""68 Wash. 176"", ""case_ids"": [563430], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/68/0176-01""], ""opinion_index"": 0}, {""cite"": ""111 Pac. 226"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""60 Wash. 309"", ""case_ids"": [529881], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/60/0309-01""], ""opinion_index"": 0}, {""cite"": ""134 Pac. 492"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""74 Wash. 649"", ""case_ids"": [620589], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/74/0649-01""], ""opinion_index"": 0}, {""cite"": ""73 N. E. 412"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.E."", ""opinion_index"": 0}, {""cite"": ""214 Ill. 30"", ""case_ids"": [3316015], ""category"": ""reporters:state"", ""reporter"": ""Ill."", ""case_paths"": [""/ill/214/0030-01""], ""opinion_index"": 0}, {""cite"": ""46 Mo. 121"", ""case_ids"": [8850931], ""category"": ""reporters:state"", ""reporter"": ""Mo."", ""case_paths"": [""/mo/46/0121-01""], ""opinion_index"": 0}, {""cite"": ""40 N. E. 89"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.E."", ""opinion_index"": 0}, {""cite"": ""52 Ohio St. 262"", ""case_ids"": [933820], ""category"": ""reporters:state"", ""reporter"": ""Ohio St."", ""case_paths"": [""/ohio-st/52/0262-01""], ""opinion_index"": 0}, {""cite"": ""111 Pac. 338"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""60 Wash. 406"", ""case_ids"": [529811], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/60/0406-01""], ""opinion_index"": 0}, {""cite"": ""131 Pac. 476"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""73 Wash. 118"", ""case_ids"": [291267], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/73/0118-01""], ""opinion_index"": 0}, {""cite"": ""124 Pac. 502"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""69 Wash. 207"", ""case_ids"": [566840], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/69/0207-01""], ""opinion_index"": 0}, {""cite"": ""115 Pac. 176"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""63 Wash. 267"", ""case_ids"": [552615], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/63/0267-01""], ""opinion_index"": 0}, {""cite"": ""119 Pac. 13"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""66 Wash. 146"", ""case_ids"": [561079], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/66/0146-01""], ""opinion_index"": 0}, {""cite"": ""130 Pac. 894"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""72 Wash. 497"", ""case_ids"": [591417], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/72/0497-01""], ""opinion_index"": 0}, {""cite"": ""228 U. 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+615520,"{""id"": 615520, ""name"": ""Jennie Lowe, Appellant, v. P. J. O'Brien et al., Respondents"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""ece3b803697963204c5afdbc80efac5ae5de79c5e6524896f294b273b9764db5"", ""simhash"": ""1:7a69fca5607c3edc"", ""pagerank"": {""raw"": 0.0000001685366506129929, ""percentile"": 0.6982146449464814}, ""char_count"": 3368, ""word_count"": 599, ""cardinality"": 283, ""ocr_confidence"": 0.545}, ""casebody"": {""judges"": [], ""parties"": [""Jennie Lowe, Appellant, v. P. J. O’Brien et al., Respondents.""], ""opinions"": [{""text"": ""Chadwick, J.\nPlaintiff brought this action to recover damages for breach of covenant to repair the premises occupied by her as a tenant of the defendants. Plaintiff was a tenant from month to month. When the tenancy began in the year 1908, the property was not in good repair. The house needed papering. Defendant P. J. O’Brien said he could not fix it up, but would keep the property in repair. The house was built on piling over the water of Budds Inlet, but nothing was said about tide flats or foundation. Defendant, from time to time, made such repairs as seemed to be demanded. He put in several piles, repaired the chimney, and fixed the roof. The house was apparently insecure in the summer of 1912. Plaintiff asked defendant when he was going to fix the piling under the building, saying if defendant did not fix the house and make it safe she would have to move out. Defendant promised to have the work done soon. Defendant went east for a time. Plaintiff talked to him about repairs after he returned, and shortly thereafter the house fell into the bay. Upon this state of facts, and a showing of money damages, the trial judge entered a judgment of nonsuit.\nThe trial judge followed, in his judgment, the greater number of cases, and possibly what might be called the general rule, which is that a landlord who agrees to keep premises in repair and fails to do so is not liable in tort for damages to a tenant from month to month who has been a tenant for some time and has full knowledge of the facts.\nOut of the conflict of authority, this court has held the contrary doctrine in the case of Mesher v. Osborne, 75 Wash. 439, 134 Pac. 1092, where the court referred with approval to the case of Stillwell v. South Louisville Land Co., 22 Ky. Law 785, 58 S. W. 696, 52 L. R. A. 325, holding that a landlord may be liable in tort for failure to repair an open defect known to both parties, on the ground that the landlord’s promise to repair absolved the tenant from an assumption of risk.\nThe law is exhaustively treated in that opinion, and we feel bound to follow it. If a promise was made, plaintiff would, no doubt, be warranted in remaining in the house for a reasonable time, waiting performance. Whether she remained an unreasonable time and was guilty of contributory negligence, is a question of fact which may be raised on a new trial, if the pleadings are properly amended.\nIn fairness to the trial judge, it should be said that the Mesher case had not been decided when the judgment was entered in this case.\nReversed and remanded for a new trial.\nChow, C. J., Ellis, Gose, and Main, JJ., concur."", ""type"": ""majority"", ""author"": ""Chadwick, J.""}], ""attorneys"": [""Chas. D. Kmg, for appellant."", ""Thos. M. Vance and Harry L. Parr, for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 11574.\nDepartment One.\nFebruary 4, 1914.]\nJennie Lowe, Appellant, v. P. J. O’Brien et al., Respondents.\nLandlord and Tenant — Defective Premises — Promise to Repair —Liability of Lessor. Where the landlord has made a promise to repair known defects in the premises, the tenant is absolved from the assumption of risks therefrom while remaining for a reasonable time awaiting performance of the promise, if not guilty of contributory negligence.\nAppeal from a judgment of the superior court for Thurston county, Mitchell, J., entered M!ay 29, 1913, dismissing an action for breach of covenant to repair, on granting a nonsuit.\nReversed.\nChas. D. Kmg, for appellant.\nThos. M. Vance and Harry L. Parr, for respondents.\nReported in 138 Pac. 295.""}, ""cites_to"": [{""cite"": ""138 Pac. 295"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""52 L. R. A. 325"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A."", ""opinion_index"": 0}, {""cite"": ""58 S. W. 696"", ""category"": ""reporters:state_regional"", ""reporter"": ""S.W."", ""opinion_index"": 0}, {""cite"": ""134 Pac. 1092"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""75 Wash. 439"", ""case_ids"": [622661], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/75/0439-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""77 Wash. 677"", ""type"": ""official""}], ""file_name"": ""0677-01"", ""last_page"": ""678"", ""first_page"": ""677"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T16:40:13.389306+00:00"", ""decision_date"": ""1914-02-04"", ""docket_number"": ""No. 11574"", ""last_page_order"": 714, ""first_page_order"": 713, ""name_abbreviation"": ""Lowe v. 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+6164227,"{""id"": 6164227, ""name"": ""LAMBERT v. CALIFORNIA"", ""court"": {""id"": 9009, ""name"": ""Supreme Court of the United States"", ""name_abbreviation"": ""U.S.""}, ""analysis"": {""sha256"": ""6c947ec1461d6638fcb70e4958fc5da1d0894a981b2ae076a9cefffe5170ca12"", ""simhash"": ""1:1e9806ce422ccaea"", ""pagerank"": {""raw"": 0.000006623995471694138, ""percentile"": 0.9992356697243739}, ""char_count"": 12434, ""word_count"": 2110, ""cardinality"": 709, ""ocr_confidence"": 0.657}, ""casebody"": {""judges"": [""Mr. Justice Burton dissents because he believes that, as applied to this appellant, the ordinance does not violate her constitutional rights."", ""whom Mr. Justice Harlan and Mr. Justice Whittaker join,""], ""parties"": [""LAMBERT v. CALIFORNIA.""], ""opinions"": [{""text"": ""MR. Justice Douglas\ndelivered the opinion of the Court.\nSection 52.38 (a) of the Los Angeles Municipal Code defines “convicted person” as follows:\n“Any person who, subsequent to January 1, 1921, has been or hereafter is convicted of an offense punishable as a felony in the State of California, or who has been or who is hereafter convicted of any offense in any place other than the State of California, which offense, if committed in the State of California, would have been punishable as a felony.”\nSection 52.39 provides that it shall be unlawful for “any convicted person” to be or remain in Los Angeles for a period of more than five days without registering; it requires any person having a place of abode outside the city to register if he comes into the city on five occasions or more during a 30-day period; and it prescribes the information to be furnished the Chief of Police on registering.\nSection 52.43 (b) makes the failure to register a continuing offense, each day’s failure constituting a separate offense.\nAppellant, arrested on suspicion of another offense, was charged with a violation of this registration law. The evidence showed that she had been at the time of her arrest a resident of Los Angeles for over seven years. Within that period she had been convicted in Los Angeles of the crime of forgery, an offense which California punishes as a felony. Though convicted of a crime punishable as a felony, she had not at the time of her arrest registered under the Municipal Code. At the trial, appellant asserted that § 52.39 of the Code denies her due process of law and other rights under the Federal Constitution, unnecessary to enumerate. The trial court denied this objection. The case was tried to a jury which found appellant guilty. The court fined her $250 and placed her on probation for three years. Appellant, renewing her constitutional objection, moved for arrest of judgment and a new trial. This motion was denied. On appeal the constitutionality of the Code was again challenged. The Appellate Department of the Superior Court affirmed the judgment, holding there was no merit to the claim that the ordinance was unconstitutional. The case is here on appeal. 28 U. S. C. § 1257 (2). We noted probable jurisdiction, 352 U. S. 914, and designated amicus curiae to appear in support of appellant. The case having been argued and reargued, we now hold that the registration provisions of the Code as sought to be applied here violate the Due Process requirement of the Fourteenth Amendment.\nThe registration provision, carrying criminal penalties, applies if a person has been convicted “of an offense punishable as a felony in the State of California” or, in case he has been convicted in another State, if the offense “would have been punishable as a felony” had it been committed in California. No element of willfulness is by terms included in the ordinance nor read into it by the California court as a condition necessary for a conviction.\nWe must assume that appellant had no actual knowledge of the requirement that she register under this ordinance, as she offered proof of this defense which was refused. The question is whether a registration act of this character violates due process where it is applied to a person who has no actual knowledge of his duty to register, and where no showing is made of the probability of such knowledge.\nWe do not go with Blackstone in saying that “a vicious will” is necessary to constitute a crime, 4 Bl. Comm. *21, for conduct alone without regard to the intent of the doer is often sufficient. There is wide latitude in the lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition. See Chicago, B. & Q. R. Co. v. United States, 220 U. S. 559, 578. But we deal here with conduct that is wholly passive — mere failure to register. It is unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed. Cf. Shevlin-Carpenter Co. v. Minnesota, 218 U. S. 57; United States v. Balint, 258 U. S. 250; United States v. Dotterweich, 320 U. S. 277, 284. The rule that “ignorance of the law will not excuse” (Shevlin-Carpenter Co. v. Minnesota, supra, p. 68) is deep in our law, as is the principle that of all the powers of local government, the police power is “one of the least limitable.” District of Columbia v. Brooke, 214 U. S. 138, 149. On the other hand, due process places some limits on its exercise. Engrained in our concept of due process is the requirement of notice. Notice is sometimes essential so that the citizen has the chance to defend charges. Notice is required before property interests are disturbed, before assessments are made, before penalties are assessed. Notice is required in a myriad of situations where a penalty or forfeiture might be suffered for mere failure to act. Recent cases illustrating the point are Mullane v. Central Hanover Trust Co., 339 U. S. 306; Covey v. Town of Somers, 351 U. S. 141; Walker v. Hutchinson City, 352 U. S. 112. These cases involved only property interests in civil litigation. But the principle is equally appropriate where a person, wholly passive and unaware of any wrongdoing, is brought to the bar of justice for condemnation in a criminal case.\nRegistration laws are common and their range is wide. Cf. Bryant v. Zimmerman, 278 U. S. 63; United States v. Harriss, 347 U. S. 612; United States v. Kahriger, 345 U. S. 22. Many such laws are akin to licensing statutes in that they pertain to the regulation of business activities. But the present ordinance is entirely different. Violation of its provisions is unaccompanied by any activity whatever, mere presence in the city being the test. Moreover, circumstances which might move one to inquire as to the necessity of registration are completely lacking. At most the ordinance is but a law enforcement technique designed for the convenience of law enforcement agencies through which a list of the names and addresses of felons then residing in a given community is compiled. The disclosure is merely a compilation of former convictions already publicly recorded in the jurisdiction where obtained. Nevertheless, this appellant on first becoming aware of her duty to register was given no opportunity to comply with the law and avoid its penalty, even though her default was entirely innocent. She could but suffer the consequences of the ordinance, namely, conviction with the imposition of heavy criminal penalties thereunder. We believe that actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance can stand. As Holmes wrote in The Common Law, “A law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear.” Id., at 50. Its severity lies in the absence of an opportunity either to avoid the consequences of the law or to defend any prosecution brought under it. Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process. Were it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community.\nReversed.\nMr. Justice Burton dissents because he believes that, as applied to this appellant, the ordinance does not violate her constitutional rights.\nFor a recent comprehensive review of these registration laws see Note, 103 U. of Pa. L. Rev. 60 (1954)."", ""type"": ""majority"", ""author"": ""MR. Justice Douglas""}, {""text"": ""Mr. Justice Frankfurter,\nwhom Mr. Justice Harlan and Mr. Justice Whittaker join,\ndissenting.\nThe present laws of the United States and of the forty-eight States are thick with provisions that command that some things not be done and others be done, although persons convicted under such provisions may have had no awareness of what the law required or that what they did was wrongdoing. The body of decisions sustaining such legislation, including innumerable registration laws, is almost as voluminous as the legislation itself. The matter is summarized in United States v. Balint, 258 U. S. 250, 252: “Many instances of this are to be found in regulatory measures in the exercise of what is called the police power where the emphasis of the statute is evidently upon achievement of some social betterment rather than the punishment of the crimes as in cases of mala in se.”\nSurely there can hardly be a difference as a matter of fairness, of hardship, or of justice, if one may invoke it, between the case of a person wholly innocent of wrongdoing, in the sense that he was not remotely conscious of violating any law, who is imprisoned for five years for conduct relating to narcotics, and the case of another person who is placed on probation for three years on condition that she pay $250, for failure, as a local resident, convicted under local law of a felony, to register under a law passed as an exercise of the State’s “police power.” Considerations of hardship often lead courts, naturally enough, to attribute to a statute the requirement of a certain mental element — some consciousness of wrongdoing and knowledge of the law’s command — as a matter of statutory construction. Then, too, a cruelly disproportionate relation between what the law requires and the sanction for its disobedience may constitute a violation of the Eighth Amendment as a cruel and unusual punishment, and, in respect to the States, even offend the Due Process Clause of the Fourteenth Amendment.\nBut what the Court here does is to draw a constitutional line between a State’s requirement of doing and not doing. What is this but a return to Year Book distinctions between feasance and nonfeasance — a distinction that may have significance in the evolution of common-law notions of liability, but is inadmissible as a line between constitutionality and unconstitutionality. One can be confident that Mr. Justice Holmes would have been the last to draw such a line. What he wrote about “blameworthiness” is worth quoting in its context:\n“It is not intended to deny that criminal liability, as well as civil, is founded on blameworthiness. Such a denial would shock the moral sense of any civilized community; or, to put it another way, a law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear.” (This passage must be read in the setting of the broader discussion of which it is an essential part. Holmes, The Common Law, at 49-50.)\nIf the generalization that underlies, and alone can justify, this decision were to be given its relevant scope, a whole volume of the United States Reports would be required to document in detail the legislation in this country that would fall or be impaired. I abstain from entering upon a consideration of such legislation, and adjudications upon it, because I feel confident that the present decision will turn out to be an isolated deviation from the strong current of precedents — a derelict on the waters of the law. Accordingly, I content myself with dissenting.\nThis case does not involve a person who, convicted of a crime in another jurisdiction, must decide whether he has been convicted of a crime that “would have been punishable as a felony” had it been committed in California. Appellant committed forgery in California, and was convicted under California law. Furthermore, she was convicted in Los Angeles itself, and there she resided for over seven years before the arrest leading to the present proceedings."", ""type"": ""dissent"", ""author"": ""Mr. Justice Frankfurter,""}], ""attorneys"": [""Samuel C. McMorris argued and reargued the cause and filed a brief for appellant."", ""Warren M. Christopher reargued the cause, as amicus curiae, in support of the appellant, at the invitation of the Court, 354 U. S. 936, and also filed a brief."", ""Philip E. Grey argued and reargued the cause for appellee. With him on the briefs was Roger Arnebergh."", ""Clarence A. Linn, Assistant Attorney General of California, reargued the cause and filed a brief for appellee pursuant to an invitation of the Court, 353 U. S. 979. With him on the brief was Edmund G. Brown, Attorney General.""], ""corrections"": """", ""head_matter"": ""LAMBERT v. CALIFORNIA.\nNo. 47.\nArgued April 3, 1957. — Restored to the docket for reargument June 3, 1957. — Reargued October 16-17, 1957.\nDecided December 16, 1957.\nSamuel C. McMorris argued and reargued the cause and filed a brief for appellant.\nWarren M. Christopher reargued the cause, as amicus curiae, in support of the appellant, at the invitation of the Court, 354 U. S. 936, and also filed a brief.\nPhilip E. Grey argued and reargued the cause for appellee. With him on the briefs was Roger Arnebergh.\nClarence A. Linn, Assistant Attorney General of California, reargued the cause and filed a brief for appellee pursuant to an invitation of the Court, 353 U. S. 979. With him on the brief was Edmund G. Brown, Attorney General.""}, ""cites_to"": [{""cite"": ""353 U. S. 979"", ""case_ids"": [6222791, 6222079, 6222327], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/353/0979-03"", ""/us/353/0979-01"", ""/us/353/0979-02""], ""opinion_index"": -1}, {""cite"": ""354 U. S. 936"", ""case_ids"": [6172459, 6172364, 6172561, 6172660, 6172251], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/354/0936-03"", ""/us/354/0936-02"", ""/us/354/0936-04"", ""/us/354/0936-05"", ""/us/354/0936-01""], ""opinion_index"": -1}, {""cite"": ""345 U. S. 22"", ""weight"": 2, ""case_ids"": [372505], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""page"": ""50""}], ""case_paths"": [""/us/345/0022-01""], ""opinion_index"": 0}, {""cite"": ""347 U. 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Ct. 240"", ""type"": ""parallel""}, {""cite"": ""1957 U.S. LEXIS 3"", ""type"": ""vendor""}, {""cite"": ""SCDB 1957-024"", ""type"": ""vendor""}], ""file_name"": ""0225-01"", ""last_page"": ""232"", ""first_page"": ""225"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 39, ""name"": ""U.S."", ""name_long"": ""United States""}, ""last_updated"": ""2024-02-27T23:57:19.675840+00:00"", ""decision_date"": ""1957-12-16"", ""docket_number"": ""No. 47"", ""last_page_order"": 316, ""first_page_order"": 309, ""name_abbreviation"": ""Lambert v. 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+620620,"{""id"": 620620, ""name"": ""H. D. Larned, Respondent, v. Holt & Jeffery, Incorporated, Appellant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""8f6a1c34d0310c1484696407c24f18163051833b39c7dada6ba438764df31279"", ""simhash"": ""1:1323e72dc1c544ce"", ""pagerank"": {""raw"": 0.00000008461237916852242, ""percentile"": 0.48515975255700233}, ""char_count"": 6454, ""word_count"": 1083, ""cardinality"": 390, ""ocr_confidence"": 0.537}, ""casebody"": {""judges"": [], ""parties"": [""H. D. Larned, Respondent, v. Holt & Jeffery, Incorporated, Appellant.""], ""opinions"": [{""text"": ""Parker, J.\n— The plaintiff sought to recover from the defendant damages in the sum of $1,032 for injury to his hotel business by noise, smoke and vibration, which he claims resulted from the operation of the defendant’s cars and engines upon a temporary trestle in the street in front of the hotel building occupied by him in Seattle. A trial before the court and a jury resulted in verdict and judgment against the defendant in the sum of $250, from which it has appealed.\nRespondent is the proprietor of a hotel business located in the building at the southwest corner of Lenora street and Westlake avenue, in the city of Seattle. Appellant is a contracting company, and from November 1, 1910, to June 1, 1911, was engaged in the execution of two large street improvement contracts for that city. One of these, referred to as the Denny Hill improvement, called for the excavation and removal of a very large quantity of earth; while the other, referred to as the Westlake avenue improvement, called for a very large quantity of earth filling. It was evidently desirable on the part of the city, as well as the appellant, that the earth taken from the Denny Hill improvement should be placed in the Westlake avenue improvement. To this end, the city granted to appellant the privilege of constructing, in certain streets leading from the Denny Hill improvement to the Westlake avenue improvement, a small railway upon which to run dump cars and a small locomotive engine for the purpose of transferring the earth from the Denny Hill improvement to the Westlake avenue improvement. The city not only granted this privilege, but directed what streets should be used, and also directed the manner of constructing the track. The route thus selected by the city passed along Lenora street in front of respondent’s hotel. At this point it was necessary, and the city so directed, that the track be elevated so as to permit street cars and other traffic to proceed uninterrupted on that avenue. The track was so constructed, which brought it at no point nearer than thirty-eight feet to respondent’s hotel building, and from ten to eighteen feet above the surface of the street along in front of the building. Upon the track thus constructed, appellant operated its cars and engines during the period mentioned, from November 1, 1910, to June 1, 1911, when the work was finished. There is no allegation or proof whatever of negligence on the part of the city or appellant in the prosecution of this work, nor as to unreasonableness of the time occupied in its prosecution. We assume, for argument’s sake, that during this period respondent suffered some appreciable inconvenience and damage to his business by noise, smoke and vibration, occasioned by the operation of appellant’s cars and engines, though, as we have noticed, it was undisputed that such annoyance and damages was not the result of negligent operation of the cars and engines.\nIt is contended by counsel for appellant that its challenge to the sufficiency of the evidence to sustain any judgment against it, made by request for an instructed verdict in its favor and for motion for judgment notwithstanding the verdict, should have been sustained by the trial court, and that it is now entitled to a reversal of the judgment and a dismissal of the action upon that ground. We are constrained to agree with this contention. Upon the holding of this court in Lund v. St. Paul, M. & M. R. Co., 31 Wash. 286, 71 Pac. 1032, 96 Am. St. 906, 61 L. R. A. 506, it seems plain the fact that appellant was doing public improvement work for the city, which, though appellant was an independent contractor, was under the direction and control of the city, places appellant in the same position that the city would be in had it been prosecuting the work itself, so far as liability for damages to respondent flowing therefrom is concerned: that is, if the city was not liable for consequential damages, upon the same principle appellant would not be. It seems to us that our recent decisions in Stern v. Spokane, 73 Wash. 118, 131 Pac. 476, and Heiber v. Spokane, 73 Wash. 122, 131 Pac. 478, are decisive of this case in appellant’s favor upon the question of the damages claimed being consequential. This is the theory upon which counsel for appellant insists that it is not liable. We are constrained to so hold. It being plain that the city was engaged in a perfectly lawful undertaking, and to that end was temporarily causing its streets to be used by appellant, neither was liable to respondent for damages other than those which were the result of negligence.\nIt is apparent to the most casual observer that property and business locations in our centers of population are desirable and derive well known advantages from being so situated. The density of population which renders such locations valuable also renders the more necessary public inmprovements of the nature here involved, to the end that such advantages may be more fully enjoyed. The making of such public improvements necessarily results in more or less temporary inconvenience, and even damage to property and business in their neighborhood while being constructed. Aside from acts of negligence on the part of the public authorities in constructing such improvements, owners of property and business so temporarily inconvenienced or even damaged must bear such burdens as an incident to the enjoyment of the advantages which their locations give them.\nThe judgment is reversed, with directions to the superior court to dismiss the action.\nChadwick, Mount, and Gose, JJ., concur."", ""type"": ""majority"", ""author"": ""Parker, J.""}], ""attorneys"": [""Preston <§- Thorgrimson and Sanford C. Rose, for appellant."", ""Peterson <§' Macbride, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 11034.\nDepartment One.\nJuly 10, 1913.]\nH. D. Larned, Respondent, v. Holt & Jeffery, Incorporated, Appellant.\nMunicipal Corporations — Improvements—Damages to Abutters —Contractors—Liability. A city contractor on a public improvement, using streets for a tramway by permission of the city, is not liable to abutting owners on account of temporary inconvenience or damage by reason of the prosecution of the work in a lawful manner, where the contractor was free from negligence.\nAppeal from a judgment of the superior court for King county, Myers, J., entered June 11, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages to property by reason of obstructions in a street.\nReversed.\nPreston <§- Thorgrimson and Sanford C. Rose, for appellant.\nPeterson <§' Macbride, for respondent.\nReported in 133 Pac. 460.""}, ""cites_to"": [{""cite"": ""133 Pac. 460"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""131 Pac. 478"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""73 Wash. 122"", ""case_ids"": [291223], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/73/0122-01""], ""opinion_index"": 0}, {""cite"": ""131 Pac. 476"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""73 Wash. 118"", ""case_ids"": [291267], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/73/0118-01""], ""opinion_index"": 0}, {""cite"": ""61 L. R. A. 506"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A."", ""opinion_index"": 0}, {""cite"": ""71 Pac. 1032"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""31 Wash. 286"", ""case_ids"": [2445418], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/31/0286-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""74 Wash. 274"", ""type"": ""official""}], ""file_name"": ""0274-01"", ""last_page"": ""277"", ""first_page"": ""274"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T21:55:29.575557+00:00"", ""decision_date"": ""1913-07-10"", ""docket_number"": ""No. 11034"", ""last_page_order"": 315, ""first_page_order"": 312, ""name_abbreviation"": ""Larned v. 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+622621,"{""id"": 622621, ""name"": ""Joe E. McManamon et al., Respondents, v. Theodore Tobiason, Appellant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""f61e7646d4c43d8d111eb0ef34b5d763b7e18cd4a78ca4036e01b1bf9172b3b1"", ""simhash"": ""1:0e35dc210a061621"", ""pagerank"": {""raw"": 0.00000012815507290530084, ""percentile"": 0.6176385186935609}, ""char_count"": 8042, ""word_count"": 1379, ""cardinality"": 379, ""ocr_confidence"": 0.545}, ""casebody"": {""judges"": [], ""parties"": [""Joe E. McManamon et al., Respondents, v. Theodore Tobiason, Appellant.""], ""opinions"": [{""text"": ""Parker, J.\nThe plaintiffs seek to recover damages from the defendant because of failure on his part to repair and make certain changes in a hotel building, leased by them from him. A trial before the court without a jury resulted in findings and judgment in favor of the plaintiffs, from which the defendant has appealed.\nThe provisions of the lease here involved, so far as we need notice them, are as follows:\n“This indenture, Made this 30th day of December, A. D., 1911, by and between Theodore Tobiason, a widower, of Moscow, Idaho, party of the first part, and Joe E. McManamon, and Annie S. McManamon, his wife of Othello, Washington, parties of the second part,\n“Witnesseth: That the said party of the first part does by these presents lease and demise unto the said parties of the second part\n“It is agreed and understood that the building now known as the ‘Hibbard Hotel’ situated upon the above described lots shall be used for hotel purposes and such other business as is generally incident to the hotel business, and the said building and premises shall not be used for any other purpose without the written consent of the first party having first been had and obtained.\n“It is further agreed that said parties of the second part shall not make or cause to be made any alterations in the said hotel building by tearing down or changing any fixed part thereof without the written consent first given by the said first party or his authorized agent. It is further agreed that in the event that said second parties should desire any alterations to be made and the said first party shall agree thereto, such alterations shall be made under the supervision of the said first party or his authorized agent and the cost of same shall be paid by the said second parties.\n“It is further agreed that the said first party shall with reasonable diligence repair the roof of said building so as to prevent leakage . . .”\nAppellant inspected the hotel building and was acquainted with its condition before entering into the lease contract, and went into possession soon thereafter. Respondents commenced this action, claiming damages from appellant because of his alleged neglect and failure to comply with the lease contract on his part in several particulars. The only allegations of damage made in their complaint with which we are here concerned, however, are the following:\n“(a) That said defendant has wholly failed, refused and neglected to repair the roof of the hotel building on said premises, as was provided that he should do in said agreement . . .\n“(c) That five rooms in the second story of said building are improperly ventilated, and said defendant has failed, refused and neglected to make the necessary changes and alterations in accordance with the requirements of the hotel inspection law of the state of Washington, and because of his failure, refusal and neglect so to do, plaintiffs have been unable to make proper use of said rooms and have lost great profits therefrom.”\nThe lease is pleaded by copy attached to the complaint. The complaint concludes with a general allegation of damage in the sum of $500, because of such alleged failure on the part of the appellant to comply with the conditions of the lease. In their bill of particulars, respondents claim $47 damage resulting from the failure of appellant to repair the roof of the hotel building, and $236 damages resulting from his failure to make necessary alterations in the building in order to make the same comply with the orders of the hotel inspector made in pursuance of the state law.\nThe trial court found in respondents’ favor in the sum of $150 upon their claim of damages on account of failure to make changes in the rooms which they claim could not be used because of the orders of the hotel inspector. The allowance of this item in respondents’ favor is the principal error claimed by counsel for appellant. It is of no consequence here whether we regard this claimed error as resting upon want of proper allegations in the complaint, improper admission of evidence, or insufficiency of evidence. We think in any event it must be solved in appellant’s favor upon the latter ground. We have noticed that, under the provisions of the lease, appellant was not obliged to make any changes or alterations in any fixed portions of the building, and it is apparently conceded that the changes necessary to make these rooms usable, after the order of the hotel inspector, would necessitate changing fixed portions of the building. We have also noticed that, while such changes or alterations, if agreed to, Were to be made under the supervision of appellant or his authorized agent, the cost of the same was to be paid by respondents. The evidence wholly fails to show any offer on the part of respondents, either to make these changes themselves or to pay for the making of them. Respondent Joe McManamon admits in his testimony that no such offer was made. It seems clear to us that respondents have failed to show want of compliance with the terms of the lease contract on the part of appellant in this particular, even conceding that appellant was, under the terms of the lease, required to permit the making of such changes. We are of the opinion that the trial court erred in allowing this sum as damages against appellant.\nThe trial court awarded respondents nominal damages against appellant for failure to repair the roof of the hotel building. We think the evidence was sufficient to sustain this award.\nSome contention is made against the sufficiency of the complaint to state a cause of action, raised by general demurrer. The complaint states a cause of action for damages by reason of appellant’s failure to repair the roof. Its sufficiency touching other items of claimed damages is now of no consequence.\nSome contention is made upon appellant’s claim of error in the trial court’s admission in evidence of certain depositions. In view of the fact that the trial court awarded only nominal damages to respondents because of the failure of appellant to repair the roof and the evidence found in the depositions was merely cumulative of other evidence to show such damage, and the trial was before the court without a jury, we think the reading of the depositions in evidence was not prejudicial error. The depositions related for the most part to other items of claimed damage.\nWe conclude that the judgment must be reversed in so far as it awards damages against the appellant in the sum of $150, for failure to make changes in the building, and affirmed as to the award of damages for failure to repair the roof. The case is remanded to the trial court with directions to correct its judgment accordingly. Appellant will recover costs in this court.\nCrow, C. J., Gose, Chadwick, and Mount, JJ., concur."", ""type"": ""majority"", ""author"": ""Parker, J.""}], ""attorneys"": [""B. M. Branford, for appellant."", ""John Truax, for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 11107.\nDepartment One.\nAugust 18, 1913.]\nJoe E. McManamon et al., Respondents, v. Theodore Tobiason, Appellant.\nLandlord and Tenant — Repairs- — Lease —Duty of Landlord. Under a lease of a hotel providing that no alteration could he made without the lessor’s consent, and should be paid for by the lessee, the lessor is not liable to the lessee for damages for failure to make alterations required by the hotel inspector, in the absence of any offer by the lessee to pay for the same.\nSame — -Failure to Repair — Actions—Complaint. A complaint by a lessee of a hotel states a cause of action for nominal damages, where it alleges that the landlord agreed in the lease to repair the roof of the building and failed to do so.\nAppeal — Review—Harmless Error. In an action tried to the court in which only the nominal damages awarded against appellant are affirmed on appeal, error in admitting depositions on the subject of damages is harmless.\nAppeal from a judgment of the superior court for Adams county, Holcomh, J., entered December 23, 1912, upon findings in favor of the plaintiffs, in an action on contract, tried to the court.\nModified.\nB. M. Branford, for appellant.\nJohn Truax, for respondents.\nReported in 134 Pac. 524.""}, ""cites_to"": [{""cite"": ""134 Pac. 524"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}], ""citations"": [{""cite"": ""75 Wash. 46"", ""type"": ""official""}], ""file_name"": ""0046-01"", ""last_page"": ""50"", ""first_page"": ""46"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T18:11:50.776481+00:00"", ""decision_date"": ""1913-08-18"", ""docket_number"": ""No. 11107"", ""last_page_order"": 88, ""first_page_order"": 84, ""name_abbreviation"": ""McManamon v. 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+622625,"{""id"": 622625, ""name"": ""J. E. Howard et al., Respondents, v. Washington Water Power Company, Appellant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""b9612652843d8b4b484ede3b8ead3c6e5838b1119ec25bf1e457d7253b8891e4"", ""simhash"": ""1:a873b7960e17700f"", ""pagerank"": {""raw"": 0.0000003670253030018954, ""percentile"": 0.8909173855309711}, ""char_count"": 23823, ""word_count"": 4134, ""cardinality"": 1024, ""ocr_confidence"": 0.532}, ""casebody"": {""judges"": [], ""parties"": [""J. E. Howard et al., Respondents, v. Washington Water Power Company, Appellant.""], ""opinions"": [{""text"": ""Ellis, J.\nThis is an action for personal injuries claimed to have been suffered by the plaintiff Lottie M. Howard through coming in contact with an exposed electric light switch in a house which the plaintiffs had rented from the defendant.\nThe complaint alleges that the defendant was the owner of an electric light plant, in the city of Spokane, and was engaged in furnishing to the residents of the city electricity for lighting and other purposes; that the defendant owned the residence in which the plaintiffs were living; that the house was wired for the purpose, and was lighted by electricity furnished by the defendant on usual terms to its customers and paid for by plaintiffs; that, in the front hall near a window, and four or five feet from the floor, in a small opening in the wall, had been placed an electric attachment, the wires or appliances of which had been exposed, uninsulated and unprotected, but were not such as to attract attention; that, on the 8th day of March, 1912, while the plaintiff Lottie M. Howard was engaged in washing the wall and window, her hand came in contact with the exposed electric wire or apparatus, the existence and location of which were unknown to her, and therefrom she received a severe electric shock which threw her on the floor and across a bucket where she lay unconscious until found by her husband ; that, at the time, she was pregnant, and that she suffered a miscarriage that night, and sustained other injuries by reason of the shock and fall. The complaint further alleges:\n“That defendant was guilty of negligence in causing or permitting said electrical wires to be charged with such a dangerous current of electricity and in allowing the same to be exposed and unprotected, as hereinbefore mentioned, and in failing to give plaintiffs any warning of such condition, it being well known to defendant that plaintiffs knew nothing about electricity, electrical appliances or the danger arising from the conditions hereinbefore mentioned.”\nA general demurrer to the complaint was overruled on submission without argument. The answer put in issue the allegations of negligence, interposed the defense of contributory negligence, and alleged that, under the rental agreement, the tenants undertook to fix, adjust, and install electric wires for lighting. The affirmative allegations of the answer were traversed by the reply.\nThe evidence shows that, in the latter part of December, 1911, the plaintiff husband opened negotiations with a rental agency for renting the house in question; that, afterwards, the plaintiff wife, with a friend, visited' and examined the house, and that thereafter an arrangement was made between the plaintiffs and the defendant’s agent whereby the plaintiffs rented the place, and because of its condition were to receive the first month’s rent free, the first payment being then made for the second month’s rent. There is some conflict in the evidence as to just what the agreement was; the plaintiffs claiming that they were merely to repair certain windows and clean the house; the defendant claiming that, in consideration of the first month’s rent, the plaintiffs were to make all necessary repairs to the house. There was however, neither definite claim nor clear proof that the defendant agreed to make any repairs. After taking possession of the house, the plaintiffs cleaned part of it and made some repairs. The front part of the house had not been cleaned. They intended to let certain rooms, and on the day in question Mrs. Howard was cleaning the front hall. In the hall, on the left side of the front door and near to a narrow window behind the door, was an ordinary switch for the purpose of turning off and on an electric light on the porch. The cap or covering from the top of this switch, and also the button, had been removed. Mrs. Howard testified that, about five o’clock in the afternoon of March 8, 1912, she was washing the casing about the door and window mentioned, and that, while so doing, she placed her hand on this exposed switch; and the floor being wet, she received an electric shock which caused her to fall across a pail filled with water which she was using. She also testified that she was pregnant, and that the accident caused a miscarriage that night.\nThere was no witness to the accident, but her husband testified that he found her about ten or fifteen minutes after five o’clock lying unconscious upon her stomach across the pail. Two doctors testified that, from symptoms a short time after the accident and from certain examinations, they were both satisfied that a miscarriage had actually occurred. Both testified that there was nothing unusual in the symptoms, that the miscarriage was complete and the symptoms satisfactory from a physician’s point of view. A former tenant, who had occupied the premises shortly before it was rented to the plaintiffs, testified that the electric apparatus in the house was all badly out of repair, and that he had repeatedly called the attention of defendant’s agent to this condition. He also testified rather vaguely that the agent had been notified of the exposed condition of the switch in question which was located behind the front door. Notice of any kind was denied by the defendant’s agent. One expert electrician testified that, under the conditions, wet hand, wet floor and live exposed wires, when the hand was placed so as to touch both wires, the electrical current would pass through the entire body. Another expert testified that, under these conditions, the current would only pass through the hand. The latter also testified that, three or four days after the accident, he tested the current in the exposed wires and found it only 97 volts and that such a current would cause but a slight shock and no injury. There was no evidence, however, that the current was of the same strength at the time of the test as it was at the time of the accident. The trial resulted in a verdict against the defendant for $3,000. The appellant moved for judgment notwithstanding the verdict, or in the event that was denied, for a new trial. The court denied the first motion, and overruled the motion for a new trial on condition that the plaintiffs accept a judgment for $2,000. The condition was accepted, and judgment was entered for that amount. The defendant has appealed.\nIt is contended that no liability on the appellant’s part for the accident was shown, either by facts pleaded or by evidence adduced, because the landlord did not agree to repair. It is a general rule that, without an express contract to the contrary, a tenant takes the demised premises as he finds them and that there is no implied warranty on the landlord’s part that they are safe or even fit for the purpose for which they are rented. The rule caveat emptor applies. In the absence of fraud or active deceit, where the action is upon the contract or for its rescission, or for damages in lieu thereof, this is a rule of almost universal application. There can be no question that, if this were an action upon the contract, there could be no recovery, since the landlord did not agree to make any repairs. This however, is not an action upon the contract. It is not an action for damages for failure to repair. It is an action for a tort— for a negligent breach of duty which, in any case, without regard to the terms of the contract, the landlord owes to the tenant. The duty .is a legal incident to the creation of the relation of landlord and tenant independent of the terms, either expressed or implied, of the contract creating it. Where there are obscure defects dangerous to the life, health, or property of the tenant, existing and known to the landlord when the lease is made, but unknown to and unappreciated by the tenant, and which a reasonable, careful examination on his part would not discover, it is the duty of a landlord to disclose them that the tenant may either decline the premises or guard against the defects. The failure to disclose such defects or dangers is culpable negligence. It constitutes a well recognized exception to the general rule of non-liability of the landlord in the absence of a warranty against defects or an agreement to make repairs. The rule caveat emptor rests in contract as an implied assumption on the tenant’s part of the risks of all obvious defects or conditions affecting the safety or fitness of the premises. It can never be invoked to condone a tort. . The general rule and the exception have been well and comprehensively stated as follows:\n“On the owner’s entire surrender of control over premises to a lessee, he is, in the absence of any warranty of their condition or fraudulent concealment of known defects or agreement to repair, on his part, free from liability to the lessee and to those whom the latter invites upon the premises, for defects which could have been discovered by the lessee, on reasonable inspection, at the time of hiring. In other words, if the lessee has the same opportunities as the owner to discover a defect, at the time of leasing, the rule of caveat emptor applies, and he takes the premises as he finds them. There is, therefore, no implied warranty on the part of a lessor that the premises are safe or reasonably fit for occupation. Where, however, there is some latent defect, e. g., an original structural weakness, or decay, the presence of an infectious disease, or other injurious thing reridering the occupation of the premises dangerous, which were known to the lessor, and were not known to the lessee, nor discoverable by him on reasonable inspection, then it was the duty of the lessor to disclose the defect, and if an injury results therefrom, he is liable as for negligence.” 3 Shearman & Redfield, Negligence (6th ed.), § 709.\nIt will be observed that the exception to the rule so stated does not place upon the landlord any greater duty of inspection in the absence of warranty or covenant to repair than it places upon the prospective tenant. It imposes no active diligence upon the landlord to discover and disclose obscure defects or dangers, but it does impose a duty to disclose such as are known to him at the time and not likely to be discovered by a reasonably careful inspection by the tenant. The rule and the exception so limited to actual knowledge, are sustained by the decided trend of the authorities. Moore w. Parker, 63 Kan. 52, 64 Pac. 975, 53 L. R. A. 778; Cowen v. Sunderland, 145 Mass. 363, 14 N. E. 117, 1 Am. St. 469; Coke v. Gutkese, 80 Ky. 598, 44 Am. Rep. 499; Martin, v. Richards, 155 Mass. 381, 29 N. E. 591; Anderson v. Hayes, 101 Wis. 538, 77 N. W. 891, 70 Am. St. 930; Edwards v. New York & H. R. R. Co., 98 N. Y. 245, 50 Am. Rep. 659; Kern v. Myll, 80 Mich. 525, 45 N. W. 587, 8 L. R. A. 682.\nThe respondents contend for a broader exception to the general rule, and claim that the landlord should be held liable, not only for the failure to disclose obscure defects actually known to him at the time of the lease, but also for the failure to exercise reasonable care to discover such obscure defects and divulge them. There is but one court to which our attention has been called which has committed itself to so broad an application of the exception. The supreme court of Tennessee has sustained a liability in the absence of actual knowledge in the following cases: Hines v. Willcox, 96 Tenn. 148, 33 S. W. 914, 34 S. W. 420, 54 Am. St. 823, 34 L. R. A. 824; Willcox v. Hines, 100 Tenn. 538, 46 S. W. 297, 66 Am. St. 770, 41 L. R. A. 278; Stenberg v. Willcox, 96 Tenn. 163, 33 S. W. 917, 34 L. R. A. 615. The exception is also thus broadly stated in 2 Wood, Landlord and Tenant (2d ed.), p. 855, but the authorities generally, as it seems to us, fail to sustain a liability in the absence of actual knowledge of the defect on the landlord’s part. An exception so broad as that claimed would practically abrogate the general rule and cast the whole burden of reasonable inspection upon the landlord notwithstanding the fact that he had refused to warrant the premises or to covenant to repair.\nThe respondents also cite a number of authorities which it is claimed support the broader application of the exception, but an examination convinces us that they fall within another exception; which is that, where the landlord lets premises to several tenants and retains control of any part of the premises, either for his own use or for that of all of the tenants in common, such as a roof for drying laundry, common passageways and stairways, he is liable not only for damages resulting from defects known to him at the time of the lease, but also for those which should have been known to him by the exercise of reasonable care and inspection. Baird v. Shipman, 132 Ill. 16, 23 N. E. 384, 22 Am. St. 504, 7 L. R. A. 128; Wilcox v. Zane, 167 Mass. 302, 45 N. E. 923; Lindsey v. Leighton, 150 Mass. 285, 22 N. E. 901, 15 Am. St. 199.\nOn the other hand, the appellant contends, if we have correctly caught counsel’s meaning, that, in the absence of an express warranty or covenant by the landlord' to repair, the exception to the rule caveat emptor extends no further than to permit a recovery against the landlord for injury resulting from obscure defects in case of actual fraudulent misrepresentation or active deceit, and not to cases of mere passive failure to disclose known defects or dangerous conditions, however obscure. Some of the authorities cited by the appellant contain language which seems to support that view, but an examination discloses the true ground of decision in each case to have been either that the defect was such that the court could say, as a matter of law, was so patent that reasonable care on the tenant’s part would have discovered it, or upon the ground that the defect arose after the tenancy had commenced. In such cases, of course, the remedy, if any, is upon the contract and not for a tort. Land v. Fitzgerald, 68 N. J. L. 28, 52 Atl. 229; Doyle v. Union Pac. R. Co., 147 U. S. 413; Bertie v. Flagg, 161 Mass. 504, 37 N. E. 572. The other authorities cited by the appellant recognize the exception as we have stated it, the decision in each instance resting upon the peculiar facts of the case, which, in the opinion of the court, took it out of the operation of the exception; such as lack of knowledge of the defect on the landlord’s part at the time of the making of the lease; dangers created by the acts of third persons, or defects arising after the lease was made. Franklin v. Brown, 118 N. Y. 110, 28 N. E. 126, 16 Am. St. 744, 6 L. R. A. 770; Prahar v. Tousey, 93 App. Div. 607, 87 N. Y. Supp. 845; Towne v. Thompson, 68 N. H. 317, 44 Atl. 492, 46 L. R. A. 748; Dustin v. Curtis, 74 N. H. 266, 67 Atl. 220, 11 L. R. A. (N. S.) 504; Ward v. Fagin, 101 Mo. 669, 14 S. W. 738, 20 Am. St. 650, 10 L. R. A. 147; Bennett v. Sullivan, 100 Mo. 118, 60 Atl. 886; Roberts v. Cotty, 100 Mo. App. 500, 74 S. W. 886; Coats v. Meriwether, 144 Mo. App. 89, 129 S. W. 468; Franklin v. Tracy, 117 Ky. 267, 77 S. W. 1113, 78 S. W. 1112, 63 L. R. A. 649.\nA painstaking examination of the authorities cited and many more, induces the conviction that the exception to the rule of nonliability of the landlord for injuries arising from defects existing at the time the lease was made, in the absence of warranty or express agreement upon his part to repair, can soundly be extended only to injuries resulting from a failure of the landlord to disclose those obscure defects not known to the tenant and not discoverable by a reasonably careful examination on his part, but actually known at the time to the landlord.\nUpon the evidence, which we have briefly summarized in our statement and which we deem unnecessary to review in greater detail, every question of fact was for the jury under proper instruction. It was for the jury to say whether the uncovered switch was a defect so obscure as not to be discovered and its dangers appreciated by the tenant in the exercise of reasonable care such as to be expected from an ordinarily prudent person examining premises as a prospective tenant. It was for the jury to say whether the appellant actually knew of the defective switch and negligently failed to disclose the defect to the respondents. In short, the action was one for negligence, the defense was contributory negligence and the evidence was conflicting on both questions. We cannot say, as a matter of law, that, upon the evidence, the minds of reasonable men might not differ as to either question.\nThe appellant insists that the court in outlining the issue in his instructions erred in stating that the plaintiffs “say that the defendant knew that the switch was exposed and dangerous.” Though a direct allegation of such knowledge is not found in the complaint, we think the charge of such knowledge is fairly inferable from the allegations which we have outlined and in part quoted in our statement of the case. Under the rule announced in Gibson v. Chicago, M. & P. S. R. Co., 61 Wash. 639, 112 Pac. 919, and followed in McLeod v. Chicago, Milwaukee P. S. R. Co., 65 Wash. 62, 117 Pac. 749, we think the issue was sufficiently presented, especially in view of the fact that the demurrer to the complaint was general and was submitted to the court without argument and that no objection was made to the introduction of any evidence for lack of this necessary allegation in some form.\"" Moreover, the point was waived. When the evidence was introduced tending to show such knowledge, counsel at first objected that notification of the defect by a prior tenant was immaterial and not within the issues, the court ruled that the evidence was “reasonably within the allegations of the complaint.” Counsel for appellant said: “This is to prove the knowledge of the condition by Mr. McIntosh,” (appellant’s agent) and counsel for the respondents answered, “Knowledge of the defendant,” to which appellant’s counsel rejoined, “All right,” closing the incident. Thereafter the trial proceeded apparently upon the theory that the complaint charged such knowledge. Had the appellant then urged the objection, no doubt an amendment would have been permitted. Not having done so, ánd no surprise or prejudice at the trial being shown, we find no prejudicial error in the instruction.\nIt is also claimed that the court erred in an instruction by which the jury was told that, in case it found that the appellant let the house to the respondents knowing the danger and failed to disclose it, such failure would be negligence, rendering the appellant liable, the objection being that this particular instruction did not define the degree of care incumbent upon the respondents. The court had, however, already fairly and concisely instructed the jury to the effect that, if it found that the appellant did not know of the alleged defective condition, there could be no recovery and that, if the respondents did know or by the exercise of reasonable inspection and investigation should have known of it, then the jury should find for the appellant. We have often held that reversible error cannot be predicated upon isolated parts of the charge. Taken as a whole, the instructions clearly stated the law applicable to the evidence.\nOne of the physicians who attended the injured woman testified that there was a retroversion of the uterus, and that an operation would probably be necessary to restore it to its normal condition. The evidence was slight, if any, that the condition resulted either from the fall or from the miscarriage. The physician was further permitted to testify, over objection, that such an operation would be both painful and expensive. There was no claim in the pleadings of damages for such probable expense. The evidence was improperly admitted. The court however, instructed the jury as follows:\n“I charge you that you cannot find any damages against the defendant for any permanent womb trouble for there is no testimony herein that will permit you to find that the defendant’s acts or omissions are responsible for a permanent injury to Mrs. Howard’s womb.”\nIn view of the fact that the only prejudicial effect this evidence could have had was its tendency to augment the recovery, and in view of the above quoted instruction and the further fact that the trial court reduced the verdict of the jury from $3,000 to $2,000, we would not be warranted in a reversal of the judgment or a further reduction because of this error.\nThe judgment is affirmed.\nCrow, C. J., Main, and Fullerton, JJ., concur."", ""type"": ""majority"", ""author"": ""Ellis, J.""}], ""attorneys"": [""Post, Avery $ Higgms, for appellant."", ""Morrill, Chester <§• Shuse, for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 10974.\nDepartment Two.\nSeptember 5, 1913.]\nJ. E. Howard et al., Respondents, v. Washington Water Power Company, Appellant.\nLandlord and Tenant — Defective Premises — Negligence — Injury to Tenant — Liability. The rule of caveat emptor does not apply, and tbe landlord is liable as for a tort, without any agreement on his part to repair, where the tenant sustained an electric shock through a defective and uninsulated electric light switch, where the defect was actually known to the landlord and not disclosed or known to the tenant.\nSame — Liability of Landlord for Defects — Negligence — Contributory Negligence — Question for Jury. Whether a landlord was guilty of negligence in renting property with actual knowledge of a defective light switch, and whether the tenant was guilty of contributory negligence in failing to discover the defect on inspecting the premises, is for the jury, where a former tenant testified that he had notified the landlord’s agent of the defective condition of the electric apparatus and that it had notice of the exposed condition of the switch in question, which was behind the front door, and the evidence was conflicting as to whether the defect was so obscured that it would not be discovered by a prospective tenant in the exercise of reasonable care.\nSame — Actions—Pleadings—Complaint. In an action for the negligent renting of premises in which there was a defective electric light switch, an allegation that the defendant knew that the switch was exposed and dangerous is fairly inferable from a complaint alleging that the defendant was negligent in causing or permitting the electrical wires to be exposed and unprotected and in failing to give the tenant warning of the condition.\nTrial — Objections—Waiver. Error cannot be predicated upon the submission of an issue which was fairly inferable from the allegations of the complaint, where there was no objection to the complaint except by general demurrer submitted without argument; and on objection made to the introduction of the evidence in question as outside the issues, the court ruled that it was reasonably within the issues, in which ruling the appellant acquiesced by saying “all right” and made no claim of surprise or prejudice; since an amendment would doubtless have been made.\nTrial — Instructions—Charge as a Whole. Error cannot be predicated upon an isolated instruction, when, taken as a whole, the instructions clearly state the law applicable to the evidence.\nAppeal — Review—Haemless Error. In an action for personal injuries, error in the admission of evidence of permanent womb trouble, where there was no allegation thereof in the complaint, is harmless where the court expressly withdrew that issue from the consideration of the jury; especially where its only effect would have been to augment the recovery, and the court ordered a new trial unless the plaintiff submitted to a substantial reduction of the verdict.\nAppeal from a judgment of the superior court for Spokane county, Huneke, J., entered June 28, 1912, upon the verdict of a jury rendered in favor of the plaintiffs, for personal injuries from electric shock.\nAffirmed.\nPost, Avery $ Higgms, for appellant.\nMorrill, Chester <§• Shuse, for respondents.\nReported in 134 Pac. 927.""}, ""cites_to"": [{""cite"": ""134 Pac. 927"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""117 Pac. 749"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""65 Wash. 62"", ""case_ids"": [557291], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/65/0062-01""], ""opinion_index"": 0}, {""cite"": ""112 Pac. 919"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""61 Wash. 639"", ""case_ids"": [555756], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/61/0639-01""], ""opinion_index"": 0}, {""cite"": ""63 L. R. A. 649"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A."", ""opinion_index"": 0}, {""cite"": ""78 S. W. 1112"", ""category"": ""reporters:state_regional"", ""reporter"": ""S.W."", ""opinion_index"": 0}, {""cite"": ""77 S. W. 1113"", ""category"": ""reporters:state_regional"", ""reporter"": ""S.W."", ""opinion_index"": 0}, {""cite"": ""117 Ky. 267"", ""case_ids"": [4443960], ""category"": ""reporters:state"", ""reporter"": ""Ky."", ""case_paths"": [""/ky/117/0267-01""], ""opinion_index"": 0}, {""cite"": ""129 S. W. 468"", ""category"": ""reporters:state_regional"", ""reporter"": ""S.W."", ""opinion_index"": 0}, {""cite"": ""144 Mo. App. 89"", ""case_ids"": [1584258], ""category"": ""reporters:state"", ""reporter"": ""Mo. App."", ""case_paths"": [""/mo-app/144/0089-01""], ""opinion_index"": 0}, {""cite"": ""74 S. W. 886"", ""category"": ""reporters:state_regional"", ""reporter"": ""S.W."", ""opinion_index"": 0}, {""cite"": ""100 Mo. App. 500"", ""case_ids"": [1506434], ""category"": ""reporters:state"", ""reporter"": ""Mo. App."", ""case_paths"": [""/mo-app/100/0500-01""], ""opinion_index"": 0}, {""cite"": ""60 Atl. 886"", ""category"": ""reporters:state_regional"", ""reporter"": ""A."", ""opinion_index"": 0}, {""cite"": ""100 Mo. 118"", ""category"": ""reporters:state"", ""reporter"": ""Mo."", ""opinion_index"": 0}, {""cite"": ""10 L. R. A. 147"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A."", ""opinion_index"": 0}, {""cite"": ""14 S. W. 738"", ""category"": ""reporters:state_regional"", ""reporter"": ""S.W."", ""opinion_index"": 0}, {""cite"": ""101 Mo. 669"", ""case_ids"": [566993], ""category"": ""reporters:state"", ""reporter"": ""Mo."", ""case_paths"": [""/mo/101/0669-01""], ""opinion_index"": 0}, {""cite"": ""11 L. R. A. (N. S.) 504"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A.N.S."", ""opinion_index"": 0}, {""cite"": ""67 Atl. 220"", ""category"": ""reporters:state_regional"", ""reporter"": ""A."", ""opinion_index"": 0}, {""cite"": ""74 N. H. 266"", ""case_ids"": [1308533], ""category"": ""reporters:state"", ""reporter"": ""N.H."", ""case_paths"": [""/nh/74/0266-01""], ""opinion_index"": 0}, {""cite"": ""46 L. R. A. 748"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A."", ""opinion_index"": 0}, {""cite"": ""44 Atl. 492"", ""category"": ""reporters:state_regional"", ""reporter"": ""A."", ""opinion_index"": 0}, {""cite"": ""68 N. H. 317"", ""case_ids"": [4497520], ""category"": ""reporters:state"", ""reporter"": ""N.H."", ""case_paths"": [""/nh/68/0317-01""], ""opinion_index"": 0}, {""cite"": ""87 N. Y. Supp. 845"", ""case_ids"": [5825107], ""category"": ""reporters:state"", ""reporter"": ""N.Y.S."", ""case_paths"": [""/nys/87/0845-01""], ""opinion_index"": 0}, {""cite"": ""93 App. Div. 607"", ""category"": ""reporters:state"", ""reporter"": ""A.D."", ""opinion_index"": 0}, {""cite"": ""6 L. R. A. 770"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A."", ""opinion_index"": 0}, {""cite"": ""28 N. E. 126"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.E."", ""opinion_index"": 0}, {""cite"": ""118 N. Y. 110"", ""case_ids"": [2227278], ""category"": ""reporters:state"", ""reporter"": ""N.Y."", ""case_paths"": [""/ny/118/0110-01""], ""opinion_index"": 0}, {""cite"": ""37 N. E. 572"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.E."", ""opinion_index"": 0}, {""cite"": ""161 Mass. 504"", ""case_ids"": [797283], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/161/0504-01""], ""opinion_index"": 0}, {""cite"": ""147 U. S. 413"", ""case_ids"": [3565610], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/147/0413-01""], ""opinion_index"": 0}, {""cite"": ""52 Atl. 229"", ""category"": ""reporters:state_regional"", ""reporter"": ""A."", ""opinion_index"": 0}, {""cite"": ""68 N. J. L. 28"", ""case_ids"": [321777], ""category"": ""reporters:state"", ""reporter"": ""N.J.L."", ""case_paths"": [""/njl/68/0028-01""], ""opinion_index"": 0}, {""cite"": ""22 N. 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+622661,"{""id"": 622661, ""name"": ""Norman Mesher, Respondent, v. J. W. Osborne, Appellant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""e02c1243e7cfa01424ff9b88e91d15579b7a85fe0826ebdd8668319dfc903f2e"", ""simhash"": ""1:3c0a8692e68c12d9"", ""pagerank"": {""raw"": 0.0000012031676997500106, ""percentile"": 0.9877514094451066}, ""char_count"": 26339, ""word_count"": 4705, ""cardinality"": 1061, ""ocr_confidence"": 0.52}, ""casebody"": {""judges"": [], ""parties"": [""Norman Mesher, Respondent, v. J. W. Osborne, Appellant.""], ""opinions"": [{""text"": ""Ellis, J.\nThis action was brought by a father to recover damages for the death of his child, an infant of fifteen months, caused by its falling into a cesspool on the premises of the defendant, which were then occupied by the defendant’s tenant, one Prince. The cesspool was an excavation lined and covered with boards, the top being covered over with earth and sod so as not to be discoverable on ordinary inspection of the premises. The tenant testified, that when she leased the premises from the defendant, about a month before the accident, the defendant agreed to put the premises in repair and keep them in repair as long as she occupied them, and that she had no knowledge of the existence of the cesspool and was not advised of its existence by the defendant. The defendant admitted that he did not mention the cesspool to the tenant at any time. He denied any general agreement to repair the premises, but that such an agreement was made is admitted in the appellant’s brief. The evidence shows that the cesspool was relined in June, 1908, with common two-inch rough lumber furnished by the defendant, but the man who rebuilt the cesspool testified that he used some of the old planks for a part of the cover because, as he remembered it, he was not furnished quite enough new lumber. The Meshers and the Princes were intimate friends and neighbors, living at diagonally opposite corners of the same block. Mrs. Mesher and Mrs. Prince and the children of the two families visited each other nearly every day.\nThe mother of the deceased testified, that on the morning of November 11th, 1910, she took the deceased with her to the Prince home; that upon her arrival there she entered the kitchen, sat down with her child in her arms; that after a time she missed the child and went out to look for it, and failing to find it, went home, and not finding the child there, made inquiries from other neighbors and again at the Prince home. Finally, seeing a shawl which the child had worn on its head lying on the grass she went towards it, when the ground gavé away and she also fell into the cesspool, where she found the baby, drowned. There was evidence that there had been wet weather for a few days prior to the accident, which is the only explanation offered of the giving way of the top of the cesspool under the weight of the child, aside from the fact, clearly shown by the evidence, that the boards .covering the cesspool under the. dirt and sod were thoroughly decayed. Mrs. Prince testified that she did not remember whether on this particular morning Mrs. Mesher brought the child with her when she called or not. She was under the impression that she did not. There was a window in the kitchen looking out upon the lawn covering the cesspool, which was about sixteen feet from the window. The defendant testified that he had made no examination of the cesspool to determine its condition or safety since it was reconstructed in June, 1908, and that he had no reason to suspect that the boards would rot in that length of time, since in other cases he had known boards so used' to last for eight years. At appropriate times, the defendant demurred to the complaint, objected to the introduction of any evidence, moved for a nonsuit, for a directed verdict and for judgment notwithstanding the verdict, all of which were denied. The trial resulted in a verdict for the plaintiff in the sum of $500, from a judgment upon which the defendant appealed.\nThe several assignments of error present three general questions. (1) Was a cause of action stated? (2) If so, was the evidence sufficient to sustain the verdict? (3) Were the parents guilty of contributory negligence?\nI. The appellant contends that the complaint stated no cause of action, and the evidence proved none, in that there was neither allegation nor proof of any dependence of the parents upon the deceased child for support. This claim is based upon the assumption that Rem. & Bal. Code, § 184 (P. C. 81 § 17), was repealed by the amendments of 1909 contained in Rem. & Bal. Code, §§ 183, 194 (P. C. 81 §§ 15, 37). These sections-, so far as material, read as follows:\n“Sec. 183. . . . When the death of a person is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death. If the deceased leave no widow or issue, then his parents, sisters or minor brothers who may be dependent upon him for support and who are resident within the United States at the time of his death, may maintain said action. ...”\n“Sec. 194. No action for a personal injury to any person occasioning his death shall abate, nor shall such right of action determine, by reason of such death, if he have a wife or child living, or leaving no wife or issue, if he have dependent upon him for support and resident within the United States at the time of his death, parents, sisters or minor brothers; but such action may be prosecuted, or commenced and prosecuted, in favor of such wife or in favor of the wife and children, or if no wife, in favor of such child or children, or if no wife or child or children, then in favor of his parents, sisters or minor brothers who may be dependent upon him for support, and resident in the United States at the time of his death.”\n“Sec. 184. A father or in case of the death or desertion of his family the mother, may maintain an action as plaintiff for the injury or death of a child, and a guardian for the injury or death of his ward.”\nThe parts which we have italicized were inserted by the amendment of 1909, Laws 1909, pp. 425, 566. If an action for wrongful death can be maintained at all, in the absence of allegation and proof of dependence, it must be under the provisions „ of § 184. Kanton v. Kelley, 65 Wash. 614, 118 Pac. 890, 121 Pac. 833. Was this section repealed by the amendment of the othér two sections? We think not. If there is any repeal, it rests in implication. ' Repeals by implication are not favored and will only be indulged where the implication is a necessary one, that is, where without an implied repeal of the earlier act there would exist an inharmony in the body of the law irreconcilable on any conceivable theory reasonably compatible with the purpose of the later act. 1 Lewis’ Sutherland, Statutory Construction (2d ed.), pp. 465, 466, 467. A reasonable construction of the sections quoted develops no conflict irreconcilable or otherwise. The original § 183 gave a cause of action for wrongful death to the heirs or personal representatives of the deceased. The amendment of 1909 extended that cause of action to “parents, sisters or minor brothers dependent upon him for support, and resident within the United States.” The cause of action so given is not limited by the age of the deceased, but only by the fact of dependence. The amendment in § 194 extends the survival of such actions for wrongful death to the cases of dependency added by the amendment in § 183. Such is the only obvious purpose of these amendments, and in order to find a repugnancy of any kind between them and § 184, we must reverse every rule of construction and raise a conflict by the unnecessary and impossible implication that these amendments apply to actions for wrongful death accorded by § 184 to parents and guardians only and for the death of minor children alone.\nThe basis of the causes of actions given by the two sections 183 and 184, are distinct. The first as amended rests upon a loss of support by a person wholly or partially, dependent; the second rests upon a loss of the common law right of a parent to the service of his children during minority, which is extended by this section to a recovery for loss of such services after the wrongful death of the child and during what would have been its minority. An amendment of the one can have no possible relation to the other, since, before the amendment, the two sections had separate and distinct scopes and purposes. We have held that the original § 183, though subsequently passed, did not repeal § 184, because each had an independent scope and purpose. Hedrick v. Ilwaco R. & Nav. Co., 4 Wash. 400, 30 Pac. 714. Obviously these distinct purposes are extended and emphasized rather than abrogated by the amendment of § 183 by the act of 1909. If, as appellant claims, there is anything said in our opinion in Kanton v. Kelly, supra, sustaining the other view, it was not so intended. We there referred to the Hedrick case but did not overrule or modify it. On the contrary, the opinion on rehearing in Kanton v. Kelly distinctly recognizes the independent basis of the separate causes of action given by the two sections. That opinion, when read with discrimination, holds that a dependent parent, suing for wrongful death of a minor child, has a choice of actions between that conferred by § 183 as amended and § 184, but that the proof required would be different and that the measure of recovery would not be the same. One would rest in loss of support, the other in loss of service. The complaint stated a cause of action.\nII. Was the evidence sufficient to establish a cause of action? A condensation of the lengthy complaint develops the following charges of negligence: (a) Failure to have the premises in repair and free from concealed defects at the time of the letting to the tenant Prince; (b) failure to repair after the letting; (c) failure to disclose a concealed defect existing at the time of the letting, of which, it is alleged, the appellant had knowledge and the tenant was ignorant. Coupled with these charges, were allegations that neither the tenant nor the respondent had, or by exercise of reasonable care could have had, any knowledge of the defect; that the appellant expressly agreed to put in repair and keep in repair the leased premises during the continuation of the lease, and that he knew, and it was his duty to know, that the cesspool was out of repair, dangerous and unsafe. In considering the issue of negligence, it may be well to point out certain general principles which must be borne in mind throughout the whole discussion.\n(1) The liability of the landlord, as for a tort for injury resulting from latent or obscure defects, known to him and unknown to the tenant, arises from a breach of duty distinct from a mere breach of contract. A mere breach of contract does not usually create a liability as for negligence. The liability as for negligence must arise either from a breach of some general duty arising as a legal incident to the relation\nof landlord and tenant created by the contract, or from the negligent performance or negligent failure to perform some general duty imposed upon the landlord by the contract. A mere breach of contract, in the absence of some general duty, gives no basis for an action in tort. Davis v. Smith, 26 R. I. 129, 58 Atl. 630, 106 Am. St. 691, 66 L. R. A. 478; Howard v. Washington Water Power Co., ante p. 255, 184 Pac. 927. It does not follow that where there is a breach of contract there can never be a liability in tort, as expressions in some of the earlier cases would seem to imply. Where there is a general duty, even though it arises from the relation created by or from the terms of the contract, and that duty is violated, either by negligent performance or negligent nonperformance, a landlord may be held as for a tort. Between landlord and tenant, as in other relations, there is always the general duty to so use one’s own as not to injure another. Fowler Cycle Works v. Fraser & Chalmers, 110 Ill. App. 126.\n(2)' There is another general principle which further narrows the discussion. The tenant’s guest, like his servant, is usually held' to be so identified with the tenant that his right of recovery for injury as against the landlord is the same as that of the tenant would be had he suffered the injury. The guest cannot be regarded as possessing the independent rights of á stranger. His right of recovery is in no way superior to that of the tenant. 24 Cyc. 1119; McKenzie v. Cheetham, 83 Me. 543, 22 Atl. 469; Baker v. Moeller, 52 Wash. 605, 101 Pac. 231.\n(8) It is a general principle that, in the absence of express contract to the contrary, a tenant takes the demised premises as he finds them and there is no implied warranty by the landlord that they are safe or fit for the purpose for which they are hired. The maxim caveat emptor applies. 3 Shearman & Redfield, Negligence (6th ed.), § 709; Baker v. Moeller, supra.\n(4) To the general rule of the landlord’s nonliability for injury from defects, there is the well recognized exception that, even in the absence of warranty or express agreement by the landlord to repair, he is liable to the tenant or the tenant’s guest as for a tort, where, with actual knowledge of obscure defects or dangers at the time of the letting, he lets the premises without disclosing such defects to a tenant who does not know, and by the exercise of reasonable care would not discover, them. The duty to disclose such latent defects and dangers when actually known to the landlord exists without regard to any covenant or lack of covenant to repair. But in the absence of such covenant, there is no duty of inspection on the landlord’s part to discover latent and unknown defects. 3 Shearman & Redfield, Negligence (6th ed.), § 709; Moore v. Parker, 63 Kan. 52, 64 Pac. 975, 53 L. R. A. 778; Comen v. Sunderland, 145 Mass. 363, 14 N. E. 117, 1 Am. St. 469; Coke v. Gutkese, 80 Ky. 598, 44 Am. Rep. 499; Martin v. Richards, 155 Mass. 381, 29 N. E. 591; Anderson v. Hayes, 101 Wis. 538, 77 N. W. 891, 70 Am. St. 930; Edwards v. New York & H. R. Co., 98 N. Y. 245, 50 Am. Rep. 659; Kern v. Myll, 80 Mich. 525, 45 N. W. 587, 8 L. R. A. 682; Howard v. Washington Water Power Co., supra.\n(5) Whether the landlord is ever liable in tort for injuries to the tenant or his guest arising solely from his breach of covenant to repair, where the complete possession is turned over to the tenant, is a question upon which the authorities are hopelessly divided. Many courts, perhaps the more numerous, tend to the view that there is no such liability, and that the tenant is remitted to his action on the contract and cannot recover for personal injuries, because they are too remote to have been within the contemplation of the parties to the contract when it was made. Dustin v. Curtis, 74 N. H. 266, 67 Atl. 220, 11 L. R. A. (N. S.) 504, and cases cited in note; Tuttle v. Gilbert Mfg. Co., 145 Mass. 169, 13 N. E. 465. In some jurisdictions it is held that where he so covenants there is an affirmative duty on the landlord to repair defects existing at the time of the lease, the failure to observe which is negligence giving ground for action for personal injuries caused thereby to any one lawfully on the premises. In such a case, the lease is a mere matter of inducement, material only as determining the negligence and as determining that the plaintiff was lawfully on the premises, the action being in tort. Moore v. Steljes, 69 Fed. 518; Schoppel v. Daly, 112 La. 201, 36 South. 322; Barron v. Liedloff, 95 Minn. 474, 104 N. W. 289. Other cases hold that no action will lie as for negligence until reasonable notice to the landlord of the defect, even in case of covenant to repair. Thompson v. Clemens, 96 Md. 196, 53 Atl. 919, 60 L. R. A. 580; Flood v. Huff, 29 Misc. Rep. 351, 60 N. Y. Supp. 517. A carefully compiled and discriminating text, after noting the hopeless conflict of the authorities and the hair-splitting distinctions indulged by some of the courts, uses the following language:\n“The law on the subj ect is in a state of transition. In some of the earlier cases holding that an action of tort did not arise on a breach of the covenant in the case presented, the general expressions used would include the proposition that no such action could arise. But, it is believed, that, restricting those cases to the issue presented, there is nothing to exclude general harmony on the proposition where there is a covenant by the landlord to keep the premises in safe and tenantable condition, and the landlord has knowledge or notice of the existence of such defects as renders the use of the property in the manner contemplated by the lease dangerous to the tenant, and the tenant, his guests or family, suffer personal injury therefrom after a reasonable time for making the premises safe, since such notice or knowledge, in the absence of contributory negligence, the landlord is liable in an action of tort therefor. In those jurisdictions where damages for personal injuries are held recoverable against the landlord for injuries caused by the want of repairs he had agreed to make, and of the necessity of which he had been notified, it is said that the nature of the covenant is such as naturally to create a reasonable anticipation that the neglect to perform it will probably be the cause of personal injuries being inflicted on the tenant, his guests, family and servants; that the covenant gives rise to a corresponding duty either to exercise such supervision as may be necessary, or to act with requisite promptness on notice, as the case may require, and that an action of tort is maintainable for the injury consequent on the neglect to perform it, the covenant being set up as a matter of inducement. ...” 3 Shear-man & Redfield, Negligence (6th ed.), § 708a.\nThe question here presented is thus finally reduced to the inquiry, whether a landlord who covenants to repair is affected with notice of defects existing at the time of the letting, of which he did not know but which a reasonable inspection on his part at that time would have disclosed. Whether the appellant here can be held liable as for negligence must depend upon the answer to this inquiry.\nAs we have seen, in the absence of an agreement to repair, the landlord is under no legal duty to search for concealed defects of which he has no knowledge. The duty of inspection in such cases is upon the prospective tenant. The cases so holding, however, nearly all mention the lack of an agreement to repair as a material circumstance relieving the landlord from the duty of inspection. Where the landlord agrees to put the premises in repair and keep them in repair during the tenancy, it would seem that there ought to arise a positive duty on his part before relinquishing possession to the tenant to make reasonable inspection of the premises for concealed defects, unknown to and undiscoverable by a reasonable inspection on the tenant’s part, which might render the premises dangerous to the tenant, his family, servants and guests. In such a case, as it seems to us, the landlord ought to be held to a more careful inspection than the tenant, because the duty to repair is upon the landlord and his presumed knowledge of his own premises would make a discovery by him of concealed defects and dangers more probable. Such a rule would seem to be only a just application of the maxim to which we have adverted, that there is always a positive duty to exercise reasonable care to so use one’s own property as not to injure another. We have been favored with no brief for the respondent, and by such a search as the limited time at our disposal permits, we have found no case distinctly so holding, except the following decisions by the supreme court of Tennessee. Hines v. Willcox, 96 Tenn. 148, 33 S. W. 914, 34 S. W. 420, 54 Am. St. 823, 34 L. R. A. 824; Willcox v. Hines, 100 Tenn. 538, 46 S. W. 297, 66 Am. St. 770, 41 L. R. A. 278; Stenberg v. Willcox, 96 Tenn. 163, 33 S. W. 917, 34 L. R. A. 615.\nThese decisions extend the positive duty of inspection by the landlord even to cases where he has not agreed to repair, and though we have expressed a doubt as to their soundness in such cases (Howard v. Washington Water Power Co., supra), we think the rule they announced is on principle sound as applied to cases where the landlord has agreed to put and keep the premises in repair. In such a case, it seems unreasonable to say that the tenant assumed the risks of concealed defects of which he had no knowledge, and by a reasonable inspection could not discover, and which he did not agree to repair, while the landlord has agreed to make all necessary repairs. The duty of the landlord to inspect with a view to repair, or at least to disclose where he has agreed to repair, seems closely analogous to the same duty as applied to the master respecting concealed defects in appliances or place of work in the relation of master and servant. That relation also arises out of contract, but it has never been held that the servant, in case of injury from such concealed defects, necessarily assumes the risk and is remitted to his contract and cannot sue in tort. The supreme court of Kentucky has held the landlord liable in tort for failure to repair an open defect known to both parties, on the ground that the landlord’s promise to repair absolved the tenant from an assumption of risk, noting the analogy to the relation of master and servant to which we have referred. Stillwell v. South Louisville Land Co., 22 Ky. Law 785, 58 S. W. 696, 52 L. R. A. 325.\nOn reason we are constrained to hold that where the landlord, as in this case, agreed to put and keep the premises in repair, there arose the antecedent duty to inspect the premises for concealed dangers and either remove them or notify the tenant of their existence that he might either decline the tenancy or guard against the dangers. The appellant should be held to know what a reasonable inspection on his part would have discovered. As in other cases of negligence, whether he would have discovered the defect by a reasonable inspection was a question for the jury on the evidence. The trial court correctly so instructed.\nIII. The other questions raised, whether the child was a trespasser and whether the mother was guilty of contributory negligence, rest upon the conflict in evidence as to whether the mother took the child with her on the visit or not. The only positive testimony on the subject is that of the mother that she did. Mrs. Prince, though not able to remember, thought that she did not. On this conflict the question was clearly one for the jury. The further claim that the mother was guilty of contributory negligence, as a matter of law, in not seeing the child’s danger, because the cesspool was in front of the kitchen window near which she sat, is without merit. She did not kn'ow of the existence of the cesspool, and there is no evidence whatever that the top fell in before the child went upon it. In fact, the only reasonable inference from the evidence is to the contrary. It was for the jury to say whether, in the absence of such knowledge, the mother was negligent in allowing the child to play in the yard unattended. On the law as we view it, the case was submitted to the jury on proper instructions.\nThe judgment is affirmed.\nCrow, C. J., Fullerton, and MkiN, JJ., concur."", ""type"": ""majority"", ""author"": ""Ellis, J.""}], ""attorneys"": [""1 Tolman & King, for appellant.""], ""corrections"": """", ""head_matter"": ""[No. 11251.\nDepartment Two.\nSeptember 18, 1913.]\nNorman Mesher, Respondent, v. J. W. Osborne, Appellant.\nDeath — Wrongful Death — Right of Action — Survival — Statutes — Implied Repeal. The basis of the cause of action for wrongful death originally given by Rem. & Bal. Code, § 183, to the heirs or personal representatives of the deceased, is distinct from the basis of the cause of action given by § 184 to a father or mother for the wrongful death of a child; hence the amendment in 1909 of § 183, extending that cause of action to the “parents, sisters or minor brothers dependent” upon the deceased for support, and of § 194, extending the provision for survival of such causes to such dependents, did not impliedly repeal § 184; the one being for loss of support, and the other being for loss of service.\nLandlord and Tenant — Premises—Defects—Injuries—Liability. The liability of a landlord as for a tort for injury from latent defects, known to him and unknown to the tenant, does not rest upon breach of contract.\nSame-^Injury to Guest. The right of a guest of a tenant to recover from the landlord for injuries suffered by reason of defective premises, is in no way superior to the right of the tenant.\nSame — Premises—Condition—Caveat Emptor. In the' absence of an express provision to the contrary, a tenant takes the premises as he finds them, and the maxim of caveat emptor applies.\nSame — Condition of Premises — Inspection. In the absence of a covenant to repair, the landlord owes no duty to inspect the premises to discover latent or unknown defects.\nSame — Latent Defects- — Duty to Inspect. Where a landlord agrees to put the premises in repair and to keep them in repair during the term, he owes the duty to the tenant and his guests to make a reasonable inspection for concealed defects unknown to and undiscoverable by a reasonable inspection on the tenant’s part; and hence is liable for the -death of a child visiting the tenant, which fell into a concealed and covered cesspool, the existence of which was unknown to the tenant, and the dangerous condition of which a reasonable inspection would have disclosed.\nSame — Injuries—Evidence—Guest or Trespasser — Question fob Jury. In an action for the death of a child, which fell into a cesspool on the defendant’s premises, the positive testimony of the mother that the child accompanied her on a visit to the defendant’s tenant, while another witness testified that she though she did not, is sufficient to make a question for the jury as to whether the child was a visitor or a trespasser.\nSame — Actions for Injuries — Contributory Negligence — Evidence — Sufficiency. In an action for the death of a child, which fell into a concealed cesspool on the defendant’s premises, while on a visit to the defendant’s tenant, there is no evidence of the contribmtory negligence of the mother in not seeing the child’s danger, where she did not know of the existence of the cesspool, which was ■covered with boards and earth, and there was no evidence that the ;top fell in until the child went upon it.\nAppeal from a judgment of the superior court for Spokane ■county, Huneke, J., entered June 29, 1912, upon the verdict ■of a jury rendered in favor of the plaintiff, in an action for wrongful death.\nAffirmed.\n1 Tolman & King, for appellant.\nReported in 134 Pac. 1092.""}, ""cites_to"": [{""cite"": ""134 Pac. 1092"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""52 L. R. A. 325"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A."", ""opinion_index"": 0}, {""cite"": ""58 S. W. 696"", ""category"": ""reporters:state_regional"", ""reporter"": ""S.W."", ""opinion_index"": 0}, {""cite"": ""34 L. R. A. 615"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A."", ""opinion_index"": 0}, {""cite"": ""33 S. W. 917"", ""category"": ""reporters:state_regional"", ""reporter"": ""S.W."", ""opinion_index"": 0}, {""cite"": ""96 Tenn. 163"", ""case_ids"": [8536504], ""category"": ""reporters:state"", ""reporter"": ""Tenn."", ""case_paths"": [""/tenn/96/0163-01""], ""opinion_index"": 0}, {""cite"": ""41 L. R. A. 278"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A."", ""opinion_index"": 0}, {""cite"": ""46 S. W. 297"", ""category"": ""reporters:state_regional"", ""reporter"": ""S.W."", ""opinion_index"": 0}, {""cite"": ""100 Tenn. 538"", ""case_ids"": [8537180], ""category"": ""reporters:state"", ""reporter"": ""Tenn."", ""case_paths"": [""/tenn/100/0538-01""], ""opinion_index"": 0}, {""cite"": ""34 L. R. A. 824"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A."", ""opinion_index"": 0}, {""cite"": ""34 S. W. 420"", ""category"": ""reporters:state_regional"", ""reporter"": ""S.W."", ""opinion_index"": 0}, {""cite"": ""33 S. W. 914"", ""category"": ""reporters:state_regional"", ""reporter"": ""S.W."", ""opinion_index"": 0}, {""cite"": ""96 Tenn. 148"", ""case_ids"": [8536490], ""category"": ""reporters:state"", ""reporter"": ""Tenn."", ""case_paths"": [""/tenn/96/0148-01""], ""opinion_index"": 0}, {""cite"": ""29 Misc. Rep. 351"", ""weight"": 2, ""case_ids"": [7773244], ""category"": ""reporters:state"", ""reporter"": ""Misc."", ""case_paths"": [""/nys/60/0517-01""], ""opinion_index"": 0}, {""cite"": ""60 L. R. A. 580"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A."", ""opinion_index"": 0}, {""cite"": ""53 Atl. 919"", ""category"": ""reporters:state_regional"", ""reporter"": ""A."", ""opinion_index"": 0}, {""cite"": ""96 Md. 196"", ""case_ids"": [2077206], ""category"": ""reporters:state"", ""reporter"": ""Md."", ""case_paths"": [""/md/96/0196-01""], ""opinion_index"": 0}, {""cite"": ""104 N. 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+636775,"{""id"": 636775, ""name"": ""Constant Ottevaere et al., Appellants, v. The City of Spokane, Respondent"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""8b1ed7c2819d1c3d5c7aaf72ce9dfbb60d4fa640a1616f61b61db4744ccf245d"", ""simhash"": ""1:4ea5b5089a536633"", ""pagerank"": {""raw"": 0.00000033863583589607504, ""percentile"": 0.8766748563333229}, ""char_count"": 6281, ""word_count"": 1093, ""cardinality"": 393, ""ocr_confidence"": 0.555}, ""casebody"": {""judges"": [], ""parties"": [""Constant Ottevaere et al., Appellants, v. The City of Spokane, Respondent.""], ""opinions"": [{""text"": ""Fullerton, J.\nThis is an appeal from a judgment rendered in favor of the respondent and against the appellants on a challenge to the sufficiency of the evidence, in an action to recover for personal injuries suffered by the appellant Eugenie Ottevaere.\nThe record discloses that the appellants are the owners of certain real property situated in the city of Spokane, consisting of a lot with a dwelling house thereon. The premises are supplied with water from the city water system, the supply pipes entering the house in the basement near the floor. Some time in April, 1914, the appellants petitioned the city to install a water meter on the supply pipe, and the city did so, placing the meter inside of the basement of the house. The meter was installed in the usual manner with a stop and waste valve between the meter and the source of supply. The stop and waste valve had on it a projection or handle so as to be worked by hand without the aid of wrenches, and was so arranged that, when the source of supply was cut off, it would operate as a drain for the water in the pipes which carried water into the different rooms of the house. After the installation of the meter, the appellants, for its better protection, built around it a concrete box.\nOn October 7, 1914, the meter suddenly gave way, permitting the water flowing through the service pipe to escape into the basement. The appellant Eugenie Ottevaere, discovering the break, went into the basement and sought to stop the flow of the water by turning the stop and waste valve. The place surrounding the meter was dry when she reached it, but soon thereafter the water covered the floor, making it, as she testified, very slippery. The valve fit close and failed to turn with ordinary pressure. The appellant thereupon exerted her full strength upon it, and while so doing, her feet slipped on the wet floor, causing her to fall upon the concrete box. This action was instituted to recover for the injuries suffered from the fall.\nIn their complaint, the appellants charged the city with negligence in the installation of both the meter and the stop and waste valve. It is alleged that the meter was defective in construction and insufficient, because thereof, to stand the strain caused by the pressure of the water; and that the stop and waste valve was defective in that it was fitted too closely, preventing it from being turned with an ordinary amount of strain upon the handle. But without specially reviewing the record, we think it can be questioned whether there was any substantial evidence tending to support either of these contentions. The court, however, sustained the challenge to the sufficiency of the evidence on the ground that the negligence charged was not the proximate cause of the injury; and, as we have reached the conclusion that the judgment must be sustained on this ground, we will notice only the question suggested by the ruling.\nAll of the cases agree that an injury which is the natural and probable consequence of an act of negligence is actionable, and that such an act is the proximate cause of the injury. It is equally well settled that an injury which could not have been foreseen nor reasonably anticipated as the probable result of an act of negligence is not actionable, and that such an act is either the remote cause, or no cause whatever, of the injury. The present case, we are clear, falls within the latter rule. The city could not reasonably anticipate that the breaking of the water meter, or the strain required to turn the stop valve, would cause the peculiar accident suffered by the appellant. It could anticipate, of course, that an attempt would be made to shut off the water by turning the stop valve if the water meter broke and let the water escape in the basement. Indeed, that was one of the purposes for which the stop valve was installed. But it could not reasonably anticipate that a lift thereon would cause the person making the lift to fall on the floor. It is possible for such a thing to happen, but it is not the usual nor the natural result of such an act. On the contrary, it is the unusual and unnatural result of such an act, and these the city is not required to anticipate. To hold otherwise would make the city an insurer against all acts arising from a break in its water system caused by a defect therein. It would be liable whenever the negligence furnished a condition by which the injury was made possible, however remotely the condition and injury might be separated, if only the injury can be traced to the negligent act by a sequence of causes. But as was said by the supreme court of the United States in Scheffer v. Railroad Co., 105 U. S. 249, holding a railroad company not liable for the death of a passenger who committed suicide while insane as the result of the injury while such a passenger:\n“The argument is not sound which seeks to trace this immediate cause of the death through the previous stages of mental aberration, physical suffering, and eight months’ disease and medical, treatment to the original accident on the railroad. Such a course of possible or even logical argument would lead back to that ‘great first cause least understood,’ in which the train of all causation ends.”'\nIt is our conclusion that the judgment should be affirmed, and it is so ordered.\nMorris, C. J., Mount, Chadwick, and Ellis, JJ., concur."", ""type"": ""majority"", ""author"": ""Fullerton, J.""}], ""attorneys"": [""Plummer & Lavin and Harry L. Cohn, for appellants."", ""H. M. Stephens, Wm. E. Richardson, Ernest E. Sargeant, and Dale D. Drain, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 12745.\nDepartment One.\nFebruary 19, 1916.]\nConstant Ottevaere et al., Appellants, v. The City of Spokane, Respondent.\nWaters and Water Courses — Injuries From Water Service — Defective Meter — Proximate Cause. Negligence of a city in installing a defective water meter is not the proximate cause of an injury caused by slipping on a wet floor while attempting to turn the stop valve, when the meter broke and flooded the basement; since the accident could not be reasonably anticipated, and the city is, therefore, not liable therefor.\nAppeal from a judgment of the superior court for Spokane county, Sullivan, J., entered January 23, 1915, upon granting a nonsuit, dismissing an action for personal injuries.\nAffirmed.\nPlummer & Lavin and Harry L. Cohn, for appellants.\nH. M. Stephens, Wm. E. Richardson, Ernest E. Sargeant, and Dale D. Drain, for respondent.\nReported in 155 Pac. 146.""}, ""cites_to"": [{""cite"": ""155 Pac. 146"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""105 U. S. 249"", ""case_ids"": [3496343], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/105/0249-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""89 Wash. 681"", ""type"": ""official""}], ""file_name"": ""0681-01"", ""last_page"": ""684"", ""first_page"": ""681"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T18:12:14.917211+00:00"", ""decision_date"": ""1916-02-19"", ""docket_number"": ""No. 12745"", ""last_page_order"": 718, ""first_page_order"": 715, ""name_abbreviation"": ""Ottevaere v. 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+641097,"{""id"": 641097, ""name"": ""MORISSETTE v. UNITED STATES"", ""court"": {""id"": 9009, ""name"": ""Supreme Court of the United States"", ""name_abbreviation"": ""U.S.""}, ""analysis"": {""sha256"": ""1838f314c83a0487995b0856cda0a0bacaa25dcb9894f405409bc86afd33f923"", ""simhash"": ""1:92977962fba4e431"", ""pagerank"": {""raw"": 0.0000217598746667797, ""percentile"": 0.9998721933209234}, ""char_count"": 62454, ""word_count"": 10506, ""cardinality"": 2559, ""ocr_confidence"": 0.69}, ""casebody"": {""judges"": [""Mr. Justice Douglas concurs in the result."", ""Mr. Justice Minton took no part in the considération or decision of this case.""], ""parties"": [""MORISSETTE v. UNITED STATES.""], ""opinions"": [{""text"": ""Mr. Justice Jackson\ndelivered the opinion of the Court.\nThis would have remained a profoundly insignificant case to all except its immediate parties had it not been so tried and submitted to the jury as to raise questions both fundamental and far-reaching in federal criminal law, for which reason we granted certiorari.\nOn a large tract of uninhabited and untilled land in a wooded and sparsely populated área of Michigan, the Government established a practice bombing range over which the Air Force dropped simulated bombs at ground targets. These bombs consisted of a metal cylinder about forty inches long and eight inches across, filled with sand and enough black powder to cause a smoke puff by which the strike could be located. At various places about the range signs read “Danger — Keep Out— Bombing Range.” Nevertheless, the range was known as good deer country arid was extensively hunted.\nSpent bomb casings were cleared from the targets and thrown into piles “so that they will be out of the way.” They were not stacked or piled in any order but were dumped in heaps, some of which had been accumulating for four years or upwards, were exposed to the weather and rusting away.\nMorissette, in December of 1948, went hunting in this area but did not get a deer. He thought to meet expenses of the trip by salvaging some of these casings. He loaded three tons of them on his truck and took them to a nearby farm, where they were flattened by driving a tractor over them. After expending this labor and trucking them to market in Flint, he realized $84.\nMorissette, by occupation, is a fruit stand operator in summer and a trucker and scrap iron^ollector in winter. An honorably discharged veteran of-World.War'll, he enjoys a good name among his neighbors and has had no blemish on his record more disreputable than a conviction for reckless driving.\nThe loading, crushing and transporting of these casings were all in broad daylight, in full viéw of passers-by, without the slightest effort at concealment. When an investigation was started, Morissette voluntarily, promptly and candidly told the whole story to the authorities, saying that he had no intention of stealing but thought the property was abandoned, unwanted and considered of no value to the Government. He was indicted, however, on the charge that he “did unlawfully, wilfully and knowingly steal and convert” property of the United States of the value of. $84, in violation of 18 U. S. C. § 641, which provides that “whoever embezzles, steals, purloins, or knowingly converts” government property is punishable by fine and imprisonment. Morissette was convicted and sentenced to imprisonment for two months or to pay a fine of $200. The Court of Appeals affirmed, one judge dissenting.\nOn his trial, Morissette, as he had at all times told investigating officers, testified that from appearances he believed the casings were cast-off and abandoned, that he did not intend to steal the property; and took it with no wrongful or criminal intent. The trial court, however, was unimpressed, and ruled: “{H]e took it because he thought it was abandoned and he knew he was on government property. . . . That is no defense. ... I don’t think anybody can have the defense they thought the property was abandoned on another man’s piece of property.” The court stated: “I will not permit you to show this man thought it was abandoned. ... I hold in this case that there is no question of abandoned property.” The court refused to submit or to allow counsel to argue to the jury whether Morissette acted with innocent intention. It charged: “And I instruct you that if you believe the testimony of the government in this case, he intended to take it. . . . He had no right to take this property. . . . [A]nd it is no defense to claim that it was abandoned, because it was on private property. . . . And I instruct you to this effect: That.if this young man took this property (and he says he did), without any permission (he says he did), that was on the property of the United States Government (he says it was), that it was of the value of one cent or more (and evidently it was), that he is guilty of the offense charged here. If you believe the government, he is guilty. . . . The question on intent is whether or not he intended to take the property. He says he did. Therefore, if you believe either side, he is guilty.” Petitioner’s counsel contended,“But the taking must have been with a felonious intent.” The court ruled, however: “That is presumed by his own act.”\nThe Court of Appeals suggested that “greater restraint in expression should have been exercised,” but affirmed .the conviction because, “As we have interpreted the statute, appellant was guilty of its violation beyond a shadow of doubt, as evidenced even by his owii admissions.” Its construction of'the statute is that it creates several separate and distinct offenses, one being knowing - conversion of government property. The court ruled that this particular offense requires no element of criminal intent. This conclusion was thought to be required by the failure of Congress to express such a requisite and this Court’s decisions in United States v. Behrman, 258 U. S. 280, and United States v. Balint, 258 U. S. 250.\nI.\nIn those cases this Court did construe mere omission from a criminal enactment of any mention of criminal intent as dispensing with it. If they be deemed precedents for principles of construction generally applicable to federal penal statutes, they authorize this conviction. Indeed, such adoption of the literal reasoning announced in those cases would do this and more — it would sweep out of all federal crimés, except when expressly preserved, the ancient requirement of a culpable state of mind. We think a résumé of their historical background is convincing that an effect has been ascribed to them more comprehensive than was contemplated and one inconsistent with our philosophy of criminal law.\nThe contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child’s familiar exculpatory “But I didn’t mean to,” and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public'prosecution. Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Black-stoned sweeping statement that to constitute any crime there must first be a “vicious will.” Common-law commentators of the Nineteenth Century early pronounced the same principle, although á few exceptions not relevant to. our presént problem came to be recognized.\nCrime,' as a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism and took deep and early root , in American soil. As the states codified the common law of crimes, even if their enactments were silent on the subject, their courts assumed that the omission did not signify disapproval of the principle but merely recognized that intent was so inherent in the idea of the offense that it required no statutory affirmation: Courts, with little hesitation or division, found an implication of the requirement as to offenses that were taken over from the common law. The unanimity with which they have adhered to the central thought that wrongdoing must be conscious to be criminal is emphasized by the variety, disparity and confusion of their definitions of the requisite but elusive mental element. However, courts of various jurisdictions, and for the purposes of different offenses, have devised working formulae, if not scientific ones, for the instruction of juries around such terms as “felonious intent,” “criminal intent,” “malice aforethought,” “guilty knowledge,” “fraudulent intent,” “wilfulness,” “scienter,” to denote guilty knowledge, or “mens^rea” to signify an evil purpose or mental culpability. By use or combination of these various tokens, they have sought to.protect those who were not blameworthy in mind from conviction of infamous common-law crimes.\nHowever, the Balint and Behrman offenses belbng to a category of another character, with very different antecedents and origins. The crimes there involved depend on no mental element but consist only of forbidden acts or omissions. This, while not expressed by the Court, is. made clear from examination of a century-old but accelerating tendency, discernible both here and in England, to call into existence new duties and crimes which disregard any ingredient of intent. The industrial revolution multiplied the- number of workmen exposed to injury from increasingly powerful and complex piechanisms, driven b.y freshly discovered sources of energy, requiring higher precautions by employers. Traffic of velocities, volumes, and varieties unheard of came to subject the wayfarer to intolerable casualty risks if owners and driv- - ers were not to obsérve new cares and uniformities of conduct. Congestion of cities and crowding of quarters called for health and welfare regulations undreamed of in simpler times. Wide distribution of goods became an instrument of wide distribution of harm when 'those who dispersed food, drink, drugs, and even securities, did not comply with reasonable standards of quality, integrity, disclosure and care. ' Such dangers have engendered increasingly numerous and detailed regulations which heighten the duties of those in control of particular industries, trades, properties or activities that affect public health, safety or^ welfare.\nWhile many of these duties are sanctioned by a more strict civil liability, lawmakers, whether wisely or not, have sought to make such regulations more effective by invoking criminal sanctions to be applied by the familiar technique of criminal prosecutions and convictions. This has confronted the courts with a multitude of prosecutions, based on statutes or administrative regulations, for what have been aptly called “public welfare offenses.” These cases do not fit neatly into any of such accepted classifications of common-láw offenses, such as those against the state, the person, property, or public morals. Many of these offenses are not in .'the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such/regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law se'eks to minimize. While such.offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for. their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect, whatever the intent of the violator, the injury is the same, and the consequences.are injurious or not according to fortuity. Hence, legislation applicable' to such offenses,- as a matter of policy, does not specify intent as a necessary element. The accused,-if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities. Also, penalties commonly are relatively small, and conviction does no grave damage to an offender’s reputation. Under such considerations, courts have turned to construing statutes and regulations which make no mention of intent as dispensing with it and holding that the guilty act alone makes out the crime. This has not, however, been without expressions of misgiving.\nThe pilot of the movement in this country appears to be a holding that a tavernkeeper could be convicted for selling liquor to an habitual drunkard even if he did not know the buyer to be such. Barnes v. State, 19 Conn. 398 (1849). Later came Massachusetts holdings that convictions for selling adulterated milk in violation of statutes forbidding such sales require no allegation or proof that defendant knew of the adulteration. Commonwealth v. Farren, 9 Allen 489 (1864); Commonwealth v. Nichols, 10 Allen 199 (1865); Commonwealth v. Waite, 11 Allen 264 (1865). Departures from the common-law tradition, mainly- of these general classes, were reviewed and their rationale appraised by Chief Justice Cooley, as follows:\n“I agree that as a rule there can be no crime without a criminal intent; but this is not by any means a universal rule. . . . Many statutes which arfe in the nature of police regulations, as this is, impose criminal penalties irrespective of any intent to violate them; the purpose being to require a degree of diligence for the protection of the. public which shall render violation impossible.” People v. Roby, 52 Mich. 577, 579, 18 N. W. 365, 366 (1884).\nAfter the turn of the Century, a new use for crimes-without intent appeared when New York enacted numerous and novel regulations of tenement houses, sanctioned by money penalties. Landlords contended that a guilty intent was essential to establish a violation. Judge Cardozo wrote the answer:\n\""The defendant asks us to test the meaning of this statute by standards applicable to statutes that govern infamous crimes. The analogy, however, is deceptive. The element of conscious wrongdoing, the guilty mind accompanying, the guilty act, is associated with the concept of crimes that are punished as infamohs. . . . Even there it is not an invariable element. . . . But in the prosecution of minor offenses, there is a wider range of practice and of power. Prosecutions for petty penalties have always _ constitutfed in our law a class by themselves. ... That is true though the prosecution is criminal in form.” Tenement House Department v. McDevitt, 215 N. Y. 160, 168, 109 N. E. 88, 90 (1915).\nSoon, employers advanced the same contention as to violations of regulations prescribed by a new labor law. Judge Cardozo, again for-the court, pointed out, as a basis for penalizing violations whether intentional or not, that they were punishable only by fine “moderate in amount,” but cautiously added that in sustaining the power so to fine unintended violations “we are not to be understood as sustaining to a like length the power to imprison. We leave that question open.” People ex rel. Price v. Sheffield Farms Co., 225 N. Y. 25, 32-33, 121 N. E. 474, 477 (1918).\nThus, for diverse but reconcilable reasons, state courts converged on the same result, discontinuing inquiry into intent in a limited class of offenses against such statutory regulations.\nBefore long, similar questions growing out of federal legislation reached this Court. Its judgments were in harmony with this consensus of state judicial opinion, the existence of which may have led the Court to overlook the need for full exposition of their rationale in the context of federal law. In overruling a contention that-there can be no conviction on an indictment which,makes no charge of criminal intent but alleges only making of a sale of a narcotic forbidden by law, Chief Justice Taft, wrote:\n“While the general rule.at common law was that-the scienter was a necessary element in the indictment and .proof of every crime, and this was followed in regard to statutory crimes even where the statutory definition did not in terms include it ... , there has been a modification of this view in respect to prosecutions under statutes the purpose of which would be obstructed by such a requirement. It is a question of legislative intent to be construed by the court. . . .” United States v. Balint, supra, 251-252.\nHe referred, however, to “regulatory measures in the exercise of what is called the police power where the eniphasis of the statute is evidently upon achievement of some social betterment rather than the punishment of the crimes as in cases of mala in se,” and drew hisi citation of supporting authority chiefly from state court cases dealing with regulatory offenses. Id., at 252.\nOn the same day, the Court determined that an offense under the Narcotic Drug Act does not require intent, saying, “If the offense be a statutory one, and intent or knowledge is not. made an element of it, the indictment need not charge such knowledge or intent.” United States v. Behrman, supra, at 288.\nOf course, the purpose of every statute would be '“obstructed” b;^ requiring a finding of intent, if we assume that it had a purpose to convict without it. Therefore, the obstruction rationale does not. help us to learn the purpose of the omission by Congress. And since no federal crime .can exist except by force of statute, the reasoning of the Behrman opinion, if read literally, would work far-reaching changes in the composition óf all federal crimes. Had such a result been contemplated, it could hardly have escaped mention by a Court which numbered among its members one especially interested and informed concerning the importance of intent in common-law crimes. This might be the more expected since the Behrman holding did call forth his dissent, in which Mr. Justice McReynolds and Mr. Justice Brandéis joined, omitting any such mention.\nIt was not until recently that the Court took occasion inore explicitly to relate abandonment of the ingredient, of intent, not merely with considerations of expediency in obtaining convictions, nor with the malum prohibitum classification of the crime, but with the peculiar nature and quality of the offense. We referred to “. . . a now familiar type of legislation whereby penalties-serve as effective means of regulation,” and continued, “such legislation dispenses with the conventional requirement for criminal conduct — awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger.” But we warned: “Hardship there doubtless may be under a statute which thus penalizes the transaction though consciousness of wrongdoing be totally wanting.” United States v. Dotterweich, 320 U. S. 277, 280-281, 284.\nNeither this Court nor, so far as we are aware, any other has undertaken to delineate a precise line or set forth comprehensive criteria for distinguishing between crimes that require a mental element and crimes that do not. We attempt no closed definition, for the law on the subject is neither settled nor static. The conclusion reached in the Balint and Behrman cases has our approval and adherence for the circumstances to which it was there applied. A quite different question here is whether we will expand the doctrine of crimes without intent to include those charged here.\nStealing, larceny, and its variants and equivalents, were among the earliest offenses known to the law that existed before legislation; they are invasions of rights of property which stir a. sense of insecurity in the whole community and arouse public demand for retribution, the penalty is high and, when a sufficient amount is involved, the infamy is that of a felony, which, says Maitland, is “. . . as bad a word as you can give' to man or thing.” State courts of last resort, on whom fall the heaviest burden of interpreting criminal law in this country, have consistently retained the requirement of intent in larceny-type offenses. If any state has deviated, the exception has neither been called to our attention nor disclosed by our research.\nCongress, therefore, omitted any express prescription of criminal intent from the enactment before us in the light of an unbroken course of judicial decision in all constituent states of the Union holding intent inherent in this class of offense, even when not expressed in a statute. Congressional silence as to mental elements in an Act merely adopting into federal statutory law a concept of crime already so well defined in common law and statutory interpretation by the states may warrant quite contrary inferences than the same silence in creating an offense new to general law, for whope definition the courts have no guidance except the Ac& Because the offenses before this Court in the Balirit and Behrman cases were of this latter class, we cannot accept them as authority for eliminating intent from offenses incorporated from the common law. Nor do \""exhaustive studies of state court cases disclose any. well-considered decisions applying the doctrine of crime without intent to such enacted common-law offenses, although a few deviations are notable as illustrative of the danger inherent in the Government’s contentions here.\nThe Government asks us by a feat of construction radically to change the weights and balances in the scales of justice. The purpose and obvious effect of doing away with the requirement of a guilty intent is to ease the prosecution’s path to conviction, to strip the defendant of such benefit as he derived at common law from innocence of evil purpose, and to circumscribe the freedom heretofore allowed juries. Such a manifest impairment of the immunities of the individual should not be extended to common-law crimes on judicial initiative. -\nThe spirit of the doctrine which denies to the federal judiciary power to create crimes forthrightly admonishes that we should not enlarge the reach of enacted crimes by constituting them from anything less than the incriminating components contemplated by the words used in the statute. And where Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise, instructed. In such case, absence of. contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.\nWe hold that mere omission from § 641 of any mention of intent will not be construed as eliminating that element from the crimes denounced.\nII.\nIt is suggested, however, that the history and purposes of § 641 imply something more affirmative as to elimination of intent from at least one of the, offenses charged under it in,, this case. The argument does not contest that criminal intent is retained in the offenses.of embezzlement, stealing and purloining, as incorporated into this section. But it is urged that Congress joined with those, as a new, separate and distinct^ offense, knowingly to convert government property, under circumstances which imply that it is an offense in which the mental element of intent is not necessary.\nCongress has been alert to what- often is a decisive function of some mental element in crime. It has seen fit to prescribe that an evil state of mind, described variously in one or more such terms as “intentional,” “wilful,” “knowing,” “fraudulent” or “malicious,” will make criminal an otherwise indifferent act, or increase the degree of the offense or its punishment. Also, it has at times required a specific intent or purpose which will require some specialized knowledge or design for some evil beyond the common-law intent to do injury. The law under some circumstances recognizes good faith or blameless intent as a defense, partial defense, or as an element to be considered in mitigation of punishment. And. treason — the one crime deemed grave enough for definition in our Constitution itself — requires not only the duly witnessed overt act of aid and comfort to the enemy but also the mental element of disloyalty or adherence to the enemy. In view of the caré that has been bestowed upon the subject, it is significant that we have not found, nor has our attention been directed to, any instance in which Congress has expressly eliminated the mental element from a crime taken over from the common law.\nThe section with which we are here concerned was enacted in 1948, as a consolidation of four former sections of Title 18, as adopted in 1940, which in turn were derived from two sections of the Revised Statutes. The pertinent legislative and judicial history of these antecedents, as well as of § 641, is footnoted. We find no other purpose in the 1948 re-enactment than to collect from scattered sources crimes so kindred as to belong in one category. Not one of these had been interpreted to be a crime without intention and no purpose to differentiate between them in the matter of intent is discloséd. No inference that some were and some were not crimes of intention can be drawn from any difference in classification or punishment. Not one fits the congressional classification of the petty offense; each is, at its least, a misdemeanor, and if the amount involved is one hundred or more dollars each is a felony. If one crime without intent has been smuggled into a section whose dominant offenses do require intent, it was put in ill-fitting and compromising company. The Government apparently did not believe that conversion stood so alone when it drew this one-count indictment to charge that Morissette “did unlawfully, wilfully and knowingly steal and convert to his own use.”\nCongress, by the language of this section, has been at pains to incriminate only “knowing” conversions. But, at common law,, there are unwitting acts which constitute conversions. In the civil tort, except for recovery of exemplary damages, the defendant’s knowledge, intent, motive, mistake, and good faith are generally irrelevant. If one takes property which turns out to belong to another, his innocent intent will not shield him from making restitution or indemnity, for. his well-meaning may not be allowed to deprive another of his own.\nHad the statute applied to conversions without qualification, it would have made., crimes of all unwitting, inadvertent and unintended conversions. Knowledge, of course, is not identical with intent and may not have been the most apt words of limitation. But knowing conversion requires more than knowledge that defendant was taking the property into his possession. He must have had knowledge of the facts, though not necessarily the law, that made the taking a conversion. In the case before us, whether the mental element that Congress required be spoken of as knowledge or as intent,'would not seem to alter its bearing on guilt. For it is not apparent how Morissette could have knowingly or intentionally converted property that he did not know could be converted, as would be the case if it was in fact abandoned or if he truly believed it to be abandoned and unwanted property.\nIt is said, and at first blush the claim has plausibility, that, if we construe the statute to require a mental element as part of criminal conversion, it becomes a meaningless duplication of the offense of stealing, and that conversion can be given meaning only by interpreting it to disregard intention. But here again a broader view of the evolution of these crimes throws a different light on the legislation.\nIt is not surprising if there is considerable overlapping in the embezzlement, stealing, purloining and knowing conversion grouped in this statute. What has concerned codifiers of the larceny-type offense is that gaps or crevices have separated particular crimes of this general class and guilty men have escaped through the breaches. The books contain a surfeit of cases drawing fine distinctions between slightly different circumstances under which one may obtain wrongful advantages from another’s property. The codifiers wanted to reach all such instances. Probably every stealing is a conversion, but certainly not every knowing conversion is a stealing. “To steal means to take away from, one in lawful possession without right with the intention to keep wrongfully.” (Italics added.) Irving Trust Co. v. Leff, 253 N. Y. 359, 364, 171 N. E. 569, 571. Conversion, however, may be consummated without any intent to keep and without any wrongful taking, where the initial possession by the converter was entirely lawful. Conversion may include misuse or abuse of property. It may reach use in an unauthorized manner or to an unauthorized extent of property placed in one’s custody for limited use. Money rightfully taken into one’s custody may be converted without any intent to keep or embezzle it merely by commingling it with the custodian’s own, if he was under a duty to keep it separate and intact. It is not difficult to think of intentional and knowing abusés and unauthorized uses of government property, that might be knowing conversions but which could not be reached as embezzlement, stealing or purloining. Knowing' conversion adds significantly to the range of protection of government property without interpreting it to punish unwitting conversions.\nThe purpose which we here attribute to Congress parallels that of codifiers of common law in England and in the States and demonstrates that the serious problexn in drafting such a statute is to avoid gaps and loopholes between offenses. It is significant that the English and State codifiers have, tried to cover the same type of conduct that we are suggesting as the purpose of Congress here, without, however, departing from the common-law ■tradition that these are crimes of intendment.\n„We find no grounds for inferring any affirmative instruction from Congress to eliminate intent from any offense with which this defendant was charged.\nIII.\nAs we read the record, this case was tried on the theory that even if criminal intent were essential its presence (a) should be decided by.the court (b) as a presumption of law, apparently conclusive, (c) predicated upon the isolated act of taking rather than upon all of the circumstances. In each of these respects we believe the trial court was in error.\nWhere intent of the accused is an ingredient of the crime charged, its existence is a question of fact which must be submitted to the jury. State court authorities cited to the effect that intent is relevant in larcenous crimes are equally emphatic and uniform that it is a jury issue. The settled practice and its reason are well stated by Judge Andrews in People v. Flack, 125 N. Y. 324, 334, 26 N. E. 267, 270:\n“It is alike the general rule of law and the dictate of natural justice that to constitute guilt there must be not only a wrongful act, but a criminal intention. Under our system (unless in exceptional cases), both must be found by the jury to justify a conviction.for crime. However clear the proof may be, or however incontrovertible may seem to the judge to be the inference of a criminal intention, the question of intent can never be rulecl as a question of law, but must always be submitted to the jury. Jurors may be perverse; the ends of justice may be defeated by unrighteous verdicts, but so long as the functions of the judge and jury are distinct, the one responding to the law, the other to the facts, neither can invade the province of the other without destroying the significance of trial by court and jury. . . .”\nIt follows that the trial coürt may not withdraw or prejudge the issue by instruction that the law raises a presumption of intent from an act. It often is tempting to cast in terms of a “presumption” a conclusion which a court thinks probable from given facts. The Supreme Court of Florida, for example, in a larceny case, from .selected circumstances which are present in this case Ras declared a presumption of exactly opposite effect from the one announced by the trial court here:\n\""... But where the taking is open and there is no subsequent attempt to conceal the property, and' no denial, but an avowal, of the taking a strong presumption arises that there was no felonious intent, which must be repelled by clear and convincing evidence before a conviction is authorized. . . Kemp v. State, 146 Fla. 101, 104, 200 So. 368, 369.\nWe think presumptive intent has no place in this case. A conclusive presumption which- testimony could not overthrow would effectively eliminate intent as an ingredient of the offense. A presumption which would permit but not require the jury to assume intent from an isolated fact would prejudge a conclusion which the jury should reach of its own volition. A presumption which would permit the jury to make an assumption which all the evidence considered together does not logically establish would give to a proven fact an artificial and fictional effect. In either case, this presumption would conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the. crime. Such incriminating presumptions are not to be improvised by the judiciary. Even congressional power to facilitate convictions by substituting presumptions for proof is not without limit. Tot v. United States, 319 U. S. 463.\nMoreover, the conclusion supplied by presumption in this instance was one of intent to steal the casings, and-it was based on the mere fact that defendant took them. The court thought the only question was, “Did he intend to take thé property?” That the removal of them was a conscious and intentional act was admitted. But that isolated fact is not an adequate basis on which the jury should find the criminal intent to steal or knowingly convert, that is, wrongfully to deprive another of possession of property. Whether that intent existed, the jury must determine, not only from the act of taking, but from that together with defendant’s testimony and all of the surrounding circumstances.\nOf course, the jury, considering Morissette’s awareness that these casings were on government property, his failure to seek any permission for their removal and his self-interest as a witness, might have disbelieved his profession of innoceht intent and concluded that his assertion of a belief .that the casings were abandoned was an afterthought. Had the jury convicted on proper instructions it would be the end of the matter. But juries are not bound by what seems inescapable logic to judges. They might have concluded that the heaps of spent casings left in the hinterland to rust away presented an appearance of unwanted and abandoned junk, and that lack of any conscious- deprivation of property or intentional injury was indicated by Morissette’s good character, the openness of the taking, crushing and transporting of the casings, and the candor with which it was all admitted. They might have refused to brand Morissette as.a thief. Had they done so, that too would have been the end of the matter.\nReversed.\nMr. Justice Douglas concurs in the result.\nMr. Justice Minton took no part in the considération or decision of this case.\n341 U. S. 925.\n. 18 U. S. C. § 641, so far as pertinent, reads:\n“Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the Unitéd States or of any department or agency thereof, or any property ‘made or being made under contract for the United States or any department or agency thereof;\n“Shall be fined not more than $10,000 or imprisoned not more than ten years, or both; but if the value of such property does not exceed the sum of $100, he shall be fined not. more than $1,000 or imprisoned not more' than one year, or both.”\nMorissette v. United States, 187 F. 2d 427.\nFor a brief history and philosophy of this concept in Biblical, Greek, Roman, Continental and Anglo-American law, see Radin, Intent, Criminal, 8 Encyc. Soc. Sci. 126. For more extensive treatment of the development in English Law, see 2 Pollock and Maitland, History of English Law, 448-511. “Historically, our substantive criminal law is based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely,to do wrong.” Pound, Introduction to Sayre, Cases on Criminal Law (1927).\nIn Williams v. New York, 337 U. S. 241, 248, we observed that “Retribution is no longer the dominant objective of the criminal law. Reformation and rehabilitation of offenders have become important goals of criminal jurisprudence.” We also there referred to “. . . a prevalent modern philosophy of penology that the punishment should fit the offender and not merely the crime.” Id., at 247. Such ends would seem illusory if there were no mental element in crime.\n4 Bl. Comm. 21.\nExamples of these texts and their alterations in successive editions in consequence of evolution in the law of “public welfare offenses,” as hereinafter recited, are traced in Sayre, Public Welfare Offenses, 33 Col. L. Rev. 55, 66.\nExceptions came to include sex offenses, such as rape, in which the victim’s actual age was determinative despite defendant’s reasonable belief that .the girl had reached age of consent. Absence of intent also involves such considerations as lack of understanding because of insanity, subnormal mentality, or infancy, lack of volition due to some actual compulsion, or that inferred from doctrines of coverture. Most extensive inroads upon the -requirement of intention, however, are offenses of negligence, such as involuntary .manslaughter or criminal negligence and the whole range of crimes arising from omission of duty. Cf. Commonwealth v. Welansky, 316 Mass. 383, 55 N.E. 2d 902 (1944).\nHolmes, The Common Law, considers intent in the chapter on The Criminal Law, and earlier makes the pithy observation: “Even a dog distinguishes between being stumbled over and being kicked.” P. 3. Radin, Intent, Criminal, 8 Encyc. Soc. Sci. 126, 127, points out that in American law “mens rea is not so readily constituted from any wrongful act” as elsewhere.\nIn the Balint case, Chief Justice Taft recognized this but rather overstated it by making no allowance for exceptions such as those mentioned in n. 8.\nThis trend and its causes, advantages and dangers have been considered by Sayre, Public Welfare Offenses, 33 Col. L. Rev. 55; Hall, Prolegomena to a Science of Criminal Law, 89 U. of Pa. L. Rev. 549; Hall, Interrelations of Criminal Law and Torts, 43 Col. L. Rev. 753, 967.\nThe changes in English law are illustrated by Nineteenth Century English cases. ■ In 1814, it was held that one could not be convicted of selling impure foods unless he was aware of the impurities. Rex v. Dixon, 3 M. & S. 11 (K. B. 1814). However, thirty-two years later, in an action to enforce a statutory forfeiture for possession of adulterated tobacco, the respondent was held liable even though he had no knowledge of, or cause to suspect, the adulteration. Countering respondent’s arguments, Baron Parke said, “It is very true that in particular instances it may produce mischief, because an innocent man may suffer from his want of care in not examining the tobacco he has received, and not taking a warranty; but the public inconvenience would be much greater, if in every case.the officers were obliged to prove knowledge. They would be very seldom able to do so.” . Regina v. Woodrow, 15 M. & W. 404, 417 (Exch. 1846). Convenience of the prosecution thus emerged as a rationale. In 1866, a quarry owner was held liable for. the nuisance caused by his workmen dumping refuse into a river, in spite of his plea that he played no active part in the management of the business and knew nothing about the dumping involved. His knowledge or lack of it was deemed irrelevant. Regina v. Stephens, L. R. 1 Q. B. 702 (1866). Bishop, referring to this decision, says, “The doctrine of this English case may almost be deemed new in the crminal law .... And, properly limited, the doctrinéis eminently worthy to be followed hereafter.” 1 Bishop, New Criminal Law (8th ed. 1892), § 1076. After these decisions, statutes prohibiting the sale of impure or adulterated food were enacted. Adulteration of Food Act (35 & 36 Vict., c. 74, § 2 (1872)); Sale of Food and Drugs Act of 1875 (38 & 39 Vict., c. 63). A conviction under the former was sustained in a holding that no guilty knowledge or intent need be proved in a prosecution for the sale of adulterated butter, Fitzpatrick v. Kelly, L. &. 8 Q. B. 337 (1873), and in Betts v. Armstead, L. R. 20 Q. B. D. 771 (1888), involving the latter statute, it was held that there .was no need for a showing that the accused had knowledge that his product did not measure up to the statutory specifications.\nThe development of strict criminal liability regardless of intent has been roughly paralleled by an evolution of a strict civil liability for consequences regardless of fault in certain relationships, as shown by Workmen’s Compensation Acts, and by vicarious liability for fault of others as evidenced by various Motor Vehicle Acts.\nConsequences of a general abolition of intent as an ingredient of serious crimes have aroused the concern of responsible and disinterested students of penology. Of course, they would not justify judicial disregard of a clear command to that effect from Congress, but they do admonish us to caution in assuming that Congress, without clear expression, intends in any instance to do so.\nRadin, Intent, Criminal, 8 Encyc. Soc. Sci. 126, 130, says, “. . . as long as in popular belief intention and the freedom of the will are taken as axiomatic, no penal system that negates the mental element can find general acceptance. It is vital to retain public support of methods of dealing with crime.” Again, “The question of criminal intent will probably always have something of an academic taint; Nevertheless, the fact remains that the determination of the boundary between intent and negligence spells freedom or condemnation for thousands of individuals. The watchfulness of the jurist justifies itself at present in its insistence upon the examination óf the mind of each individual offender.” A\nSayre, Public Welfare Offenses, 33 Col. L. Rev. 55, 56, says: “To inflict substantial punishment upon one who is morally entirely innocent, who caused injury through reasonable mistake or pure accident, would so outrage the feelings of the community as to nullify its own enforcement.”\nHall, Prolegomena to a Science of Criminal Law, 89 U. of Pa. L. Rev. 549, 569, appears somewhat less disturbed by the trend, if properly limited, but, as to so-called public welfare crimes, suggests that “There is no reason to continue to believe that the present mode of dealing with these offenses is the best solution obtainable, or that we must be content with this sacrifice of established principles. The raising of a presumption of knowledge might- be an improvement.” (Italics added.)\nIn Felton v. United States, 96 U. S. 699, 703, the Court said, “But the law at the same time is not so unreasonable as to attach culpability, and consequently to impose punishment, where there is no intention to evade its provisions . . . .”\nHolmes, The Common Law.\nFor the place of the mental element in offenses against the revenues, see Spies v. United States, 317 U. S. 492; United States v. Scharton, 285 U. S. 518.\n2 Russell on Crime (10th ed., Turner, 1950) 1037.\n2 Pollock and Maitland, History of English Law, 465.\nExamples of decision in diverse jurisdictions may be culled from any digest. Most nearly in point are Johnson v. State, 36 Tex. 375, holding that to take a horse running at large on the range is not larceny in the absence of an intent to deprive an owner of his property; Jordan v. State, 107 Tex. Cr. R. 414, 296 S. W. 585, that, if at the time of taking parts from an automobile the accused believed that the car had been abandoned by its owner, he should be acquitted; Fetkenhauer v. State, 112 Wis. 491, 88 N. W. 294, that an honest, although mistaken, belief by defendant that he had permission to take property should be considered by the jury; and Devine v. People, 20 Hun (N. Y.) 98, holding that a claim that an act was only a practical joke must be weighed against an admitted taking of property.\nOthers of like purport are Farzley v. State, 231 Ala. 60, 163 So. 394; Nickerson v. State, 22 Ala. App. 640, 119 So. 243; People v. Williams, 73 Cal. App. 2d 154, 166 P. 2d 63; Schiff v. People, 111 Colo. 333, 141 P. 2d 892; Kemp v. State, 146 Fla. 101, 200 So. 368; Perdew v. Commonwealth, 260 Ky. 638, 86 S. W. 2d 534, holding that appropriation by a finder of lost property cannot constitute larceny in the absence of intent; People v. Shaunding, 268 Mich. 218, 255 N. W. 770; People v. Will, 289 N. Y. 413, 46 N. E. 2d 498; Van Vechten v. American Eagle Fire Ins. Co., 239 N. Y. 303; 146 N. E. 432; Thomas v. Kessler, 334 Pa. 7, 5 A. 2d 187; Barnes v. State, 145 Tex. Cr. R. 131, 166 S. W. 2d 708; Sandel v. State, 131 Tex. Cr. R. 132, 97 S. W. 2d 225; Weeks v. State, 114 Tex. Cr. R. 406, 25 S. W. 2d 855; Heskew v. State, 18 Tex. Ct. App. 275; Page v. Commonwealth, 148 Va. 733, 138 S. E. 510, holding reversible error to exclude evidence having a tendency to throw light on the question of the bona fides of one accused of larceny; Butts v. Commonwealth, 145 Va. 800, 133 S. E. 764; State v. Levy, 113 Vt. 459, 35 A. 2d 853, holding that the taking of another’s property in good faith by inadvertence or mistake does not constitute larceny.\nSayre, Public Welfare Offenses, 33 Col. L. Rev. 55, 73, 84, cites and classifies a large number of cases and concludes that they fall .roughly into subdivisions of (1) illegal sales of intoxicating liquor, (2) sales of impure or adulterated food or drugs, (3) sales of misbranded articles, (4) violations of antinarcotic Acts, (5) criminal nuisances, (6) violations of traffic regulations, (7) violations of motor-vehicle laws, and (8) violations of general police regulations, passed for the safety, health or well-being of the community.\nSayre points out that in criminal syndicalism or sedition eases, where the pressure to convict is strong, it has been accomplished by dispensing with the element of intent, in some instances by analogy with the public welfare offense. Examples are State v. Hennessy, 114 Wash. 351, 195 P. 211; People v. Ruthenberg, 229 Mich. 315, 201 N. W. 358; State v. Kahn, 56 Mont. 108, 182 P. 107; State v. Smith, 57 Mont. 563, 190 P. 107. Compare People v. McClennegen, 195 Cal. 445, 234 P. 91. This although intent is of the very essence of offenses based on disloyalty. Cf. Cramer v. United States, 325 U. S. 1; Haupt v. United States, 330 U. S. 631, where innocence of intention will defeat a charge even of treason.\nUnited States v. Hudson and Goodwin, 7 Cranch 32; United States v. Gooding, 12 Wheat. 460.\n18 U. S. C. § 81; Arson: . . willfully and maliciously . . 18 U. S. C. § 113, Assault: “(a) . . . with intent to commit murder or rape ....(b) ... with intent to commit any felony,’except murder or rape . . .”; 18 U. S. C. § 152, Bankruptcy — concealment of assets, false oaths and claims, bribery: . . knowingly and fraudulently . . 18 U. S. C. § 201, Bribery and Graft: “. . . with intent to influence . . .\""; 18 U. S. C. § 471, Counterfeiting and Forgery: \"". . . with intent to defraud . . .\""; 18 U. S. C. § 594, Intimidation of voters: \"". . for the purpose of . . .\""; 18 U. S. C. § 1072, Concealing escaped prisoner: \"". . . willfully . . . 61 Stat. 151, 29 U. S. C. § 162, Interference with a member of the National Labor Relations Board or an agent of the Board in his performance of his duties. . willfully . . 52 Stat. 1069, 29 U. S. C. § 216 (a), Violations of provisions of Fair Labor Standards Act: . willfully . . 37 Stat. 251, 21 U. S. C. § 23, Packing or selling misbranded barrels of apples: . knowingly . . . .”\n18 U. S. C. § 1112, Manslaughter, . . the unlawful killing of a human being without malice,” if voluntary, carries a maximum penalty of imprisonment not to exceed ten years. If the killing is “with malice aforethought,” the crime is murder, 18 U. S. C. § 1111, and, if of the first degree, punishable by death or life imprisonment, or, if of the second degree, punishable by imprisonment for any term of years or life.\n18 U. S. C. § 242; Screws v. United States, 325 U. S. 91.\nI. R. C. §§ 145 (a), 145 (b), 53 Stat. 62, as amended, 26 U. S. C. §§ 145 (a), 145 (b), as construed in Spies v. United States, 317 U. S. 492; 52 Stat. 1069, 29 U. S. C. § 216 (a), stating the criminal sanctions for violations of the Fair Labor Standards Act, provides that.: “No person shall be imprisoned under this subsection except for an offense committed after the conviction of such person for a prior offense under this subsection.” N. Y. Penal Law, § 1306, provides that, “Upon an indictment for larceny it is a sufficient defense that the property was appropriated openly and avowedly, under a claim of title preferred in good faith, even though such claim is untenable,”\nU. S. Const., Art. III, § 3, cl. 1.\nThis provision was to prevent incrimination of mere mental operations such as “compassing” the'death of the King. See Cramer v. United States, 325 U. S. 1. To hold that a mental element is necessary to a crime is, of course, not. to say that it is all that is necessary.\nThe Reviser’s Note to 18 U. S. C. § 641 states that it is derived from 18 U. S. C. (1940 ed.) §§ 82, 87, 100, and 101 which, in turn, are from Rev. Stat. §§ 5438 and 5439. We shall consider only the 1940 code, sections and their interpretations.\n18 U. S. C. (1940 ed.) § 82 reads:\n“Whoéver shall take and carry away or take for his use, or for the use of another, with- intent to steal or purloin . . . any property of the United States . . . shall be punished as follows . . . .”\nIn United States v. Anderson, 45 F. Supp. 943, a prosecution for conspiracy to violate that section, District Judge Yankwich said:\n“It has been before the courts in very few cases. But such courts as have had cases under it, including our own Ninth Circuit Court of Appeals, have held that the object of the section is to introduce the crime of larceny into the Federal Criminal Code.\n“In Frach v. Mass, 9 Cir., 1939, 106 F. 2d 820, 821, we find these words: ‘Larceny of property of the United States is made a crime by 18 U. S. C. A. § 82.’\n“This means of course, that in interpreting the statute, we may apply the principles governing the common law crime of larceny, as interpreted by the courts of various states.” 45 F. Supp. at 945.\nUnited States v. Trinder, 1 F. Supp. 659, was a prosecution of a group of boys, under § 82, for “stealing” a government automobile. They had taken it for.a joy ride without permission, fully intending to return it when they were through.. Their plans went awry when the.auto came to grief against a telephone pole. In dismissing the complaint, the District Judge said:\n“Upon principle and authority there was no stealing but merely trespass; secret borrowing. At common law and likewise by the federal statute (18 USCA § 82) adopting common-law terms, stealing in general imports larceny; that is, felonious taking and intent to permanently deprive the owner of his property.” 1 F. Supp. at 660.\n18 U. S. C. (1940 ed.) § 87, entitled “Embezzling arms and stores,” provides:\n“Whoever shall steal, embezzle, or knowingly apply to his own use, or unlawfully sell, convey, or dispose of, any ordnance, arms, ammunition, clothing, subsistence, stores, money, or other property of the United States, furnished or to be used for the military or naval service, shall be punished as prescribed in sections 80 and 82-86 of this title.”\nNo cases appear to have been decided relating to the element of intent in the acts proscribed in that section.\n18 U. S. C. (1940 ed.) § 100, “Embezzling public moneys or other property,” states that:\n“Whoever shall embezzle, steal, or purloin any money, property, record, voucher, or valuable thing whatever, of the moneys, goods, chattels, records, or property of the United States, shall be fined not more than $5,000, or imprisoned not more than five years, or both.”\nThe only noted case of consequence is Crabb v. Zerbst, 99 F. 2d 562 (C. A. 5th Cir.), to which the dissent below referred at some length. The appellant there was convicted of feloniously taking and carrying away certain personal property of the United States in violation of § 46 of the Criminal Code, 18 U. S. C. (1940 ed.) § 99, and had been sentenced to seven years’ imprisonment. He argued that the five-year limitation of sentence in 18 U. S. C. (1940 ed.) § 100 for stealing property of the United States reduced the ten-year limitation in § 99 for feloniously taking and carrying away property of the United States to five years also.\nThe Court of Appeals rejected his argument, holding that the crime of “stealing” in § 100 was separate and distinct from the offense specified in § 99, on the ground that § 100 was a broadening of the common-law crime of larceny to foreclose any avenue by which one might, in the process of pleading, escape conviction for one offense by proving that he had committed another only a hair’s breadth different. ■ .\nIn the course of its opinion, it advanced the following pertinent observations:\n“That felonious taking and carrying away of property which may be the subject of the offense constitutes the common law offense of larceny cannot be disputed. . . . However, it is doubtful if at >com- • mon law any fixed definition or formula [as to the meaning • of ‘larceny’] was not strained in its application to some of the cases clearly constituting the offense. Modern criminal codes treat the offense in various ways. Some define thé offense by following the old cases and. are merely declaratory of the common law, while others have broadened the offense to include offenses previously known as embezzlement, false pretenses, and even felonious breaches of trust.\n“As pointed out above, the modern tendency is to broaden the offense of larceny, by whatever name it may be called, to include such related offenses as would tend to complicate prosecutions under strict pleading and practice. In some of these statutes the offense is denominated ‘theft’ or ‘stealing.’ No statute offers a clearer example of compromise between the common law and the modern code than the two sections here involved. Section 46 [18 U. S. C. (1940 ed.) § 99] deals with robbery and larceny, the description of the latter being taken from the common law. Section 47 [18 U. S. C. (1940 ed.) § 100] denounces the related offenses which might be included with those described in section 46 under a code practice seeking to avoid the pitfalls of technical pleading. In it the offense of embezzlement is included by name,-without definition. Then to cover such cases as may shade into larceny, as well as any new situation which may arise under changing modern conditions and not envisioned under the common law, it'adds the words steal or 'purloin .... Stealing, having no common law definition to restrict its meaning as an offense, is commonly used to denote any dishonest transaction whereby one person obtains that which rightfully belongs to another, and deprives the owner of the rights and benefits of ownership, but may or may not involve the element of stealth usually attributed to the word purloin. . . . Thus, in any case involving larceny as defined by the common law, section 46 [18 U. S. C. (1940 ed.) § 99] would apply. Where the offense is embezzlement, or its nature so doubtful as to' fall between larceny and embezzlement, it may be prosecuted under section 47 [18 U. S. C. (1940 ed.) § 100].” 99 F. 2d at 564-565.\nThe reference in Crabb v. Zerbst to 18 U. S. C. (1940 ed.) § 99, the robbery and larceny statute then operative, suggests examination óf its successor in today’s code. For purpose of clarification, that section states that:\n“Whoever shall rob another of any kind or description of personal property belonging to the United States, or shall feloniously take and carry away the same, shall be fined not more than $5,000, or imprisoned not more than ten years, or both.”\nThe Reviser’s Note to 18 U. S. C. § 641 makes no mention of it as a successor to that section. The present robbery statute is 18 U. S. C. § 2112, “Personal property of United States,” providing that:\n“Whoever robs another of any kind or description of personal property belonging to the United States, shall be imprisoned not more than fifteen years.”\nThe Reviser’s Note to that section recites that it is derived from § 99 of the 1940 Code, and “That portion of said section 99 relating to felonious taking was omitted as covered by section 641 of this title,” which makes it clear that, notwithstanding the absence of any reference to 18 U. S. C. (1940 ed.) § 99 in the Note to 18 U. S. C. § 641, the crime of larceny by a felonious taking and carrying away has been transported directly from the former into the latter.\n18 U. S. C. (1940 ed.) § 101 is the forerunner of that part of present § 641 dealing with receiving stolen property, and has no application to the problem at hand.\nThe history of § 641 demonstrates that it was to apply to acts which constituted larceny or embezzlement at common law and also acts which shade .into those crimes but which, most strictly considered, might no.t be found to fit their fixed definitions. It is also pertinent to note that it renders one subject to its penalty who “knowingly Converts to his own use” property of the United States. The word “converts” does not appear in any of its predecessors. 18 U. S. C. (1940 ed.) § 82 is applicable to one who “take[s] for- his [own] use . . . with intent to steal or purloin . . . .” 18 U. S. C. (1940 ed.) § 87 uses the words “knowingly apply to his own use.” Neither 18 U. S. C. (1940 ed.) §§ 99, 100, nor 101 has any words resembling “knowingly converts to his own use.” The 1948 Revision was not intended to create new crimes but to recodify those then in existence. We find no suggestion that a guilty intent was not a part of each crime now embodied in § 641.\n18 U. S. C. §§ 1, 641.\nHad the indictment been limited to a charge in the words of the statute, it would have been defective if, in the light of the common law, the statute itself failed to set forth expressly, fully, and clearly all elements necessary, to constitute the offense. United States v. Carll, 105 U. S. 611.\nHarker v. Dement, 9 Gill (Md.) 7, 52 Am. Dec. 670 (1850); Railroad Co. v. O’Donnell, 49 Ohio St. 489, 32 N. E. 476 (1892). The rationale underlying such cases is that when one clearly assumes the rights of ownership over property of another no proof of intent to convert is necessary. It has even been held that one may be held liable in conversion even though he, reasonably supposed that he had a legal right to the property in question. Row v. Home Sav. Bank, 306 Mass. 522, 29 N. E. 2d 552 (1940). For other cases in the same vein, see those collected in 53 Am. Jur. 852-854. These authorities leave no doubt that Morissette .could be held liable for a civil conversion for his taking of the property here involved, and-the instructions to the jury might have been appropriate in such a civil action. This assumes of course that actual abandonment was not proven, a matter which petitioner should be allowed to prove if he can. - .\nThe Larceny Act of 1916, 6 & 7 Geo. V, c. 50, an Act'“to consolidate and simplify the Law relating to Larceny triable on Indictment and Kindred Offences,” provides:\n“1. For the purposes of this Act—\n“(1) A person steals who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof:\n“Provided that a person may be guilty of stealing any such thing notwithstanding that he has lawful possession thereof, if, being a bailee or part owner thereof, he fraudulently converts the same to his own use or the use of any person other than the owner . . . .”\nFor the growth and development of the crime of larceny in England, see 2 Russell on Crime (10th ed., Turner, 1950), 1037-1222, from which the material above was taken.\nN. Y. Penal Law, § 1290, defines larceny as follows:\n“A person.who, with the intent to deprive or defraud another .of ' the use and benefit of property .or to appropriate the same to the use of tlie taker, or of any other person other than the true owner, wrongfully takes, obtains or withholds, by any means whatever, from the possession of the true owner or of any other person any money, personal property, thing in action, evidence of debt or contract, or. article of value of any kind, steals such property and is guilty of larceny.”\nThe same section provides further that it shall be no defense to a prosecution that:\n“2. The accused in the first instance obtained possession of, of title to, such property lawfully, provided he subsequently wrongfully withheld or appropriated such property to his own use or the use of any person not entitled to the use and' bénefit of such property . . . .”\nThe Historical Note to - that section discloses that it represents an attempt to -abolish the distinctions between kinds of larcenies. Laws 1942, c. 732, § 1, provided:\n“It is hereby declared as the public policy of the state that the best interests of the people of the state will be served, and confusion and injustice avoided, by eliminating and abolishing the. distinctions which' have hitherto differentiated one sort of theft from another, each of which, under section twelve hundred apd ninety of the penal Jaw, was denominated a larceny, to wit: common law larceny by asportation, common law larceny by trick and device, obtaining property by false pretenses, and embezzlement.”\nCf. Morgan, Instructing the Jury Upon Presumptions and Burden of Proof, 47 Harv. L. Rev. 59; Morgan, Some Observations Concerning Presumption, 44 Harv. L. Rev. 906."", ""type"": ""majority"", ""author"": ""Mr. Justice Jackson""}], ""attorneys"": ["". Andrew J. Transue argued the cause and filed a brief for petitioner."", ""'Robert W. Ginnane argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Mclnérney and J. F. Bishop..""], ""corrections"": """", ""head_matter"": ""MORISSETTE v. UNITED STATES.\nNo. 12.\nArgued October 9-10, 1951.\nDecided January 7, 1952.\n. Andrew J. Transue argued the cause and filed a brief for petitioner.\n'Robert W. Ginnane argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Mclnérney and J. F. Bishop..""}, ""cites_to"": [{""cite"": ""341 U. 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+649015,"{""id"": 649015, ""name"": ""School District No. 172 of King County, Respondent, v. Timotheus Josenhans et al., Appellants"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""9dffd24dd25d48d6af9aaefc0f26abb97fa429e6729ef7d93a2b654f34cf3a11"", ""simhash"": ""1:ad3527bba450d64e"", ""pagerank"": {""raw"": 0.00000010167377648999781, ""percentile"": 0.5437044785236513}, ""char_count"": 17459, ""word_count"": 2956, ""cardinality"": 666, ""ocr_confidence"": 0.565}, ""casebody"": {""judges"": [], ""parties"": [""School District No. 172 of King County, Respondent, v. Timotheus Josenhans et al., Appellants.""], ""opinions"": [{""text"": ""Per, Curiam.\nSometime in the summer of 1911, appellants, architects in the city of Seattle, entered into an oral contract with the directors of the respondent school district (hereinafter referred to as the respondents) to draw the plans for a two-story frame schoolhouse to be erected at Cedar Falls, to receive bids and award the contract for the construction thereof, and to exercise a certain supervision over the work the exact nature of which is in dispute. For drawing the plans, they were to receive three per cent of the contract price of the building; for receiving bids and awarding the contract, one-half of one per cent; and for making inspection, $10 and expenses for each trip. The plans were drawn in August, 1911, the contract awarded on September 7, and the building completed, with the exception of the finishing of the second story, which the contract provided was to be roughed in only, some time between November 20 and 23, 1911.\nOn the evening of January 13, 1913, the upper story of the building collapsed under the weight of snow which had accumulated on the roof, leaving the first story standing practically unharmed, except for some damage to the plastering. Soon after the collapse, the directors built a temporary roof over the remaining first story, and commenced this action to recover from the appellants damages for the failure of the building, alleging that the collapse was due wholly to the negligence of appellants in the preparation of the plans and superintending the construction of the building; the specific charge being that the plans and specifications did not provide for, and the building did not have when completed, a roof sufficiently strong to carry the load which it should reasonably have been foreseen it would be obliged to carry. The trial court found that the negligence of the appellants was the cause of the collapse, and awarded damages of $1,100.\nThe issues raised on this appeal are almost entirely questions of fact; consequently it will be necessary to discuss the evidence at considerable length. A logical disposition of the issues would seem to require answers to the following questions:\n(1) Was the building faultily planned and constructed?\n(2) If so, were the appellants responsible for the faulty construction ?\n(3) Did any acts of the directors contribute to the collapse and release the appellants from liability?\n(4) Was the collapse due to the alleged faulty construction or to unusual conditions which the appellants could not reasonably have been expected to foresee ? ■\n(5) Did the court correctly determine the damages?\nI. The only particular in which it is claimed the construction was faulty is that the roof was insufficiently braced. The roof was an ordinary hip roof, covering a structure 83 feet by 32 feet, with gables approximately thirty feet wide at the center, both front and back, and at the intersection of the ridge boards of the main roof and of the gables, was a belfry. The evidence of inferior construction was that an insufficient number of collar beams had been used on the rafters, thus allowing the roof to spread apart under the weight of snow and push out the side walls. The respondents’ witnesses testified that there were only four or five collar beams used, and these were placed near the apex of the voof. The only requirement in the specifications for collar beams was that they should be of 2x6 timber. Mr. Allen testified that, in the absence of any specification requiring a definite number to be used, this would indicate a collar beam on every pair of common rafters; while Mr. Cronin, the contractor, testified this would indicate collar beams wherever necessary. Witnesses for the school district testified that the roof without collar beams would not be strong enough to withstand the load it should be expected to carry; while Mr. Allen testified that, even without collar beams, it would stand up under any except an extraordinary load. The trial court found that the roof did not have adequate support, and we do not find that his conclusion is not supported by the preponderance of the evidence.\nII. The next consideration is whether the appellants were responsible for the faulty construction. They contend that the roof as planned was strong enough for the building, and that they did not agree to superintend the construction to the extent of guaranteeing that the building was put up according to the plans and specifications. The respondents contend that the contract was that the appellants were to inspect the building as often as necessary, while the appellants contend that they were to inspect only when called upon by the directors, and that the certificates of completion issed during the progress of the work were issued only to enable the contractor to secure his money, and not as evidence that the work had been satisfactorily completed. The contract between the contractor and the school district provided that the contractor should perform all the work to the satisfaction of the architects, and, as this contract was drawn by the appellants for the directors, we feel that the trial court was justified in concluding that the appellants were to make whatever inspection was necessary, and that the final certificate was evidence that the work had been completed to their satisfaction, although the bill rendered by the appellants upon the completion of the work showed that but two trips of inspection had been made, the second over a week before the building was finished.\nIII. On behalf of the appellants, it was shown that the respondents knew that the roof was not provided with collar beams, and that they should have known that the lack of them rendered the roof unsafe, but that this was not called to the attention of the appellants. If we accept the finding that the architects were paid for and did superintend the construction of the building, and that they certified the building as completed in accordance with the plans and specifications, then the respondents would be entitled to rely on the sufficiency of the construction, and although they may have detected what seemed to them to be faulty' construction, they would be justified in relying on the appellants’ judgment that it was a proper construction, as they had engaged the appellants to see that the construction was correct. Nor does the fact that the respondents knew that the roof was spreading shortly before the collapse, and that they took no steps to remove the snow, excuse the appellants, as it is not shown that respondents knew of any immediate danger, but were relying on the roof as constructed being sufficient to sustain its load.\nIV. However, all these facts will not avail the respondents unless the strain to which the roof was subjected was one which the appellants should reasonably have expected, as all the evidence that the building was negligently constructed must rest on an ultimate finding that it collapsed under a load which appellants should have anticipated. The exact depth of snow on the roof at the time of the collapse was not stated by any of the witnesses, but respondents’ witnesses testified that on other roofs it was approximately nine inches deep, and about ten inches on the ground. The appellants introduced the records of the U. S. Weather Department for the western slope of the Cascades, to show that unusual' snow conditions prevailed at Cedar Falls on January 13, 1913, when the building collapsed. The trial court found that the depth and weight of snow on the roof were no more than the appellants should reasonably have anticipated the building would be expected to support.\nAppellants, in moving for a new trial, made affidavit that they had been unable to discover before the trial any satisfactory evidence as to the depth of the snow, and that they had been taken by surprise at the testimony that the records for Cedar Lake, several miles further up the mountains and several hundred feet higher in altitude, which they introduced, could not be relied upon to show conditions at Cedar Falls, but that they have since discovered that the Milwaukee railroad agent at Cedar Falls kept records of the actual snowfall, and that, if a new trial were granted, these records would be produced to show that there were thirty-six inches of snow on the ground when the schoolhouse fell, which would indicate that the weight on the roof was much greater than as found by the court. The motion was denied by the court, the court stating that he would make no finding as to the depth of the snow when the building collapsed; but he did find that the depth and weight wez’e not more than the appellants should have anticipated. It does not appear to us, as it evidently did not to the trial court, that a depth of thirty-six inches on the ground, conceding that the appellants could satisfactorily prove that fact, would indicate a depth of snow on the roof which appellants should not reasonably have expected and prepared against in planning the roof. This being true, there was no abuse of discretion in the refusal to grant a new trial.\nV. The appellants’ most serious contention is that the trial court erred in fixing the damages at $1,100; first, on the ground that the proper measure of damages was not employed, and no account taken of the respondents’ failure to minimize the damages by remedying the defects in the roof; and second, that there was no competent evidence on which the award could be made. The appellants contend that the proper measure should be the cost to the respondents of completing the building to make it safe, or the difference between the value of the building as actually completed and as it should have been completed; and the cases cited seem to sustain the rule when faulty construction is set up as a defense in an action by the contractor to recover for the construction, or in an action by the owner for damages for failure to complete the building according to the plans. This rule, if applied to this case, however, must be founded on the idea that the respondents knew that the specifications required collar beams and the building was not properly constructed without them, and should have either remedied the defect or notified the appellants to do so, and we have not found either that they knew the absence of collar beams was a defect or that they were obligated to notify the appellants that a sufficient number had not been used.\nIn the cases cited, the only damage shown was either the cost of making the building conform to the plans or the lessened value by reason of the faulty construction; while in this case the damage is not the cost of completing the work to make the building conform to the plans, as we have found that the respondents did not know that it was improperly constructed, nor the diminished value, for the defect could have been easily remedied, and the former rule would, therefore, be applicable to the exclusion of the latter. In the cases cited, the measure of damages was proper; it compensated the injured party for the damages he had sustained. And the measure here applied must accomplish the same end. We are of the opinion that the appellants themselves have cited the true rule which, continuing their quotation, is stated in 13 Cyc. 156, as follows:\n“The general rule as to the measure of damages in case of a breach of contract, where there is no bad faith or fraud in evidence, is the amount of damages which naturally result or flow from the breach complained of; and must be such as the parties contemplated as a probable consequence of a breach, and which are capable of being reasonably ascertained. In other words the measure of damages is the damages which actually result from the breach, and which will compensate the party for the injury sustained, together with the expense or cost to which he may have been subjected as a consequence of the breach. In such actions the question is not what the plaintiff paid because of the breach but the value of that for which he paid.”\nThe damages awarded in this case, then, must be the “damages which actually resulted from the breach” of the appellants’ contract to furnish plans for, and approve the construction of, a building which would meet the conditions expected of it. The only testimony of damages sustained was given by witness West for- the respondents, that it would cost $900 to reconstruct the second story, $300 to erect a temporary roof such as respondents had erected, and $320 to repair the damages to the lower story. The items for cost of a temporary roof and repair to the lower story are challenged on the ground that the actual cost of the repairs should have been given instead of opinion evidence of their approximate cost, and the entire award is challenged because it is not the result obtained by adding these three items or any two of them. The appellants introduced no evidence of the cost of these repairs, and demanded no evidence of the actual cost of the temporary roof or repairs to the first floor. They cannot then complain because the trial court relied upon the testimony of respondents’ witnesses. Nor is the award improper because it does not coincide with the only testimony produced. With the evidence before him, the trial court might well find that the estimate was excessive and not award the full amount asked, and as respondents do not complain of the amount, the appellants are in no position to do so.\nAs stated at the outset, the questions in this case are- almost entirely of fact, and we are of the opinion that the findings of the trial court are sustained by a preponderance of the evidence, and that he correctly determined the damage. The judgment is therefore affirmed."", ""type"": ""majority"", ""author"": ""Per, Curiam.""}], ""attorneys"": [""Willett & Oleson and L. E. Kirkpatrick, for appellants."", ""Weter & Roberts, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 12549.\nDepartment Two.\nDecember 15, 1915.]\nSchool District No. 172 of King County, Respondent, v. Timotheus Josenhans et al., Appellants.\nContracts—Building Contracts—Plans—Action for Breach-Evidence—Sufficiency. A finding that an architects’ contract to furnish plans for a school building was breached by failure to require sufficient collar beams to support the roof, is sustained where the only requirement as to collar beams for a roof covering a structure 32x83 feet was that they be of 2x6 timber, there was a dispute as to how many this indicated, and witnesses testified that it would not be strong enough without collar beams, and the roof collapsed under a weight of snow.\nSame—Building Contracts — Plans — Performance or Breach. Under an architects’ contract to furnish plans for a building and award the contract on a percentage basis, and superintend the work and make inspections for $10 a trip, the contract for the work providing that the work be done to the satisfaction of the architects, the architects are required to make whatever inspection is necessary, and their final certificate is evidence that the work was completed to their satisfaction, rendering them liable for damages on account of a defective roof insufficiently supported for want of sufficient plans.\nSame — Building Contracts — Action for Breach — Defenses— Reliance on Plans. Where architects were employed to furnish plans for a school building and superintend the construction, and certified that the building was completed in accordance with the plans, the school directors were entitled to rely on the sufficiency of the construction, although they knew the roof was not provided with collar beams and should have known that such construction was faulty; hence their reliance thereon, even after a fall of snow caused the roof to spread, will not defeat an action for damages on account of the faulty construction by the architects.\nSame — Building Contracts — Performance or Breach — Sufficiency of Plans—Evidence. In an action against architects for damages through the faulty construction of a roof which collapsed under a weight of snow, the architects are liable where it appears that the roof was insufficient to sustain a weight estimated at nine inches on other roofs and ten inches on the ground, and a depth of thirty-six inches on the ground was not more than should have been reasonably anticipated.\nNew Trial—Newly Discovered Evidence-—-Materiality. A new trial for newly discovered evidence is properly denied where the new evidence would not have authorized a recovery.\nDamages—Measure—Breach oe Contract. The measure of damages in an action against architects for the faulty construction of the roof of a schoolhouse which collapsed under a fall of snow, the school directors not knowing that the roof was improperly constructed, is the actual loss sustained by reason of the breach, and not the cost of making the building conform to the plans, nor the diminished value.\nSame—Measure—Breach of Contract—Evidence—Sufficiency. In such an action, evidence that it would cost $900 to reconstruct the second story, $300 to erect a temporary roof, and $320 to repair the damage to the lower story, sustains a judgment for $1,100, where the defendants introduced no evidence of the actual cost of the temporary roof or repairs to the first story; the court not being bound by the estimates of plaintiff’s witnesses.\nAppeal from a judgment of the superior court for King county, Ronald, J., entered June 16, 1914, upon findings in favor of the plaintiff, in an action for damages, tried to the court.\nAffirmed.\nWillett & Oleson and L. E. Kirkpatrick, for appellants.\nWeter & Roberts, for respondent.\nReported in 153 Pac. 326.""}, ""cites_to"": [{""cite"": ""153 Pac. 326"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}], ""citations"": [{""cite"": ""88 Wash. 624"", ""type"": ""official""}], ""file_name"": ""0624-01"", ""last_page"": ""632"", ""first_page"": ""624"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T17:53:14.626791+00:00"", ""decision_date"": ""1915-12-15"", ""docket_number"": ""No. 12549"", ""last_page_order"": 668, ""first_page_order"": 660, ""name_abbreviation"": ""School District No. 172 v. 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+654112,"{""id"": 654112, ""name"": ""The City of Spokane, Respondent, v. Crane Company, Appellant, and Northern Pacific Railway Company, Defendant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""1288e6bd2431385a989b3c055ccb790462a1c0461b1ee3cfc435b88bbbaa3cf3"", ""simhash"": ""1:7ab382c2050e794e"", ""pagerank"": {""raw"": 0.00000014750191398044002, ""percentile"": 0.6600141552654228}, ""char_count"": 14578, ""word_count"": 2563, ""cardinality"": 669, ""ocr_confidence"": 0.552}, ""casebody"": {""judges"": [], ""parties"": [""The City of Spokane, Respondent, v. Crane Company, Appellant, and Northern Pacific Railway Company, Defendant.""], ""opinions"": [{""text"": ""Ellis, C. J.\nIn this action plaintiff city sought to recover over from defendants, Northern Pacific Railway Company and Crane Company, the amount of a judgment for personal injuries recovered by Elizabeth Kelly in an action against the city and by it paid. That judgment was entered on the verdict of a jury and, on the city’s appeal, this court affirmed it. Kelly v. Spokane, 88 Wash. 55, 145 Pac. 57.\nThe present action was tried to the court without a jury. By stipulation, a certified copy of the evidence adduced at the trial of the original action was admitted as evidence in this action. Additional evidence was taken on both sides. It was admitted that the Northern Pacific Railway Company, at the time of the accident, was the owner of the property abutting the sidewalk at the place of the accident, and that defendant Crane Company was then occupying, and for about twenty years had occupied, the building on it as lessee from the railway company. It was also admitted that the city had paid the judgment in full.\nThe salient and material facts as to the character of the sidewalk, as to the hole made by removal of bricks, and as to Miss Kelly’s fall and injury through stepping into the hole, are sufficiently, set out in the original opinion. In the present action, the court found the facts as to the accident substantially as there stated, and in addition, that in the hole was a water faucet to which defendant Crane Company attached a hose for the purpose of washing the sidewalk and front of the building occupied by that company; that it was used by no other person and for no other purpose, and that it was necessary to remove a brick when the hose was attached for use. The court also found that both of the defendants in this action were served with a copy of the claim presented to the city by Elizabeth Kelly shortly after it was filed with the city, and that each of the defendants here was served with the summons and complaint in the action of Kelly v. Spokane shortly after the commencement of that action, and further, that the present and then attorney for Crane Company was in attendance during the entire trial of that action and conferred and consulted with the attorney, now deceased, who tried that action on behalf of the city. Finally, the court found that the injury suffered by Elizabeth Kelly was due to the defective condition of the sidewalk, which condition' was known to, and created and continued by, defendant Crane Company. It would be neither practicable nor profitable to discuss the evidence- in detail. We have examined it with the utmost care. It amply sustains the court’s findings. The court concluded, as matters of law, that the city was entitled to recover over against defendant Crane Company the amount sued for with costs, but that defendant railway company was entitled to judgment in its favor on the merits and for costs. Judgment went accordingly. Defendant Crane Company appealed.\nIn the complaint the facts were pleaded substantially as found, and a provision of the charter of the city of Spokane was set out which reads as follows:\n“In case any injury or damage to any person shall be caused by the defective condition of any sidewalk, or by ice or snow thereon, or by lack of proper guards or railings on or along the property abutting on any public way, the abutting property where the injury or damage occurs, and the owner or owners thereof, shall be liable to the city for all damage, injuries, costs and disbursements which may be required to pay to the person injured.” Spokane Charter, § H6.\nAppellant’s main contention is that this charter provision has no application to a tenant, but only applies to the property owner; that the duty imposed by the charter upon the owner of the abutting property to keep the sidewalk in repair could only arise after notice to him by the city to make the repairs, and that such a charter provision would be constitutional only when intended as a means of charging the owner of abutting property with the expense of repairing, not as creating a duty to the public the failure to observe which would make him liable to respond in damages for resulting injury. It is argued that, because the primary duty to repair rests upon the municipality, the property owner, and a fortiori the tenant, cannot be also primarily liable.\nAll of this may be granted without decision, but it does not reach the case before us. As we view the facts, the charter provision has no controlling importance in this case. The city is not seeking to hold the abutting owner or lessee' for a failure to remove an obstruction or repair a defect not occasioned by his own negligence nor maintained for his own use or purposes. The right of recovery is not referable to mere passive negligence in failing to repair, but to active negligence in creating, or at least maintaining, a dangerous condition for his own personal convenience. In such a case, though the city, when chargeable with notice of the condition, is primarily liable to the person injured, this is only because of its duty to the public to keep the streets reasonably safe resulting from its control over the streets. But the person who actually created or maintained for his own use the dangerous condition is, as between the city and himself, still primarily liable on elementary principles, and regardless of any statute or charter provision so declaring, simply because the dangerous condition was the result of his own personal negligence. As between him and the city, his was the active negligence, while that of the city was merely passive. These considerations make it plain that there is no differentiating significance to be found in the fact that the active negligence in this case was that of the tenant, who had complete possession and control of the premises, and not that of the owner. They also make it equally plain that this case is governed in principle by the decision of this court in Seattle v. Puget Sound Improvement Co., 47 Wash. 22, 26, 91 Pac. 255, 125 Am. St. 884, 12 L. R. A. (N. S.) 949, where, adopting the language of Judge Dillon (2 Dillon, Municipal Corporations [4th ed], § 1085), it is said:\n“If a municipal corporation be held liable for damages sustained in consequence of the unsafe condition of the sidewalks or streets, it has a remedy over against the person by whose wrongful act or conduct the sidewalk or street was rendered unsafe, unless the corporation was itself a wrongdoer, as between itself and the author of the nuisance.”\nNotwithstanding the city’s liability to the public, it was under no duty to notify appellant of a condition of appellant’s own creation. It was not a wrongdoer as between itself and appellant. The city and appellant were not m pari delicto; they were not joint tort feasors. Lowell v. Short, 4 Cush. 275.\nTypical of the cases cited by appellant in this connection is Rochester v. Campbell, 123 N. Y. 405, 25 N. E. 937, 20 Am. St. 760, 10 L. R. A. 393. That case would, indeed, be apposite were the grounds of liability here, as there, traceable solely to the duty imposed by the charter. But they are not, and the able jurist who speaks for the court in that case emphatically recognizes the distinction which we have drawn and cites ample authority to sustain it. He says:\n“The cases referred to in the court below to support the doctrine of the right of the municipality to recover in such cases are: City of Rochester v. Montgomery, 72 N. Y. 65; Village of Port Jervis v. First Nat. Bank of Port Jervis, 96 Id. 550; Robbins v. Chicago, 4 Wall. 657; City of Lowell v. Short, 4 Cush. 275. These were all cases where the dangerous conditions of the street were created by the defendants, and they were held liable for the consequence of their unlawful acts, under their common-law obligations as the creators of a nuisance, and not by reason of any duty enjoined upon them by statute or otherwise. The distinctions between such cases and those relating to the consequences following a neglect of some duty imposed by statute are manifest and radical.”\nFurther discussion of this point seems unnecessary.\nAppellant further argues -that, inasmuch as it does not appear that this hole was not in existence when appellant took possession of the premises, it cannot be held liable for injury resulting from the existence of the hole, and that, in any event, the railway company was jointly liable. But the evidence is conclusive—in fact uncontradicted—that the hole was maintained by appellant for its own convenience. Appellant held the premises by assignment of a twenty-year ground lease made to another company which therein covenanted with the railway company to erect and maintain the building. When appellant took over the property, it took it under the terms of the lease. The record thus precludes any inference that the railway company erected- the building or placed the faucet in the sidewalk, or made or maintained, or authorized the making or maintaining of, the hole.\n“After becoming aware of a defect in the thing hired, the tenant or hirer must use such increased care as the defective nature of the thing requires, and cannot excuse himself for the want of such care by the plea that he was not responsible for the defect itself. Thus, if a house should be let with a defective faucet, a tenant would not be liable for the defect; but if he used the faucet in the same manner as if it were perfect, while knowing that it was not, he would be answerable for the consequences. And if, by his own negligence, he makes the property an occasion of injury to others, he cannot avail himself, as a defense, of a covenant on the part of the landlord, or of any other person, to repair the defects caused by his fault.” 3 Shearman & Redfield, Negligence (6th ed.), § 713.\nThe railway company was properly exonerated. It was not in possession and had not been for about twenty years. It did not erect, was not using, and .had never used, the building. It did not covenant in the lease to keep either the building or the sidewalk in repair. In such a case the tenant alone is liable over for the damages. Lowell v. Spaulding, 4 Cush. 277, 50 Am. Dec. 775. Moreover, there was neither evidence nor inference from evidence that the railway company ever had notice or knowledge that the brick was not habitually replaced by appellant’s employees when the opening was used for flushing the street.\nFinally, it is urged that appellant had no sufficient notice to defend, hence was not bound by the judgment in the action of Kelly v. Spokane. It is true that, when the city caused to be served upon appellant the notice of claim against the city and the summons and complaint in that action, it did not in so many words formally tender appellant the defense of that action, but it is clear that the service could have been for no other purpose than to notify appellant of the fact and nature of the claim in order that it might participate in the defense. In such a case, it is not essential that the person responsible over be requested to assume the defense. Heiser v. Hatch, 86 N. Y. 614; Robbins v. Chicago, 71 U. S. 657. See, also, Rochester v. Montgomery, 72 N. Y. 65, and Bevan v. Muir, 53 Wash. 54, 101 Pac. 485, 32 L. R. A. (N. S.) 588. But even assuming that the notice was insufficient and that the presence and participation of appellant’s counsel in the trial did not waive the lack of notice, these things would not be sufficient ground for a reversal where, as here, the case was in fact tried de novo and the evidence as a whole sustained the court’s findings and judgment. The failure to give notice does not go to the right of action, hut simply to the quantum of proof. Village of Port Jervis v. First Nat. Bank of Port Jervis, 96 N. Y. 550.\nWe find no error in the record warranting a reversal. The judgment is affirmed.\nMorris, Webster, Main, and Chadwick, JJ., concur."", ""type"": ""majority"", ""author"": ""Ellis, C. J.""}], ""attorneys"": [""Samuel R. Stern, for appellant."", ""J. M. Geraghty and Alex M. Winston, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 13858.\nDepartment One.\nAugust 22, 1917.]\nThe City of Spokane, Respondent, v. Crane Company, Appellant, and Northern Pacific Railway Company, Defendant.\nIndemnity—Injuries on Sidewalks—Liability of Abutter to City—Lessees. The tenant of abutting property is liable over to a city upon a judgment recovered against tbe city for personal injuries through a defect in a sidewalk caused by the active negligence of the tenant in maintaining, for its own convenience, a hole in the pavement for a water faucet; and this on elementary principles irrespective of any ordinance of the city, as they are not in pari delicto, or joint tort feasors.\nLandlord and Tenant—Defective Premises—Lease—Covenants —Rights of Assignee. Where a tenant holds under assignment of a twenty-year lease, which required the lessee to erect and maintain the building, there can be no inference that the lessor was guilty of negligence in placing a water faucet for the building in a hole in the sidewalk, so as to relieve the tenant of the charge of negligence in maintaining the nuisance, at the expense of the lessor.\nIndemnity—Defects in Sidewalk—Liability to City—Lessor or Lessee. Where the owner of premises leases the same to a tenant, who covenants to erect and maintain a building, the tenant, and the tenant alone, is liable over to a city for a judgment for personal injuries sustained through a defect in the sidewalk and caused by the active negligence of the tenant of which the owner had no notice.\nSame—Claim and Action Against City—Notice to Defend—Sufficiency. Service by a city of a copy of the claim and summons and complaint in an action for personal injuries sustained through defects caused by the active negligence of the tenant of abutting property, is sufficient, without formal tender of the defense of the action, to bind the tenant, where it was clear that the only purpose of the notice was to allow it to participate in the defense.\nSame—Claim and Action Against City—Notice to . Defend—Necessity—Trial De Novo. In an action by a city, held liable for personal injuries, to recover over from the tenant of abutting property causing the injury, notice of the original suit and tender of the defense is not essential where the cause was tried de novo and the evidence sustains the findings.\nAppeal from a judgment of the superior court for Spokane county, Sullivan, J., entered June 8, 1916, upon findings in favor of the plaintiff, in an action to recover over the amount paid on a judgment for injuries resulting from a defective sidewalk.\nAffirmed.\nSamuel R. Stern, for appellant.\nJ. M. Geraghty and Alex M. Winston, for respondent.\nReported in 167 Pac. 63.""}, ""cites_to"": [{""cite"": ""167 Pac. 63"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""96 N. Y. 550"", ""case_ids"": [556177], ""category"": ""reporters:state"", ""reporter"": ""N.Y."", ""case_paths"": [""/ny/96/0550-01""], ""opinion_index"": 0}, {""cite"": ""32 L. R. A. (N. S.) 588"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A.N.S."", ""opinion_index"": 0}, {""cite"": ""101 Pac. 485"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""53 Wash. 54"", ""case_ids"": [542368], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/53/0054-01""], ""opinion_index"": 0}, {""cite"": ""86 N. Y. 614"", ""case_ids"": [546266, 546198], ""category"": ""reporters:state"", ""reporter"": ""N.Y."", ""case_paths"": [""/ny/86/0614-01"", ""/ny/86/0614-02""], ""opinion_index"": 0}, {""cite"": ""50 Am. Dec. 775"", ""category"": ""reporters:federal"", ""reporter"": ""Am. Dec."", ""opinion_index"": 0}, {""cite"": ""4 Cush. 277"", ""case_ids"": [1986207], ""category"": ""reporters:state"", ""reporter"": ""Cush."", ""case_paths"": [""/mass/58/0277-01""], ""opinion_index"": 0}, {""cite"": ""4 Wall. 657"", ""weight"": 2, ""case_ids"": [6142688], ""category"": ""reporters:scotus_early"", ""reporter"": ""Wall."", ""case_paths"": [""/us/71/0657-01""], ""opinion_index"": 0}, {""cite"": ""72 N. Y. 65"", ""weight"": 2, ""case_ids"": [532821], ""category"": ""reporters:state"", ""reporter"": ""N.Y."", ""case_paths"": [""/ny/72/0065-01""], ""opinion_index"": 0}, {""cite"": ""10 L. R. A. 393"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A."", ""opinion_index"": 0}, {""cite"": ""25 N. E. 937"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.E."", ""opinion_index"": 0}, {""cite"": ""123 N. Y. 405"", ""case_ids"": [568360], ""category"": ""reporters:state"", ""reporter"": ""N.Y."", ""case_paths"": [""/ny/123/0405-01""], ""opinion_index"": 0}, {""cite"": ""4 Cush. 275"", ""weight"": 2, ""case_ids"": [1986110], ""category"": ""reporters:state"", ""reporter"": ""Cush."", ""case_paths"": [""/mass/58/0275-01""], ""opinion_index"": 0}, {""cite"": ""12 L. R. A. (N. S.) 949"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A.N.S."", ""opinion_index"": 0}, {""cite"": ""91 Pac. 255"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""47 Wash. 22"", ""case_ids"": [1295665], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""pin_cites"": [{""page"": ""26""}], ""case_paths"": [""/wash/47/0022-01""], ""opinion_index"": 0}, {""cite"": ""145 Pac. 57"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""88 Wash. 55"", ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""opinion_index"": 0}], ""citations"": [{""cite"": ""98 Wash. 49"", ""type"": ""official""}], ""file_name"": ""0049-01"", ""last_page"": ""56"", ""first_page"": ""49"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T21:14:33.484169+00:00"", ""decision_date"": ""1917-08-22"", ""docket_number"": ""No. 13858"", ""last_page_order"": 88, ""first_page_order"": 81, ""name_abbreviation"": ""City of Spokane v. 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+670233,"{""id"": 670233, ""name"": ""J. Matzger, Respondent, v. Arcade Building & Realty Company, Appellant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""5cd3f9b893622d92eea646de8338bd745b959fccd07d825e6e793dfd62c317f7"", ""simhash"": ""1:becaef9cc520fe42"", ""pagerank"": {""raw"": 0.0000002396424291605953, ""percentile"": 0.79844461974424}, ""char_count"": 17454, ""word_count"": 2978, ""cardinality"": 797, ""ocr_confidence"": 0.514}, ""casebody"": {""judges"": [], ""parties"": [""J. Matzger, Respondent, v. Arcade Building & Realty Company, Appellant.""], ""opinions"": [{""text"": ""Chadwick, J.\nThis is an action to recover damages which the plaintiff, Matzger, claims to have suffered as the result of. the acts of the defendant, Arcade Building & Realty Company, in the interference with the access of light and ventilation to the storeroom occupied by him as a tenant of that company. The plaintiff seeks to have the damages so suffered by him measured by the loss of profits and injury to goods in his business during the period of the defendant’s alleged interference with the enjoyment of light and ventilation which he was entitled to as its tenant. The trial in the superior court sitting with a jury resulted in verdict and judgment against the defendant, awarding the plaintiff $7,000 damages, from which the defendant has appealed to this court.\nFor many years past, appellant has been the owner of the Arcade building and the Arcade Annex building, in Seattle. These buildings are upon the block hounded on the north by Union street, on the east by Second avenue, on the south by University street, and on the west by First avenue. The buildings occupy the whole of the block, excepting-an alley thirty-five feet wide, running north and south through the middle of the block. Appellant owns the whole of the block, including the alley. For' many years prior to the month of February, 1913, respondent was engaged in the ladies suit and cloak business in Seattle. Early in the year 1909, he became the tenant of appellant, occupying one of its storerooms in the Arcade building fronting on Second avenue and extending back to the alley between the two buildings. This tenancy was under a lease and continued until December 31, 1913, when the lease expired. It is alleged that, prior to the acts of appellant now complained of, the rear of respondent’s storeroom was well adapted to facilitate the fitting, altering and pressing of ladies suits and cloaks. This, because of the well-lighted condition of the rear of the store, which condition resulted from the fact that there was no building or other structure near enough to the rear windows of the store to obstruct the natural light. The fitting, altering and pressing of suits and cloaks was an important part of respondent’s business, as most suits require considerable attention and work of this nature when sold to customers. Respondent contends that to do this work requires good natural light, otherwise mistakes would necessarily occur, resulting in inferior service to customers and consequent dissatisfaction on their part, and also in damage to goods, rendering them less salable.\nIn February, 1913, appellant commenced the construction of a covered bridge over a considerable portion of the alley, with a view of connecting the upper floors of the two buildings, which construction threatened to seriously interfere with the access of light and air to the rear of respondent’s store. Thereafter respondent commenced an action in the superior court for King county seeking to enjoin the construction. of the bridge because of its threatened interference with the access of light and air to his store. That action resulted in a judgment against appellant, rendered April 23, 1913, enjoining it from erecting or placing within the alley any structure which, would interfere with the free access of natural light and ventilation to respondent’s storeroom as such natural light and ventilation had existed at and prior to the commencement of that action. That judgment was thereafter appealed from by appellant and affirmed by this court. Matzger v. Arcade Building & Realty Co., 80 Wash. 401, 141 Pac. 900, L. R. A. 1915A 288. Thereafter appellant made some changes in its plans for the construction of the bridge over the alley, claiming such change would not interfere with respondent’s light and ventilation as adjudicated in the injunction suit, and proceeded with the construction of the bridge in accordance with such changed plans. Thereafter respondent, conceiving that appellant was proceeding in violation of the injunction, commenced a contempt proceeding against it and its officers seeking to have them punished for violating the injunction and to coerce obedience thereto. On July 3, 1913, the contempt proceeding was dismissed. The order of the court is as follows:\n“The above entitled matter coming on June 27,1913, for hearing upon the application of the plaintiff, to have the defendant adjudged in contempt for violating the decree heretofore entered in said cause; and said matter is submitted to the court upon the record, affidavits and argument of counsel, and by the court taken under advisement; and thereafter, to wit, on the first day of July, 1913, the court being advised in the premises ;\n• “It is by the court ordered that said application be and the same is hereby denied, to which order said , plaintiff excepts, the denial of said application being without prejudice to any claim or right for damages which said pláihtiff may have against the defendant on account of the putting up of the structure mentioned in said application.”\nRespondent continued to occupy the storeroom under his tenancy until December 31,1913, when his lease expired, and thereafter commenced this action to recover damages.\nIt is first contended by counsel for appellant that it is entitled to judgment in its favor as a matter of law, motions having been timely made in that behalf in the trial court, upon the ground that respondent having elected to seek relief by injunction, he should not now be permitted to seek damages in an action at law. Counsel argues that the commencement of the injunction action was an irrevocable election of a remedy on the part of the respondent. Rem. Code, § 1058 is invoked.\n“The court or judicial officer, in addition to the punishment imposed for the contempt, may give judgment that the party aggrieved recover of the defendant a sum of money sufficient to indemnify him, and to satisfy his costs and disbursements, which judgment, and the acceptance of the amount thereof, is a liar to any action, suit, or proceeding by the aggrieved party for such loss or injury.”\nState ex rel. Nicomen Boom Co. v. North Shore Boom & Driving Co., 55 Wash. 1, 103 Pac. 426, 107 Pac. 196, is relied on. But whether we regard the statute as mandatory or otherwise, we think appellant is estopped by the record to raise this question. The court held in the contempt proceeding that its judgment of dismissal was without prejudice to the right of respondent to maintain an action for damages. This judgment was not appealed from, and the court, having jurisdiction to assess the damages, having entered a judgment without prejudice to another proceeding, appellant is estopped to raise the question in a collateral proceeding.\nIt is contended in appellant’s behalf thát loss of' profits is not a proper measure of respondent’s damages, and, therefore, the receiving of proof for that purpose was erroneous. The principal argument is that loss of profits could in no event be a lawful measure of damages resulting from interference with a leasehold interest in real property, but that the damages, if any were suffered, are to be measured by the lessening of the rental value of the premises.\nIt may be granted that, in certain cases, a tenant may show a loss of profits in the conduct of an established business where the landlord has unreasonably interfered with the full enjoyment and use of the demised premises. But cases so holding rest in an exception to a general rule, which has twice been declared by this court. Kohne v. White, 12 Wash. 199, 40 Pac. 794; Purcell v. Warburton, 70 Wash. 129, 126 Pac. 89. Interference with light is a breach of the covenant of quiet enjoyment. Taylor, Landlord and Tenant, 309 (a).\nThe measure of damages for an interruption of quiet enjoyment by the landlord is the difference between the value of the use of the property as furnished by the landlord and the rent reserved. In other words, it is the diminished value of the use of the property. Tiffany, Landlord and Tenant, §79g; Underhill, Landlord and Tenant, § 432; Taylor, Landlord and Tenant, §§ 177 and 317; 16 R. C. L. 770.\nLoss of profits are usually regarded as too contingent, remote or speculative to be considered. 16 R. C. L. 1056. The general rule should not be departed from unless it is impossible to measure the losses by it, or the character of the business is such and the proof of the profits so clear that the court can say, as a matter of law, that loss of profits was within the contemplation of the parties at the time the contract was made. If this he so, it will declare lost profits to he the measure of damages.\nIn the case of Purcell v. Warburton, supra, it was contended that the landlord had not furnished heat as he had contracted to do, and because of his failure the tenant had been damaged. We referred to the case of Kohne v. White, supra, saying:\n“The correct measure of damages is, therefore, the difference between the value of the use of the rooms as furnished by the plaintiff and heated as contemplated by the contract, and the value of their use as in fact heated by the defendants.”\nIf the word “lighted” is substituted for the word “heated,” we have an identical case.\nBut if it be held that the loss of usable value is not a proper measure of damages, the exception to the rule allowing a loss of profits should not be allowed in this case, for, in sound reason and under all authority, a loss of profits is not allowed unless they can be measured with a fair degree of accuracy. The testimony must be clear and free from taint of speculation or conjecture. The rule rests in a principle applied in all cases for damages arising out of a sale of property or the use of property.\nTo sustain a verdict for prospective profits, the jury must have some reasonable basis for estimating the worth of the business. From the nature of things, prospective profits cannot be proved to the dollar. Yet the law does demand that there shall be tangible evidence sufficiently clear and convincing to reasonably sustain a verdict. There must he some standard of comparison.\nRespondent with another (his brother-in-law) had been in business for a term of years. Their hooks were not accurately kept. From time to time they had called in an expert accountant to measure the worth of the firm. He would force an inventory of the business based upon the amount of purchases and sales, and from this would make up a statement.\nRespondent dissolved partnership with his partner in July. No inventory was taken. The goods were divided one-half to each. In order to find the worth of the goods at the time of the dissolution for use in this suit, an accountant was employed. He took the former forced inventories and, by a purely theoretical process of reasoning, came to the conclusion that the value of the goods -left in respondent’s hands was about $5,-793.41, so that it will be seen that the amount of goods with which respondent continued the business was not accurately determined. The figures were arrived at by consulting so-called inventories, which in themselves were no more than a guess at value.\nThe books of the old business were continued as the books of respondent’s business. The books were admitted, but they constitute, with the exception of a few months, the record of an entirely different business, operating under different conditions with possibly a larger stock of goods, and showing in no way, as we have said, the value of the stock of respondent at the time he began to do business on his own áccount.\nMoreover, we may assume that, with the dissolution of the firm and an equal division of the goods, the retiring partner going across the street and setting up business for himself, would in itself, in greater or less degree, diminish the profits which respondent might otherwise legitimately receive. Then, again, the testimony shows that the retiring partner was what is called the “floor man” of the business. He it was who met and had personal acquaintance with the customers of the firm, while respondent was office man and buyer.\nWith these things made clear in the record, we cannot understand how the court can find that percentages based on the former business, and arrived at theoretically, are evidence from which a' jury can draw a verdict with a reasonable degree of accuracy.\nAn examination of the cases will show that, where profits have been allowed as the measure of damages, there has generally been an interruption to the business amounting to an eviction. As, for example, the failure of a landlord to furnish steam heat in a hotel operated by his lessee, thereby making it uninhabitable for guests and doing away entirely with the tenant’s business, or where the tenant was unlawfully evicted from the premises, or the landlord has maintained such a nuisance as to preclude the carrying on of the tenant’s business.\nIn the instant case, the tenant was not evicted; his business was not interrupted; his sole complaint is that the facilities for carrying on his business were not so good after the alteration was made by the landlord. His whole case rests' on the damages which he claims resulted to him because some of his light and fresh air was shut off and he was compelled to use artificial light in place of natural light. He testifies that nearly all garments have to be altered, and that his workmen made mistakes working under the artificial light, so that customers would return the goods and a sale would be lost. How many garments were thus spoiled,, and whether it was due to the light or to the inefficiency or carelessness of the workmen, is of course entirely problematical. As between employer and employee, respondent could say it was the workman’s fault; and as between himself and the landlord, he could, with the same show of reason, blame it on the loss of light.\nThe same is probably true as regards his contention that sales were lost because the customer could not see the true color of the goods under the artificial light. There is no showing that the customer was prevented ■from going to the front of the store and seeing thé goods by daylight. As between himself and the salesman, if a sale were lost, the respondent could blame the salesman; and as against the “greedy landlord,” as he calls the defendant, he could put the blame on the artificial lights.\nAdmitting, as respondent claims, that his business was damaged by the acts of the defendant, yet there is nothing in the record that would warrant a jury in determining how much of the lost profits was due to the use of artificial lights, how much to plaintiff’s partner being in a rival business, and how much may have been due to personal elements in the management of plaintiff’s business and the sale of his goods.\nIt is for the reasons appearing from every angle of this case that the law asserts the general rule that, for a breach of the covenants of a lease, the measure of damages is the difference between the value of the term and the rent reserved.\nThere is further evidence that the books did not evidence the true condition of the firm or of respondent’s business. He admits that he had deposited something like $53,000 of his own money in the bank with the intent and for the purpose of creating a false standard of credit. His purpose being to so establish himself that he might have less difficulty in obtaining sufficient credit to eventually engage- in the wholésale trade.\nReversed and remanded for a new trial.\nEllis, C. J., Holcomb, Mount, Fullerton, Main, Webster, and Parker, JJ., concur."", ""type"": ""majority"", ""author"": ""Chadwick, J.""}], ""attorneys"": [""Peters & Powell and Beebe & Whitcomb, for appellant."", ""Vanderveer & Cummings and Harry Sigmond, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 13791.\nEn Banc.\nMay 11, 1918.]\nJ. Matzger, Respondent, v. Arcade Building & Realty Company, Appellant.\nEstoppel—By Record—Judgment and Failure to Appeal. Judgment unappealed from in a contempt proceeding to enforce an injunction, in which the court had jurisdiction to assess plaintiff’s damages, dismissing the proceeding without prejudice to plaintiff’s right to maintain an action for damages, estops the defendant from asserting that plaintiff elected his remedy in bringing an action for an injunction and so could not sue for damages.\nLandlord and Tenant — Interruption of Quiet Enjoyment — Measure of Damages. The measure of damages for an interruption of quiet enjoyment by interference with light is the difference between the value of the property as furnished and the rent reserved, or the diminished value of the use of the property; loss of profits being usually regarded as too remote and speculative, unless proof of profits is so clear that they were, as a matter of law, within the contemplation of the parties.\nSame. The evidence of loss of property is not sufficient to bring a case within the exception to such rule, where the tenant’s business-was not interrupted, he complained only that facilities for carrying it on were not so good as before, and there was nothing to show how much of the lost profits was due to the use of artificial lights, how much to plaintiff’s partner being in a rival business, or how much to personal elements in the management of plaintiff’s business and the sale of his goods.\nAppeal from a judgment of the superior court for King county, Frater, J., entered November 5,1915, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages.\nReversed.\nPeters & Powell and Beebe & Whitcomb, for appellant.\nVanderveer & Cummings and Harry Sigmond, for respondent.\nReported in 173 Pac. 47.""}, ""cites_to"": [{""cite"": ""173 Pac. 47"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""126 Pac. 89"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""70 Wash. 129"", ""case_ids"": [565324], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/70/0129-01""], ""opinion_index"": 0}, {""cite"": ""40 Pac. 794"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""12 Wash. 199"", ""case_ids"": [782119], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/12/0199-01""], ""opinion_index"": 0}, {""cite"": ""107 Pac. 196"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""103 Pac. 426"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""55 Wash. 1"", ""case_ids"": [1301565], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/55/0001-01""], ""opinion_index"": 0}, {""cite"": ""141 Pac. 900"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""80 Wash. 401"", ""case_ids"": [662976], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/80/0401-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""102 Wash. 423"", ""type"": ""official""}], ""file_name"": ""0423-01"", ""last_page"": ""432"", ""first_page"": ""423"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T16:05:31.378704+00:00"", ""decision_date"": ""1918-05-11"", ""docket_number"": ""No. 13791"", ""last_page_order"": 462, ""first_page_order"": 453, ""name_abbreviation"": ""Matzger v. 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+670242,"{""id"": 670242, ""name"": ""David Robinson et al., Appellants, v. C. R. Wilson et al., Respondents"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""54f8f0088362d218e0ab4da44e5dd3ca28f8aa4fddc4b9199779b5e18da0364c"", ""simhash"": ""1:b4beb71c874246e9"", ""pagerank"": {""raw"": 0.00000031112676261348374, ""percentile"": 0.8600186729033237}, ""char_count"": 14526, ""word_count"": 2547, ""cardinality"": 707, ""ocr_confidence"": 0.532}, ""casebody"": {""judges"": [], ""parties"": [""David Robinson et al., Appellants, v. C. R. Wilson et al., Respondents.""], ""opinions"": [{""text"": ""Chadwick, J.\nOn June 20, 1914, appellants and respondents Samuel A. Agnew and O. E. Wilson entered into a contract of lease whereby appellants leased to respondents certain property in the city of Centralia. A building was in course of construction thereon. The parts of the lease material to this inquiry are as follows:\n“For the term of five (5) years the said term to commence upon lessors giving to lessees notice in writing of the completion of the building now under course of construction on said premises, the said building to be three stories high and in accordance with the plans and specifications, except as to the first floor which is to be subdivided in accordance with the wishes of lessees, and said building to be completed on or about October 1st, 1914, and the said five years ’ term to commence five days after the giving of such notice, at the monthly rent or sum of four hundred ($400) dollars per month for the first twelve months of said lease, and the sum of four hundred and twenty-five ($425) dollars per month for the succeeding forty-eight months of said term, the said rentals to be paid monthly in advance, the first month’s payment to be paid on the execution hereof, and the other monthly rentals to be paid monthly in advance as of the time as set for the commencing as this lease by the notice as aforementioned, during the full term hereof.”\nThe building was completed in November, 1914, and on the 9th day of that month defendants went into possession and paid their rent up to and including the 15th day of February, 1916. On February 24,1916, defendants notified plaintiffs that they would refuse thereafter to pay rent because of the neglect and refusal of appellants to put the building in a tenantable condition, in that they had failed to provide sufficient heating facilities, and that, as a result thereof, respondents had been compelled to turn away guests; that, when the back rooms were properly heated, the front rooms were too cold for comfort, and when the front rooms were properly heated, the back rooms were uninhabitable because of the heat. A further delinquency was alleged in that appellants had failed to provide proper sample rooms. It seems that the sample rooms were in the basement and that water seeped through the walls and floor during the rainy seasons. In their notice of refusal to pay additional rent, respondents claimed damages for the expired term of $3,000, and for the future term of $12,000, and “you are therefore advised, as before stated in this letter, that the Wilson Hotel Company will no longer pay rent upon said premises until such conditions are eradicated, or satisfactory arrangement made for the settlement of these demands.” On the 13th day of March, appellant gave respondents notice to pay rent, and on the 16th brought this action to recover the rent due in March and April, or $850.\nRespondents answered, admitting the lease, and alleged affirmatively that the building was built to be used as a hotel and that it had not been constructed according to plans and specifications, in that the heating plant had not as much radiation as called for and that the valves were improperly installed, and that the building was not constructed of the best materials, and that the workmanship was not of the “best manner” employed by skilled mechanics. They alleged that the rental value was not to exceed $200 per month, and prayed for the difference between that sum and the sum of $400 and $425 per month which had been paid under the lease, and for damages for the remainder of the term in a like sum.\nThey also prayed for damages in the sum of $500 on account of the careless and negligent manner in which appellants had attempted to repair the building. This item was in no way sustained. Appellants replied, denying generally. The testimony going to the condition of the heating plant and its workings is in sharp conflict. That there was a seepage through the walls and floor of the basement and to some extent through the south wall was established.\nThe court found that the building had not been built according to the plans and specifications in the particulars mentioned; that respondents had suffered a damage to the extent of $100 per month; figured the reasonable rental value at $325 per month; allowed respondents $2,000 less $850, the unpaid rent, and entered a judgment for the difference, being $1,150 with costs.\n\""Without taking issue with the theory of the law entertained by the trial judge in the assessment of damages, and granting that the heating plant did not meet the requirements of the business and that water seeped into the basement and through the south walls, we are unable to follow him in his findings of fact.\nThe right of respondents to recover rests primarily in contract, and they are under a burden to show a breach of contract. The lease was executed long before the building was occupied and was drawn with reference to certain plans and specifications. If the plans were then inadequate, the infirmity would fall equally upon the contracting parties and there could.be no recovery. For it is known of all men that “plans and specifications ’ ’ do not insure habitable buildings. Some architects are artists, some have constructive genius, and some can draw “plans and specifications.”\nLikewise, if the building was not completed according to the plans and specifications, it was a fact susceptible of proof, and of which the proof of the inadequacy of the heating plant and the seepage in the walls would not be evidence—certainly not when standing alone and unsupported by any testimony which would tend in the slightest degree to prove that the plans and specifications had been departed from. The only testimony found in the record in which plans and specifications are mentioned is that of a witness who says:\n“The basement could have been constructed water tight, and if the mixtures called for in the plans and specifications had been properly placed the basement would not have leaked. The same is true of the south wall of the building. If this had been properly constructed it would not leak . . . The walls of the basement are not of the best possible construction as called for in the plans and specifications.”\nBut he does not assume to say what the plans and specifications required.\nWitnesses testified that the rental value of a building used for hotel purposes and heated as this one was and with seepage in the basement and through the south wall would be from $100 to $250 per month, but it is not shown that the hotel was not as adequately patronized as a hotel in a community the size of Centraba would have been patronized if conditions had been otherwise. It is true that one of the respondents testified that a number of traveling men had quit the hotel, but how many or for how long or whether it resulted in a money loss is not made clear. Many traveling men testified to their satisfaction with the hotel, two of them saying it was a favorite resort of traveling men, and one of them that it was often full to overflowing.\nBoth the contractor and the heating contractor testified that the building was built and the heat installed strictly in accord with the plans and specifications, and their testimony is not challenged. The building was accepted by the architect in charge, which is some evidence that it was completed in accordance with the plans and specifications.\nWe think it will not be questioned that a landlord is not a guarantor of the fitness of a building for the purpose for which it is .leased unless he binds himself by written contract. Nor will the fact that he knows the use to which it is to be put hold him to such liability where, as in this case, no restrictions are put upon the use of the building in the written lease.\n“It is agreed by the authorities at the present time that, as a general rule, there is no obligation on the part of the lessor to see that the premises are, at the time of the demise, in a condition of fitness for use for the purpose for which the lessee may propose to use them. A lessee, like the purchaser of a thing already in existence, is presumed to take only after examination. The maxim caveat emptor applies, and if he desires to protect himself in this regard he must exact of the lessor an express stipulation as to the condition of the premises.” Tiffany, Landlord and Tenant, § 86.\n“As the landlord is under no obligation to the lessee, as regards the condition of the premises, or its fitness for the lessee’s purpose, at the time of the demise, so he is under no obligation to the lessee, or to the latter’s assignee, to keep the premises during the tenancy in a condition satisfactory to the latter. Accordingly, a landlord is not bound, as a general rule, in the absence of special stipulation, to make repairs or improvements on the premises in order to render them safe or fit them for the tenant’s use. And as a result of this principle, the tenant cannot assert any claim against the landlord on account of injury to himself or his property owing to defects in the premises arising since the demise . . . Even though the premises are leased for a particular purpose, and any other use thereof is prohibited, the landlord is, it has been decided, under no obligation to keep them fit for such use.” Id., § 87.\nSee, also, Taylor, Landlord and Tenant, § 327 et seq.; 24 Cyc. 1081.\nAnd this rule is not for the benefit of the one or the other, but is the corollary of the rule that, where there is a written contract of lease general in its terms, a tenant cannot be bound by an oral declaration or general understanding that it was to be used for a particular purpose. 16 R. C. L. 729.\nRespondents seek to sustain their recovery by asserting a promise on the part of the appellants to repair the heating plant, and by proof of the fact that the heating plant was changed at their request during the time they occupied the premises. It is urged that these things operated as a waiver and rendered appellants liable as if on a covenant to repair. A voluntary act of a landlord who mqkes repairs at the suggestion 'of his tenant but who is under no obligation to repair will not be held to be a waiver of the right to a strict performance. Williamson v. Miller, 55 Iowa 86, 7 N. W. 416; McClure v. Little, 19 L. T. 287.\nThe rule that exempts the landlord from the penalty of an involuntary waiver is the same rule that exempts the tenant from a waiver of the landlord’s covenant to make repairs by the payment of rent. Hardman Estate v. McNair, 61 Wash. 74, 111 Pac. 1059; Shigeta v. Gaffney Inv. Co., 72 Wash. 221, 130 Pac. 88; Thomson Estate v. Washington Investment Co., 84 Wash. 326, 146 Pac. 617, do not militate against our holding. The first case asserts the general rule. The written lease fixed the use and it was provided that the building should not be used for any other purpose.\nIn the second case, the landlord entered in a contract to build a building according to certain plans and specifications which had been agreed upon between the parties. The lease provided that the lessee should take possession when the building was completed and thereafter the lessee would keep it in repair. When notice • was given that the building was ready for occupancy it was in a leaky condition and the lessee refused to take possession. The landlord thereupon, as a condition of present occupancy, promised to remedy the defect. We held that an occupancy under a concurrent promise made by the landlord under such circumstances was not a waiver of the lessee’s right to insist upon full performance by the landlord. The case is distinguished upon its facts. The third case holds that the payment of rent is not a waiver of the tenant’s right to recover for necessary improvements where the burdens of repair were on the landlord.\nThe trouble in this case is that we are asked to make a contract grounded in the equities incident to subsequent events, where the parties, who might have foreseen every incident and circumstances now relied on, failed to guard against them in their written contract. And this is where the trial judge fell into error. He says:\n“I think, however, that it cannot be successfully disputed that in the extreme wet months of the year there are defects in the building and heating plant, which are not within the contemplation of the lease, and which resulted in a loss to the defendants.”\nIt may at times result in inequity, but the law is so written that a landlord is not bound beyond the .terms of his lease, and that parties who enter written contracts are presumed to have in contemplation probable consequence and the established principles of the law.\nWritten contracts would be of little consequence in the business world if they were to be so overcome, or, if working to the disadvantage of one who has agreed to pay a certain price, his express contract could be turned, over the protest of his adversary, into a quantum valebat.\nReversed, and remanded with instructions to enter .a judgment in favor of appellants for $850 and costs.\nMount, Holcomb, and Mackintosh, JJ., concur."", ""type"": ""majority"", ""author"": ""Chadwick, J.""}], ""attorneys"": [""Forney & Ponder, for appellants."", ""C. D. Cunningham and W. H. Abel, for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 14826.\nDepartment Two.\nJune 6, 1918.]\nDavid Robinson et al., Appellants, v. C. R. Wilson et al., Respondents.\nLandlord and Tenant — Condition op Premises — Liability op Landlord. Under a lease of a hotel building to be constructed according to plans and specifications, the maxim of caveat emptor applies, and the tenant cannot recover damages and loss of rental value through defects in the heating plant and seepage of water in the basement walls, where the building was constructed according to the plans and specifications.\nSame. Inadequacy of the plans would not constitute a breach of the lease, nor would inadequacy of the heating plant or seepage in the walls be evidence of breach.\nSame—Lease—Use op Premises—Guaranty op Fitness. Under a lease of a hotel building containing no restrictions as to its use, a guaranty of the fitness of the building for hotel purposes cannot be implied.\nSame—Repairs—Perpormance by Tenant—Waiver. The voluntary act of a landlord in making repairs to a heating plant does not waive his right to a strict performance of the lease by the tenant.\nAppeal from a judgment of the superior court for Lewis county, Reynolds, J., entered July 9, 1917, upon findings in favor of the defendants, in an action for rent, tried to the court.\nReversed.\nForney & Ponder, for appellants.\nC. D. Cunningham and W. H. Abel, for respondents.\nReported in 173 Pac. 331.""}, ""cites_to"": [{""cite"": ""173 Pac. 331"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""146 Pac. 617"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""84 Wash. 326"", ""case_ids"": [598967], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/84/0326-01""], ""opinion_index"": 0}, {""cite"": ""130 Pac. 88"", ""case_ids"": [2310402], ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""case_paths"": [""/idaho/23/0324-01""], ""opinion_index"": 0}, {""cite"": ""72 Wash. 221"", ""case_ids"": [591482], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/72/0221-01""], ""opinion_index"": 0}, {""cite"": ""111 Pac. 1059"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""61 Wash. 74"", ""case_ids"": [555741], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/61/0074-01""], ""opinion_index"": 0}, {""cite"": ""7 N. W. 416"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.W."", ""opinion_index"": 0}, {""cite"": ""55 Iowa 86"", ""case_ids"": [2315962], ""category"": ""reporters:state"", ""reporter"": ""Iowa"", ""case_paths"": [""/iowa/55/0086-01""], ""opinion_index"": 0}, {""cite"": ""173 Pac. 331"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}], ""citations"": [{""cite"": ""102 Wash. 528"", ""type"": ""official""}], ""file_name"": ""0528-01"", ""last_page"": ""536"", ""first_page"": ""528"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T16:05:31.378704+00:00"", ""decision_date"": ""1918-06-06"", ""docket_number"": ""No. 14826"", ""last_page_order"": 566, ""first_page_order"": 558, ""name_abbreviation"": ""Robinson v. 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+670290,"{""id"": 670290, ""name"": ""C. F. McInnis et al., Appellants, v. Day Lumber Company, Respondent"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""28f92408d5d40dcc33f1480e6f6f08c48e225bb34a4431f58bd53378012924d1"", ""simhash"": ""1:7e2255a71a69ccfe"", ""pagerank"": {""raw"": 0.00000012433226524817696, ""percentile"": 0.6084625010956237}, ""char_count"": 8743, ""word_count"": 1525, ""cardinality"": 482, ""ocr_confidence"": 0.502}, ""casebody"": {""judges"": [], ""parties"": [""C. F. McInnis et al., Appellants, v. Day Lumber Company, Respondent.""], ""opinions"": [{""text"": ""Parker, J.\nThe plaintiffs, McInnis and wife, seek a judgment to compel the defendant, Day Lumber Company, a corporation, to remove a dam maintained by it in Nookachamps creek, at its sawmill in Skagit county, which dam the plaintiffs claim causes the overflow of their land, and also seek damages for past injuries to their land so caused. Trial in the superior court for that county resulted in findings and judgment enjoining the defendant from maintaining the dam above a certain height, and awarding the plaintiffs damages for past injuries in the sum of $50. From this disposition of the cause, the plaintiffs have appealed to this court.\nPlaintiffs own land bordered upon the upper end of a natural widening of the creek, called Big Lake, some two and one half miles above respondent’s sawmill, which is situated at the lower end of the lake. In the year 1897, Parker Brothers, a copartnership, built the dam in question in the creek just below the lower end of the lake for the purpose of raising the water a few feet to facilitate the handling of shingle bolts and logs brought to their mill there situated to be manufactured into lumber and shingles. Thereafter this mill property, including the dam, was conveyed by Parker Brothers to the J. D. Day Lumber Company, a copartnership, and thereafter it was conveyed by the J. D. Day Lumber Company to respondent, Day Lumber Company, a corporation, the present owner. The dam as originally constructed consisted of a cedar log, about four feet in diameter, laid across the bed of the creek for the foundation of the dam, and other timbers were placed on top of it so as to make the top of the dam considerably higher. Just how high the dam was originally constructed in the year 1897 is a matter of some uncertainty. We think, however, that the evidence fully warrants the conclusion reached by the trial court that, for more than ten years prior to the year 1910, the dam was continuously maintained by respondent and its grantors to at least the height of twenty-nine inches above the top of this foundation cedar log, which log is still in the same position as originally placed, and in a fair state of preservation. The changes of material with which the dam has been maintained have been only in the portions thereof above the log. Repairs made upon the dam since about 1909 have resulted in raising it several inches, possibly a foot, higher than twenty-nine inches above the foundation log. The exact extent of this raise we need not here notice. The trial court rendered judg- , ment enjoining respondent from maintaining the dam at a greater height than twenty-nine inches above the top of- the foundation log, and awarded the appellants the sura of $50 damages for injuries to their land by the overflow thereof caused by the raising of the water more than twenty-nine inches above the top of the foundation log.\nThe judgment, in so far as it restrains the maintenance of the top of the dam not to exceed twenty-nine inches above the foundation log was, by the trial court, rested upon the theory that respondent had acquired the right in 1910 to maintain the dam at that height by prescription, as against appellants as owners of the land which the maintenance of the dam at that height caused to be overflowed. \""We agree with the trial court that the evidence calls for the conclusion that, for more than ten years prior to 1910 and up to the present time, respondent and its grantors have continuously, without any interruption whatever, maintained the dam at least to the height of twenty-nine inches above the foundation log. The evidence is quite voluminous and is not wholly free from conflict, but that it preponderates in favor of the court’s conclusion, we are quite convinced. We think it would be unprofitable to review the evidence here in detail.\nCounsel for appellants also contend that the maintenance of the dam and the overflow of their lands caused thereby was not in law adverse to their rights, but that respondent recognized their right to have the same discontinued. This contention is rested upon negotiations commenced between respondent and appellants in February, 1910, wherein it is claimed respondent conceded the rights of appellants as claimed by them. It is not claimed, indeed it Could not be under the evidence, that there was ever anything said or done by any of the parties in interest prior to February, 1910, which would in the least impede the running of the statute in favor of respondent and its grantors in their claimed prescriptive right to maintain the dam. Besides, we think these negotiations related to the increase of the height of the dam by respondent about the year 1910 and later, rather than to the prior maintenance of the dam. We have noticed the fact of the maintenance of the dam to a height of at least twenty-nine inches above the top of the foundation log for more than ten years prior to 1910 for the purpose of arriving at a conclusion as to what prescriptive rights respondent had then acquired, and having arrived at the conclusion that its prescriptive rights, to the extent recognized by the trial court, were perfected in the year 1910, it would seem to be of no consequence what negotiations, amounting to less than the formal conveyance by respondent of its thus acquired prescriptive right, were had in 1910 and later. It seems to be well settled law that:\n“Where title has become perfect by adverse possession for the statutory period it is not lost by an admission by the holder that the possession was not adverse.” 2 C. J. 256.\nWe find a clear statement of the rule announced by Chief Justice Reese, speaking for the supreme court of Nebraska in Towles v. Hamilton, 94 Neb. 588, 143 N. W. 935, as follows:\n“It is elementary that, where the title has become fully vested by disseizin so long continued as to bar an action, it cannot be divested by parol abandonment or relinquishment or by verbal declarations of the disseizor, nor by any other act short of what would be required in a case where his title was by deed. ”\nTreating the acquired right to overflow appellants’ land as a prescriptive right rather than the acquiring of title to the land so overflowed, the law applicable would be the same. Swan v. Munch, 65 Minn. 500, 67 N. W. 1022, 60 Am. St. 491, 35 L. R. A. 743; Alcorn v. Sadler, 71 Miss. 634, 14 South. 444, 42 Am. St. 484. These cases are directly in point, since they have to do with the question of rights acquired by the maintenance of dams causing the overflow of lands of others for the statutory period relating to the acquisition of real property and interests thereon by adverse possession or use. A title or easement right in real property is no different when acquired by adverse possession or use than when acquired by formal grant in the manner prescribed by the statute of frauds. It seems to follow, as a matter of course, that such title or right can be parted with only in the manner that a title or easement right otherwise acquired may be parted with.\nCounsel for appellants cite and rely upon our decision in St. Martin v. Skamania Boom Co., 79 Wash. 393, 140 Pac. 355. A critical reading of that case, we think, discloses that ten years had not elapsed since the beginning of the damages for which redress was sought, when the negotiations alleged to show use and possession by consent occurred. It seems quite clear to us that the trial court properly disposed of this case in so far as it recognized the perfected right of respondent, acquired by adverse possession and use, to maintain the dam at the height of twenty-nine inches above the top of the foundation log.\nContention is made in behalf of appellants that the damages awarded them are inadequate. We cannot so view the evidence, all of which we have read with care.\nThe judgment is affirmed.\nEllis, C. J., Fullerton, Main, and Webster, JJ., concur."", ""type"": ""majority"", ""author"": ""Parker, J.""}], ""attorneys"": [""James C. Waugh and J. W. Russell, for appellants."", ""Thomas Smith and Coleman & Gable, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 14487.\nDepartment One.\nApril 30, 1918.]\nC. F. McInnis et al., Appellants, v. Day Lumber Company, Respondent.\nWaters and Water Courses—Appropriation and Prescription— Loss op Right—Evidence—Parol Admissions. Where the prescriptive right to maintain a dam at a certain height and overflow lands has become fully vested hy adverse use for the statutory period of ten years it cannot he lost hy a subsequent parol admission that the possession was not adverse or recognizing a right to have the dam lowered.\nAppeal from a judgment of the superior court for Skagit county, Brawley, J., entered May 14,1917, upon findings in favor of the defendant, in an action for an injunction and for damages, tried to the court.\nAffirmed.\nJames C. Waugh and J. W. Russell, for appellants.\nThomas Smith and Coleman & Gable, for respondent.\nReported in 172 Pac. 844.""}, ""cites_to"": [{""cite"": ""172 Pac. 844"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""140 Pac. 355"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""79 Wash. 393"", ""case_ids"": [594058], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/79/0393-01""], ""opinion_index"": 0}, {""cite"": ""14 South. 444"", ""category"": ""reporters:state_regional"", ""reporter"": ""So."", ""opinion_index"": 0}, {""cite"": ""71 Miss. 634"", ""case_ids"": [1760640], ""category"": ""reporters:state"", ""reporter"": ""Miss."", ""case_paths"": [""/miss/71/0634-01""], ""opinion_index"": 0}, {""cite"": ""35 L. R. A. 743"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A."", ""opinion_index"": 0}, {""cite"": ""67 N. W. 1022"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.W."", ""opinion_index"": 0}, {""cite"": ""65 Minn. 500"", ""case_ids"": [1652531], ""category"": ""reporters:state"", ""reporter"": ""Minn."", ""case_paths"": [""/minn/65/0500-01""], ""opinion_index"": 0}, {""cite"": ""143 N. W. 935"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.W."", ""opinion_index"": 0}, {""cite"": ""94 Neb. 588"", ""case_ids"": [4458569], ""category"": ""reporters:state"", ""reporter"": ""Neb."", ""case_paths"": [""/neb/94/0588-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""102 Wash. 38"", ""type"": ""official""}], ""file_name"": ""0038-01"", ""last_page"": ""42"", ""first_page"": ""38"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T16:05:31.378704+00:00"", ""decision_date"": ""1918-04-30"", ""docket_number"": ""No. 14487"", ""last_page_order"": 72, ""first_page_order"": 68, ""name_abbreviation"": ""McInnis v. Day Lumber 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+674926,"{""id"": 674926, ""name"": ""N. E. Nelson, Respondent, v. Industrial Insurance Department, Appellant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""f2a561cb090898f675d97b0bfb8f6ac834613858d7997251c3434037be42f5eb"", ""simhash"": ""1:b8b7f2a4212d67c4"", ""pagerank"": {""raw"": 0.00000020408408098313708, ""percentile"": 0.7477370302284033}, ""char_count"": 8020, ""word_count"": 1376, ""cardinality"": 460, ""ocr_confidence"": 0.503}, ""casebody"": {""judges"": [""Main, C. J., Holcomb, Mount, and Mackintosh, JJ., concur.""], ""parties"": [""N. E. Nelson, Respondent, v. Industrial Insurance Department, Appellant.""], ""opinions"": [{""text"": ""Chadwick, J.\nThis case comes to us on appeal from a judgment of the superior court overruling an order of the industrial insurance department denying respondent an allowance for a permanent partial disability.\nRespondent was injured in an accident on a logging railroad. He claims the loss of the sight of one eye. The court made findings as follows :\n“That, prior to the accident, plaintiff’s eyesight was good and he was not afflicted with optic atrophy.\n“That, at the time of the injury, plaintiff complained of severe pain in his head over the left eye, which pains continued for some time, and to a certain degree up to the time of the trial.\n“That shortly after the injury, the sight of the left eye began to fail and decrease rapidly, and at the time of the trial plaintiff was practically blind in the left eye.\n“That, shortly before the accident, plaintiff could use one eye as well as the other, and there was no difference in the sight of either.\n“That, as a result of the injury, plaintiff has sustained the practical total loss of vision in the left eye.”\nThe physicians called in behalf of the department testify positively that the loss of the sight of respondent’s eye could not have resulted from the injury received in the accident; that respondent is suffering from a primary optic atrophy; that primary atrophy is not due to inflammatory processes, nor is it the result of an injury; that, if there has been an atrophy of the optic nerve due to such causes, it is called secondary atrophy; that it is likely that respondent, being afflicted with true or primary optic atrophy, was not aware of his condition, which must have existed for some time before the accident, although not discovered until after he had been injured.\nOn the other hand, professional men testifying on behalf of respondent advance the opinion that there may have been some injury of'the optic nerve; that it is almost impossible to make a positive diagnosis in a case like this; that no one can say definitely whether an atrophy of the optic nerve is.primary or secondary without considering the history of the case, and that there is no specific rule to positively determine what has caused the condition. One of the doctors suggests that learned discourse about primary and secondary atrophy is “dictionary definition, pure and simple,” and that the term primary atrophy is often used for convenience to cover ignorance of the true causes. The doctors, as is sometimes the case, have disagreed. Their opinions cannot be reconciled. The testimony of the respondent is that he was a carpenter by trade; that, up to the time of the accident, he used either eye as convenience dictated, and that there had been no trouble with, or diminution óf, his vision. A neighbor testified that, about a year before the accident, he was with respondent when he was shooting hogs, and that he could shoot from one shoulder as well, as the other and that he never complained about his eyesight.\nOne of the first inquiries made by oculists in cases of atrophy of the optic nerve is whether the patient has ever been afflicted, with lues, or any germ-carrying disease. There is no evidence that ■ respondent was ever so afflicted. He denies that he was ever the victim of any such condition. These physical facts, coupled with the opinion of reputable oculists that the condition may have resulted from the accident, are enough to sustain the judgment of the court below.\nThe trial judge allowed a fee of $45 to one of the medical witnesses, who came from Portland, Oregon, to attend the trial. It is the contention of respondent that this allowance is proper under Rem. Code, § 6604-20, which provides that the court may allow an attorney’s fee,\n“and the fees of medical and other witnesses and the costs shall be payable out of the administration fund, if the accident is affected by the litigation.”\nThere is no provision of the law that will warrant the payment of extraordinary fees to expert witnesses as such. It was formerly provided, § 25 of the original act of 1911, Laws of 1911, p. 371, that,\n“Upon appeal of any workman from any decision of the department affecting the extent of his injuries or the progress of the same, the court may appoint not to exceed three physicians to examine the physical condition of the appellant, who shall make report to the court thereon, and they may be interrogated before the court by or on behalf of the appellant in relation to the same. The fee of each shall be fixed by the court,' but should not exceed ten dollars per day each.”\nThis section was expressly repealed by § 10, ch. 188, Laws of 1915, p. 691, at which session of the legislature it was provided “that fees of medical and other witnesses and the costs shall be payable out of the administration fund.”\nWe think it is hardly within any rule of statutory construction to say that it was the intention of the legislature to leave the fixing of witness fees to the discretion of the court.\n“At common law costs were not recoverable eo nomine . . . costs can therefore be imposed and recovered' only in cases where there is statutory authority therefor.” 15 C. J. 21.\n“It is the settled law of this state that ‘costs are purely statutory, and can only be awarded when the statute gives them’.” Eggerth v. Spokane, 91 Wash. 221, 157 Pac. 859.\nBeing dependent upon the statute, costs and witness fees are never to be allowed in the discretion of the trial judge, in the absence of a positive or permissive statute. In re Queen’s Estate, 82 N. J. Eq. 588, 89 Atl. 860; Struthers v. Christal, 3 Daly’s (N. Y.) 327; Wallace v. Sheldon, 56 Neb. 55, 76 N. W. 418.\nSo it is held that,\n“Sums paid for compensation of expert witnesses, beyond ordinary fees authorized by statute for witnesses generally, are not taxable as costs.” 15 C. J. 131; 5 Standard Ency. Proc. 951.\nIt will be observed that the only discretion given to the court in the allowance of costs on appeal from an order of the department is that the trial judge may fix a reasonable attorney’s fee and “such [reasonable] fee, and the fees of medical and other witnesses . . . shall be payable etc.,” plainly indicating that it was the intent of the legislature to associate medical witnesses with “other witnesses” and not with the attorney, whose service is independent of the witnesses and for which no fee is provided by law. We have heretofore refused to extend the terms of this statute by construction. O’Brien v. Industrial Insurance Department, 100 Wash. 674, 171 Pac. 1018.\nIt follows that the judgment of the lower court should be modified to this extent. In all other respects it is affirmed.\nMain, C. J., Holcomb, Mount, and Mackintosh, JJ., concur."", ""type"": ""majority"", ""author"": ""Chadwick, J.""}], ""attorneys"": [""The Attorney General and Howard Waterman, Assistant, for appellant."", ""Henry Crass, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 14543.\nDepartment Two.\nNovember 20, 1918.]\nN. E. Nelson, Respondent, v. Industrial Insurance Department, Appellant.\nMaster and Servant (121-2) — Injuries to Servant — Actions— Remedies Under Workmen’s Compensation Act — Evidence — Sufficiency. A finding of total partial disability in the loss of one eye as the result of an injury is sustained by evidence that the claimant’s eyesight was good before the accident and began to fail shortly after, coupled with the opinion of reputable oculists that the condition may have resulted from the accident.\nSame (121-2) — Costs—Expert Witness Fees. Costs and witness fees being purely statutory, the court has no discretion to allow extraordinary fees to expert witnesses under the workmen’s compensation act, Rem. Code, § 6604-20, which authorizes the court to allow a reasonable attorney’s fee and the “fees of medical and other witnesses,” out of the administration fund.\nAppeal from a judgment of the superior court for Clarke county, Back, J., entered June 12, 1917, upon findings in favor of the plaintiff, allowing a claim for compensation, upon appeal from an order of the industrial insurance commission, tried to the court.\nModified.\nThe Attorney General and Howard Waterman, Assistant, for appellant.\nHenry Crass, for respondent.\nReported in 176 Pac. 15.""}, ""cites_to"": [{""cite"": ""176 Pac. 15"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""171 Pac. 1018"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""100 Wash. 674"", ""case_ids"": [660306], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/100/0674-01""], ""opinion_index"": 0}, {""cite"": ""76 N. W. 418"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.W."", ""opinion_index"": 0}, {""cite"": ""56 Neb. 55"", ""case_ids"": [94046], ""category"": ""reporters:state"", ""reporter"": ""Neb."", ""case_paths"": [""/neb/56/0055-01""], ""opinion_index"": 0}, {""cite"": ""89 Atl. 860"", ""category"": ""reporters:state_regional"", ""reporter"": ""A."", ""opinion_index"": 0}, {""cite"": ""82 N. J. Eq. 588"", ""case_ids"": [138711], ""category"": ""reporters:state"", ""reporter"": ""N.J. Eq."", ""case_paths"": [""/nj-eq/82/0588-01""], ""opinion_index"": 0}, {""cite"": ""157 Pac. 859"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""91 Wash. 221"", ""case_ids"": [631975], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/91/0221-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""104 Wash. 204"", ""type"": ""official""}], ""file_name"": ""0204-01"", ""last_page"": ""208"", ""first_page"": ""204"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T19:14:33.671678+00:00"", ""decision_date"": ""1918-11-20"", ""docket_number"": ""No. 14543"", ""last_page_order"": 238, ""first_page_order"": 234, ""name_abbreviation"": ""Nelson v. Industrial Insurance 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+683836,"{""id"": 683836, ""name"": ""Blomskog, Erickson & Cotton, Appellant, v. The City of Seattle, Respondent"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""264db541a93c61a591941c00100aa8b1aae3fc82769d5ff5c6e0dac887651054"", ""simhash"": ""1:b2a3b42bd36553e4"", ""pagerank"": {""raw"": 0.00000009547208566106312, ""percentile"": 0.5250358225518167}, ""char_count"": 6816, ""word_count"": 1150, ""cardinality"": 445, ""ocr_confidence"": 0.485}, ""casebody"": {""judges"": [], ""parties"": [""Blomskog, Erickson & Cotton, Appellant, v. The City of Seattle, Respondent.""], ""opinions"": [{""text"": ""Mackintosh, J.\nAppellant is the owner of property at the northeast corner of Main street and Tenth avenue, in the city of Seattle, upon which is located a building used for residential purposes. In 1909 and 1910, the respondent regraded Jackson street, which runs in an easterly and westerly direction, parallel to and one block south of Main street, and in that work made a seventy-two foot cut south of appellant’s property. Following this cut, the hill between Main and Jackson streets began to slide, and continued in that condition up to the time of the trial of this case. In 1916, this slide invaded the appellant’s property and has taken the southern portion thereof, and with it a part of the foundation and walls of the building. After having duly presented a claim against the respondent, appellant instituted this action to recover damages, alleging that the rental income of its property had been diminished, up to the time of the trial, to the extent of $12,518, and that its property had been further damaged in the sum of $19,200. The jury returned a verdict in the sum of $3,500, which the appellant, feeling to be inadequate, asks this court to set aside, insisting that the trial court was in error in denying its motion for judgment notwithstanding the verdict for the full amount prayed for in its complaint, or at least for a new trial on account of various errors claimed to have been committed.\nAt the trial respondent contended, and was allowed to prove, that it was then boring test holes in Washington street, which is the street parallel to Main and next north of it, for the purpose of locating the water in the hill lying above the appellant’s property, and that the city intended, if water was so located, to provide means of draining such water. There was also admitted testimony to the effect that a petition had been circulated and signed by property owners and subsequently\"" filed with the city asking for the regrade of Jackson street. This evidence did not go to the extent of showing that appellant had been a signer of that petition, and even if it had been so shown, the testimony would not have been admissible for the reason that it is no defense by the city to its unlawful invasion of appellant’s property to show that the work which occasioned such invasion had been commenced upon the request of petitioning property holders, who in their petition called upon the city to exercise its legal powers for undertaking the regrade project. Edmonds Land Co. v. Edmonds, 66 Wash. 201, 119 Pac. 192. The introduction of such evidence would only tend to confuse the jury and was prejudicial to appellant, in that it allowed the jury to speculate and set off against the damages to which appellant was entitled possible benefits that were not in issue in the case.\nThe error in admitting testimony as to the future intentions of the city and the possible results that might follow to the appellant in the event that those intentions took the form of performance presents a serious mistake by the trial court of sufficient importance to entitle the appellant to a new trial. In this connection, the jury was instructed that, “in reaching your conclusion on this point, you may take into consideration the plans and efforts now undertaken by the city to prevent or relieve the neighboring slide, whether or not this will prove effective for the purpose, so far as it affects the plaintiff’s property.” City officials were allowed to answer the question: “What is your intention as regards the Jackson street slide, known as the Blomskog property?” by stating what their hopes and expectations were, which were not based upon any authoritative official action of any branch of the city government. Such testimony invited the jury to browse in a boundless expanse of theoretical conjecture and afforded the appellant no opportunity to close the gates. In re Seattle, 102 Wash. 286, 172 Pac. 1161. The respondent was allowed to ask a real estate expert a hypothetical question based upon such evidence. It needs little citation of authority to demonstrate the impropriety of snch a question. 1 Wigmore, Evidence, page 672.\nAmong its affirmative defenses, respondent had plead'that the injury to appellant’s property was due to its failure to maintain a sewer. Upon the trial, no evidence was introduced in support of this defense, and the appellant requested that the defense he withdrawn from.the jury’s consideration. This was denied when it should have been granted. Anderson v. Harper, 30 Wash. 378, 70 Pac. 965; Roe v. Standard Furniture Co., 41 Wash. 546, 83 Pac. 1109; Scarpelli v. Washington Water Power Co., 63 Wash. 18, 114 Pac. 870; Marks v. Seattle, 88 Wash. 61, 152 Pac. 706.\nFor these errors the appellant is entitled, at least, to a new trial, and there only remains for consideration the question as to whether it is not entitled to a judgment for the entire amount sued for. The consideration of this question calls for an examination of the facts, which, in our judgment, are such that the court was correct in denying the motion and leaving to a jury the determination of the amount of damages.\nThe judgment is therefore reversed, and the cause remanded for a new trial.\nHolcomb, C. J., Mitchell, Main, and Tolman, JJ., concur."", ""type"": ""majority"", ""author"": ""Mackintosh, J.""}], ""attorneys"": [""O. L. Willett and John A. Soule, for appellant."", ""Walter F. Meier and Frank S. Griffith, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 15275.\nDepartment One.\nJuly 2, 1919.]\nBlomskog, Erickson & Cotton, Appellant, v. The City of Seattle, Respondent.\nMunicipal Corporations .(190, 194)—Damages—Removal op Lateral Support—Defenses. It is no defense to an action against a city for damages to abutting property through a regrade of a street, removing plaintiff’s lateral support, that plaintiff petitioned for the improvement, and evidence thereof would have been error tending to confuse the jury on the subject of the damages.\nSame (190, 197). — Damages — Removal of Lateral Support — Evidence—Admissibility. In an action against a city for damages to abutting property through the regrade of a street removing plaintiff’s lateral support, it is inadmissible for the city to show its intention and future plans for taking care of the situation or to allow expert real estate witnesses to answer questions based thereon.\nEvidence (214)—Opinions—Basis of. It is improper to ask experts hypothetical questions based on theoretical conjecture of the witnesses.\nTrial (55-2)—Taking Case Prom Jury — Particular. Issues. Where no evidence is given to support an affirmative defense, it should be withdrawn from the consideration of the jury.\nAppeal by plaintiff from a judgment of the superior court for King county, Smith, J., entered June 29, 1918, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort. •\nReversed.\nO. L. Willett and John A. Soule, for appellant.\nWalter F. Meier and Frank S. Griffith, for respondent.\nReported in 182 Pac. 571.""}, ""cites_to"": [{""cite"": ""182 Pac. 571"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""152 Pac. 706"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""88 Wash. 61"", ""case_ids"": [648916], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/88/0061-01""], ""opinion_index"": 0}, {""cite"": ""114 Pac. 870"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""63 Wash. 18"", ""case_ids"": [552657], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/63/0018-01""], ""opinion_index"": 0}, {""cite"": ""83 Pac. 1109"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""41 Wash. 546"", ""case_ids"": [5197629], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/41/0546-01""], ""opinion_index"": 0}, {""cite"": ""70 Pac. 965"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""30 Wash. 378"", ""case_ids"": [5223376], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/30/0378-01""], ""opinion_index"": 0}, {""cite"": ""172 Pac. 1161"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""102 Wash. 286"", ""case_ids"": [670191], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/102/0286-01""], ""opinion_index"": 0}, {""cite"": ""119 Pac. 192"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""66 Wash. 201"", ""case_ids"": [561012], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/66/0201-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""107 Wash. 471"", ""type"": ""official""}], ""file_name"": ""0471-01"", ""last_page"": ""474"", ""first_page"": ""471"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T19:15:25.586351+00:00"", ""decision_date"": ""1919-07-02"", ""docket_number"": ""No. 15275"", ""last_page_order"": 502, ""first_page_order"": 499, ""name_abbreviation"": ""Blomskog, Erickson & Cotton v. 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+701843,"{""id"": 701843, ""name"": ""H. G. Bayers, Respondent, v. A. E. Barry et al., Appellants"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""8f8ce841542dc1c6e4b4a691a3412bb1e0c6a88dc6105dc63f0c49366ac388ce"", ""simhash"": ""1:9c4f2c78afd068b9"", ""pagerank"": {""raw"": 0.00000013935570140060558, ""percentile"": 0.6432739901052146}, ""char_count"": 19684, ""word_count"": 3364, ""cardinality"": 825, ""ocr_confidence"": 0.509}, ""casebody"": {""judges"": [], ""parties"": [""H. G. Bayers, Respondent, v. A. E. Barry et al., Appellants.""], ""opinions"": [{""text"": ""Bridges, J.\n— The respondent, Bayers, during the year 1919 was, and for'many years prior thereto had been, a resident of Juneau, Alaska. Much of his time had been spent in the fishing industry. The appellants, Barry and Groll, were fish-cannery men, residing in the state of Washington. Prior to February, 1919, the respondent had made certain preparations for the building and operation of a fish cannery at Douglas, Alaska. He had made arrangements for the lease of a suitable wharf upon which the cannery might be built and operated, and he had a boat and large scow suitable for the fishing industry, and he also owned certain fish trap locations which had not been improved. He had made other tentative fishing arrangements. He found himself unable to carry out his cannery plans for want of sufficient funds, and in February of 1919, he came to Seattle for the purpose of interesting some person in his project. Through a mutual friend, he met the appellants in Seattle, and on various occasions conferred with them concerning his proposition. On the 20th of February he, as the party of the first part, and appellants, as parties of the second part, executed a written instrument as follows:\n“Party of the first part hereto agrees to enter into a corporation for the operation of a cannery at Douglas, Alaska, to be known as the Douglas Packing Company, and further agrees to transfer a certain lease on building and wharf at Dougias, Alaska. Two trap locations, one boat in good running order named the Electro, and one scow in good condition, and in payment for such equipment and lease is' to receive one-third of the issued capital stock of said company.\n“Parties of the second part agree to furnish the necessary machinery and the necessary money to install the machinery and start the operation of the packing company at the location indicated, for which machinery and money, said second parties are to receive two-thirds of the capital stock of the company, one-third to be held for the San Juan Canning Company, a corporation of Friday Harbor, Washington, the other third to be held by said second party.\n“The corporation is to have a board of three trustees, of which board the contracting parties are to be the active members. ’ ’\nRespondent contends that, at or about the time of the making of this written contract, the appellants authorized him to return at once to Alaska and obtain a lease upon the Dougias wharf, and get the wharf ready to receive the machinery which was to be shipped thence by the appellants from their cannery at Friday Harbor, and that he should also engage fishing boats and fishing crews for the coming fishing season, and generally to get things in order so that the cannery might be operated without delay. Respondent further contends that the appellants agreed to pay all of the expenses in connection with the matters just recited, and that they requested him to make these various repairs and preparations out of his own money, but on their account, and that within a very short time, they would reimburse him and place all necessary monies to his credit. The respondent further contends that, in compliance with this arrangement, he at once returned to Alaska and expended various sums of money in repairing the Douglas wharf and putting it in condition to receive the canning machinery, and in obtaining and repairing various fishing boats belonging to fishermen and in other ways, and in this manner he had spent all of his own means for the account of the appellants, in excess of $6,000, and that, after these expenditures had been, made, the appellants refused to reimburse him therefor. He further contends that he was damaged in the sum of $1,500 on account of loss of his own time in making preparations to carry out the agreement which he alleges was entered into with the appellants.\nThe appellants, both in pleading and in testimony, deny substantially all of the material allegations of the complaint and of respondent’s testimony, except they admit that the written contract had been entered into. There was a trial before a jury which returned a verdict in the- sum of $6,272131. The trial court informed the jury that the respondent was not entitled to recover anything for his services and that feature was taken from the jury. Judgment was entered on the verdict, and after a motion for new trial was denied, the defendants appealed to this court, where they assign many errors, which we will notice in the order of their argument.\n(1) The respondent, while on the witness- stand, was undertaking to give the various conversations he had with the appellants concerning his fishing proposition, and stated that they had asked him if he would not, for the time being, expend his own money on their account, and that, in this connection, he told them he could not afford to take any chances, and that he had a “wife and six small children to maintain,” and that he would go up there and do the best he could until they sent him money. Appellants objected to the witness testifying to the fact that he had a wife and children, for the reason that it was immaterial and had a tendency to prejudice the jury in his favor. We cannot see any merit in this claim of error. The respondent was but repeating a conversation which he claimed to have had with the appellants concerning this business proposition, and was merely explaining to them that he would have some difficulty in advancing money on their account because he had his wife and children to support. What he said in this regard was but a part of the conversation which he was trying to detail, and as such was admissible.\n(2) The respondent offered to prove that he had spent much of his time in complying with the requests of the appellants, and that because they had refused to carry out their portion of the agreement his time was lost, which he valued at $1,500. The appellants objected to this class of testimony, contending that there could not be any recovery in this action for loss of time, and citing two decisions from this court. The noon hour having arrived, the court said he would examine the decisions before court reconvened. It appears, however, that the court neglected to examine the decisions and the testimony objected to went before the jury. Later in the afternoon, the court read the decisions cited to him and then announced that he thought his ruling had been wrong and that he would strike the testimony with reference to the $1,500. He then called the jury in and specifically instructed it that he had changed his ruling in this regard and withdrew from its consideration this $1,500 item and told the jury not to consider it. The appellants, however, now contend that this testimony had been permitted to go to the jury through no fault of theirs, and that it was very prejudicial to them, and by receiving the testimony the damage was done and that the court could not correct the mistake he had made, by admonishing the jury.\nCertainly, there cannot be any such error in this regard as to require the case tó be reversed. In the haste and heat of the trial of cases, it is to be expected that attorneys will at times say objectionable things, and the court make erroneous rulings. If all these errors are to be considered prejudicial and that the court is powerless to cure or correct them, then we will be constantly reversing cases and there will be no end to law suits. We, as well as all other courts, have always held that errors of this character may be corrected by proper admonitions or instructions from the court to the ■ jury, unless it is affirmatively shown or we are otherwise convinced that the admonitions and instructions have failed in their purpose. It seems unnecessary to further discuss the matter than to cite some of our decisions in support of the position we are taking: State v. Boyce, 24 Wash. 514, 64 Pac. 719; State v. Hawkins, 27 Wash. 375, 67 Pac. 814; Bunck v. McAulay, 84 Wash. 473, 147 Pac. 33; Yakima Valley Bank v. McAllister, 37 Wash. 566, 79 Pac. 1119, 107 Am. St. 823, 1 L. R. A. (N. S.) 1075; Smith v. Buckman, 22 Wash. 299, 61 Pac. 31.\n(3) After the respondent had returned to Alaska, he procured a lease to the wharf on which the cannery was to be erected, but this lease did not, in all respects, comply with the oral agreement with reference thereto. This lease had previously been sent by the respondent to the appellants, who, after retaining it for some time, returned it without their signatures. The lease was introduced in evidence together with the bill of the lessor for six months’ rent. The appellants contend that the lease was improperly received in evidence and that there can be no recovery for the six months’ rental because the lease was not what had been agreed upon. We think, however, that these objections are not well taken. Even if it should be conceded that the lease was not what had been agreed upon, still the respondent, acting for the appellants, according to his contention, had actually occupied the leased premises, and regardless of the form of the lease, would he required to pay a reasonable rent thereon. Such being the case, we can see no prejudicial error in the admission of the lease in evidence, nor can we see any reason why the respondent should not be entitled to recover the rental, provided he proved his case satisfactorily to the jury.\n(4) After respondent had returned to Alaska, there were a number of telegrams and letters exchanged between him and the appellants. These were put in evidence and among the rest was a letter from respondent to Mr. Groll, dated June 2,1919, which was in answer to a letter which Mr. Groll had last written to him, wherein the appellants informed the respondent that they would not be able to carry out their part of the program. The appellants made strenuous objection to the introduction of respondent’s letter of June 2, on the ground that it was self-serving, immaterial and prejudicial. Unquestionably, parts of this letter are open to the objections made to it, but other parts of it are entirely proper to have been received in evidence. Had appellants asked the court to keep from the jury such portions of the letter as were objectionable, it would doubtless have been the court’s duty to have complied therewith. This request, however, the appellants did not make; they objected to the introduction of the letter as a whole and since parts of it were properly receivable, the appellants cannot now complain that the entire letter was received.\n(5) The respondent offered in evidence a telegram dated March 27,1919, from the appellant, Mr. Groll, to respondent, reading as follows: “Have you lease on building. Have you made any repairs on dock. I expect to leave on the seventh. Answer.” When Mr. Groll was on the witness stand, his counsel sought to have him explain what he meant by this telegram. He claimed that previous thereto he had sent a letter to the respondent warning him not to incur any expense on account of the appellants, and he sought to testify that, by this telegram, he wanted to learn whether that letter was being complied with. On the contrary, the respondent denied ever having received the letter last mentioned, but contended that other and later letters and telegrams from the appellants confirmed his authority to proceed at their expense. The court refused to allow Mr. Groll to make his desired explanation, and we think this ruling was right. The wording of the telegram is perfectly plain and it was for the jury, under all the circumstances, to determine the construction it should be given.\n(6) Appellants complain of the action of the court in refusing to give their requested instruction as follows:\n“You are instructed that the plaintiff cannot recover in this action upon the written instrument of February 20, 1919, in evidence and cannot recover at all unless you are satisfied from a preponderance of the evidence that a subsequent oral agreement was made between the parties, whereby the defendants authorized the plaintiff to make expenditures for their account. As to whether or not such a subsequent oral agreement was in fact made you should consider all the testimony in the light of the circumstances surrounding the parties at the time, the purpose of the alleged contract and the conduct of the parties before the litigation arose, and from all of the evidence determine as to the probability of such a contract having been entered into. If you believe that the oral contract alleged to have been made was of such a character that reasonable business men would not have made it under the circumstances, shown in this case, you have a right and it is your duty to take that fact into consideration in making up your mind whether such an oral contract ever was agreed to by the defendants.”\nThe substance, of this request, is that there can be no recovery unless the oral agreement between the parties was made subsequent to the written agreement, and in determining whether or not the oral agreement was made at all, the jury might take into consideration all of the surrounding circumstances touching the probability of such an agreement being made, and that if they believed that the agreement was such that reasonable business men would not have made it, then that fact should be taken into consideration in determining whether or not the agreement had, in fact, been made. We think the court properly refused to give this requested instruction. It was immaterial whether the oral agreement was made before or after the written contract was entered into. The written contract was with reference to the organization of a corporation and what each party would put into that corporation, and the amount of stock he or they should receive therefor. It did not pretend to cover the features of the oral contract as testified to by the respondent. That contract was merely that the respondent was to go to Alaska and make preparations for the coming fishing season, expend such monies as might be proper in that connection, and charge the same to the account of the appellants. There is nothing inconsistent between the oral and written agreements. The subject-matter of the alleged oral agreement was not the same as that of the written contract. Such being the case, the oral contract was enforcible, whether made before, contemporaneous with, or after the written contract. There are certain features of this requested instruction which would have been propér for the court to have given, but it was not its duty to dissect it and give it in part and refuse to give the remainder. Duggan v. Pacific Boom Co., 6 Wash. 593, 34 Pac. 157, 36 Am. St. 182; Singer v. Martin, 96 Wash. 231, 164 Pac. 1105; Nollmeyer v. Tacoma R. & P. Co., 95 Wash. 595, 164 Pac. 229; Fehler v. Montesano, 110 Wash. 143, 188 Pac. 5.\n(8) The appellants also complain that the court refused to give their requested instruction as follows: ■\n“If the plaintiff has not satisfied you of the non-receipt of the letter of March 19, 1919, claimed by defendant Groll to have been mailed to plaintiff at Juneau, Alaska, on that date, then the plaintiff cannot recover on any obligation incurred by him after the said letter reached him in the ordinary course of mail.”\nThe letter mentioned in this instruction is one which Mr. Groll claims to have mailed to the respondent, wherein he warned the respondent not to contract any indebtedness on account of the appellants. Respondent denied ever having received this letter. While it would have been proper enough for the court to have given this requested instruction, we think-there was no error in its failure so to do, because the court, by its instructions, covered the question when he said to the jury:\n“Even though you find that the defendants did request the plaintiff to make expenditures for their account, nevertheless, the defendants had the right to revoke such authorization at any time and the plaintiff would not be entitled to recover for any expenditure not made and incurred before such revocation. ’ ’\n(9) At the close of the plaintiff’s case, the defendants moved for a directed verdict, which was denied and complaint is made thereof. There is a very sharp conflict of testimony throughout this case. The respondent, on the one hand, contends that he was expressly orally authorized by the appellants to contract the various obligations for which he sues, whereas the appellants deny that any such authority was given, and claim, on the contrary, that the respondent had no autliority from them to contract any indebtedness or to take any steps whatsoever to carry out the proposed program until they had gone to Alaska and for themselves looked into the proposition. But these were all questions for the jury. We have very carefully gone through the testimony and find that there was substantial evidence in support of each item of expense which the court allowed the jury to consider.\nOther objections have been made and argued by the appellants, most of which are covered by what we have already said, and those we have not discussed, we have carefully considered and are unable to find merit in them. The judgment is affirmed.\nParker, C. J., Mackintosh, and Holcomb, JJ., concur."", ""type"": ""majority"", ""author"": ""Bridges, J.""}], ""attorneys"": [""Kerr & McCord and Stephen V. Carey, for appellants."", ""James R. Chambers, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 16071.\nDepartment One.\nJanuary 24, 1921.]\nH. G. Bayers, Respondent, v. A. E. Barry et al., Appellants.\nEvidence (50) — Relevancy—Matters Explanatory of Facts in Evidence. It is competent for a witness, in repeating a conversation concerning the transaction in dispute, to state that, as reasons for not advancing certain money, he said he had a wife and six children to support.\nAppeal (456) — Review — Harmless Error — Error Cured by Withdrawal. Error cannot be predicated in allowing certain testimony to go to the jury, where it was subsequently withdrawn and the jury admonished not to consider it, unless it is affirmatively shown that the admonitions failed of their purpose.\nSame (449) — Review—Harmless Error — Evidence—Prejudicial Effect. In an action to recover advances made for certain expenditures, including a lease of premises, it is not prejudicial error to admit in evidence a lease which defendants claimed was not what had been agreed upon.\nTbial (35) — Objections—Scope and Sufficiency. An objection to letters as self-serving is unavailing where parts of the letters were proper and the objection was not confined to the objectionable parts.\nEvidence (175) — Parol to Explain Writing. Where a telegram between the parties is perfectly plain and unambiguous, it is not competent for the sender to explain what he meant by the telegram.\nContracts (67) — Evidence (168)- — Prior Oral Agreements Collateral to Written Contract. In an action upon contracts, where there was nothing inconsistent between written and oral agreements between the parties and their subject-matter was not the same, it is proper to refuse a requested instruction to the effect that there could be no recovery unless the oral agreement was subsequent to the writing.\nTrial (102) — Instructions—Requests—Partly Erroneous. It is not error to refuse a requested instruction which was in part bad, although parts of it could have been properly given.\nSame (101) — Instructions—Already Given. Error cannot be ” predicated upon the refusal of a requested instruction which was sufficiently covered in the general charge.\nAppeal from a judgment of the superior court for King county, Jurey, J., entered April 7,1920, upon the verdict of a jury, rendered in favor of the plaintiff, in an action upon a contract.\nAffirmed.\nKerr & McCord and Stephen V. Carey, for appellants.\nJames R. Chambers, for respondent.\nReported in 194 Pac. 993.""}, ""cites_to"": [{""cite"": ""194 Pac. 993"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""188 Pac. 5"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""110 Wash. 143"", ""case_ids"": [688284], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/110/0143-01""], ""opinion_index"": 0}, {""cite"": ""164 Pac. 229"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""95 Wash. 595"", ""case_ids"": [624645], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/95/0595-01""], ""opinion_index"": 0}, {""cite"": ""164 Pac. 1105"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""96 Wash. 231"", ""case_ids"": [651352], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/96/0231-01""], ""opinion_index"": 0}, {""cite"": ""34 Pac. 157"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""6 Wash. 593"", ""case_ids"": [5071425], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/6/0593-01""], ""opinion_index"": 0}, {""cite"": ""61 Pac. 31"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""22 Wash. 299"", ""case_ids"": [777659], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/22/0299-01""], ""opinion_index"": 0}, {""cite"": ""1 L. 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+701978,"{""id"": 701978, ""name"": ""E. M. Whiteside, Respondent, v. Benton County, Appellant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""00f4245743f951089a68785337ed74d3d20e3e2d89cafe53cc42c7d450d4576e"", ""simhash"": ""1:bb1634998bd77413"", ""pagerank"": {""raw"": 0.000000273428636487024, ""percentile"": 0.8313741457513546}, ""char_count"": 10313, ""word_count"": 1808, ""cardinality"": 558, ""ocr_confidence"": 0.517}, ""casebody"": {""judges"": [], ""parties"": [""E. M. Whiteside, Respondent, v. Benton County, Appellant.""], ""opinions"": [{""text"": ""Bridges, J.\n— The plaintiff was the owner of some lands located in section 5, township 9, N., R. 24 E. W. M., in Benton county, Washington. A part of these lands were high and of comparatively little farming value; other portions were low and were good for farming purposes. Plaintiff’s chief crop was alfalfa. Immediately to the north of the lands owned by him, was a county road. At a place a little to the west of plaintiff’s lands, the road ran through some very low land, or what is designated a “pothole.” At this point the road had been bnilt np with a view of placing it above such waters as might gather there.\nIn the early fall of 1918, there was an nnnsnal amount of surface water in this locality and the road where it was built through the low lands was flooded to such an extent that it could not be traveled. In order to relieve the road of this water, the county caused a ditch to be dug from the southerly edge of the “pothole,” or low lands, through which the road was built, and extended it southerly for a short distance through a natural barrier of rock and soil, so that the water flooding the road was carried off through this ditch and emptied onto some low lands adjoining the plaintiff’s lands on the west causing them to be unusually flooded, and, as a result, the plaintiff’s lands were also flooded, damaging some hay which had been cut and left on the ground and drowning out and destroying a considerable amount of the alfalfa in the ground.\nThe plaintiff began this suit to recover damages of the county because of what it had done. There was a verdict for the plaintiff in the sum of four hundred twenty-five dollars. A demurrer to the complaint on the ground that it did not state a cause of action was overruled, and at the close of plaintiff’s testimony, defendant moved for a nonsuit, and at the close of all the testimony, moved for a directed verdict, and after the verdict had been received, moved for judgment notwithstanding the verdict, all of which motions the ■court denied. The defendant has appealed from the judgment entered on the verdict.\nThe appellant here first contends that it was its duty under the law to maintain this road in a passable condition, and that, in draining the water therefrom, it was in the performance of a governmental duty, and for that reason it is not liable in damages. In the first place, it may be seriously doubted whether, in doing what it did, the county was engaged in the performance of a strictly governmental duty. Ordinarily, a municipality is engaged in the performance of governmental functions when it is looking after the peace, health and well-being of the citizens of the state, and it is not in the performance of such governmental functions when it is building or repairing roads or streets. In the case of Sutton v. Snohomish, 11 Wash. 24, 39 Pac. 273, 48 Am. St. 847, this court said:\n“In the first place, we are of the opinion that the laying out, repairing and controlling of streets by a chartered municipal corporation does not call forth the exercise of strictly governmental functions. In the performance of such duties, however imposed, the municipality acts primarily for the benefit of the inhabitants of the particular locality. In preserving the peace, caring for the poor, preventing the destruction of property by fire, and preserving the public health, it assumes duties which'are said to be in their nature solely governmental (Jones on Negligence of Municipal Corporations, Ch. IY), and for the non-exercise, or negligent exercise, of which the corporation is not generally liable to individual citizens. But the duty to keep the streets in repair is a municipal or ministerial duty, for a breach of which an action will lie in favor of a party injured thereby. ’ ’\nHowever, in this case it is probably immaterial whether in doing what it did the appellant was or was not engaged in the performance of strictly governmental functions. Under the decisions of this court, it would be liable in a proper case in any event. We have consistently held that a strictly municipal corporation, such as a city, is not liable in damages brought about while it is engaged in the performance of strictly governmental functions. But we have refused to apply this rule to counties and school districts. The result is that it is the settled law in this state that a county is liable for damages, under proper facts, whether it is engaged in carrying out a strictly ministerial duty or a strictly governmental function.\nIt is asserted in the briefs that there is no real ground upon which to base the distinction we have drawn between cities and counties, and we are asked to abandon our cases which hold that counties may become liable in damages resulting from the performance of strictly governmental functions. In the case of Howard v. Tacoma School Dist. No. 10, 88 Wash. 167, 152 Pac. 1004, Ann. Cas. 1917 D 792, we were urged in the same direction. There we reviewed in detail all of our decisions on this question and approved them. It is now the settled and fixed law in this state that a county may become, and a city is not, liable for damages done while engaged in the performance of a strictly governmental function.\nBut it is argued by the appellant that the waters which gathered on the road were surface and outlaw waters, and that it had a right to protect itself against them. In a great many cases we have’ laid down the general rule for which the appellant contends, but there is one exception to that general rule which, in this state, is as well established as the rule itself, and that is that one may not, by artificial means, convey surface and outlaw waters from his land and deposit them on the land of others to their damage. The latest case out of this court on the question is Morton v. Hines, 112 Wash. 612, 192 Pac. 1016. There, in discussing this identical question, we said:\n“In these cases the owners of property sought to rid their lands of surface and percolating waters, and more or less .permanent water beds, which were wont by nature to collect or rest thereon, by confining the water to artificial channels and casting it in a body on the lands of the adjoining proprietors. In the present case, and in the several cases we have cited as analogous in principle, the proprietors were but fencing their own lands against the encroachment of surface water arising from sources apart and away therefrom. Owing to these differences in the facts, this court has applied to them different principles of law, holding in the one class of cases that the acts were wrongful and subject to restraint by the courts, and in the other that the land proprietors acted within their just rights. ’ ’\nIn the case of Noyes v. Cosselman, 29 Wash. 635, 70 Pac. 61, 92 Am. St. 937, this court said:\n“When the waters are confined by natural barriers, so that the same do not run from such confinement naturally, the appellant may not construct a ditch on his own land so as to cast the waters which do not naturally pass therefrom on to his neighbor, to the material injury of such neighbor. ’ ’\nSee, also, Wood v. Tacoma, 66 Wash. 266, 119 Pac. 859; Peters v. Lewis, 28 Wash. 366, 68 Pac. 869; Sullivan v. Johnson, 30 Wash. 72, 70 Pac. 246. The facts of this case come squarely within the doctrine of the f ore-going cases. The appellant would have had a right to protect itself against these surface waters by the raising of its road or the building of embankments upon its own property, even though those acts should cause the lands of others to be flooded to their damage; but here the appellant has dug an artificial ditch by means of which it sought to rid itself of these surface waters by casting them on the land of others. This it had no right to do.\nIt is further contended that the court’s instruction with reference to the measure of damages to respondent’s land was incorrect. That instruction informed the jury that the measure of damage is “the difference, if any, between the value of his tract immediately before and immediately after such injury occurred . . . ” We have no doubt this instruction was correct. The only argument made against it is that it should have been to the effect that the damage should be measured by tbe difference in tbe value of tbe land submerged, before and after tbe injury complained of, ratber than tbe difference in tbe value of tbe whole tract before and after. Tbe damage to tbe particular portion of tbe land submerged might have been one sum, and tbe damage to tbe whole tract, because a part of it bad been submerged, might be another sum. Tbe respondent owned this whole tract and was entitled to have it remain in its normal condition. Any damage to any portion of it would be a damage to tbe whole tract. Tbe instruction given by tbe court is supported by tbe case of Kincaid v. Seattle, 74 Wash. 617, 134 Pac. 504, 135 Pac. 820.\nWe do not find any error in tbe record; tbe judgment is affirmed.\nParker, C. J., Mackintosh, Fullerton, and Holcomb, JJ., concur."", ""type"": ""majority"", ""author"": ""Bridges, J.""}], ""attorneys"": [""G. W. Hamilton, for appellant."", ""McGregor & Fristoe, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 15917.\nDepartment One.\nFebruary 7, 1921.]\nE. M. Whiteside, Respondent, v. Benton County, Appellant.\nCounties (57, 58) — Liabilities — Torts — Governmental Functions — Public Improvements. A county is not strictly a municipal corporation or within the rule of nonliability for damages brought about in the performance of governmental functions; and hence is liable in tort for flooding land in doing road work.\nWaters and Water Courses (56) — Surface Waters — Drainage or Discharge — -Liability. A county is liable for damages caused by flooding land where, in order to protect a road from surface waters, it dug an artificial ditch conveying and depositing waters on land that naturally would not receive them.\nDamages (57) — Injury to Real Property — Damages From: Overflow. The measure of damages from overflowing a tract of land is the difference between the value of the tract immediately before and immediately after the injury; and not the injury to the particular part submerged.\nAppeal from a judgment of the superior court for Benton county, Truax, J., entered January 7, 1920, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.\nAffirmed.\nG. W. Hamilton, for appellant.\nMcGregor & Fristoe, for respondent.\nReported in 195 Pac. 519.""}, ""cites_to"": [{""cite"": ""195 Pac. 519"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""135 Pac. 820"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""134 Pac. 504"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""74 Wash. 617"", ""case_ids"": [620616], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/74/0617-01""], ""opinion_index"": 0}, {""cite"": ""70 Pac. 246"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""30 Wash. 72"", ""case_ids"": [5223841], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/30/0072-01""], ""opinion_index"": 0}, {""cite"": ""68 Pac. 869"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""28 Wash. 366"", ""case_ids"": [5173190], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/28/0366-01""], ""opinion_index"": 0}, {""cite"": ""119 Pac. 859"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""66 Wash. 266"", ""case_ids"": [561149], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/66/0266-01""], ""opinion_index"": 0}, {""cite"": ""70 Pac. 61"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""29 Wash. 635"", ""case_ids"": [5176974], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/29/0635-01""], ""opinion_index"": 0}, {""cite"": ""192 Pac. 1016"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""112 Wash. 612"", ""case_ids"": [693393], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/112/0612-01""], ""opinion_index"": 0}, {""cite"": ""1917 D 792"", ""category"": ""reporters:state"", ""reporter"": ""Dall."", ""opinion_index"": 0}, {""cite"": ""152 Pac. 1004"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""88 Wash. 167"", ""case_ids"": [649002], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/88/0167-01""], ""opinion_index"": 0}, {""cite"": ""39 Pac. 273"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""11 Wash. 24"", ""case_ids"": [780367], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/11/0024-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""114 Wash. 463"", ""type"": ""official""}], ""file_name"": ""0463-01"", ""last_page"": ""468"", ""first_page"": ""463"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T20:45:32.995794+00:00"", ""decision_date"": ""1921-02-07"", ""docket_number"": ""No. 15917"", ""last_page_order"": 498, ""first_page_order"": 493, ""name_abbreviation"": ""Whiteside v. 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+704413,"{""id"": 704413, ""name"": ""Rainier Heat and Power Company, Appellant, v. The City of Seattle, Respondent"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""3e82abaf502a51ea2c625dbb5ce6ca89e4198a42267868a1ada1cbaaaab7753f"", ""simhash"": ""1:3bdf83630d5bcffe"", ""pagerank"": {""raw"": 0.0000002209063499437699, ""percentile"": 0.7762805862426728}, ""char_count"": 24264, ""word_count"": 4183, ""cardinality"": 836, ""ocr_confidence"": 0.501}, ""casebody"": {""judges"": [], ""parties"": [""Rainier Heat and Power Company, Appellant, v. The City of Seattle, Respondent.""], ""opinions"": [{""text"": ""Parker, J.\nThe plaintiff commenced this action in the superior court for King county, seeking recovery of damages which it claims to have suffered as a result of the negligence of the defendant city, in that the city carelessly and negligently maintained one of its large water mains in such unsafe condition that it broke and caused the property of plaintiff to be flooded, which .damaged its plant and the foundations of its buildings. A trial upon the merits resulted in verdict and judgment in favor of the plaintiff, awarding it recovery in the sum of $500. The plaintiff, deeming itself aggrieved by the verdict and judgment, in that the amount of recovery so awarded to it is inadequate, has appealed therefrom to this court.\nAt the time in question, the city maintained, a few feet under the surface of the street at the intersection of Weller street and Sixth avenue south, a large water main. The main at that point was under a head pressure of over two hundred feet. It had apparently been laid in ground over what was formerly tide land, and just under it at that point was an old pile, which seems to have contributed to the breaking of the main by the latter settling down upon it. The main broke so as to let the entire flow of the water therein escape. In its escape the water tore up a large section of the street pavement, some thirty feet or more across, and overflowed into and under the: adjacent buildings and plant of appellant, causing an amount of damage thereto far in excess of the amount awarded by the jury. The award was manifestly made upon the theory that the city had successfully maintained its affirmative defenses as to most of the damage, and that appellant was entitled to compensation for only a small portion of the damage it actually suffered.\nIt is contended in appellant’s behalf that the trial court erred in overruling the demurrer to the city’s first affirmative defense, and also in submitting that defense to the jury. It is of little moment here whether we test the ruling of the court as to the sufficiency of this defense by the language of the answer or by the evidence introduced upon the trial in its support. The facts touching this defense may be summarized as follows: Since prior to the year 1905, there has been maintained by appellant and its predecessor in interest, upon the block bounded on the south by Weller street and on the east by Sixth avenue south, a heat and power plant. The plant was originally constructed upon ground lying but a few feet above tide water, the machinery being installed for the most part upon that level, and has been so maintained up to the present time. In October, 1905, the owner of the plant and the land occupied by it, the owner of the other damaged property here in question, and the owners of a large amount of other property in the neighborhood, petitioned the city to institute and prosecute eminent domain proceedings looking to the raising of the grades of the streets in the neighborhood, and improving them at the proposed higher grades. This petition contemplated the raising of the grades of the streets immediately adjoining the plant and other property here in question, approximately thirty feet, which would leave the ground floor of the plant about that distance below the level of the adjoining street. The petition contemplated that the acquiring of the necessary rights by eminent domain proceedings on the part of the city and the making of the physical improvements of the streets at the new grades should be paid for by special assessment against the property in the proposed district benefited thereby. Among other stipulations in the petition are the following:\n“The undersigned, in signing, this petition, hereby expressly reserve the right to claim a just compensation for the damages to their property caused by the grading and regrading of the streets embraced in the district. . . .\n“The city of Seattle, in entering into a contract for the performance of the said improvement, shall insert therein a provision for and on behalf of any owner of property within the limits of the district as set forth above, who may desire the same to be excavated or filled to an even grade with the streets abutting the same at the time said streets are graded or regraded, and at the price bid by the contractor for the excavation and filling of the streets embraced in said district; provided that where private property is to be filled, the owner may require that said property be not filled above a specified height for the construction of a basement therein.\n“Third: That the undersigned do hereby severally stipulate that all private property belonging to them within the limits of the said district may be excavated or filled by said contractor as hereinabove provided, and they do further severally agree, upon demand of said contractor after the execution of the contract between said contractor and the city, to enter into a written contract with said contractor for the performance of said excavation or filling, as may be required by the owner, at the prices bid by said contractor per cubic yard for the grading of the streets embraced in said district; . . .\n“It is expressly understood and agreed that the city of Seattle shall in no wise be held responsible for the carrying out of any agreement which may be made between the contractor and the owners of private property within the district for the excavations and fills thereon, as hereinabove set forth; it being expressly understood and agreed that such stipulations shall be entered into \""by the city of Seattle with the contractor for the improvement solely for and on behalf of and for the use and benefit of the private owners interested. . . .”\nThereafter, in compliance with the petition, the city council passed ordinances establishing the proposed new higher grades of the streets; authorizing the prosecution of eminent domain proceedings by the city to acquire the right to damage abutting property by the raising of the street grades, including necessary slopes and fills upon abutting property to retain the street grades; and providing for the making of the improvement. It was provided in the ordinance providing for the construction of the improvement that it should be made in accordance with the stipulations contained in the property owners’ petition therefor. Thereafter, in April, 1906, the city commenced, in the superior court for King county, eminent domain proceedings looking to the acquisition by the city of the necessary rights to enable it to lawfully proceed with the improvement, which proceedings resulted in judgments awarding compensation to numerous owners of property which would be damaged by the making of the improvement; among others, awarding to the owner of the block upon which the heat and power plant was situated $14,500 as damages resulting to that block by the raising of the grade of the adjoining streets. The rights acquired by the city by the terms of that judgment are stated therein as follows:\n“Upon payment to said respondents, or into the registrar of the court, of said amounts and the taxable costs of these proceedings, if any, the petitioner, the city of Seattle, shall be entitled, at any time thereafter, to grade and regrade said streets, avenues, alleys and approaches thereto, and to enter into possession of said premises, or such portion thereof as may be necessary, in the construction of said improvements, as provided for in said ordinance.”.\nThereafter, in April, 1907, the city having paid the awards of the eminent domain judgment, it entered into a contract for the physical improvement of the streets at the level of the new grades, and in the carrying on of the work took possession of and damaged private property, as it was adjudged entitled to do in the eminent domain judgment. The city did not take possession of, nor in the least' interfere with, the possession and full enjoyment by the owner of the portion of the block occupied by the power plant. We think it is also plain that the city did not acquire by the eminent domain judgment any right to take or damage that particular portion of the block. Testimony was introduced on behalf of the city with a view of showing that the award in the eminent domain proceedings, made to the owner of the land on which the plant was situated, was measured by the expense appellant would be put to in raising the plant to the same level relative to the new street grades as it was to the original street grades; that the owner, in effect, agreed to so raise the level of the plant; and that had he done so, following the improvement of the streets at the new grades, the flooding of the plant would not have occurred. This testimony, together with the stipulations in the petition of the property owners for the raising and improving of the streets, and the condemnation judgment, it was claimed by counsel for the city, worked an estoppel against the then owner, and appellant, his successor in interest, to successfully claim damages in this action for the flooding of the plant.\nWe think there is nothing for the city’s claim of estoppel to rest upon save the stipulations in the petition signed by appellant’s predecessor in interest, the conditions of the same import found in the ordinances establishing the new grades and providing for the improvement of the streets at the new grades, and the judgment rendered in the eminent domain proceedings. We have noticed every stipulation and provision to be found in the petition, ordinances, and eminent domain judgment which might in the slightest measure suggest that- the owner of the plant agreed to raise its level or desist from maintaining it as originally constructed. The owner plainly did not so agree in the stipulations found in the petition which he signed. He hound himself no further, as to the filling of his property, than that he would employ no one else to do such filling. As to whether or not the owner would have such work done, or the extent to which he would have such work done, was clearly left to his own choosing. Special care seems to have been taken by - the petitioning owners to avoid any agreement between them and the city, save only-that the city should make such contract for the excavating or filling of their property with the city’s contractor at the price the city should contract with its contractor. It is plainly stated in the petition that such stipulation should be inserted in the contract entered into by the city with the contractor, ‘ ‘ solely for and in behalf of, and for the use and benefit of, the private owners interested. ” It is equally plain that the eminent domain judgment does not touch the question of the owner of the plant being under any obligation whatever to raise it to the higher level. In other words, the right of the owner of the plant to the full and absolute enjoyment of it, and the land which it occupied, was not in the least impaired by the petition, ordinance or eminent domain judgment. The owner’s title and right of enjoyment of such land and plant remained as absolute at the level of thirty feet or more below the new street as at the level of the new street grades. We think that the most elementary principles of real property law render it plain that an owner of land lying level with the street grade would be clearly, within his legal rights in excavating a basement thirty feet deep and placing in the bottom of it such a plant as the one here in question, so long as he did not disturb tbe lateral support which the city would be entitled to in maintaining its street at the established grade. We are of the opinion that the city’s first affirmative defense is wholly without support as an estoppel, that the trial court erred in submitting that defense to the consideration of the jury, and also erred in the giving of all of its instructions touching that defense.\nWe have ignored the oral evidence introduced in the city’s behalf which it is claimed by counsel supports its first affirmative defense, for the reason, first, that, even if such evidence was admissible, it did not materially tend to support the defense; and second, for the reason that we regard it as wholly inadmissible touching that defense, since the record in the eminent domain proceedings, including the judgment, is plain and unambiguous as to the rights that the city acquired by that judgment, and there is therefore no occasion for the receiving of oral evidence in explanation of what was litigated in that proceeding, or what was determined by the judgment rendered therein.\nIt is contended in behalf of appellant that the court erred in submitting for the consideration of the jury the city’s second affirmative defense, which was, in substance, that of contributory negligence, in three particulars: (1) In that the appellant was negligent in maintaining its heat and power plant at such a low level below the established street grades; (2) in that appellant so maintained its plant without proper drains being provided to enable the water to freely flow therefrom, and that, had appellant provided proper drains, no damage would have resulted to its plant; and (3) in that the appellant maintained in a negligent manner a tunnel across and under Sixth avenue, connecting two of its buildings on opposite sides of the street, through which the water flowed to its plant, enhancing the damage in excess of what would have occurred had the tunnel been properly constructed and guarded.\nWe are of the opinion that the maintaining of appellant’s plant at the level of approximately thirty feet below the street grades was not contributory negligence, and that it must be here so decided as a matter of law. It may seem that this was maintaining a plant in a basement of unusual depth, but, as we have already noticed, appellant was within its legal rights in so occupying its property. It may have, been obliged to anticipate damage from the natural flow of water and the accumulation of surface water, but manifestly it was not obliged to anticipate danger from any such source as the bursting of this water main. In 29 Cyc. 516, the elementary rule touching appellant’s rights in this regard is well stated as follows:\n“The general rule is that every person has a right to presume that every other person will perform his duty and obey the law, and in the absence of reasonable ground to think otherwise it is not negligence to assume that he is not exposed to danger which can come to him only from violation of law or duty to such other person. Hence failure to anticipate defendant’s negligence does not amount to contributory negligence, even though he places his property in an exposed or hazardous position.”\nAs to appellant being guilty of contributory negligence in that it failed to provide drains as required by city ordinances for the carrying off of water, we think that may become a question for the jury upon a new trial, because it might be that the providing of such drains as the ordinances may have required would have carried off the water coming from the burst main and prevented or lessened the damage which resulted to appellant. It is true that, upon the evidence in this record, there is strong ground for arguing, as counsel for appellant do, that in no event could any such drains have carried off this flood of water - so as to avoid, or even lessen, the damage done appellant. We think, however, that question should be left for determination upon a new trial.\n■ As to appellant’s being negligent in not properly maintaining the tunnel, we feel constrained to hold that neither the pleadings nor proof show any contributory negligence in this particular. The only alleged and proven facts as to the tunnel are that it existed by permit from the city, and did not have doors or gates to close it. There is no allegation or proof that appellant had any duty to maintain such doors or gates.\nIn view of our conclusion that there must be a new trial of this case, we deem it proper to here say that we think the trial court was correct in taking from the consideration of the jury the third affirmative defense. We arrive at this conclusion looking at the pleadings only.\nIt is contended in behalf of the appellant that the trial court erred in its instruction to the jury as follows:\n“If the plaintiff was guilty of any act of negligence-alleged against it in the answer of the defendant city which contributed in any manner to the damages to said heating plant for which plaintiff sues, it is your duty to deny plaintiff the right to recover any damages to said heating plant.”\nWe have italicized the words to be particularly noticed. This instruction, we think, is erroneous under the decisions of this-court in Spurrier v. Front Street Cable R. Co., 3 Wash. 659, 29 Pac. 346; Cowie v. Seattle, 22 Wash. 659, 62 Pac. 121; and Atherton v. Tacoma R. & Power Co., 30 Wash. 395, 71 Pac: 39; the instruction putting upon the appellant a higher degree of care than the law burdens it with. Appellant’s contributory negligence may not have been the proximate cause of the damage, and still it might have been a slight condition contributing to the damage in some manner. If its negligence contributed only in such small degree, such negligence would not prevent recovery.\nIt is contended in behalf of appellant that the trial court erred in instructing the jury as follows:\n“You are instructed that the mere fact that the water main broke is not in itself proof of negligence, but that negligence charged must be shown by facts entirely independent of the fact that the water main did break.”\nWe think this instruction is erroneous. It seems to us that a water main situated as this one was, under such great pressure by reason of the high head of water, suggests the duty of a high degree of care on the part of the city in maintaining it, and that its bursting is some evidence of want of proper care on the part of the city in maintaining it. This view, we think, finds support in Anderson v. McCarthy Dry Goods Co., 49 Wash. 398, 95 Pac. 325, 126 Am. St. 870, 16 L. R. A. (N. S.) 931; Abrams v. Seattle, 60 Wash. 356, 111 Pac. 168, and Lennon v. Seattle, 69 Wash. 447, 125 Pac. 770. It is true that this alleged error proved to be without prejudice, in view of the fact that the jury found that the city was negligent, otherwise it could not have awarded recovery, even in the small amount of $500, to appellant; but since the question of the city’s negligence will necessarily be involved in a new trial, we feel called upon to notice this error.\nIt is contended in behalf of the appellant that the trial court erred in refusing to give to the jury the following instruction requested by its counsel:\n“I charge you that the plaintiff was not required to anticipate that the defendant would he negligent in selecting, inspecting, placing or maintaining its water mains. It hás a right to assume that the city would exercise reasonable care in selecting, inspecting, placing and maintaining its water mains so that they would not break or flood property lawfully kept in the locality where such water mains are located, and in the absence of knowledge that a defective water main had been installed or maintained, the plaintiff would not be guilty of contributory negligence by assuming that the city had fully performed all its duties relative to inspecting, placing and maintaining its water mains.”\nWhat we have already said, we think, renders it plain that appellant was entitled to this instruction, or one of substantially the same import. Critical examination of the numerous instructions given may possibly disclose that this view of the law was covered in the instructions, but we hardly think it was. We make this observation more because of what will probably occur upon a new trial, rather than as holding that prejudicial error was committed by the refusal to give the instruction upon the former trial.\nIt is contended in appellant’s behalf that the trial court erred in refusing to give to the jury the following instruction requested hv its counsel:\n“I charge you that if you find from a fair preponderance of the evidence that the quantity of water which escaped from the broken main and flooded the plaintiff’s property was so great that the plaintiff would have sustained the same or as much damages regardless of whether it had a sufficient and good drain or not, then the matter of maintenance of a drain was and is entirely immaterial and you should disregard the same.”\nIt seems to us that appellant was entitled to this instruction, or one of substantially the same import, for plainly, if the flood of water was so great that no proper drains from appellant’s plant could have taken care of the water and prevented or lessened the damage, the failure to maintain such drains would not have prevented recovery on the part of appellant.\nWe conclude that the judgment should be reversed, and the cause remanded to the trial court with directions to award appellant- a new trial consistent with the views herein expressed.\nIt is so ordered.\nAll concur."", ""type"": ""majority"", ""author"": ""Parker, J.""}], ""attorneys"": [""Griffin & Griffin, for appellant."", ""Walter F. Meier and Robert E. Evans, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 15806.\nEn Banc.\nNovember 5, 1920.]\nRainier Heat and Power Company, Appellant, v. The City of Seattle, Respondent.\nMunicipal Corporations (474, 479) —Torts — Defects in Water Mains — Actions for Injuries — Estoppel. An owner of property is not estopped from recovering damages from flooding through, a break in a city water main by the fact that it petitioned for the improvement for a change of grade and fill, which thereafter caused the break, where the petition did not in the least impair the owner’s full enjoyment of his property, whether filled or not, nor contain any agreement other than the city’s contract to make the improvement at the contract price.\nEvidence (142) — Parol Evidence to Explain Judgment. Where the proceedings and judgment in eminent domain proceedings are unambiguous, parol evidence is not admissible-to explain what was litigated and determined.\nMunicipal Corporations (479) — Torts—Defects in Water Mains —Action for Injuries — Contributory Negligence. In an action for damages from flooding through a leak in a city water main, the plaintiff is not guilty of contributory negligence from the fact that it maintained a power plant thirty feet below the new street grade.\nSame (479). In such a case, the owner’s contributory negligence in failing to provide sufficient drains to drain a power plant maintained thirty feet below the new street grade may be a question for the jury, if, by so doing, the damages would have been prevented or lessened.\nSame (479). In such a case, the owner-was not guilty of contributory negligence in maintaining a tunnel at the low level by permit from the city, without doors or gates, where no duty to maintain gates was shown.\nNegligence (44)- — -Trial—Instructions — Contributory Negligence. In an action for damages from flooding through the break of a city water main, it is error to instruct that the plaintiff could not recover if guilty of any act of negligence which “contributed in any manner,” to the damages, since slight negligence not the proximate cause would not defeat recovery.\nMunicipal Corporations (479) — Torts—Defect in Water Main— Actions — Instructions. In an action against a city for flooding premises, it is error to instruct that the fact of a break in a water main is not in itself proof of negligence, where the main was subjected to high head pressure.\nSame (479). In such a case, plaintiff is entitled to an instruction that it had a right to assume that the city had performed its duty, in the absence of knowledge of any defect in the water main; and also, to an instruction that plaintiff’s failure to maintain a sufficient drain was immaterial, if the volume of water from the broken main was so great as to cause the damage regardless of such failure.\nAppeal by plaintiff from a judgment of the superior court, for King county, Jurey, J., entered September 15, 1919, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages to property through the breaking of a water main.\nKevérsed.\nGriffin & Griffin, for appellant.\nWalter F. Meier and Robert E. Evans, for respondent.\nReported in 193 Pac. 233.""}, ""cites_to"": [{""cite"": ""193 Pac. 233"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""125 Pac. 770"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""69 Wash. 447"", ""case_ids"": [566944], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/69/0447-01""], ""opinion_index"": 0}, {""cite"": ""111 Pac. 168"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""60 Wash. 356"", ""case_ids"": [529788], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/60/0356-01""], ""opinion_index"": 0}, {""cite"": ""16 L. R. A. (N. S.) 931"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A.N.S."", ""opinion_index"": 0}, {""cite"": ""95 Pac. 325"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""49 Wash. 398"", ""case_ids"": [549468], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/49/0398-01""], ""opinion_index"": 0}, {""cite"": ""30 Wash. 395"", ""case_ids"": [5223342], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/30/0395-01""], ""opinion_index"": 0}, {""cite"": ""62 Pac. 121"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""22 Wash. 659"", ""case_ids"": [777602], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/22/0659-01""], ""opinion_index"": 0}, {""cite"": ""29 Pac. 346"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""3 Wash. 659"", ""case_ids"": [5297275], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/3/0659-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""113 Wash. 95"", ""type"": ""official""}], ""file_name"": ""0095-01"", ""last_page"": ""108"", ""first_page"": ""95"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T16:39:47.268090+00:00"", ""decision_date"": ""1920-11-05"", ""docket_number"": ""No. 15806"", ""last_page_order"": 136, ""first_page_order"": 123, ""name_abbreviation"": ""Rainier Heat & Power Co. v. 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+754440,"{""id"": 754440, ""name"": ""Kate C. Hogan, Appellant, v. Metropolitan Building Company, Respondent, Annie Laurie Buck, Cross-Appellant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""6c80092233fa8031fd90a9904a6e2d86e9197f072289e275f5852b327edc7a96"", ""simhash"": ""1:7e5cfaf1d5c97d47"", ""pagerank"": {""raw"": 0.00000037484038028232803, ""percentile"": 0.8951104871365088}, ""char_count"": 5828, ""word_count"": 1022, ""cardinality"": 394, ""ocr_confidence"": 0.471}, ""casebody"": {""judges"": [], ""parties"": [""Kate C. Hogan, Appellant, v. Metropolitan Building Company, Respondent, Annie Laurie Buck, Cross-Appellant.""], ""opinions"": [{""text"": ""Mitchell, J.\n— Annie Laurie Buck conducted a retail shoe store in a building in Seattle owned by the Metropolitan Building Company, a corporation. Kate C. Hogan, a customer of the shoe store, was injured by a fall in the entrance way from the door to the sidewalk, on the 2d day of August, 1920, and brought this action therefor against both the owner of the building and the proprietor of the store. There was a verdict against both defendants. It was set aside and the.action was dismissed as to the owner, from which the plaintiff has appealed. The tenant, Annie Laurie Buck, interposed a motion for judgment notwithstanding the verdict, which was denied by the trial court and judgment was entered on the verdict against her, from which she has appealed.\nThe parties may be spoken of as plaintiff, owner and tenant, respectively. The situation of the door of the shoe store to the sidewalk was such that, from a single step at the sidewalk, the entrance way rises regularly eleven inches in the distance of seven and one-half feet to the door. The entrance way was constructed of evenly troweled cement. The tenant had conducted the business some five years and, from the testimony, had a daily average of two hundred to two hundred and fifty business callers, with no accident prior to this one. On the day in question, the plaintiff entered the place through this, the only doorway to the place, purchased a pair of new shoes, kept them on, and on going out, carrying her old shoes and one or several other articles in her arms, lost her footing on the cement way from the door down to the sidewalk and was injured. The accident happened on a bright dry day about ten o ’clock in the morning. There was no obligation on the part of the landlord to repair. Indeed, the place at which the plaintiff fell was strong and substantial, and structurally just as it was when the building was erected.\nConcerning the liability of the owner, it is to be noticed that the plaintiff entered the premises under the right of occupancy and by the solicitation or invitation of the tenant. In such case, the owner owes no greater duty to such third person than he does to the tenant himself. Johnson v. Tacoma Cedar Lumber Co., 3 Wash. 722, 29 Pac. 451; Baker v. Moeller, 52 Wash. 605, 101 Pac. 231; Mesher v. Osborne, 75 Wash. 439, 134 Pac. 1092, 48 L. R. A. (N. S.) 917; Ames v. Brandvold, 119 Minn. 521,138 N. W. 786. And even if it be conceded there was a defective or dangerous condition in the entrance way, the tenant himself, had he been injured, could not have recovered from the owner, under the rule in this state, because there was no obscure or latent defect or danger in the place, and the owner was under no obligations to uphold the premises but delivered them into the entire control of the tenant. In such instances it is held, in harmony with the general rule, that a tenant takes the leased property caveat emptor. Howard v. Washington Water Power Co., 75 Wash. 255, 134 Pac. 927, 52 L. R. A. (N. S.) 578; Mesher v. Osborne, supra; Johnston v. Nichols, 83 Wash. 394, 145 Pac. 417.\nAs to the appeal of the tenant, she contends that the charge of negligence against her for maintaining the entrance way cannot, as a matter of law,, be sustained under the circumstances of this case. Eespondent’s contention is that the way was dangerous and unsafe because of the steepness and evenness of its surface. The testimony abounds with proof that it is not an uncommon thing- in the city of Seattle to find the same kind of construction on steeper inclines, both upon the sidewalks of the city and many of the entrances to other places or buildings in the city. The plaintiff was well acquainted with the city. The accident complained of happened as she came out the same way she had used on entering the store. It was perfectly plain, open and obvious to her, and, as a matter of fact, the salesman who waited on her, upon conducting her to the doorway as she was leaving, knowing she was wearing the new shoes, called her attention to the declining-way to the sidewalk. We think that, as a matter of law, the risk was hers and that she is not entitled to recover.\nAffirmed on plaintiff’s appeal; reversed on the tenant’s appeal, with directions to enter judgment in her favor notwithstanding the verdict.\nParker., O. J., Fullerton, Tolman, and Mackintosh, JJ., concur."", ""type"": ""majority"", ""author"": ""Mitchell, J.""}], ""attorneys"": [""A. W. Hastie and E. P. Dole, for appellant Kate C. Hogan."", ""Bronson, Robinson & Jones, for appellant Annie Laurie Buck."", ""Farrell, Kane & Stratton, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 16987.\nDepartment One.\nMay 8, 1922.]\nKate C. Hogan, Appellant, v. Metropolitan Building Company, Respondent, Annie Laurie Buck, Cross-Appellant.\nLandlord and Tenant (75, 80)—Defective Premises—Liability to Tenant and Third Persons. Since a landlord, as to the safety of an entrance way, owes no greater duty to an invitee of the tenant than to the tenant, he is not liable for personal injuries to a customer of tenant’s store who slipped and fell on an inclined entrance way, where the defect, if any, was open and apparent, and the leased premises were taken caveat emptor.\nNegligence (17)—Contributory Negligence — Knowledge of Danger—Assumed Risk. A customer leaving a store assumes the risks, as a matter of law, of slipping on an inclined entrance way, plainly obvious and called to her attention, and which was similar to, and no steeper than, many entrances to similar places in the city with which she was well acquainted.\nCross-appeals from a judgment of the superior court for King county, Hall, J., entered July 16, 1921, upon the verdict of a jury rendered against one of the defendants only, in an action for personal injuries sustained through falling upon the entrance way to a store.\nAffirmed on plaintiff’s appeal; reversed on defendant’s appeal.\nA. W. Hastie and E. P. Dole, for appellant Kate C. Hogan.\nBronson, Robinson & Jones, for appellant Annie Laurie Buck.\nFarrell, Kane & Stratton, for respondent.\nReported in 206 Pac. 959.""}, ""cites_to"": [{""cite"": ""206 Pac. 959"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""145 Pac. 417"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""83 Wash. 394"", ""case_ids"": [604041], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/83/0394-01""], ""opinion_index"": 0}, {""cite"": ""52 L. R. A. (N. S.) 578"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A.N.S."", ""opinion_index"": 0}, {""cite"": ""134 Pac. 927"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""75 Wash. 255"", ""case_ids"": [622625], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/75/0255-01""], ""opinion_index"": 0}, {""cite"": ""138 N. W. 786"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.W."", ""opinion_index"": 0}, {""cite"": ""119 Minn. 521"", ""case_ids"": [210020], ""category"": ""reporters:state"", ""reporter"": ""Minn."", ""case_paths"": [""/minn/119/0521-01""], ""opinion_index"": 0}, {""cite"": ""48 L. R. A. (N. S.) 917"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A.N.S."", ""opinion_index"": 0}, {""cite"": ""134 Pac. 1092"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""75 Wash. 439"", ""case_ids"": [622661], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/75/0439-01""], ""opinion_index"": 0}, {""cite"": ""101 Pac. 231"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""52 Wash. 605"", ""case_ids"": [539122], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/52/0605-01""], ""opinion_index"": 0}, {""cite"": ""29 Pac. 451"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""3 Wash. 722"", ""case_ids"": [5297089], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/3/0722-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""120 Wash. 82"", ""type"": ""official""}], ""file_name"": ""0082-01"", ""last_page"": ""85"", ""first_page"": ""82"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T19:02:34.155979+00:00"", ""decision_date"": ""1922-05-08"", ""docket_number"": ""No. 16987"", ""last_page_order"": 121, ""first_page_order"": 118, ""name_abbreviation"": ""Hogan v. 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+759274,"{""id"": 759274, ""name"": ""Brinnon Logging Company, Appellant, v. Carlsborg Mill & Timber Company, Respondent"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""36248f80eb1231cfbd5145c6d87db61b81703d63a9b8f0e5da8b5e4c66c4b21d"", ""simhash"": ""1:ba4621177f6b98cd"", ""pagerank"": {""raw"": 0.0000002466047488870955, ""percentile"": 0.8060106979209984}, ""char_count"": 14618, ""word_count"": 2489, ""cardinality"": 653, ""ocr_confidence"": 0.512}, ""casebody"": {""judges"": [], ""parties"": [""Brinnon Logging Company, Appellant, v. Carlsborg Mill & Timber Company, Respondent.""], ""opinions"": [{""text"": ""Holcomb, J.\n-Prior to March 27, 1916, respondent was the owner of timber lands near Brinnon, Washington, and upon the property were certain logging roads, machinery and equipment which had been used in carrying on logging operations. There remained at that time approximately 30,000,000 feet of timber to be logged off. A contract was entered into on March 27 between respondent and Kelly, Sager and Corlett, by which respondent agreed to turn over for use in the logging operations the logging donkeys and locomotives on the ground, together with certain other equipment, and in addition thereto to furnish some new logging trucks, and certain types of donkeys suitable for yarding and road work in the logging operations. Kespondent was also to furnish equipment for making extensions to the existing roads, and.provide a log dump. Under the contract, appellant was to do the logging and deliver the logs at the log dump at the end of the logging road, placing the same in booms ready for towing. For this work respondent was to pay appellant certain prices named in the contract per thousand feet, board measure, for the logs delivered at the booming place. It was agreed that Kelly, Sager and Corlett should form a company to be known as the Brinnon Logging Company, to whom the contract should be assigned, which was done. Appellant went into possession of the premises and equipment and started logging operations, but, as it alleges, due to the fact that the logging equipment furnished was not of the character described in the contract, portions of it not being furnished within the times stipulated, and for other breaches stated in the complaint, appellant suffered a loss in carrying on the logging operations, and brought this action to recover the same.\nAmong the items sought to be recovered were the amounts expended by appellant in extending the logging roads, and in repairing and constructing the same, the increased expense of cutting and delivering the twelve million feet of timber which was cut and delivered, the value of the timber cut and delivered at the booming ground for which no payment had been made, the expense of repairing defective equipment, and, in addition, the estimated profits on the timber not cut, which was lost because plaintiff was not able to carry out the contract on account of respondent’s breaches, thereof.\nA trial of the case before a jury resulted in a verdict for appellant in the sum of $10,482.28. Respondent moved for judgment notwithstanding the verdict, which was denied, and also for a new trial, which was granted by the court, the order being:\n“.....Because of error committed by the court in instructing the jury as to the measure of damages for failure to supply appliances according to the contract, and in failing to withdraw from the consideration of the jury the item of loss of prospective profits, claimed by the plaintiff in its complaint, and for such two errors, only, the motion of the defendant for a new trial should be granted.”\nThis appeal is from the above order.\nAppellant’s three assignments of error are based upon the granting of the above order.\nThe court refused respondent’s request to instruct the jury that, if the equipment required by the contract was not furnished, then the rental value of the equipment not furnished, and the difference between the rental value of the equipment which was furnished and the rental value of such equipment as would have complied with the requirements of the contract, was the proper measure of damages. Instead thereof, the court instructed that if the jury should find that the equipment required by the contract was not furnished, and further, if furnished appellant could have conducted the logging operations at a profit, then the appellant was entitled to recover such profit as the jury might find it would have made. It is for the errors in refusing to give and giving these instructions that the court granted a new trial.\nRespondent’s contention is that, so far as any damage because of any failure to furnish machinery of the character required by the contract is concerned, appellant’s measure of damages was the actual rental value of such machinery. And respondent further contends that, as to the item of loss of prospective profits claimed by appellant, there was no sufficient evidence to carry the case to the jury.\nThe gist of the contract was the work of logging off the land belonging to respondent and delivering the logs at a definite place. As a part of the consideration, respondent was to furnish the logging equipment. The logs, after being cut and placed in the water, were the property of respondent, and all that appellant was to receive was a certain price for doing the work.\nAppellant contends that, upon the question of the contract here involved, the measure of appellant’s loss occasioned by respondent’s breach was the increased cost of doing the work actually done, and the loss of profits on that portion of the work left unperformed. Appellant also contends that this was not a case where for a small amount one could supply the necessary equipment, but that instead the logging operations were carried on at a distance from any city, at a place where it would take time and cost a great deal of money to secure the necessary equipment for the logging operations.\nOf course, the price to be paid for the work done was fixed by the contract, but that did not necessarily fix the cost for damages for work not done. Appellant’s witnesses Kelly and Sager, who were two of the original parties to the contract, and who were still members of the appellant company, testified that they could have made a minimum profit of fifty cents per thousand feet upon the remaining 14,000,000 feet of timber not logged. They also testified that, if a certain locomotive which was a part of the equipment to be furnished and certain donkey engines that should have tested 180 pounds steam pressure had been furnished they would have been able to log 7,000,000 feet of additional timber while they were logging, with no additional expense, and would have made a profit of fifty cents per thousand feet on the timber left standing.\nIt must be remembered that the contract here involved was in the nature of a leasing contract of the equipment, and it appears that, when one of the locomotives failed to work as it should have worked, respondent furnished another locomotive which was satisfactory, and rented it to appellant to take the place of the unsatisfactory locomotive, and appellant paid the rental without any protest. It also appears that, during the time of the logging operations, there were machinery houses in Seattle which had direct communication by boat with Brinnon, and which were carrying in stock yarders and loaders that could withstand a steam pressure up to much more than 180 pounds.\nWe think there was error in the instructions given by the court to the jury as to the recovery of loss of anticipated profits. The sole testimony as to anticipated profits was by two of the interested parties who were witnesses, Kelly and Sager. They estimated that they could have made fifty cents per thousand upon the remaining timber not logged, if the equipment had been as contracted to be. They gave no figures whatever as to the basis of their estimates.\nWhile it is true, as appellant contends, and cites our cases to sustain, that future profits may be recovered as damages upon breaches of contracts, and that they are to some extent uncertain and problematical and cannot be determined with mathematical nicety, they must, however, he more definite and certain than mere speculation and conjecture. This is established by the following cases decided by us: Skagit Railway & Lum. Co. v. Cole, 2 Wash. 57, 25 Pac. 1077; Church v. Wilkeson-Tripp Co., 58 Wash. 262, 108 Pac. 596, 109 Pac. 113, 130 Am. St. 1059; Bogart v. Pitchless Lum. Co., 72 Wash. 417, 130 Pac. 490; Bromley v. Heffernan Engine Works, 108 Wash. 31, 182 Pac. 929; Florence Fish Co. v. Everett Packing Co., 111 Wash. 1, 188 Pac. 792; American Iron & W. Works v. Fischer, 109 Wash. 279, 186 Pac. 877; Andreopulos v. Peresteredes, 95 Wash. 282, 163 Pac. 770; Cuschner v. Pittsburgh-Hickson Co., 91 Wash. 371, 157 Pac. 978; Cannon v. Oregon Moline Plow Co., 115 Wash. 273, 197 Pac. 39; Olson v. Solberg, 119 Wash. 496, 206 Pac. 10; Sunset Shingle Co. v. Northwest Elec. & Water Works Co., 118 Wash. 416, 203 Pac. 987; Webster v. Beau, 77 Wash. 444, 137 Pac. 1013, 51 L. R. A. (N. S.) 81; Sedro Veneer Co. v. Kwapil, 62 Wash. 385, 113 Pac. 1100; Federal Iron & Brass Bed Co. v. Hock, 42 Wash. 668, 85 Pac. 418.\nSome of the above eases are where anticipated future profits were allowed upon satisfactory proof of the probable amount thereof, and some where they were disallowed.\nIn Cuschner v. Pittsburgh-Hickson Co., 91 Wash. 371, citing and distinguishing Sedro Veneer Co. v. Kwapil, supra, we said:\n“In this case the amount of the profits are sought to be established by the opinion or guess of the witnesses. We think no court has gone so far as to hold that prospective profits may be established by the opinion of the witnesses as to the amount thereof.”\nIn American Iron & W. Works v. Fischer, supra, we said:\n“The testimony as to the loss of profits was so sup-positive and postulatory that in law it could not be the foundation of a verdict. The testimony was indefinite as to the number of beds actually manufactured and delivered, which would leave the number of beds upon which profits were to be figured in the same indefinite condition. Although we are committed to the doctrine that prospective profits are recoverable, they must be proven with reasonable certainty, and the testimony here as to the prospective profits on an indefinite number of beds undelivered was supported by no degree of certainty. ’ ’\nIn Cuschner v. Pittsburgh-Hickson Co., supra, which contained an item for the recovery, among other items, of loss of future profits, it was said:\n“The appellant and one of his salesmen testified that, if the goods had been received, they could have been sold, and that the profits would have been the amount specified......The evidence offered in proof of the amount of damages was nothing more than the opinion of the witness. It amounted practically to a guess. There was no evidence of facts by which the amount of profits was established, or could be inferred.”\nIt was therefore held that the damages were not proven with reasonable certainty.\nThe above quotations illustrate the situation in this case. While the two witnesses gave testimony that they could have made fifty cents per thousand feet profit on the timber left standing, they gave no facts upon which that profit could be determined, other than their own mere opinions.\nWe conclude, therefore, that the evidence was insufficient as to future profits, and that the trial court was right in holding that it had erred in failing to withdraw from the consideration of the jury, upon the evidence as it stood in thetltrial, the item of loss of prospective profits.\nAs to the other basis of the court’s order granting a new trial, that it erred in instructing the jury as to-the measure of damages in failing to supply appliances according to the contract, that is, in general, very closely related to the one just disposed of. However, there were other items of damages which may have been recovered under the evidence under proper instructions, such as the increased cost of handling the logging operations on account of defaults of appellant, of which, notwithstanding the contention of respondent, we think there was sufficient evidence to go to the jury.\nAs to the question of the proper measure of damages being the rental value of such equipment as was necessary to be procured, above the rental value of such as was furnished, that depends a good deal upon the evidence introduced in the case. It is correct, however, to state that it is one’s duty to use reasonable effort to minimize his loss, and under certain circumstances in this case it might be required of appellant that it should have rented other equipment in the place of that which was defective, and that it could have done so without undue expense, all of which is for the jury, if the evidence warrants. In Florence Fish Co. v. Everett Packing Co., supra, we so held, and held that, in that case, respondent was excused from procuring other equipment (an assisting boat in that case) because appellant had made repeated demands upon it, and at no time had it been refused the assisting boat, but the same had been often promised. Its conduct, therefore, was such as to mislead respondent, and the jury was warranted in finding that it was so misled. In Cannon v. Oregon Moline Plow Co., supra, there was no question in the case but that appellant’s contract had been breached and that he had suffered damages, but it also appeared that he had stood supinely by and declined to procure the power necessary to carry on his farming operations when it could easily have been procured, and at a very reasonable cost. These are the elements that must exist in order that respondent’s contention may he maintained in this case, and we must leave that to the developments of the new trial.\nThe order granting a new trial is affirmed.\nParker, C. J., Bridges, Mackintosh, and Mitchell, JJ., concur."", ""type"": ""majority"", ""author"": ""Holcomb, J.""}], ""attorneys"": [""Preston, Thorgrimson & Turner, for appellant."", ""Shank, Belt & Fairbrook, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 17174.\nDepartment One.\nDecember 11, 1922.]\nBrinnon Logging Company, Appellant, v. Carlsborg Mill & Timber Company, Respondent.\nDamages (118)&emdash;Breach of Contract&emdash;Prospective Profits&emdash;Evidence. Prospective profits from a contract to log land for the owner, breached through the owner’s failure to furnish the logging company with logging equipment, are a matter of conjecture and speculation and not recoverable, where it rests upon the opinion of members of the logging company as to the profits that would have been made, without testimony as to the basis of their estimates.\nDamages (23)&emdash;Mitigation. In an action for loss of profits on a contract to log land for the owner, through the owner’s breach in failing to furnish logging equipment, it was the duty of the logging company to mitigate the damages by replacing defective equipment, if it could do so without undue expense.\nAppeal from an order of the superior court for King county, Hall, J., entered August 11, 1921, granting a new trial, after the verdict of a jury rendered in favor of the plaintiff, in an action on contract.\nAffirmed.\nPreston, Thorgrimson & Turner, for appellant.\nShank, Belt & Fairbrook, for respondent.\nReported in 210 Pac. 945.""}, ""cites_to"": [{""cite"": ""210 Pac. 945"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""85 Pac. 418"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""42 Wash. 668"", ""case_ids"": [5189720], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/42/0668-01""], ""opinion_index"": 0}, {""cite"": ""113 Pac. 1100"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""62 Wash. 385"", ""case_ids"": [613139], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/62/0385-01""], ""opinion_index"": 0}, {""cite"": ""51 L. R. A. (N. S.) 81"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A.N.S."", ""opinion_index"": 0}, {""cite"": ""137 Pac. 1013"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""77 Wash. 444"", ""case_ids"": [615429], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/77/0444-01""], ""opinion_index"": 0}, {""cite"": ""203 Pac. 987"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""118 Wash. 416"", ""case_ids"": [749719], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/118/0416-01""], ""opinion_index"": 0}, {""cite"": ""206 Pac. 10"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""119 Wash. 496"", ""case_ids"": [748373], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/119/0496-01""], ""opinion_index"": 0}, {""cite"": ""197 Pac. 39"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""115 Wash. 273"", ""case_ids"": [698374], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/115/0273-01""], ""opinion_index"": 0}, {""cite"": ""157 Pac. 978"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""91 Wash. 371"", ""weight"": 2, ""case_ids"": [631966], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/91/0371-01""], ""opinion_index"": 0}, {""cite"": ""163 Pac. 770"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""95 Wash. 282"", ""case_ids"": [624647], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/95/0282-01""], ""opinion_index"": 0}, {""cite"": ""186 Pac. 877"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""109 Wash. 279"", ""case_ids"": [696325], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/109/0279-01""], ""opinion_index"": 0}, {""cite"": ""188 Pac. 792"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""111 Wash. 1"", ""case_ids"": [691184], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/111/0001-01""], ""opinion_index"": 0}, {""cite"": ""182 Pac. 929"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""108 Wash. 31"", ""case_ids"": [680061], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/108/0031-01""], ""opinion_index"": 0}, {""cite"": ""130 Pac. 490"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""72 Wash. 417"", ""case_ids"": [591476], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/72/0417-01""], ""opinion_index"": 0}, {""cite"": ""109 Pac. 113"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""108 Pac. 596"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""58 Wash. 262"", ""case_ids"": [526269], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/58/0262-01""], ""opinion_index"": 0}, {""cite"": ""25 Pac. 1077"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""2 Wash. 57"", ""case_ids"": [5256056], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/2/0057-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""122 Wash. 483"", ""type"": ""official""}], ""file_name"": ""0483-01"", ""last_page"": ""491"", ""first_page"": ""483"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T21:16:55.126138+00:00"", ""decision_date"": ""1922-12-11"", ""docket_number"": ""No. 17174"", ""last_page_order"": 523, ""first_page_order"": 515, ""name_abbreviation"": ""Brinnon Logging Co. v. Carlsborg Mill & Timber 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+759415,"{""id"": 759415, ""name"": ""Mortimer M. Canfield, Respondent, v. Seattle Cornice Works, Appellant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""8ea077556871ffbd34342bcc589bf9ed1fdfec8c5caa13f094c19f3fd057180b"", ""simhash"": ""1:d66d00890935151e"", ""pagerank"": {""raw"": 0.0000000670755189198356, ""percentile"": 0.407594419597436}, ""char_count"": 10311, ""word_count"": 1838, ""cardinality"": 537, ""ocr_confidence"": 0.497}, ""casebody"": {""judges"": [], ""parties"": [""Mortimer M. Canfield, Respondent, v. Seattle Cornice Works, Appellant.""], ""opinions"": [{""text"": ""Mackintosh, J.\n-The appellant urges as its principal assignment of error the insufficiency of the evidence to justify the verdict. Made a part of the record, is the memorandum decision of the judge before whom the trial of the case took place, and it so clearly states the facts going to make up this personal injury action and the law bearing upon the question suggested by this assignment of error that we could not improve upon it, and therefore quote and adopt it as our decision upon this point:\n“Plaintiff sues for damages for personal injuries alleged to have been sustained from being struck by defendant’s auto truck on the Pacific Highway. The trial was before the court with a jury and resulted in a verdict for the plaintiff for $4,000. Defendant has moved for judgment notwithstanding the verdict and for new trial upon most all of the statutory grounds.\n“The questions involved in this hearing are purely questions of fact — more specifically the sufficiency of the evidence to sustain the verdict. The doctrine of res ipsa loquitur was in no manner injected into the case and in no manner involved in it. It was a case where the plaintiff was required to prove negligence in the usual manner and not entitled to recover unless he sustained and met that burden of proof that the law requires. As I understand the instructions, the jury was plainly so instructed.\n“The main and controlling questions in the case are, was plaintiff struck by defendant’s truck, and, if so, was it the proximate result of the negligence of the driver; or was it the proximate result of plaintiff’s own contributory negligence? The controlling facts in this regard are as follows, succinctly stated: Plaintiff was walking along upon the paved portion of the highway near his right hand side where he certainly had the right to be. Defendant’s truck came up behind him running at a lawful rate of speed and otherwise rightfully operated. Upon coming up with plaintiff, the driver of the truck slowed down and called to the plaintiff asking if he wanted to ride. Plaintiff says that this was the first notice or knowledge he had of the approach of the truck and bore off to his right and off of the paved portion of the highway, and answered by gesture and words that he did not care to ride. The driver of the truck then passed on by the plaintiff and the front part of the truck and the front mud guard passed the plaintiff without striking him. The driver of the truck and its passengers so testify and the plaintiff admits it. That put the plaintiff beyond the vision of those in the truck and they so testify and it is not controverted. Plaintiff testified that he was then struck hy the after part of the truck, _ knocked down and sustained therefrom the injuries complained of.\n“I do not think any good purpose will he served hy stating or quoting from the testimony to any considerable extent, for in my judgment the controlling feature and turning point of the case is reduced to a very small margin. I have carefully read and reread over and over again the transcript of the testimony furnished me by defendant’s counsel. I do not think the testimony shows any negligence on the part of the driver of the truck, unless it was in driving too close to the plaintiff and striking him. The only witnesses to the accident were the driver and passenger ón the truck, and the plaintiff. The driver and passenger on the truck frankly admit that the plaintiff passed out of their view as the front part of the truck and front mud guard passed the plaintiff without striking him, and saw and knew nothing of what happened to him after-wards until they felt a jolt and looked back and saw the plaintiff lying on the ground. The plaintiff testified positively that, immediately after the front part of the truck and front mud guard passed him without striking him, he was struck by something on the after part of the truck, he knew not what, and knocked down and sustained the injuries complained of. Unless this uncontroverted testimony of plaintiff is disregarded as unworthy of belief, it must be conceded that the plaintiff was in fact struck by the truck as he claims he was. . . . The first question that presents itself in this regard is whether or not the physical facts show such a striking to have been impossible, without some affirmative act on the part of plaintiff himself. Defendant’s own witnesses admit that some portion of the after part of the truck did in fact protrude two or three inches beyond the line of the outer edge of the front mud guard and the extreme outer edge of the front of the truck which passed plaintiff without striking him. This, of conrse, was a small margin but it must be conceded it made the striking possible without any affirmative act on the part of the plaintiff. The probabilities of the case depend upon how close the front mud guard passed to plaintiff. Defendant’s witnesses say it was three or four feet, but they were not in as good a position to know as was the plaintiff, and the effect of his testimony in that regard is that it was a close shave. There is no testimony on the part of defendant as to any affirmative act on the part of plaintiff contributing to the striking — they frankly admit they could not and did not see him after the front part of the truck passed him. The plaintiff testified positively that he did not stumble and his testimony as a whole in that regard negatives any act on his part contributing to the striking. It is admitted by defendant’s witnesses that the plaintiff was off of the paved portion of the highway when the front part of the truck passed him. At defendant’s request, the jury viewed the truck — I did not. I submit this state of facts clearly made a case for the jury and that the court would be unwarranted in overruling its verdict.\n“Under the circumstances disclosed by the evidence, if the driver of defendant’s truck drove so close to the plaintiff as to strike him with any part of his truck, such would be . evidence of negligence . . . ”\nThe evidence shows that the width of that portion of the car which passed the respondent, measured at its widest point — from the outside of one fender to the outside of the other — is sixty-eight inches; that the body of the car beginning back of the driver’s seat, at its widest point, was seventy-two inches, and that there was a projection on each side of a small iron bar at the top corner, two and one-half inches from the body, so there was a portion of the car back of that part which had passed the respondent safely, which projected a total distance of four or four and one-half inches, and it is entirely possible that this projection struck the respondent, causing him to fall under the car. His testimony that he was struck about the left hip, although there was no evidence showing that there was any injury to his body on that side, but that all of the injuries were on Ms right side, is not so physically impossible as to compel us to say that the physical facts would warrant the taking of the case from the jury. It might be that the lower part of the truck body did strike the respondent, as he testified, in the region of his left hip; and considering the slow speed of the truck at the time, it may not have left any visible mark but was of sufficient force to turn him to the right and throw him to the ground where he was run over by the rear wheels of the truck. Therefore the case, under the decisions in Stephenson v. Parton, 89 Wash. 653, 155 Pac. 147; Deitchler v. Ball, 99 Wash. 483, 170 Pac. 123, and Edwards v. Lambert, 121 Wash, 380, 209 Pac. 694, was properly submissible to the jury.\nThe next assignment of error is that prejudicial remarks were made by Mr. Page, of counsel for the respondent, to the jury. The record discloses, however, that objection to these remarks was sustained by the court and that no request was made to instruct the jury to disregard them. Such misconduct of counsel cannot be successfully assigned as error unless there has been a request to the trial judge to correct it by instructing the jury to disregard it or unless the misconduct was so flagrant that no instruction would cure it. State v. Meyerkamp, 82 Wash. 607, 144 Pac. 942; State v. Johnson, 103 Wash. 59, 173 Pac. 723, and Plastino v. Seattle, 119 Wash. 195, 205 Pac. 404. We cannot say that the misconduct here was of the latter character. The trial court, having been in better position than we to determine its effect upon the jury, determined that the conduct, if prejudicial at all, was more so to the respondent than to the appellant.\nIt is next urged that the verdict is excessive. We cannot agree with tMs contention; nor do we find any error in the refusal to give certain instructions which is made the basis of other allegations of error. The matter contained in the requested instructions was fully covered by the instructions given.\nThe judgment is affirmed.\nParker, C. J., Bridges, Holcomb, and Mitchell, JJ., concur."", ""type"": ""majority"", ""author"": ""Mackintosh, J.""}], ""attorneys"": [""Van Dyke & Thomas, for appellant."", ""Williams é Davis and T. D. Page, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 17319.\nDepartment One.\nNovember 22, 1922.]\nMortimer M. Canfield, Respondent, v. Seattle Cornice Works, Appellant.\nHighways (58 )&emdash;Use of Highway&emdash;Negligence&emdash;Driver of Truck &emdash;Question for Jury. The negligence of the driver of a truck in driving too close to and striking a pedestrian at the side of the road is a question for a jury, where it appears that he slowed down and asked the pedestrian if he wanted a ride, and upon receiving a negative answer, drove past him with the front part of the truck, striking him after he passed from view with the rear end of the truck, upon which there was a projection a few inches wider than the front end.\nTrial (51)&emdash;Argument of Counsel&emdash;Objections and Exceptions. Error cannot be assigned upon improper remarks of counsel to the jury, in the absence of a request to instruct the jury to disregard them, where the misconduct was not so flagrant as to be incurable.\nAppeal from a judgment of the superior court for King county, Jurey, J., entered January 31,1922, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a pedestrian struck by a motor truck.\nAffirmed.\nVan Dyke & Thomas, for appellant.\nWilliams é Davis and T. D. Page, for respondent.\nReported in 210 Pac. 773.""}, ""cites_to"": [{""cite"": ""210 Pac. 773"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""205 Pac. 404"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""119 Wash. 195"", ""case_ids"": [748340], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/119/0195-01""], ""opinion_index"": 0}, {""cite"": ""173 Pac. 723"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""103 Wash. 59"", ""case_ids"": [677858], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/103/0059-01""], ""opinion_index"": 0}, {""cite"": ""144 Pac. 942"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""82 Wash. 607"", ""case_ids"": [607851], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/82/0607-01""], ""opinion_index"": 0}, {""cite"": ""209 Pac. 694"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""121 Wash, 380"", ""case_ids"": [757452], ""category"": ""reporters:state"", ""reporter"": ""Wash,"", ""case_paths"": [""/wash/121/0380-01""], ""opinion_index"": 0}, {""cite"": ""170 Pac. 123"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""99 Wash. 483"", ""case_ids"": [656716], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/99/0483-01""], ""opinion_index"": 0}, {""cite"": ""155 Pac. 147"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""89 Wash. 653"", ""case_ids"": [636800], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/89/0653-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""122 Wash. 318"", ""type"": ""official""}], ""file_name"": ""0318-01"", ""last_page"": ""323"", ""first_page"": ""318"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T21:16:55.126138+00:00"", ""decision_date"": ""1922-11-22"", ""docket_number"": ""No. 17319"", ""last_page_order"": 355, ""first_page_order"": 350, ""name_abbreviation"": ""Canfield v. 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+759462,"{""id"": 759462, ""name"": ""Ellinor Vanderveer, substituted for George F. Vanderveer, Respondent, v. Clarence D. Hillman et al., Appellants"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""4dc24d26dc4d0181beabed6222d3775c79f9c5e3376d240b51d6ec29fd102252"", ""simhash"": ""1:bf7ed53f3e6e8ce8"", ""pagerank"": {""raw"": 0.00000019781807899819145, ""percentile"": 0.7402358206984269}, ""char_count"": 5761, ""word_count"": 935, ""cardinality"": 370, ""ocr_confidence"": 0.514}, ""casebody"": {""judges"": [], ""parties"": [""Ellinor Vanderveer, substituted for George F. Vanderveer, Respondent, v. Clarence D. Hillman et al., Appellants.""], ""opinions"": [{""text"": ""Holcomb, J.\n-This action is for an attorney’s fee of $10,000, alleged to have been due for legal services of that value rendered by George F. Vanderveer, former husband of respondent, who was substituted as plaintiff before trial.\nThe services were alleged to have been performed by Vanderveer, the husband, in very important litigation against the appellants in the state of California.\nIt is alleged that Vanderveer went to California for the purpose of performing such professional services, and remained there from October 29 to November 12, 1920, devoting himself to the preparation of the eases, and counselling and advising with appellants. The cases which he alleged he was employed to defend are described as: (1) A suit by one Wineman and wife against appellants and others, to compel a reconveyance of some mortgages and other property of the aggregate value of $825,000, on the ground that they were procured by fraud and misrepresentation; (2) a criminal action by the state of California against appellant Clarence D. Hillman and others,-by an- indictment in two counts, charging them with conspiracy to steal $125,000 in money from the \""Winemans, and of defrauding them of property worth $825,000; (3) another indictment charging Clarence D. Hillman and others with the crime of grand larceny of $125,000.\nAppellants by answer admit the pendency of the civil suit, and the several indictments, and every other allegation of the complaint, save that they deny the employment of Vanderveer; or that he ever performed any services, or that his services were of the value of $10,000 or any other sum.\nAfter a very heated and closely contested trial, the jury awarded respondent $2,500.\nThere was ample evidence, and evidently believed by the jury, of the employment.\nThe errors complained of are, first, that the court erred in not granting a new trial on the ground of misconduct of plaintiff and her attorney, in the repeated propounding of prejudicial and irrelevant questions, and improper remarks during argument; and, second, in overruling appellants’ motion that the verdict of the jury against Bessie Hillman individually, and against the marital community composed of appellants, be set aside on the ground that there was not sufficient evidence to sustain a judgment against the community or against Bessie Hillman individually.\nAs we understood in the oral argument, the second error was practically abandoned as not being of sufficient merit to justify oral argument. However, we consider the debt, if it exists, a community debt; because, if .there was an employment, the civil suit-involved the defense and protection of $825,000 worth of community property. The criminal eases apparently resulted directly from the acts of appellant Clarence D. Hillman dealing with community property. While it is probably true that the community and other member of the community would not be liable to answer for the torts committed by the other member of the community, this is not true where such torts are committed in the transaction of the business of the community. Brotton v. Langert, 1 Wash. 227, 23 Pac. 803; Day v. Henry, 81 Wash. 61, 142 Pac. 439; Wilson v. Stone, 90 Wash. 365, 156 Pac. 12; Schramm v. Steele, 97 Wash. 309, 166 Pac. 634.\nAs to the first assignment of error, the record has been carefully examined, and many of the objections made by appellants to statements of counsel in argument are. untenable, for the reason that counsel for respondent in making, the statements was strictly within the record. In. other instances, when objection was made, even though counsel for respondent was within the record,, the objection by appellant was sustained. In still other instances where counsel made statements outside of the record, the objection was sustained by the trial court. Furthermore, a mere exception to improper statements- of counsel to the jury, without moving the court in the matter, is insufficient to secure a review of error assigned thereon, unless the misconduct was so flagrant that no instruction would cure it. Taylor v. Modern Woodmen of America, 42 Wash. 304, 84 Pac. 867, 7 Ann. Cas. 607. We cannot so find in this case.\nThere was evidence amply justifying a much larger award than was made by the jury. There is nothing appearing upon the bare face of the record showing such misconduct as prejudiced the appellants. The trial judge, exercising .his discretion and knowing all the matters and things occurring at the trial, denied the motion for a new trial, and we are unable to say that he abused his discretion.\nJudgment affirmed.\nParker, C. J., Mackintosh, Bridges, and Mitchell, JJ., concur."", ""type"": ""majority"", ""author"": ""Holcomb, J.""}], ""attorneys"": [""Poe & Falknor, for appellants."", ""Reynolds, Rallinger & Hutson, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 17325.\nDepartment One.\nJanuary 2, 1923.]\nEllinor Vanderveer, substituted for George F. Vanderveer, Respondent, v. Clarence D. Hillman et al., Appellants.\nHusband and Wife (84)&emdash;Community Pbopeety&emdash; Liability&emdash; Tobts of Husband. An employment of an attorney to defend a civil suit involving the protection of $825,000 worth of community property, and criminal prosecutions resulting directly from the acts of the husband in dealing with the community property, creates a community debt.\nTbial (51)&emdash;Aboument of Counsel&emdash;Objections and Exceptions. A mere exception to improper argument and remarks of counsel, without moving the court in the matter, is not sufficient to secure a review thereof, unless the conduct was so flagrant as to be incurable.\nAppeal from a judgment of the superior court for King county, Frater, J., entered November 29, 1921, upon the verdict of a jury rendered in favor of the plaintiff, in an action to recover for legal- services.\nAffirmed.\nPoe & Falknor, for appellants.\nReynolds, Rallinger & Hutson, for respondent.\nReported in 211 Pac. 722.""}, ""cites_to"": [{""cite"": ""211 Pac. 722"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""84 Pac. 867"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""42 Wash. 304"", ""case_ids"": [5191189], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/42/0304-01""], ""opinion_index"": 0}, {""cite"": ""166 Pac. 634"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""97 Wash. 309"", ""case_ids"": [570389], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/97/0309-01""], ""opinion_index"": 0}, {""cite"": ""156 Pac. 12"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""90 Wash. 365"", ""case_ids"": [634454], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/90/0365-01""], ""opinion_index"": 0}, {""cite"": ""142 Pac. 439"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""81 Wash. 61"", ""case_ids"": [609635], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/81/0061-01""], ""opinion_index"": 0}, {""cite"": ""23 Pac. 803"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""1 Wash. 227"", ""case_ids"": [6716146, 8530613], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/va/1/0492-01"", ""/wash/1/0227-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""122 Wash. 684"", ""type"": ""official""}], ""file_name"": ""0684-01"", ""last_page"": ""687"", ""first_page"": ""684"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T21:16:55.126138+00:00"", ""decision_date"": ""1923-01-02"", ""docket_number"": ""No. 17325"", ""last_page_order"": 719, ""first_page_order"": 716, ""name_abbreviation"": ""Vanderveer v. 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+762309,"{""id"": 762309, ""name"": ""Abe Schermerhorn, Respondent, v. George Sayles, Appellant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""c6c27c98db913056b05b61471a1c4b0207c425e0d2b73280c3748aa538424c56"", ""simhash"": ""1:6a5b2d0e3594f5c3"", ""pagerank"": {""raw"": 0.00000014684101135914853, ""percentile"": 0.6587028819054702}, ""char_count"": 9394, ""word_count"": 1653, ""cardinality"": 520, ""ocr_confidence"": 0.529}, ""casebody"": {""judges"": [""Parker, Mackintosh, Holcomb, and Mitchell, JJ., concur.""], ""parties"": [""Abe Schermerhorn, Respondent, v. George Sayles, Appellant.""], ""opinions"": [{""text"": ""Bridges, J.\nSuit for damages on account of the alleged breach of the covenants of a lease.\nThe lease was given by the defendant to the plaintiff and covered a storeroom in a certain building in Seattle. It was dated September 20, 1919, and was to run for four years. This instrument provided that the lessor should be required to furnish “heat and hot water at all seasonable times of the year without any charges to the lessee therefor.” It was understood at the time of the making of the lease that'the premises would be used as a barber shop. In fact, we believe it is expressly so stated in the lease. The plaintiff went into possession sometime in November, 1919, and continued there until the commencement of this suit. In his complaint he claims that the defendant during much of the time failed or refused to furnish heat and such hot water as was necessary to the uses to which the premises were put. He asked for a mandatory injunction requiring the defendant to furnish heat and hot water, and also seeks to recover certain items of damage. The court, trying the case without a jury, refused to grant any equitable relief, but entered a money judgment in favor of the plaintiff in the sum of $1,945.08. This amount, as shown by the judgment, was intended to cover damages up to March 22, 1922. The defendant has appealed.\nThe trial court seems to have undertaken to determine the damages on the basis of lost profits. The appellant contends that, in a case of this character, the true and only measure of damages is the difference between the rental value of the property had the lease been complied with and its rental value in the absence of any such compliance. The respondent, while admitting that the difference in the rental value is a proper measure of damages, claims that it is not exclusive, and that special damages may be recovered as well as loss of profits, where the same can be shown with reasonable certainty. This court has taken the position that, in cases of this character, the general rule is that the damages must be pleasured by the difference in the rental value and that they cannot be measured by recovery of the loss of profits, except in special instances and under peculiar circumstances. Purcell v. Warburton, 70 Wash. 129, 126 Pac. 89; Matzger v. Arcade Bldg. & Realty Co., 102 Wash. 423, 172 Pac. 47. It is unnecessary for us here to.enter into a discussion of this question. It is certain under all the authorities that, in a case of this character, loss of profits cannot be recovered unless they can be shown with that degree of certainty which the law requires, and in the absence of ability to show the loss of profits, the correct measure of damages is as stated in Purcell v. Warburton, supra:\n“The difference between the value of the use of the rooms as furnished by the plaintiff and heated as contemplated by the contract, and the value of their use as in fact heated by the defendants. ”\nLoss of profits must always be shown with a reasonable degree of accuracy.\n“The testimony piust be clear and free from taint of speculation or conjecture.” Matzger v. Arcade Bldg. & Realty Co., supra; Brinnon Logging Co. v. Carlsborg Mill & Timber Co., 122 Wash. 483, 210 Pac. 945, and cases cited.\nConceding, merely for the purposes of this case, that the respondent was entitled to recover his lost profits, his testimony falls far short of that degree of accuracy and certainty required by the courts as to what such losses are. Respondent’s own testimony shows the wisdom of the rule heretofore laid down by this court that the measure of damage is the difference in the rental value, and shows the utter futility of attempting to prove the loss of profits under circumstances such as exist here. A number of witnesses, particularly barbers working for the respondent, testified to a lack of heat and hot water, and that such interfered with the work in the shop and that some patrons left because thereof. But, in the very nature of things, it was impossible for these witnesses to testify — and they did not undertake to testify — as to the number of patrons who left the shop because of the conditions and the number who might have done their business there had the .proper conditions as to heat and water existed.\nThe only testimony which even tended to show with any certainty any actual loss of profits was that of the respondent himself. He went into possession in 1919, but he does not make any effort to show the amount of his loss for the major portion of the first year. He bases his comparisons on the period between October 1, 1920, and February 1, 1921, during which period it appears he was permitted to operate the heating apparatus himself and conditions were in fairly satisfactory shape. He testifies that his average weekly income during that period was $211; that from February 1 to July 1,1921, his average weekly income was $180.80, being a little more than $30 per week less than for the previous period, and that during the twelve weeks from July 1 to September 1 his income was about $120 a week, and that during the period from October 1, 1921, to March 11, 1922, a period of 24 weeks, his average weekly income was $144. He testifies that, from February 1, 1921, to March 11, 1922, there was a total loss of income of $3,452, basing such loss on the income during the period when he ran the furnace himself and had sufficient heat and water.\nBasing our calculations on the respondent’s figures, we are wholly unable to come to the same total loss that he testifies to. But if we assume his total loss during all of the period in question to be the amount stated by him, to wit, $3,452, the proof does not reach that degree of certainty which the law requires and there are too many inconsistencies and contingencies. He bases all of his loss on a 24-week period commencing October 1, 1920, and ending February 1, 1921. He takes a period, as a basis for calculation, which ran through the holiday season, which the testimony shows is by all odds the best season of the year. He says that, during the months we have mentioned, he took in $3,452 less than he should have taken in, and that in his business he made a profit of forty per cent of what he took in, consequently his loss was some $1,300. But he makes no effort to show how he arrives at a profit of forty per cent. Testimony is altogether wanting as to the items of expense which he deducted in order to arrive at net profits. We have nothing but his bare statement that he would have made forty per cent profit. Such testimony is wholly insufficient. Besides this, it is shown that for a part of the earlier portion of the lease his brother was engaged in business with him and then sold out and left. A new barber shop was established almost directly across the street from him, and another shop increased its number of chairs and business. All of these things and many more might have affected the respondent’s business. Respondent kept no books except to show the total weekly income, and these books are not in evidence and we are not permitted to examine them. The testimony regarding profits is very unsatisfactory. It is largely speculation.\nTaking the case all in all, it cannot be said that the respondent has proved his loss of profits with such degree of certainty as that we can let the judgment stand or substitute our own. In fact, when respondent drew his complaint he seemed to be of opinion that he might be unable, to prove his loss of profits, because the basis of his action is for a mandatory injunction and he alleges that Ms damage “cannot be adequately or definitely determined; that plaintiff has no adequate remedy at law . . . ” But if we should take his own figures, speculative as they are, they would amount to several hundred dollars less than the trial court gave him, and the judgment would have to be reversed in any event. Being unable to prove his loss of profits with reasonable certainty, the proper measure of damage in this case is the difference in the rental value, as we have already announced. The judgment is reversed and the cause remanded for a new trial.\nParker, Mackintosh, Holcomb, and Mitchell, JJ., concur."", ""type"": ""majority"", ""author"": ""Bridges, J.""}], ""attorneys"": [""Guie & Halverstadt and Carroll B. Graves, for appellant."", ""Jno. A. Homer and William E. Froude, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 17492.\nDepartment One.\nJanuary 17, 1923.]\nAbe Schermerhorn, Respondent, v. George Sayles, Appellant.\nLandlord and Tenant (15-1) — Damages (118) — Lease—Breach of Covenant — Measure of Damages. In an action for breach of the terms of a lease providing that the landlord should furnish hot water for a barber shop, the measure of damages is the difference between the rental value of the property had the lease been complied with and its rental value in the absence of compliance, where loss'of profits cannot' be shown with reasonable certainty.\nSame (15-1) — Damages (118) — Breach of Contract — Loss of Profits — Evidence—Sufficiency. In such an action, loss of profits is not shown with sufficient certainty by evidence that lack of hot water caused some inconvenience and that some patrons left on that account; nor by comparative figures showing weekly income.\nAppeal from a judgment of the superior court for King county; Frater, J., entered April 7, 1922, upon findings in favor of the plaintiff, in an action on contract, tried to the court.\nReversed.\nGuie & Halverstadt and Carroll B. Graves, for appellant.\nJno. A. Homer and William E. Froude, for respondent.\nReported In 212 Pac. 156.""}, ""cites_to"": [{""cite"": ""212 Pac. 156"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""210 Pac. 945"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""122 Wash. 483"", ""case_ids"": [759274], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/122/0483-01""], ""opinion_index"": 0}, {""cite"": ""172 Pac. 47"", ""case_ids"": [6242912], ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""case_paths"": [""/okla/68/0110-01""], ""opinion_index"": 0}, {""cite"": ""102 Wash. 423"", ""case_ids"": [670233], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/102/0423-01""], ""opinion_index"": 0}, {""cite"": ""126 Pac. 89"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""70 Wash. 129"", ""case_ids"": [565324], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/70/0129-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""123 Wash. 139"", ""type"": ""official""}], ""file_name"": ""0139-01"", ""last_page"": ""144"", ""first_page"": ""139"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T19:58:20.836518+00:00"", ""decision_date"": ""1923-01-17"", ""docket_number"": ""No. 17492"", ""last_page_order"": 178, ""first_page_order"": 173, ""name_abbreviation"": ""Schermerhorn v. 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+766357,"{""id"": 766357, ""name"": ""J. A. Hurley et al., Appellants, v. Kiona-Benton School District No. 27, Respondent"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""e0017921491b835dc38f4bd69d67dbb2f9a99022e016ccf3ba38e625a3236c42"", ""simhash"": ""1:59c9a36a0ec0d5ee"", ""pagerank"": {""raw"": 0.000000081699219807825, ""percentile"": 0.4750568469435863}, ""char_count"": 12233, ""word_count"": 2010, ""cardinality"": 587, ""ocr_confidence"": 0.487}, ""casebody"": {""judges"": [], ""parties"": [""J. A. Hurley et al., Appellants, v. Kiona-Benton School District No. 27, Respondent.""], ""opinions"": [{""text"": ""Pemberton, J.\n— On or about the 15th day of July, 1920, the respondent, Kiona-Benton School District No. 27, entered into a written agreement with appellants, Hurley and Leichnitz, for the installation of plumbing and a heating plant in a school building then being constructed at Benton City. Prior to the execution of this contract, there were extended negotiations between the parties, resulting in a proposed written contract being submitted to the board of education of respondent school district. This contract was rejected by the school board for the reason that certain modifications of the work agreed upon were not shown in the contract. Thereafter .a written addenda attached was formally signed by the respondent and appellants. When the plumbing had been practically completed, respondent employed one Springsteen to examine the same. A portion of the plumbing was condemned and later replaced by appellants, concerning which portion there is no controversy. Payments were made to appellants in two installments, prior to the final certificate. Respondent made demand upon appellants to complete the contract according to the specifications. The architect, disregarding this request and without making an examination of the work, issued the final certificate in which he certified that the contract had been completed and that the appellants were entitled to the sum of $2,114, the balance due according to the contract. On the refusal of the respondent to pay the same, appellants instituted this action to recover the amount due upon the final certificates.\nThe respondent, in its answer to the complaint, put in issue the entire contract, charged collusion between the architect and appellants, alleged that the final certificates were issued without the exercise of judgment of the architect and were false and'fraudulent, alleged failure to perform and defect in workmanship, and asked for damages by reason of.the failure on the part of appellants to perform the contract.\nThe trial court found that respondent was damaged in the amount of $2,836; that there was unpaid on the contract the amount of $2,114, leaving a balance due from appellants to respondent as damages the amount of $722.\nIt is the contention of appellants that the certificate of the architect was final and constituted an acceptance of the work; that respondent accepted the work and is now estopped from claiming that the work was unsatisfactory; that the respondent, having stated its ground for refusing to pay the final certificate, is estopped from making objections on any other theory; and that the failure to submit to arbitration is a waiver of any defects which could have been arbitrated.\nIt is admitted by appellants that they failed to install about $800 worth of plumbing and to cover the pipes of the heating plant, amounting to about $500, and to install a boiler worth about $900, and substituted therefor a second-hand boiler which had been purchased for $150. It is admitted that these items were provided in the contract, but contended by appellants that, under the architect’s construction of the-provisions of the contract, they were relieved from performing this work.\nIt is the contention of respondent that the architect had no authority to change the contract, and in certify-; ing that the work had been done according to the contract, he acted without authority and without exercising judgment, and such certificate, being issued under gross mistake, is fraudulent and is not binding upon respondents.\nParagraph 20 of the contract provides as follows:\n“Verbal Modifications. It is distinctly understood that no verbal statement of any person whomsoever-shall be allowed in any manner or degree to modify or otherwise affect the terms of this specifications or of the contracts for the work. Changes will he made only in writing, signed by the architect and countersigned by the owner, etc.”\nParagraph 22 of the contract provides as follows:\n“Duties of Architects. The architects shall have charge of the work for the owner, and their duties shall consist in giving on demand such interpretations, either in language, writing or by drawings as in their judgment the nature of the work may require, having particular care that any and all work done and materials used be combined and done as hereinafter described and specified . .\nUnder the contract, the architect was without authority to change the contract. His duties in that respect were limited to interpretations of the contract.\n“The architect or engineer, ordinarily, has no implied authority to modify the contract or authorize deviations therefrom.” Elliott on Contracts, vol. 4, p. 839, 6 Cyc. 29.\n“. . . but it is held that the architect or engineer cannot dispense with the performance of any substantial part of the contract. And the acceptance of a different class of work from that contracted for will not bind the owner.” Elliott on Contracts, vol. 4, p. 898.\n“An unauthorized acceptance of a building by the architect may not waive the owner’s right to damages for failure to fully perform the contract.” Elliott on Contracts, vol. 4, p. 896.\nIn the case of Dyer v. Middle Kittitas Irr. Dist., 40 Wash. 238, 82 Pac. 301, the court said:\n“The contract provides that the engineer shall define the meaning, intent, and purport of the plans and specifications, and that his decision in all cases shall he final; but this, it is plain, refers to the interpretation of doubtful and uncertain terms of the contract, not to the question of law presented by the language of the contract or specifications. This clause does not confer upon the engineer the power to vary the meaning of plain terms used in the contract, for if this were so, there would be no need of the writing, as the engineer’s arbitrary assertion would be all-sufficient.”\nIn the case of Ilse v. Aetna Indemnity Co., 55 Wash. 487, 104 Pac. 787, the court said:\n“There has been much loose expression on the part of courts upon this subject, and many of them have seemingly held that the certificate once given cannot be questioned. . . . But here we have no such condition. ... In this case the certificate of the architect fixed an amount in excess of the amount actually due. This fact cannot be questioned.. This condition was brought about through the probable mistake of plaintiff, concurring with the indolence or ignorance of the architect. It did not voice the honest judgment of the architect, and for that reason was liable to impeachment by either party. The court committed no error, then, either from the viewpoint of the fact or the law, in admitting evidence to impeach the certificate of the architect.”\nAppellants contend that respondent had inspectors during the progress of the work and thereby accepted the same. The portion of the work that was inspected and accepted is not in controversy in this case. It is only the portion of the work that was not inspected.\nThe appellants insist that, since respondent occupied the building, this, as a matter of law, is acceptance of the work, and call attention to the rule as follows:\n“As a general rule where the owner of a building accepts the same and takes possession thereof, and at the time of doing so the building is incomplete and contains patent and obvious defects, the acceptance will be deemed a waiver and the contractor will be entitled to recover the amount earned on the contract.” Steltz v. Armoury & Co., 15 Idaho 551, 99 Pac. 98.\nThis is the rule where the owner of the building accepts the same, but mere occupancy does not waive the right to recover against the contractor for failure to' complete the contract.\n“. . . the mere fact that the owner enters into possession and uses a building -which has been constructed for him does not ordinarily constitute a waiver of a non-compliance by the contractor with his contract in erecting the building. The occupancy and enjoyment of the structure by the owner does not necessarily preclude him from showing that the contractor’s work has been improperly or defectively executed.” 6 R. C. L. 995, § 362.\nThere is no merit in the contention of appellants that respondent waived its right to recover to all items except those complained of by letter of March 26 to the architect. Such fact does not preclude respondent from recovering upon any additional item of damage subsequently discovered.\nIt is the contention of appellants that respondent cannot defend this action because of its failure to arbitrate as provided in the contract, calling attention to the case of Herring Hall-Marvin Safe Co. v. Purcell Safe Co., 81 Wash. 592, 142 Pac. 1153, wherein the court said:\n“We have held in a long line of cases that, where parties enter into a contract, and provide therein that all differences between them that may thereafter arise out of the contract shall be submitted to a board of arbitrators whose decision therein shall be conclusive and final upon the parties, no action can be maintained on the contract by either party until he has tendered arbitration of the differences to the other party, and such other party has refused the tender.”\nThe contract in question, however, has no such provision with reference to arbitration. Paragraph 3 provides that, when alterations are made in the- contract, the architect shall specify the amount to be paid; and if this amount is not satisfactory it may be arbitrated. Paragraph 8 provides that the architect will fix the price of material where alterations are made. Paragraph 7 provides for an arbitration where there is interference with the work, resulting in damage.\nThe contract in question in this case is clear, plain and unambiguous and cannot be varied or explained by parol evidence. Neither did the architect have authority to excuse appellants from the performance of any part of the contract, and the issuance of a final certificate by the architect, certifying that the provisions of the contract had been complied with on the part of appellants, when in fact it was known by all parties connected with this transaction, including the architect himself, that the work provided in the contract had not been performed on the part of appellants, constituted fraud and was not binding upon either party to the contract, and the respondent is entitled to damages for failure of appellants to complete the work according to the contract.\nThe -judgment of the trial court will be affirmed.\nMain, C. J., Mackintosh, Fullerton, and Tot,man, JJ., concur."", ""type"": ""majority"", ""author"": ""Pemberton, J.""}], ""attorneys"": [""Stephen E. Chaffee and R. John Lichty, for appellants."", ""McGregor & Fristoe and G. W. Hamilton, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 17630.\nDepartment Two.\nMay 3, 1923.]\nJ. A. Hurley et al., Appellants, v. Kiona-Benton School District No. 27, Respondent.\nContracts (139) — Building Contracts — Performance or Breach —Certificate of Architect — Power to Change Plans. An architect has no authority to excuse contractors from performing any part of the work, under a contract, stating that he shall have charge of the work and give interpretations of the writings.\nSame (150, 151) — Building Contracts — Acceptance of Performance — Defects and Objections — Waiver. Occupancy of a building is not, as a matter of law, an acceptance of the work which would waive the owner’s right to recover from the contractor for failure to complete it.\nArbitration and Award (3) — Agreements to Arbitrate — Condition Precedent to Action. Failure to arbitrate does not defeat recovery for failure to complete a building, where the contract merely called for arbitration in case of disputes as to the price for alterations or where there is interference with the work resulting in damages.\nContracts (143) — Building Contracts — Performance or Breach —Certificate of Architect — Fraud—Damages for Breach. A final certificate given by an architect on excusing the contractor from complete performance, is a fraud on the owner and void, where it was known by all parties that' the work provided for in the contract was not performed to the extent of over $2,000.\nAppeal from a judgment of the superior court for Benton county, Truax, J., entered January 16, 1922, upon findings in favor of the defendant, in an action on contract, tried to the court.\nAffirmed.\nStephen E. Chaffee and R. John Lichty, for appellants.\nMcGregor & Fristoe and G. W. Hamilton, for respondent.\nReported in 215 Pac. 21.""}, ""cites_to"": [{""cite"": ""215 Pac. 21"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""142 Pac. 1153"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""81 Wash. 592"", ""case_ids"": [609624], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/81/0592-01""], ""opinion_index"": 0}, {""cite"": ""15 Idaho 551"", ""weight"": 2, ""case_ids"": [3326690], ""category"": ""reporters:state"", ""reporter"": ""Idaho"", ""case_paths"": [""/idaho/15/0551-01""], ""opinion_index"": 0}, {""cite"": ""104 Pac. 787"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""55 Wash. 487"", ""case_ids"": [1301662], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/55/0487-01""], ""opinion_index"": 0}, {""cite"": ""82 Pac. 301"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""40 Wash. 238"", ""case_ids"": [5201787], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/40/0238-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""124 Wash. 537"", ""type"": ""official""}], ""file_name"": ""0537-01"", ""last_page"": ""543"", ""first_page"": ""537"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T21:26:58.991977+00:00"", ""decision_date"": ""1923-05-03"", ""docket_number"": ""No. 17630"", ""last_page_order"": 603, ""first_page_order"": 597, ""name_abbreviation"": ""Hurley v. Kiona-Benton School District No. 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+770236,"{""id"": 770236, ""name"": ""Anna B. Johnson, Respondent, v. Harry W. Dye et al., Appellants"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""27f0ed4c1479db746e3a18649b570630be2fb0f403451fc80fff5927ce618f64"", ""simhash"": ""1:bbe8b8a23f77ba56"", ""pagerank"": {""raw"": 0.00000020757605051377895, ""percentile"": 0.7583752952392205}, ""char_count"": 15147, ""word_count"": 2656, ""cardinality"": 635, ""ocr_confidence"": 0.492}, ""casebody"": {""judges"": [], ""parties"": [""Anna B. Johnson, Respondent, v. Harry W. Dye et al., Appellants.""], ""opinions"": [{""text"": ""Holcomb, J.\nIn this action for damages for personal injuries, the jury rendered a verdict in favor of the respondent for $2,750, upon which judgment entered.\nRespondent rented from appellants a dwelling in Seattle, in July, 1922. On October 12, 1922, she fell from the front steps of the dwelling, while she was sweeping the steps and had progressed to the second step from the bottom. She claimed her fall was caused by a defect in the support of the steps, which gave way at the southerly or left end of the steps, precipitating her into an excavation about four feet deep. She was severely hurt, and apparently some of the injuries are permanent. Her theory for recovery is that the defect in the steps complained.of was a latent defect which could not have been discovered by her, and the risk of which was not assumed by her, but which could have been discovered by the landlord with reasonable diligence, and repaired. She claimed, also, that, when she rented the house, the landlord promised and agreed to repair the steps, which were in disrepair at that time by reason of the tops of the steps or treads being loose, and that they continued so in disrepair until the time of her injury, although appellant repeatedly promised to repair them at different times during her tenancy, and by reason of his failure so to do, he is liable for the injuries sustained.\nThere were four steps leading down from the front entrance of the house to the board walk. The top boards or treads in these steps were shown by respondent to have been loose when she began occupancy of the house, showing that the nails were loose in the foundation supports of the steps. The supports or under pieces of the steps could not be seen from the top or outside. They were enclosed by planking on both ends of the structure. The support or bench had rotted away prior to the accident. There was nothing visible from the outside to indicate that the steps did not have the regulation bench to support them at the south end. The pieces had rotted away and loosened at the south end, so that, as later experience showed, when a person happened to stand at the south end near the lower comer, the foundation at that corner would give away, and did. In the event of giving away on the south end of the step, the north end would rise into the air, or tip and fall over onto the board walk. There was no way of examining the structure of the steps for this defect except by taking up the boards and looking in. There was no way of reaching them from the outside. The jury viewed the structure, both from the outside and from the excavation under it.\nAs respondent described tbe accident, she was sweeping the steps from the top down. She had just reached the second step from the bottom, when the fonndation at that corner gave way, tipping her over and causing her to fall into the excavation, striking her right leg against something-, and striking- and bruising her right chest. The ends of the second and third steps followed her into the excavation, and the lower step turned over on the board walk. Other persons also had similar experiences with the steps, including the postman on that route, very shortly after the accident to respondent, and before the steps had been repaired by appellant, until such persons learned to step upon the middle support of the steps.\nOn this appeal some of the errors claimed by appellants are not argued in their briefs, and some are not properly assigned.\nThe questions of law to be determined, however, are these: (1) Whether the defect in the steps was latent or patent; (2) whether respondent could have discovered the defect by making- a reasonable inspection of the premises, and whether she made such inspection; (3) Whether the accident was physically possible; (4) whether respondent assumed the risk of such defect as there was; and (5) whether respondent was guilty of contributory negligence.\nThe theory of respondent in prosecuting this action is that, where a landlord lets premises to a tenant, and agrees to keep the same in reasonable repair, there arises an antecedent duty on his part to make a reasonable inspection for obscure or latent defects, or others affecting the safety of the premises for ordinary use; that there is a greater duty of inspection upon a landlord than there is on the tenant; and where a landlord can, by ordinary diligence, discover the de-feet which causes the injury, it is his duty to correct the same; he is held to have knowledge of what a reasonable inspection on his part would have disclosed; that, where there is a breach of this duty on the part of the landlord, if the tenant, using ordinary care, and not knowing of the danger, is injured by reason of the defect, the tenant is entitled to recover from the landlord for such damages as may be sustained.\nThe above theory of the case is sustained by our decisions in the following cases: Howard v. Washington Water Power Co., 75 Wash. 255, 134 Pac. 927, 52 L. R. A. (N. S.) 578; Mesher v. Osborne, 75 Wash. 439, 134 Pac. 1092, 48 L. R. A. (N. S.) 917; Johnson v. Nichols, 83 Wash. 394, 145 Pac. 417; Hogan v. Metropolitan Building Co., 120 Wash. 82, 206 Pac. 959.\nThat the action was a physical possibility seems apparent, after examining the evidence for respondent, and that she was guilty of no lack of care, and the verdict of the jury resolved those questions in her favor.\nIt remains, then, to determine whether the defect which caused the injury was latent or patent; whether respondent could have discovered the defect by a reasonable inspection, and whether she made such an inspection. If she could have discovered the defect by a reasonable inspection, then it may be held that she assumed the risk, after a reasonable time for the landlord to remedy it, or, which amounts to the same thing, was guilty of contributory negligence in using the steps after such reasonable time.\nWe have held that, in case of a patent defect and a promise to repair on the part of the landlord, the tenant may remain for a reasonable time after notice to the landlord of the defect, giving the landlord reasonable time to remedy it, during which reasonable time the landlord is liable for any injury resulting from the defect, and after the expiration of which reasonable time he is not liable. Stoops v. Carlisle-Pennell Lumber Co., 127 Wash. 82, 219 Pac. 876.\nA similar case to this was that of Lowe v. O’Brien, 77 Wash. 677, 135 Pac. 295, where the tenant rented premises which were in disrepair. The landlord, from time to time, made such repairs as seemed to be demanded. The house was built on piling over the water, but nothing was said about the tideflats or the foundation of the house. The tenant asked the landlord when he was going to repair the piling under the building, and stated that, if it was not fixed and made safe, she would move out. The landlord promised to have the work done soon. The tenant was absent for a time, talked to the landlord about repairs upon her return, and shortly thereafter the house fell into the water. The trial judge granted a nonsuit in the action against the landlord. This court reversed that judgment upon the doctrine stated in the Mesher case, supra, on the ground that the landlord’s promise to repair absolved the tenant from the assumption of the risk; and that, if such promises were made, the tenant was warranted in remaining in the house for a reasonable time awaiting performance. It was also held that, whether she remained an unreasonable time and was guilty of contributory negligence, was a question of fact.\nAppellant relies largely upon the decision in the Stoops case, supra. In that case, there had been continued use for more than five months of the defective steps, with knowledge on the part of the tenant that they were in disrepair, and increasingly so, and that no effort had been made by the landlord to comply with its promise to repair. It was shown that the defect was of such a simple nature that the repairing of it would have consumed very little time or material. The inquiry was as to whether the defect was patent-or latent. It was shown that the steps which were made of wood, were not enclosed; that they showed a sagging upon their surface, and that anyone could have seen the defect and known the cause of it. It was stated that the cause of the situation, if not open and apparent, was ascertainable by a most casual investigation, and that, if respondents made no such investigation, they were charged with the duty of making it, and assumed the risk of what they would have discovered had it been made.\nThe situation is not the same in this case. Here the looseness of the tops of the steps showed that they were in disrepair. This condition was called to the attention of the landlord. He agreed to put the steps in good repair, and did not do so. Had he made any effort to put the steps in good repair, as promised, he would have found the cause of the defect. The steps were loose upon their supports because the supports were rotted away, and therefore would not hold nails. The mere looseness of the tops of the steps was not what caused the injury. That, of course, was patent, but the rottenness and defectiveness of the supports was not patent, and could not have been discovered by respondent by a casual inspection, and was not discovered by her. Consequently the case falls within the rule announced in Lowe v. O’Brien, supra, and the other cases cited. There was no error, therefore, in denying appellant’s several motions for the dismissal of the case, for judgment n. o. v., or for a new trial.\nFor the same reasons, there is no merit in appellant’s contention that an instruction excepted to, to the effect that, where the landlord agreed to keep the premises in repair for the tenant from month to month, who had been a tenant for some time, and has full knowledge that the premises are in need of repair, the tenant is warranted in remaining- in the house for a reasonable time awaiting the performance on the part of the landlord. This, for the reason, as has been said, that the defects which were open and apparent and called to the attention of the landlord did not constitute the defect which caused the injury, which was not open and apparent, and could not have been discovered by respondent by a casual examination, but could have been discovered by appellant by making a proper examination for the purpose of putting the steps in repair.\nAppellant also claims error in giving an instruction, a part of which reads: “and also such pain and suffering as plaintiff may suffer in the future. ’ ’\nAppellant insists that this instruction, which was a part of the instructions of the court on the measure of damages allowable to respondent, is the wrong measure of damages for future suffering; that it permits speculation on the part of the jury. It is urged that the only proper charge upon that element of damages was that damages for \""such pain and suffering as was reasonably certain that she would suffer in the future” might be allowed, citing Gallamore v. Olympia, 34 Wash. 379, 75 Pac. 978; Ongaro v. Twohy, 49 Wash. 93, 94 Pac. 916.\nIn the Gallamore case, supra, an instruction using the words \""probable pain and suffering” was criticized by the appellant, but the court sustained its use.\nIn the Twohy case, supra, the court condemned the use of the words \""which he may suffer in the future” and held that respondent was entitled to recover only for such pain and suffering as are reasonably certain to result from the injury.\nWe find, however, that the court has departed from that rule in Kane v. Nakamoto, 113 Wash. 476, 194 Pac. 381, where we held that error cannot he assigned upon an instruction as to future suffering because the words “reasonably certain” are not used, where the jury are simply told that they can award damages for all of the consequences of the injury, one of which would be future suffering. Also, in Meehan v. Husselgrave, 121 Wash. 568, 210 Pac. 2, where the instruction excepted to was identical with that excepted to in this case, the court said:\n‘ ‘ The criticism is that the instruction does not limit the recovery for future pain and suffering to such as will be reasonably certain to result from the injury. The appellant requested no different instruction on the subject; and while it is not the same, word for word, with the instruction on this subject approved in the case of Ongaro v« Twohy, . . . it is sufficient according to the doctrine of the more recent case of Kane v. NaJcamoto, . . . for the reasons therein given.”\nWe are unable to find any error justifying a reversal, and the judgment is therefore affirmed.\nMain, C. J., Tolman, Fullerton, Parker, Bridges, Pemberton, and Mitchell, JJ., concur."", ""type"": ""majority"", ""author"": ""Holcomb, J.""}, {""text"": ""Mackintosh, J.\n(dissenting) — I cannot agree with this result."", ""type"": ""dissent"", ""author"": ""Mackintosh, J.""}], ""attorneys"": [""Kerr, McCord & Ivey, for appellants."", ""George A. Custer, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 18499.\nBn Banc.\nDecember 10, 1924.]\nAnna B. Johnson, Respondent, v. Harry W. Dye et al., Appellants.\nLandlord and Tenant (.77, 86) — Defective Premises — Duty and Liability to Tenant • — ■ Latent Defects —• Evidence — Question for Jury. Tbe liability of the landlord for injuries sustained by the tenant through a defective step is a question for the jury, where the injury was due to a rotten support, which was inclosed, and not patent or discoverable by the tenant by casual inspection, the steps were patently defective in that the top boards were loose, and the landlord had promised to repair them, and had he done so or inspected them, the latent defect in the supports would have heen discovered.\nSame (81, 86) — Defective Premises — Contributory Negligence of Tenant — Question fob Jury. In such a case, the assumption of risks or contributory negligence of the tenant, and the question as to what was a reasonable time for performance of the promise to repair, is a question for the jury, where she rented the premises in July, when the promise to repair was made, and she used the steps until October 22, under repeated promises to repair, knowing the top boards were loose, but not knowing of the latent defect of the rotten supports, which could not he inspected except hy taking up the hoards.\nSame (85) — Defective Premises — Trial—Instructions. In an action for personal injuries sustained hy a tenant through a latent defect in a step, in which it appears that the landlord had promised to repair the steps, it is proper to instruct that the tenant was warranted in remaining in the house for a reasonable time awaiting the performance of the promise.\nDamages (47) — Future Pain and Suffering — Instructions. Error cannot be assigned upon a mere exception to instructions as to pain and suffering which the plaintiff “may suffer in the future” because the words “reasonably certain” were not used.\nMackintosh, J., dissents.\nAppeal from a judgment of the superior court for King county, Brinker, J., entered October 13, 1923, upon the verdict of the jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a tenant through a defective step.\nAffirmed.\nKerr, McCord & Ivey, for appellants.\nGeorge A. Custer, for respondent.\nReported in 230 Pac. 625.""}, ""cites_to"": [{""cite"": ""230 Pac. 625"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""210 Pac. 2"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""121 Wash. 568"", ""case_ids"": [757437], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/121/0568-01""], ""opinion_index"": 0}, {""cite"": ""194 Pac. 381"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""113 Wash. 476"", ""case_ids"": [704317], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/113/0476-01""], ""opinion_index"": 0}, {""cite"": ""94 Pac. 916"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""49 Wash. 93"", ""case_ids"": [549603], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/49/0093-01""], ""opinion_index"": 0}, {""cite"": ""75 Pac. 978"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""34 Wash. 379"", ""case_ids"": [5212191], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/34/0379-01""], ""opinion_index"": 0}, {""cite"": ""135 Pac. 295"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""77 Wash. 677"", ""case_ids"": [615520], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/77/0677-01""], ""opinion_index"": 0}, {""cite"": ""219 Pac. 876"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""127 Wash. 82"", ""case_ids"": [8841137], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/127/0082-01""], ""opinion_index"": 0}, {""cite"": ""206 Pac. 959"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""120 Wash. 82"", ""case_ids"": [754440], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/120/0082-01""], ""opinion_index"": 0}, {""cite"": ""145 Pac. 417"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""83 Wash. 394"", ""case_ids"": [604041], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/83/0394-01""], ""opinion_index"": 0}, {""cite"": ""48 L. R. A. (N. S.) 917"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A.N.S."", ""opinion_index"": 0}, {""cite"": ""134 Pac. 1092"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""75 Wash. 439"", ""case_ids"": [622661], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/75/0439-01""], ""opinion_index"": 0}, {""cite"": ""52 L. R. A. (N. S.) 578"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A.N.S."", ""opinion_index"": 0}, {""cite"": ""134 Pac. 927"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""75 Wash. 255"", ""case_ids"": [622625], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/75/0255-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""131 Wash. 637"", ""type"": ""official""}], ""file_name"": ""0637-01"", ""last_page"": ""645"", ""first_page"": ""637"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T16:58:53.041366+00:00"", ""decision_date"": ""1924-12-10"", ""docket_number"": ""No. 18499"", ""last_page_order"": 679, ""first_page_order"": 671, ""name_abbreviation"": ""Johnson v. 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+784369,"{""id"": 784369, ""name"": ""Roy Curtis et al., Respondents, v. Puget Sound Bridge & Dredging Company, Appellant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""8741d1300cf3add3551db43b617e8ca742014b91fae042c860113a9484d0066a"", ""simhash"": ""1:92d6ac89b4df4dec"", ""pagerank"": {""raw"": 0.00000015594890354246325, ""percentile"": 0.6766743929858459}, ""char_count"": 22912, ""word_count"": 3961, ""cardinality"": 939, ""ocr_confidence"": 0.494}, ""casebody"": {""judges"": [], ""parties"": [""Roy Curtis et al., Respondents, v. Puget Sound Bridge & Dredging Company, Appellant.""], ""opinions"": [{""text"": ""Mackintosh, J.\nThe James Henry Packing plant is situated on the tide flats in the city of Seattle on the west side of Ninth avenue south. One of the buildings is approximately 240 feet square and rests upon 800 piles, and in 1923 it became necessary to raise it four and one-third feet to conform to the newly established grade-on Ninth avenue south. In June the respondents took the contract to make the raise and started work in the first week of that month. The city of Seattle, desirous of changing the grade of Ninth avenue south and filling the street as it was extended over the tide flats, in March, 1923, had entered into a contract with the appellant to do this work. This fill was to be made by sluicing dirt from a hill lying on the opposite side of Ninth avenue south from the Henry plant. When the respondents began work on their contract, there was an open space between the floor joists of the building and the tide flats underneath of an average of five feet, and a good deal of the earth underneath was dry and could be conveniently used by the respondents’ employees in their work in preparing the building to be raised and in the work of raising it. Under the building was a couple of ditches used for the purpose of taking off water which accumulated from various sources, the water from these ditches being emptied by pumps.\nThe respondents had been prosecuting their work for a few days when water carrying clay from the fill being made in Ninth avenue south began to cover the earth underneath the building. This condition continued until the last day of August when the respondents completed their work, and during that time there were from 18 inches to 30 inches of slime and mud deposited underneath the building by the appellant’s operations, this mess coming up to within two and one-half feet of the floor joists. This condition, the respondents contend, necessitated the use by them of more material than they otherwise would have had to use, delayed their work by reason of the fact that their employees, under the unfavorable conditions, could not do more than one-third to one-fourth of the average day’s work, and resulted in the loss of some of their equipment.\nThis action was begun against the appellant to recover these damages, and as a co-defendant one Case was joined with the appellant, it being alleged in the complaint that Case was a vice-principal of the appellant and in charge of the work. Recovery is sought upon the ground that the appellant, in carrying out its contract with the city, was negligent in at least two particulars ; namely: that, for the purpose of holding the fill it constructed bulkheads which were defective in that they allowed a portion of the filling material to spread over the ground underneath the Henry plant; and second, that there was negligence in breaking a city water main on Ninth avenue south, which added to the flood underneath the building. After an extended trial which produced about 1,000 pages of statement of facts, the jury returned a verdict for $6,446.55 in favor of the respondents against the appellant, and a verdict discharging Case from liability. The sluicing' company appeals and presents many reasons why the judgment should be reversed.\nThe first of the reasons suggested is that the release of Case by the jury is, in law, a release of the appellant, and that therefore the motion for judgment notwithstanding the verdict should be granted. In Doremus v. Root, 23 Wash. 710, 63 Pac. 572, 54 L. R. A. 649, the rule was announced, which has been followed in some thirteen or fourteen cases since, that a judgment in favor of the servant, in an action to recover damages for a tort committed by the servant, is a bar to an action against the master to recover damages for the same tort of the servant, and where the servant and the master have been joined in actions of this nature a dismissal of the servant dismisses the master. With this rule of law there can be no quarrel, and were the record indisputably such as would justify the court or a jury in saying that the acts which are relied on as a basis of the respondents’ cause of action were acts committed by Case as a servant or employee of the appellant, the argument of appellant would be conclusive. The record, however, discloses a dispute, and although it is true that the respondents drew their complaint on the theory that Case was the one who, as a representative of the appellant, was guilty of the negligent acts, the testimony introduced alters the situation, and it is upon the testimony in the case and not upon the allegations in the complaint that, under the rules of practice in this court, the issue must be determined. There was testimony, which the jury had a right to believe, that Case was, as described by one of appellant’s witnesses, a fill superintendent only, and that he was under the supervision of other employees and officers of the appellant, and that the principle of respondeat superior is not conclusive in this action, and the jury had a right to believe that the appellant was guilty of negligence independently of any negligence of Case, and under such conditions the release of the employee would not release the master. Jones v. Seattle, 51 Wash. 245, 98 Pac. 743; O’Brien v. American Casualty Co., 58 Wash. 477, 109 Pac. 52; Aldrich v. Inland Empire Tel. & Tel. Co., 62 Wash. 173, 113 Pac. 264; Armack v. Great Northern R. Co., 126 Wash. 533, 219 Pac. 52.\nThe next reason assigned for the absolute release of the appellant from liability is that the appellant, doing work under the direction of the city officials, was only an employee of the city, and the city in this case acted within its general power for the granting of contracts for street work, and the work was done in accordance with the provisions of the contract and under the supervision of the city officials, who superintended the work, and if damages resulted from no negligence or wrongdoing of the contractor, but from the performance of the contract in the way it is required to be done by the contract, then the contractor was the agent of the city and was not liable to a person injured thereby, who must seek his redress from the city. Dillon, Municipal Corporations (5th ed.), vol. 3, page 1655; Lund v. St. Paul, M. & M. R. Co., 31 Wash. 286, 71 Pac. 1032, 96 Am. St. 906, 61 L. R. A. 506; Potter v. Spokane, 63 Wash. 267, 115 Pac. 176; Wood v. Tacoma, 66 Wash. 266, 119 Pac. 859; Casassa v. Seattle, 66 Wash. 146, 119 Pac. 13; Quinn v. Peterson & Co., 69 Wash. 207, 124 Pac. 502; Kaler v. Puget Sound Bridge & Dredging Co., 72 Wash. 497, 130 Pac. 894; Stern v. Spokane, 73 Wash. 118, 131 Pac. 476, 46 L. R. A. (N. S.) 620; Hieber v. Spokane, 73 Wash. 122, 131 Pac. 478; Larned v. Holt & Jeffery, 74 Wash. 274, 133 Pac. 460, 46 L. R. A. (N. S.) 635; Ettor v. Tacoma, 77 Wash. 267, 137 Pac. 820; Granger Tel. & Tel. Co. v. Sloan Bros., 96 Wash. 333, 165 Pac. 102.\nWith this rule of law there cau he no quarrel, hut it is inapplicable to the present situation, for the damage which is sought to he recovered from the appellant is not the consequential damage by reason of appellant’s carrying out its contract with the city, hut the damage Which it is alleged resulted from the negligence of the appellant in doing that work. There is no evidence in the case that the plans of the city were in any way to blame for the damage, or that they were incomplete or defective, hut testimony was introduced showing appellant’s own negligence. The complaint in regard to the bulkhead is based upon the fact that it was not designed to and did not hold the filled water, and the jury were entitled to believe, and evidently did believe, that the plan of the bulkhead was made and followed by the appellant and was not prescribed by the city in its contract. Under such. circumstances, the rule as announced in the foregoing cases is inapplicable, and the court was correct in refusing to dismiss the appellant on this ground.\nWe now approach the question whether any negligence was shown upon the part of the appellant.\nConsidering, first, the situation in regard to the bulkheads, the contract with its appurtenances covers some thirty-five or forty typewritten pages, and the plans and specifications, which are also made a part of the contract, appear in a bound volume of 194 printed pages. As far as our attention has been directly called to the portions which are material to this controversy, and from the independent investigation which we are able to make in the time that can reasonably be allotted to the consideration of a case in this court, we are unable to find that the city provided the manner in which the bulkheads or retaining wall which were to hold the fill on the side of the street next to the Henry plant were to be constructed. The contract simply provides for a iy2 to 1 fill, and it apparently was the intention to leave to the appellant the manner in which that fill was to be placed and protected. The plans and specifications contain a provision that the contractor: ‘ ‘ shall at his own expense, shore up, protect and make good, as may be necessary, all buildings, walls, fences or other property injured, or likely to be injured during the progress of the work, and shall be held responsible for all damage to neighboring property, streets, or improvements, resulting from his neglect to exercise proper precaution in the prosecution of the work.” There is also a provision to this effect: “Bidders must examine the location of the proposed improvement and judge for themselves the nature of the work to be done.” These provisions fortify the statement first made that the manner in which the bulkheads were to be constructed, if they were necessary, was a matter for the appellant to determine.\nThe testimony shows that the bulkhead as it was constructed was satisfactory to the representative of the city engineer’s office who was in charge of the supervision of appellant’s work on behalf of the city, but this, of course, is not conclusive that the work may not have been negligently done as it relates to the liability of the appellant under the sections of the plans and specifications which we have just quoted, or under the liability impressed by law upon one not to injure another who is in the rightful enjoyment of his property, and of course the respondents were doing work which they had a right to do and in a place where they had a right to be and the law protects them against the negligent acts of another which result in their damage.\nContention is made, however, that the damage which the respondents claim was the result of a defective bulkhead did not come from that source, that what really happened was that this fill, being made upon the soft tide lands, when the earth was deposited by the sluicing on that loblolly the weight thereof caused the entire mass to rise up on either side under the bulkheads, and that this movement squeezed out the soft substance which overflowed the ground underneath the Henry building, and in substantiation of this contention the appellant produced testimony that, prior to the movement of the loblolly, there was no giving way or breaking of the bulkhead; that the bulkhead moved as a body, together with the mass of fill that had been put in and the loblolly of the tide flats below. In other words, that what happened was that the fill material did not go through the bulkheads and break them, but that the earth underneath the fill oozed out by reason of the weight impressed upon it, and that if this resulted from negligence it was from that of the city in adopting the plan of and making the improvement, which the contractor was simply carrying out in accordance with that plan.\nThis is a question of fact and the jury evidently believed that the substance in which the respondents’ employees were compelled to work underneath this building was not tide flat material but clay fill material, as was testified to by respondent’s witnesses. The jury had a right to believe the witnesses that fill material and water were coming through the bulkhead and that the bulkhead was improperly constructed, in that the material was not the proper kind and that the posts were not of sufficient strength or sufficiently embedded in solid ground to keep the bulkhead from bulging out, as the testimony shows it did. For a distance of over one hundred feet on the northern end of the fill opposite the Henry plant, the bulkhead moved westerly in mass. Under such a disputed condition of facts, the court could not say there was no evidence of appellant’s negligence and that the fault, if any, arose from the defective plans of the city.\nThe other ground of negligence is that the appellant allowed the water from the water-main on Ninth avenue south to flow over the Henry plant ground, and that this excessive amount of water, together with the debris from the fill, clogged the ditches provided for the passing off of the water under the plant and added to and aggravated the situation caused by the improper bulkhead. Appellants contend that, under the contract, they had nothing to do with the water-main, that the city at all times was in charge of it and that the contractor never touched it, and a representative of the city engineer’s office testified that the water-main was not part of the contract and that the city had complete control of it. Testimony was also introduced that the break in the water-main occurred after the contractor’s work had stopped and in no event could it have done any damage. The testimony, however, was that something forced the water-main to the west towards the Henry plant and bent and broke it. If this forcing and breaking came by reason of the negligence in the construction of the bulkhead which allowed the fill to exude to the westward, the provision in regard to the water pipes in the contract with the city would not relieve the appellant from liability for the extra amount of water coming over the property through the broken water-main.\nIt is claimed that because the Henry plant is built on low ground where water in a certain amount continually ran under it and where it was always necessary to maintain pumps to keep the water down, that there has been no segregation by the respondents of the damage done by the water which came in naturally and that which come from the appellant’s operations. The testimony, however, shows that all the water which customarily came in before the appellant did its work would not have interfered with the respondents’ carrying out their contract; that the respondents had full knowledge of the situation in normal conditions, and are only asking damages occasioned by abnormal conditions resulting from the deposit of material on the fill, and that the sediment so deposited filled up the ditches which otherwise would have taken care of the normal water accumulation.\nThe next reason given for reversal is that no damages were proved. This contention can be briefly disposed of by the statement that there is abundant testimony, which the jury had a right to believe, that the efficiency of the respondents’ workmen was greatly reduced by being compelled to work in the mud and water, that many thousand extra feet of lumber were made necessary, that material had to be handled in the slime, and that tools and jacks were lost by reason of these conditions. Under such a record it cannot be successfully claimed that no damages were proved.\nLeaving now the reasons urged for a judgment notwithstanding the verdict, we pass to the consideration of the reasons assigned for the granting of a new trial.\nThe first is that passion and prejudice were shown in the verdict. The argument on this is that the evidence against Case was much stronger than that against the company, and the jury, having discharged Case and not the company, showed it was actuated by passion and prejudice. We cannot so view the situation. Juries sometimes move in dim and muddy ways, but when so moving the actuating force is not necessarily passion and prejudice. There was testimony introduced that Case had been overruled in his ideas and that the bulkhead was constructed contrary thereto. If this was true, the jury might well find that Case was not negligent in any way, but that his employer was.\nThe next reason for granting a new trial is alleged to be the misconduct of respondents’ counsel in his argument to the jury. It is to be remembered that this trial lasted many days, involved complicated facts, was bitterly contested, and under such conditions considerable leniency in this respect may be indulged. Moreover, the record does not show that the appellant objected to the respondents’ argument, nor was any request made to the court to instruct the jury to disregard it, and if there were any error it has been waived.\nThe next reason is that the court refused to submit to the jury the question of respondents’ contributory negligence. In its answer, the appellant had pleaded contributory negligence and requested an instruction on that subject. The requested instruction did not contain a proper statement of the law, and moreover the court gave several proper instructions upon contributory negligence.\nAn instruction is urged as error which contained a statement that the contract between the appellant and the city gave the appellant no license to flood with water or mud adjoining privately owned property, and that if, in carrying out its contract, the appellant negligently damaged the respondents it would be liable in damages, and that the negligence of the city was not material to the case. The objection is to the use of the words “no license to flood the premises,” and that the jury was not to take into consideration the city’s negligence. We do not find sufficient error in this instruction to hold that it was prejudicial to the extent of entitling appellant to a new trial.\nThe next instruction complained of is one telling the jury that it is immaterial whether respondents did or did not make a profit or sustain a loss in their contract with the packing company. This seems to properly state the law and no authority has been cited to the contrary.\nThe next error alleged is that the court allowed repeated amendments to the pleadings throughout the trial. This was a matter within the discretion of the trial court and we see no abuse of it. The amendments were of matters which were within the knowledge of both parties to the litigation.\nError is also assigned, without any argument and in general terms, that the court erred in refusing to charge the jury on certain matters. The assignments are so indefinite and the record is so voluminous that we will give them no more serious consideration than the appellant has apparently given them in its brief.\nThe last assignment is that the verdict is excessive. We have already stated enough to show that, if the jury believed the respondents’ testimony in regard to the extra work and material necessitated by the appellant’s acts, it was justified in returning a verdict as it did, and the testimony covering those items shows an amount justifying the verdict.\nOn the whole record we find nothing to justify the reversal of the case, and the judgment is therefore affirmed.\nTolman, C. J., Holcomb, and Mitchell, JJ., concur.\nFullerton, J., concurs in the result."", ""type"": ""majority"", ""author"": ""Mackintosh, J.""}], ""attorneys"": [""Roberts & Skeel, for appellant."", ""Griffin & Griffin, for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 19043.\nDepartment Two.\nMarch 6, 1925.]\nRoy Curtis et al., Respondents, v. Puget Sound Bridge & Dredging Company, Appellant.\nTrial (134)—Verdict—Construction and Operation—Joint Tort Feasors—Verdict Dismissing One Defendant. A verdict against a servant does not release the employer for negligence in the performance of a contract, to the damage of a third person, where there was a conflict in the testimony and the jury had a right to believe that the servant was not, as alleged in the complaint, the one who was guilty of the negligence and that the master was guilty of negligence irrespective of the acts of the servant.\nMunicipal Corporations (409)—Improvements—Damages—Lia-bility of Contractor. It is no defense to a contractor’s negligence in the performance of a contract, to the damage of a third person, that he was working under the supervision of the city officials, where the damage was not due to negligent or defective plans of the city, but to the contractor’s own negligent acts.\nSame (409)—Damages—Negligence of Contractor—Evidence— Sufficiency. There is sufficient evidence of the negligence of a contractor in building a bulkhead to hold back the flow of land sluiced in to make a fill, where there was evidence that the weight of the fill moved the bulkhead bodily, rather than that the weight of the mass squeezed out the soft material underneath, due to faulty plans, the evidence being conflicting on these points.\nSame (409). A provision in a contract for public work giving the city complete control of a water main does not relieve the contractor from liability for the breaking of the main, where there was evidence that the break was due to the negligence of the contractor in building a bulkhead and making a fill.\nSame (475, 479)—Actions—Damages—'Evidence—Sufficiency. Damages to plaintiff, a third person, through the negligence of a contractor in performing a city contract, is abundantly shown where it appears that thereby the plaintiff’s work was greatly impeded, the efficiency of his workmen greatly reduced, tools were lost, and much extra material necessarily purchased.\nNew Trial (21)—Grounds—Verdict Contrary to Evidence. In an action against a master and servant, passion and prejudice, warranting a new trial, is not shown by the jury’s discharge of the servant and holding the master for negligence in performing a contract, where there was evidence that the servant’s ideas were overruled and a bulkhead negligently constructed contrary thereto.\nSame (11)—Grounds—Misconduct of Counsel. Error in misconduct of counsel in argument to, the jury is waived where it was not objected to at the time and no request made for instructions to disregard.\nTrial (101)—Instructions—Requests. Error cannot be assigned upon refusing a requested instruction which was incorrect, and the matter was covered by other instructions.\nMunicipal Corporations (479)—Improvements — Damages — Instructions. In an action for damages to a contractor for interfering with and increasing the cost of his work, the jury is properly instructed that it is immaterial whether he could have made any profit on his contract.\nPleading (101)—Amendments—Discretion. It is discretionary to allow trial amendments to the pleadings.\nAppeal from a judgment of the superior court for King county, Griffiths, J., entered September 26, 1924, upon the verdict of a jury rendered in favor of the plaintiffs, in an action in tort.\nAffirmed.\nRoberts & Skeel, for appellant.\nGriffin & Griffin, for respondents.\nReported in 233 Pac. 936.""}, ""cites_to"": [{""cite"": ""233 Pac. 936"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""165 Pac. 102"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""96 Wash. 333"", ""case_ids"": [651385], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/96/0333-01""], ""opinion_index"": 0}, {""cite"": ""137 Pac. 820"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""77 Wash. 267"", ""case_ids"": [615496], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/77/0267-01""], ""opinion_index"": 0}, {""cite"": ""46 L. R. A. (N. S.) 635"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A.N.S."", ""opinion_index"": 0}, {""cite"": ""133 Pac. 460"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""74 Wash. 274"", ""case_ids"": [620620], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/74/0274-01""], ""opinion_index"": 0}, {""cite"": ""131 Pac. 478"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""73 Wash. 122"", ""case_ids"": [291223], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/73/0122-01""], ""opinion_index"": 0}, {""cite"": ""46 L. R. A. (N. S.) 620"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A.N.S."", ""opinion_index"": 0}, {""cite"": ""131 Pac. 476"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""73 Wash. 118"", ""case_ids"": [291267], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/73/0118-01""], ""opinion_index"": 0}, {""cite"": ""130 Pac. 894"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""72 Wash. 497"", ""case_ids"": [591417], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/72/0497-01""], ""opinion_index"": 0}, {""cite"": ""124 Pac. 502"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""69 Wash. 207"", ""case_ids"": [566840], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/69/0207-01""], ""opinion_index"": 0}, {""cite"": ""119 Pac. 13"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""66 Wash. 146"", ""case_ids"": [561079], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/66/0146-01""], ""opinion_index"": 0}, {""cite"": ""119 Pac. 859"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""66 Wash. 266"", ""case_ids"": [561149], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/66/0266-01""], ""opinion_index"": 0}, {""cite"": ""115 Pac. 176"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""63 Wash. 267"", ""case_ids"": [552615], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/63/0267-01""], ""opinion_index"": 0}, {""cite"": ""61 L. R. A. 506"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A."", ""opinion_index"": 0}, {""cite"": ""71 Pac. 1032"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""31 Wash. 286"", ""case_ids"": [2445418], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/31/0286-01""], ""opinion_index"": 0}, {""cite"": ""219 Pac. 52"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""126 Wash. 533"", ""case_ids"": [774456], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/126/0533-01""], ""opinion_index"": 0}, {""cite"": ""113 Pac. 264"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""62 Wash. 173"", ""case_ids"": [613218], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/62/0173-01""], ""opinion_index"": 0}, {""cite"": ""109 Pac. 52"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""58 Wash. 477"", ""case_ids"": [526296], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/58/0477-01""], ""opinion_index"": 0}, {""cite"": ""98 Pac. 743"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""51 Wash. 245"", ""case_ids"": [544226], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/51/0245-01""], ""opinion_index"": 0}, {""cite"": ""54 L. R. A. 649"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A."", ""opinion_index"": 0}, {""cite"": ""63 Pac. 572"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""23 Wash. 710"", ""case_ids"": [5148219], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/23/0710-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""133 Wash. 323"", ""type"": ""official""}], ""file_name"": ""0323-01"", ""last_page"": ""334"", ""first_page"": ""323"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T20:58:17.467204+00:00"", ""decision_date"": ""1925-03-06"", ""docket_number"": ""No. 19043"", ""last_page_order"": 368, ""first_page_order"": 357, ""name_abbreviation"": ""Curtis v. Puget Sound Bridge & Dredging 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+788763,"{""id"": 788763, ""name"": ""F. A. Small, Respondent, v. The City of Seattle et al., Appellants"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""a1f94d19a9b728a0201c51f239da5ee1bfe13b322c9ac0822fbd258b7edd687f"", ""simhash"": ""1:2e3bbfa45552ab3c"", ""pagerank"": {""raw"": 0.00000016855493294715548, ""percentile"": 0.6982356886443959}, ""char_count"": 12998, ""word_count"": 2223, ""cardinality"": 565, ""ocr_confidence"": 0.516}, ""casebody"": {""judges"": [], ""parties"": [""F. A. Small, Respondent, v. The City of Seattle et al., Appellants.""], ""opinions"": [{""text"": ""Parker, J.\nThe plaintiff, Small, seeks recovery for damages to his dwelling house, which he claims resulted from negligent sluicing operations carried on by the defendant dredging company and sanctioned by the defendant city in the construction of city local improvements. The case proceeded to trial upon the merits in the superior court for King county, sitting without a jury, resulting in findings and judgment awarding recovery to Small as against both the city and the dredging company, from which they have both separately appealed to this court.\nOn March 30, 1923, the dredging company contracted with the city to improve approximately a mile of Ninth avenue south and small portions of other adjacent streets, by grading and paving. This portion of the avenue lies along the easterly edge of the tide flats to the south of the city. The natural surface of the avenue being below the grade of that which the city established for its improvement, its grading, under the contract, was filling up to the city’s established grade. On the same day, the dredging company contracted with the city to improve certain city property lying upon the hill above the portion of Ninth avenue to be so improved. This hill improvement called for the removal and wasting of a large quantity of earth. While these two contracts were entirely separate as to the rights and obligations of the contracting parties, it is plain that they were awarded by the city to one concern, the dredging company, with a view of the efficient and economical carrying on of the work of both at the same time, in that the wasted earth from the hill improvement could be used in the filling of the Ninth avenue improvement. The specifications for the Ninth avenne improvement provided, among other things, that “the fill shall be made by hydraulic methods or by sluicing into place if delivered as dry earth;” thus giving to the dredging company the choiee of methods of bringing the earth to the Ninth avenue fill, the city sanctioning either method.\nThe extreme southern end of the Ninth avenue improvement is at Spokane avenue, which runs east and west. Small’s house is situated near Seventh avenue, four blocks farther south. It has a basement with concrete walls which has always been dry and free from water, though the floor of the basement is about on a level with high tide. The ground on which the dwelling sets appears to be filled-in ground of a sandy porous nature in which water readily maintains a common level. The O. & W. railway tracks entering the city from the south run along Fifth avenue; that is, four blocks west of and parallel with Ninth avenue. These tracks are on a grade which prevents the free flow of water from east to the west out to the bay, other than through an opening in the railway grade nearly directly west of Small’s house, in the course of which is apparently a natural slough, which carries the water flowing from east to west across the railway and has apparently always been sufficient to take care of all of the waters accumulating on the east side of the railway, up until about April 24,1923. In addition to the natural accumulation of water on the east side of the railway, there was a period of some three months’ extra sluicing water used in the improvement of Sixth avenue and also certain waste water from a city reservoir upon the hill, all of which was able to escape through the opening in the railway grade without damage to Small’s house.\nSuch were the conditions in the neighborhood on about April 24, 1923, up to which time Small’s basement had not been invaded with water. On that day the dredging company commenced sluicing earth from the hill-to the Ninth avenue improvement. This was accomplished by the use of a 24-inch main under pressure. The water so used was brought by the dredging company from Lake Washington over the hill from the east. This sluicing was continued without interruption for a period of six days; that is, up to May 1, 1923. In order to escape, this large surplus of water also had to find its way out to the west \""through the slough through the railway grade at Fifth avenue west of Small’s house. That opening did not prove sufficient for the escape of the water as so augmented in quantity, and therefore the low ground east of the railway grade, extending to within some one hundred and twenty feet of Small’s house,-became more or less inundated,' thus bringing the level of the water some eighteen inches above the level of the floor of his basement and the invasion of his basement with water at approximately that depth. This water caused damage to the foundation walls of the house and also to Small’s furnace in the basement, for which recovery was awarded to him.\nIt is contended in behalf of the dredging company that it should be exonerated from all liability to Small, because the evidence does not support, indeed negatives, as it is claimed, the conclusion that the water it used in its Ninth avenue sluicing caused the damage to Small’s house. This contention seems to be rested principally upon the testimony of Small, wherein he seems to say that the water came from the north towards his house through an opening in the Spokane avenue grade at Sixth avenue. It is plain that the water used in the sluicing of the Ninth avenue improvément did not come through that opening in the grade of Spokane avenue, but came through an opening in the grade of Spokane avenue at Seventh or Eighth avenue. In other words, there were two openings in the grade of Spokane avenue, and Small seems to have been mistaken as to through which one the water from the Ninth avenue sluicing came south. The water from the sluicing of the Sixth avenue improvement came through the opening of the grade of Spokane avenue at Sixth avenue. These waters, however, and all waters coming from the north to the south and southwest towards the opening in the railway grade united in the slough a short distance south of Spokane avenue. The fact remains that the sluicing water from the Ninth avenue improvement was the surplus water which caused the inundation of several blocks of territory between Small’s house and the railway grade; that is, had not the dredging company added to the water then seeking an outlet through the slough and the opening through the railway grade, the water would not have invaded Small’s basement. We, therefore, think that the mistake of Small, in assuming that the water came through the Spokane avenue grade from the north at Sixth avenue instead of at Seventh or Eighth avenue, is of no controlling force in our present inquiry.\nIt is further contended that the fault lay with the railway company, rather than with the dredging company, in that the railway company had not provided sufficient openings through its grade on Fifth avenue and its grade for its other tracks at First avenue. The answer to this, we think, is that the openings maintained by the railway company were sufficient in size to take care of all waters seeking outlet up to April 24, 1923, and prevent resulting damage to Small’s house. The railway company was not bound to anticipate that the flow of water through its openings would be augmented to the extent that was done by the dredging company.\nContention is made in behalf of the dredging company that it, in no event, is liable for all of the damage to Small’s house, because the water from its sluicing of the Ninth avenue improvement was only a portion of the water which caused such damage. The argument seems to be that a portion of the damages, in any event, ought to have been assessed against the contractors who were filling the Sixth avenue improvement by sluicing. \""We think, under the evidence, the court was fully warranted in apportioning all of the damage as against the dredging company and the city. When the dredging company commenced its sluicing operations on April 24,1923, it seems plain that Small’s basement was not threatened with invasion by water. In other words, had the dredging company not then commenced and carried forward its sluicing operations on such an extensive scale, Small’s basement would not have been invaded with water at all.\nSome contention.is made in behalf of the dredging company that it, in no event, should be held liable, because it was doing the work as an independent contractor, according to plans and specifications prepared by the city. We have seen that the dredging company was entirely free to bring the earth to the Ninth avenue improvement, either by sluicing or as dry earth, sluicing it into place thereafter, which, of course, would require very much less water. This, we think, is sufficient to render it liable for the damage.. The conveyance of the earth by sluicing operations was not doing something that it was necessary for it to do in the construction of the improvement. The sluicing was a mere alternative means to an end; it was not the end which the city contracted to have the dredging company accomplish.\nIt is contended in behalf of the city that it in any event should not be held liable to Small for the damage to his house, because the dredging company was an independent contractor. This contention, we think, is not well founded, in view of the city sanctioning the conveyance of the earth to the Ninth avenue improvement by sluicing process. This it manifestly did by the express provision of the specifications above noted; and besides, it is manifest that the city had an inspector upon the work watching its progress, who had full knowledge of the dredging company so using the sluicing process for conveyance of the earth and also had full knowledge of the possibility of damage from the turning loose of such a large volume of water in that neighborhood continuously for a period of six days, especially in view of the fact that the slough outlet through the grade of the railway on Fifth avenue was manifestly already nearly taxed to its limit. \""We do not think that the city ought to be permitted to escape liability merely because the dredging company was acting for it, generally speaking, as an independent contractor.\nIt is further contended in behalf of the city that the claim of damage filed by Small with the city council, upon which he commenced this action, is defective as a basis of recovery therein; this, because in that claim he stated that the water “overflowed the claimant’s property . . . filled the basement beneath said dwelling to a depth of eighteen inches.” The argument seems to be that, because the evidence showed that the water came into the basement by seepage, that is, by merely maintaining, because of the porous nature of the ground, its level in the basement the same as outside, such was not an overflowing into the basement. We do not think that this is a substantial variance between tbe proof and tbe claim, and that tbe city was no-t misled thereby. See Murray v. Seattle, 96 Wash. 646, 165 Pac. 895, and our numerous previous decisions therein cited.\nThe judgment against both the city and the dredging company is affirmed.\nTolman, C. J., Mackintosh, Mitchell, and Main, JJ., concur."", ""type"": ""majority"", ""author"": ""Parker, J.""}], ""attorneys"": [""Thomas J. L. Kennedy and Arthur Schramm, for appellant City of Seattle."", ""Roberts & Skeel, for appellant Puget Sound Bridge and Dredging Company."", ""Shorett, McLaren & Shorett and Edward R. Taylor, for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 19864.\nDepartment Two.\nJuly 15, 1926.]\nF. A. Small, Respondent, v. The City of Seattle et al., Appellants.\nMunicipal Corporations (194, 478)—Public Improvements— Defects or Obstruction in Change of Water Courses—Persons Liable. Where a street improvement involving sluicing operations augmented the flow of water, causing damage to property, the contractor cannot lay the blame upon a railway company' in not providing sufficient openings through its grade, where the openings maintained were sufficient to take care of the water under usual conditions.\nSame (194, 478). Where a dredging company is given an alternative as to the method for moving earth, it is liable for damage done by sluicing which could have been avoided by another method.\nSame (409)—Torts—Public Contracts—Performance Under Supervision of City—Liability. Where the city sanctions the making of an improvement by sluicing and the work is done according to the specifications, the city cannot evade liability for damage to property on the theory that the work was let to-an independent contractor.\nSame (567)—Claims—Variance Between Notice and Claim.There is no material variance between a claim against the city for damage to flooding property by “overflowing” the basement, and proof that the water came into the basement' by seepage through the city’s sluicing operations.\nAppeal from a judgment of the superior court for. King county, Griffiths, J., entered October 31, 1925, upon findings in favor of the plaintiff, in an action for damages to real property resulting from the performance of a public improvement contract, tried to' the court.\nAffirmed.\nThomas J. L. Kennedy and Arthur Schramm, for appellant City of Seattle.\nRoberts & Skeel, for appellant Puget Sound Bridge and Dredging Company.\nShorett, McLaren & Shorett and Edward R. Taylor, for respondents.\nReported in 247 Pac. 925.""}, ""cites_to"": [{""cite"": ""247 Pac. 925"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""165 Pac. 895"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""96 Wash. 646"", ""case_ids"": [651323], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/96/0646-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""139 Wash. 559"", ""type"": ""official""}], ""file_name"": ""0559-01"", ""last_page"": ""566"", ""first_page"": ""559"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T19:31:25.552573+00:00"", ""decision_date"": ""1926-07-15"", ""docket_number"": ""No. 19864"", ""last_page_order"": 600, ""first_page_order"": 593, ""name_abbreviation"": ""Small v. 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+813459,"{""id"": 813459, ""name"": ""Sallie Williams & others vs. Micaela Fontes"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""826e89040edcb26ae9de57903eda701afceb663c99d59255c94ce3eb52cc9668"", ""simhash"": ""1:f8ecd6562890ca48"", ""pagerank"": {""raw"": 0.000000051493589294995115, ""percentile"": 0.3246094656483834}, ""char_count"": 6755, ""word_count"": 1145, ""cardinality"": 407, ""ocr_confidence"": 0.887}, ""casebody"": {""judges"": [], ""parties"": [""Sallie Williams & others vs. Micaela Fontes.""], ""opinions"": [{""text"": ""Braucher, J.\nThe plaintiffs brought this action in 1967 to recover damages for injuries sustained in 1966 when they jumped from a window of their second-floor apartment to escape from a fire in the apartment building. They claimed that the defendant landlord had violated statutory and common law duties to provide adequate means of egress from the building and to install fire fighting apparatus on each floor of the building. G. L. c. 143, §§ 21, 24. After a trial without a jury in September, 1978, a judge of the Superior Court found that the landlord was negligent both in removing a fire escape and in failing to provide fire extinguishers, and entered a judgment for the plaintiffs. The Appeals Court reversed, holding that there was no breach of duty with respect to means of egress, and that it was not shown that the absence of fire extinguishers was a contributing cause of the plaintiffs’ injuries. Williams v. Fontes, 9 Mass. App. Ct. 882 (1980). We granted the plaintiffs’ application for further appellate review, and we affirm the judgment for the plaintiffs.\nThe parties agreed to the following facts. At the time of the fire, on June 2, 1966, the defendant owned the building and was in control of the common areas. The plaintiffs were tenants of the building, which was used as an apartment house and had more than eight rooms above the second story. There was no fire extinguishing apparatus anywhere in the building; the fire was not in any way the fault of the landlord; there were no fire escapes; and the plaintiffs were injured when they jumped from the second story during the course of the fire. The amount of damages was also agreed.\nThe judge made the following additional findings on the basis of the testimony. At the inception of the plaintiffs’ tenancy an outside fire escape led from the window of their apartment to the ground, but it was removed by the landlord about five months before the fire. The building had both front and rear exits, and the landlord had never been notified by an inspector that additional exits or means of escape from fire were necessary. On the night of the fire, the plaintiff Sallie Williams was awakened by screams, ran down the front stairs to find the front exit engulfed in flames, and retreated to the second floor, reasonably believing that the rear exit was also blocked by fire. The plaintiffs feared to jump to the ground, and could hear the sirens of approaching fire engines coming to the rescue, but the absence of any fire fighting apparatus prevented them from beating back the flames and gaining some breathing space until the fire apparatus arrived. They jumped, leaving behind Sallie’s crippled sister, who was ultimately rescued unharmed by the fire fighters.\nIt seems clear enough that the landlord violated G. L. c. 143, § 24, which required that each story of a building subject to G. L. c. 143, § 21, “shall be supplied with means of extinguishing fire . . . and such appliances shall be kept at all times ready for use and in good condition.” The violation was evidence of negligence. Wainwright v. Jackson, 291 Mass. 100, 102 (1935). See Lindsey v. Massios, 372 Mass. 79, 83 (1977). The defendant argues, however, as the Appeals Court held, that there was no evidence that the absence of fire extinguishers was a contributing cause of the plaintiffs’ injuries, relying on Wainwright v. Jackson, supra.\nIn Wainwright v. Jackson, as in the present case, the plaintiff was injured by reason of jumping from a second-story window to escape injury by fire. The trial judge said that he was “unable to find affirmatively” that the defendant landords’ violation of G. L. c. 143, § 24, was causally related to the plaintiff’s injuries, “since there was no evidence that the plaintiff or any of the other tenants tried to use a fire extinguisher or even to find one to use as a means of protection when the fire broke out.” Id. at 101. We affirmed the decision: “The trial judge was not required to find that the violation of the statute by the defendants had a causal connection with the harm to the plaintiff. Whether it did or not was a question of fact. The circumstances of the fire already narrated warranted the finding of the trial judge.” Id. at 103.\nIn the present case, there was evidence that the plaintiffs, trapped in the building, “started trying to find something to put the fire out.” The judge found that they were well aware that there were no fire extinguishers on the second floor, and that they “had no occasion to scout around, seeking out fire fighting apparatus that they knew was not present.” He also found that fire extinguishers “could well have provided the extra margin of safety necessary to make remaining in the second story bedroom a viable alternative until rescue by the fire department occurred.” Whether the statutory violation was a contributing cause of the plaintiffs’ injuries was a question of fact and the judge’s finding that it was must stand unless “clearly erroneous.” Mass. R. Civ. P. 52 (a), 365 Mass. 816 (1974). We conclude that it was not clearly erroneous.\nIn view of that conclusion, we need not consider the judge’s alternative conclusion that the defendant was subject to liability by reason of her removal of the fire escape.\nThe judgment of the Superior Court is affirmed.\nSo ordered.\nRepealed by St. 1972, c. 802, § 28.\nSection 21 applied to an “apartment house . . . which has eight or more rooms above the second story, or in which ten or more persons . . . reside above the second story.”"", ""type"": ""majority"", ""author"": ""Braucher, J.""}], ""attorneys"": [""Harry Ehrlich for the defendant."", ""Harold Meizler (John D. Yellin with him) for the plaintiffs.""], ""corrections"": """", ""head_matter"": ""Sallie Williams & others vs. Micaela Fontes.\nSuffolk.\nNovember 6, 1980. —\nMarch 5, 1981.\nPresent: Hennessey, C.J., Braucher, Kaplan, & Wilkins, JJ.\nNegligence, One owning or controlling real estate, Violation of statute. Landlord and Tenant, Landlord’s liability to tenant or one having his rights, Safety requirements.\nIn an action by plaintiffs seeking to recover damages from their landlord for injuries sustained when they jumped from a window of their second-floor apartment to escape from a fire in the apartment building, there was sufficient evidence to warrant findings that the landlord was negligent in failing to provide fire extinguishers as required by G. L. c. 143, § 24, and that the absence of fire extinguishers was a contributing cause of the plaintiffs’ injuries. [97-98]\nTort. Writ in the Superior Court dated January 23, 1967.\nOn transfer to the Municipal Court of the Roxbury District and retransfer to the Superior Court, the action was heard by Young, J.\nAfter review by the Appeals Court the Supreme Judicial Court granted leave to obtain further appellate review.\nHarry Ehrlich for the defendant.\nHarold Meizler (John D. Yellin with him) for the plaintiffs.\nAnnabell Williams and Carrie Harris.""}, ""cites_to"": [{""cite"": ""365 Mass. 816"", ""year"": 1974, ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""opinion_index"": 0}, {""cite"": ""372 Mass. 79"", ""year"": 1977, ""case_ids"": [4030988], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""83""}], ""case_paths"": [""/mass/372/0079-01""], ""opinion_index"": 0}, {""cite"": ""291 Mass. 100"", ""year"": 1935, ""weight"": 4, ""case_ids"": [495020], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""102""}, {""page"": ""101""}, {""page"": ""103""}], ""case_paths"": [""/mass/291/0100-01""], ""opinion_index"": 0}, {""cite"": ""9 Mass. App. Ct. 882"", ""year"": 1980, ""case_ids"": [3960088, 3962231], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""case_paths"": [""/mass-app-ct/9/0882-02"", ""/mass-app-ct/9/0882-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""383 Mass. 95"", ""type"": ""official""}], ""file_name"": ""0095-01"", ""last_page"": ""98"", ""first_page"": ""95"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T17:07:08.211136+00:00"", ""decision_date"": ""1981-03-05"", ""docket_number"": """", ""last_page_order"": 116, ""first_page_order"": 113, ""name_abbreviation"": ""Williams v. 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+816156,"{""id"": 816156, ""name"": ""Judith A. Ferriter & others vs. Daniel O'Connell's Sons, Inc."", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""35cd6df45485d598306a89b87ff49ed575adaa5ab7b05ae54ee4875610bdc497"", ""simhash"": ""1:577f27c3a9ce7ed7"", ""pagerank"": {""raw"": 0.000001920620221036616, ""percentile"": 0.9946247831437277}, ""char_count"": 85854, ""word_count"": 14325, ""cardinality"": 2452, ""ocr_confidence"": 0.892}, ""casebody"": {""judges"": [""Present: Hennessey, C.J., Quiraco, Braucher, Kaplan, Wilkins, Liacos & Abrams, JJ.""], ""parties"": [""Judith A. Ferriter & others vs. Daniel O’Connell’s Sons, Inc.""], ""opinions"": [{""text"": ""Liacos, J.\nThe plaintiffs, Judith A. Ferriter and her minor children, Jason R. and Leah N., filed a complaint and demand for jury trial on June 7, 1979, in the Superior Court for Hampden County. The complaint alleged that the plaintiffs’ husband and father, Michael Ferriter, was seriously injured as a result of the negligent, wilful, wanton and reckless conduct of the defendant, Daniel O’Connell’s Sons, Inc. (O’Connell). The complaint alleges that observing Michael’s injuries has caused the plaintiffs to suffer mental anguish and that as a result of Michael’s injuries their mental and physical health has been impaired. Furthermore, the plaintiffs allegedly have suffered loss of consortium and society. Thus, the plaintiffs prayed for damages of $3,000,000. On July 5, 1979, the defendants moved for summary judgment. The parties on September 26 filed a statement of agreed facts. On October 3, a judge of the Superior Court denied the motion on the claims for loss of consortium and society, but granted the defendant’s motion on the claims for mental anguish and impaired health. The judge reported the case pursuant to Mass. R. Civ. P. 64, 365 Mass. 831 (1974), for a determination of the propriety of his rulings. We granted the plaintiffs’ application for direct appellate review. We affirm the judge’s first ruling, but reverse the second ruling.\nAccording to the statement of agreed facts, the plaintiffs are the wife and two children, aged five and three, of Michael Ferriter. While working as a carpenter for the defendant, Michael was seriously injured on May 18, 1979. A one-to-two-hundred pound load of wood beams, which was hoisted in a nylon sling from the boom of a crane, fell fifty feet, and at least one beam struck Michael on the neck. The persons hoisting the lumber, operating the crane, monitoring site safety, and supervising the work were O’Connell employees. The defendant also supplied the materials and equipment used.\nSince the accident, Michael Ferriter has been hospitalized and paralyzed from the neck down. The plaintiffs first saw him in this condition in the hospital. They neither witnessed the accident nor came on the scene of the accident when Michael was there. Michael receives $211.37 a week in workmen’s compensation benefits from O’Connell’s insurer. Although the plaintiffs fall within the statutory presumption of dependency in G. L. c. 152, § 35A, they receive no benefits because Michael’s compensation exceeds $150 a week. See G. L. c. 152, § 35A.\nThe defendant employer attacks the plaintiffs’ claims in two respects. First, it asserts that the counts for mental anguish and impaired health fail to state a claim upon which relief can be granted. Second, the defendant argues that the Workmen’s Compensation Act, G. L. c. 152, bars the plaintiffs’ claims.\n1. The employer does not assert that the wife’s and children’s counts for loss of consortium and society fail to state a claim upon which relief can be granted. Although a wife’s right to recover for loss of consortium is well established, Diaz v. Eli Lilly & Co., 364 Mass. 153 (1973), a child’s right to recover for loss of a parent’s society and companionship through a defendant’s negligence is problematic. Id. at 165 & n.41. We consider whether such a right exists before addressing the issue of whether, on these facts, a cause of action is barred by G. L. c. 152.\nThe question whether a child can recover for loss of a parent’s companionship and society caused by a defendant’s negligence is a matter of first impression in Massachusetts. However, in Feneff v. New York Cent, & H.R.R.R., 203 Mass. 278, 281-282 (1909), rejecting a wife’s claim for loss of consortium for injuries to her husband, the court in essence equated a wife’s interest in spousal consortium with a minor child’s interest in parental society. In Diaz v. Eli Lilly & Co., supra at 163, we characterized as “vulnerable” the Feneff court’s reasoning supporting rejection of the wife’s claim. We recognized a wife’s right to recover for loss of consortium resulting from personal injuries to the husband. The wife’s interest encompassed not only sexual relations with her husband, but also his society and companionship. Diaz, supra at 161. The combination of Diaz and the dicta in Feneff force recognition that a minor child has a strong interest in his parent’s society, an interest closely analogous to that of the wife in Diaz. The court in Diaz expressly reserved the question whether a child has a right to recover for loss of a parent’s society caused by a defendant’s negligence. Id. at 165 & n.41. We are skeptical of any suggestion that the child’s interest in this setting is less intense than the. wife’s.\nAs in Diaz, to take the measure of the present action, we consider this question in the perspective of the common law. Under the doctrine of paterfamilias, an injury to the family was an injury to the father. Neither children nor wives could bring actions in their own names to recover for personal injury. The action and any damages obtained belonged to the father. The law also furnished the father with various actions to protect family relationships. In Diaz, supra at 154-158, we traced the evolution of claims for loss of spousal consortium. Though parallel in many respects, the histoy of actions for interference with the parent-child relationship has taken distinct turns.\nA father has traditionally had actions for abduction and seduction of his child. Both causes were founded upon an analogy with a master’s action for enticement of his servant. In order to prevail, the father had to show actual loss of his child’s services. W. Prosser, Torts § 124, at 882 (4th ed. 1971). With time, a doctrine of constructive loss of services developed. If the child was a minor and the father had a right to his or her services the child was presumed to be his servant. Kennedy v. Shea, 110 Mass. 147, 150 (1872). Thus, loss of services became a technical requirement, an acknowledged fiction. See, e.g., Blagge v. Ilsley, 127 Mass. 191, 199 (1879). Once the parent established that the defendant’s act made the child mentally or physically incapable of rendering services, the court could award damages for emotional harm done the parent. Id. at 197-198. See Cook v. Bartlett, 179 Mass. 576, 579-580 (1901); Stowe v. Heywood, 7 Allen 118, 122 (1863). In abduction cases, the father could recover for loss of the child’s society. Stowe v. Heywood, supra at 122-123. See Worcester v. Marchant, 14 Pick. 510 (1834); W. Prosser, supra, § 124, at 883; Restatement (Second) of Torts § 700, Comment g (1977). Such recovery appears also to have been available in seduction cases. Stowe v. Heywood, supra at 122. See W. Prosser, supra, § 124 at 885 & n.99; but see Restatement (Second) of Torts § 701, Comment e (1977).\nIn addition to the actions for abduction and seduction, our cases recognized a further consequence of the master-servant analogy. “The remedy, on principle, is equally clear whether the injury is produced by beating and wounding, by enticing away, or by seduction.” Blagge v. Ilsley, supra at 198. See Bradstreet v. Wallace, 254 Mass. 509, 511 (1926). A third person’s tortious infliction of injury upon a child gave the parent a cause of action for loss of services. Even a negligent act would suffice. Horgan v. Pacific Mills, 158 Mass. 402 (1893). Wilton v. Middlesex R.R., 125 Mass. 130 (1878). Moreover, the parent could recover for labor performed and expenses reasonably incurred in the child’s care. Dennis v. Clark, 2 Cush. 347 (1848). As in actions for abduction and seduction, the requirement of actual loss of services withered, becoming a mere fiction. Id. See W. Prosser, supra, § 125 at 890. However, it does not appear that damages for the parent’s mental suffering or for loss of the child’s society were available when the gravamen of the parent’s claim was physical injury to the child. See Restatement (Second) of Torts § 703, Comment h (1977). But see W. Prosser, supra, § 125, at 889-890, and cases cited in n.58. See also Dennis v. Clark, supra\nThese cases supply analogous precedent for a child’s right to recover for loss of a parent’s society resulting from the defendant’s negligence. The common law has traditionally recognized a parent’s interest in freedom from tortious conduct harming his relationship with his child. As in husband-wife relations, albeit to a more limited extent, our law has compensated parents for sentimental as well as economic injuries. If the common law sometimes protects a parent’s sentiments in the parent-child relationship, we might expect similar protection for the fledgling needs of the child. But the common law has been nearly silent concerning a child’s right to recover damages for loss of parental society. Perhaps because courts would not stand the master-servant analogy on its head, with the child as master, the question of the child’s action does not appear in our cases until 1931. Cole v. Cole, 277 Mass. 50 (1931). Furthermore, the question was not clearly presented until Nelson v. Richwagen, 326 Mass. 485 (1950). See White v. Thomson, 324 Mass. 140, 143 (1949).\nIn Nelson, a minor child sought relief against the defendant for enticing her mother to desert her and her father. The child prayed for damages for loss of support, maintenance and maternal care. This court affirmed an order sustaining a demurrer to the child’s claim. The court acknowledged that one spouse has a right to the personal presence and care of the other. However, a minor child has no comparable right to the presence and care of a parent. “So far as the parent is bound to support the child the parent may be compelled to do so by other proceedings.” Nelson, supra at 487. The court also raised four practical objections to the child’s action: “(1) Possibility of a multiplicity of suits . . .; (2) Possibility of extortionary litigation . . .; (3) Inability to define the point at which the child’s right would cease [i.e., the point at which the child becomes an adult]; (4) Inability of a jury adequately to cope with the question of damages” both because the damages are too speculative and because overlapping recovery is probable. The court then likened the policies involved to those underlying parent-child tort immunity. Id.\nNelson is the only Massachusetts case to discuss in any detail a child’s right to recover damages for loss of parental society. Because it involves the disfavored action for alienation of affections, it is distinguishable from the present case. The court implied a distaste for tort litigation among family members. Id. at 487-488. Also, the court was concerned with the likelihood of extortionate litigation. However, when a third party’s negligence causes injury to a parent and the child suffers loss of society, the litigation does not typically pit family members against each other. Cf. Soren-sen v. Sorensen, 369 Mass. 350, 356, 363 (1975) (permitting parent-child litigation over automobile accidents will not unduly harm family). And the potential for extortionate litigation is absent. Diaz, supra at 160.\nAlthough these distinctions may justify the Nelson result, the Nelson court’s reasoning demands our attention. Reasons similar to those stated in Nelson, and a reluctance to act absent legislative sanction, have persuaded many courts to deny recovery in actions like the one before us. For example, in Borer v. American Airlines, Inc., 19 Cal. 3d 441, 453 (1977), the court held “that taking into account all considerations which bear on this question, including the inadequacy of monetary compensation to alleviate [a family] tragedy, the difficulty of measuring damages, and the danger of imposing extended and disproportionate liability, we should not recognize a nonstatutory cause of action for loss of parental consortium.” But see id. at 453-560 (Mask, J., dissenting). Despite the conceded natural justice of a child’s claim and extensive commentary favoring such actions,* only one jurisdiction presently permits recovery. Berger v. Weber, 82 Mich. App. 199 (1978). See Scruggs v. Meredith, 134 F. Supp. 868 (D. Haw. 1955), rev’d, 244 F.2d 604 (9th Cir. 1957), in light of Halberg v. Young, 41 Haw. 634 (1957) (Hawaii law). We believe that Michigan’s approach is the correct one. Scrutiny of the reasons for denying recovery finds them unsound. Moreover, many of the objections to the child’s claim raise anew the questions that we laid to rest in Diaz.\nThe principal reason in Nelson for rejecting the child’s alienation of affections claim was that a child had no legal entitlement to his parent’s society. That proposition is no longer true. In an action for wrongful death, the children of the deceased are persons entitled to receive the damages recovered, as defined in G. L. c. 229, § 1. As such, they are entitled to recover for “loss of the reasonably expected . . . society ... of the decedent.” G. L. c. 229, § 2, as appearing in St. 1973, c. 699, § 1. We think it entirely appropriate to protect the child’s reasonable expectation of parental society when the parent suffers negligent injury rather than death. Cf. W. Prosser, supra, § 130, at 950-951 & n.68 (tortious interference with reasonably expected noncommercial benefit). Protecting a child’s need for parental love and nurture is the express legislative policy of this Commonwealth. G. L. c. 119, § 1. See id. § 24. In the courts, “ [cjhildren enjoy the same right to protection and to legal redress that others enjoy. Only the strongest reasons, grounded in public policy, can justify limitation or abolition of those rights.” Sorensen v. Sorensen, 369 Mass. 350, 359 (1975). Here such a countervailing policy is wanting.\nThe other objections in Nelson were the subject of discussion in Diaz, supra. We dealt at length with such problems as possible multiplicity of suits, id. at 161-162; purported remoteness of the damages, id. at 159-160; and dangers of redundant recovery, id. at 162-163. We need not rehearse those discussions here. As for the argument that we should withhold our hand until the Legislature acts, we need only repeat: “In a field long left to the common law, change may well come about by the same medium of development. Sensible reform can here be achieved without the articulation of detail or the creation of administrative mechanisms that customarily comes about by legislative enactment. ... In the end the Legislature may say that we have mistaken the present public understanding of the nature of the [parent-child] relation, but that we cannot now divine or anticipate.” Id. at 166-167.\nWe hold that the Ferriter children have a viable claim for loss of parental society if they can show that they are minors dependent on the parent, Michael Ferriter. This dependence must be rooted not only in economic requirements, but also in filial needs for closeness, guidance, and nurture. In so holding, we do not abandon our determination to “proceed from case to case with discerning caution” in this field. Diaz v. Eli Lilly & Co., supra at 165. As claims for injuries to other relationships come before us, we shall judge them according to their nature and their force.\nOver sixty years ago, Dean Pound said, “As against the world at large a child has an interest ... in the society and affection of the parent, at least while he remains in the household. But the law has done little to secure these interests. . . . It will have been observed that legal securing of the interests of children falls far short of what general considerations would appear to demand.” Pound, Individual Interests in the Domestic Relations, 14 Mich. L. Rev. 177, 185-186 (1916). We meet part of that demand today.\n2. We turn to the plaintiffs’ claims for negligent infliction of mental distress and impaired health. The judge below allowed the defendant’s motion for summary judgment on this issue. Relying on the plaintiffs’ complaint and a statement of agreed facts, the judge concluded that “[t]he claims are barred by reason of the case of [Dziokonski v. Babineau, 375 Mass. 555 (1978)].”\nThe judge properly allowed the motion only if the pleadings and the statement of agreed facts “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974). “On summary judgment the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion.” Hub Assocs. v. Goode, 357 Mass. 449, 451 (1970), quoting from United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The judge seems to have based his ruling exclusively on his understanding of the legal principles stated in Dziokonski v. Babineau, 375 Mass. 555 (1978).\nIn Dziokonski v. Babineau, supra, we held that “allegations concerning a parent who sustains substantial physical harm as a result of severe mental distress over some peril or harm to his minor child caused by the defendant’s negligence state a claim for which relief might be granted, where the parent either witnesses the accident or soon comes on the scene while the child is still there.” Id. at 568. The theory underlying that holding is that “reasonable foreseeability is a proper starting point in determining whether an actor is to be liable for the consequences of his negligence.” Id. at 567. Furthermore, “[i]n cases of this character, there must be both a substantial physical injury and proof that the injury was caused by the defendant’s negligence. Beyond this, the determination whether there should be liability for the injury sustained depends on a number of factors, such as where, when, and how the injury, to the third person entered into the consciousness of the claimant, and what degree there was of familial or other relationship between the claimant and the third person.” Id. at 568.\nWe think that the present case is within the principles set out in Dziokonski. According to the complaint, the defendant’s acts and the employee’s injuries caused the plaintiffs to suffer physical impairment. The statement of agreed facts is silent concerning the plaintiffs’ injuries. The allegation in the complaint, together with favorable inferences, suffices as a showing of substantial physical injury. Cf. American Mut. Liab. Ins. Co. v. Commonwealth, 379 Mass. 398, 400-401 (1979) (using “injury” and “impairment” interchangeably). Furthermore, Michael Ferriter is the plaintiffs’ husband and father. According to the statement of agreed facts, the plaintiffs first saw his injuries in the hospital, not at the scene of the accident. However, on summary judgment, we may infer that the shock occurred immediately after the accident. A plaintiff who rushes onto the accident scene and finds a loved one injured has no greater entitlement to compensation for that shock than a plaintiff who rushes instead to the hospital. So long as the shock follows closely on the heels of the accident, the two types of injury are equally foreseeable. Thus, in all respects, the plaintiffs’ claims fall within the principles of proximity set out in Dziokonski. The motion for summary judgment should have been denied.\n3. The defendant’s principal argument is that the Workmen’s Compensation Act, G. L. c. 152, bars all of the plaintiffs’ claims. Chief Justice Rugg described the act’s purposes in Ahmed’s Case, 278 Mass. 180, 183 (1932): “The underlying principle of that act is that the cost of injuries sustained by those employed in industry, save those due to serious and wilful misconduct of the employee, shall be treated as a part of the cost of production. In place of common law or statutory remedy for personal injury suffered by an employee based upon negligence, a system is established whereby compensation is paid for all injuries and for death arising out of and in the course of the employment, . . . without regard to the fault or freedom from fault of the employer or those for whom he is responsible, whether such injury or death is sustained because of unavoidable accident, negligence of fellow servants or of third persons, negligence of the employee or assumption of risk by him, or otherwise, excepting only injuries or death caused by the serious or wilful misconduct of the employee.”\nIn its early forms, the act was elective for both the employer and the employee. St. 1911, c. 751, Parts II & IV (employers). St. 1911, c. 751, Part I, § 5 (employees). See Young v. Duncan, 218 Mass. 346, 349 (1914). The act created incentives to induce both the employer and employee to avail themselves of its benefits. For example, the employee escaped the difficulty of establishing the employer’s negligence and negating common law defenses such as the fellow servant rule, assumption of the risk, and contributory negligence. The employer, on the other hand, could avoid litigation and treat his payments as an actuariallypredictable cost of doing business. A corollary of the latter point was that the employee accepting compensation had to give up his common law rights against the employer. St. 1911, c. 751, Part I, § 5, current version at G. L. c. 152, § 24. St. 1911, c. 751, Part V, § 1, current version at G. L. c. 152, § 23. See, e.g., King v. Viscoloid Co., 219 Mass. 420, 422 (1914). However, an employee could give notice that he wished to preserve his common law rights and reject the compensation program. St. 1911, c. 751, Part I, § 5. Even after the act underwent substantial revision and participation became compulsory for most employers, St. 1943, c. 529, § 7, employees retained their right to reject compensation and preserve their common law remedies. St. 1943, c. 529, § 6, current version at G. L. c. 152, § 24.\nIn the present case, the employee not only failed to give notice that he wished to preserve his rights at common law, G. L. c. 152, § 24, but he also accepted compensation payments, G. L. c. 152, § 23. His waiver of rights is undisputed. However, we must decide whether his waiver bars his family from recovering against the employer at common law for damage suffered by them. We first addressed this question in King v. Viscoloid Co., supra, only three years after St. 1911, c. 751, inserted the Workmen’s Compensation Act.\nIn King, a mother sued her son’s employer for loss of the son’s services and for expenses incurred in nursing and caring for him. The workmen’s compensation insurer had made various payments to the son. This court upheld the mother’s claim. Her right of action “was not in any just sense consequential upon that of the son.” Id. at 422. She sought redress for her own injury, not his. Furthermore, her action was distinct from the action that the son had waived under St. 1911, c. 751, Part I, § 5, the progenitor of G. L. c. 152, § 24. “[H]e had waived his right of action; but he had not waived, by his own mere act he could not waive, his parent’s independent right.” King, supra at 422.\nThe court relied on the principle “that an existing common law remedy is not to be taken away by a statute unless by direct enactment or necessary implication.” Id. at 425. The language of St. 1911, c. 751, Part I, § 5, seemed expressly to limit the waiver to the employee: “An employee of a subscriber shall be held to have waived his right of action at common law to recover damages for personal injuries . . .” (emphasis supplied). The court said, “The Legislature have stated the consequence that is to follow the failure to give the statutory notice; how can the court say that further consequences shall follow, by taking away the right of a third person not mentioned in the act?” King, supra at 423.\nMoreover, nothing in the statute took away by implication the mother’s remedy at common law. Even though the insurer paid the son’s medical and hospital bills, the mother could recover for her own injuries. She had received no compensation payments herself, and the court remarked, “Our decision does not apply to cases where the parent has received any benefit or compensation under the act.” Id. Because the parties had stipulated to the amount of damages at issue, the court did not have to consider possible set-offs resulting from the insurer’s compensation payments to the son. Thus, the Workmen’s Compensation Act neither expressly nor impliedly barred the mother’s remedy.\nNeither the rule of King v. Viscoloid Co., supra, nor the pertinent language of the statute has been modified since 1914. Indeed, in years that followed, this court has repeatedly reaffirmed the King rule. In Erickson v. Buckley, 230 Mass. 467, 471 (1918), we said in dicta: “Under the . . . workmen’s compensation act . . . the common law right of a third person to recover for injuries sustained by him as a consequence of harm and injury coming upon [an employee] through the negligence of the defendant, is not barred by the neglect or refusal of [the employee] to give notices which are conditions precedent to any right of recovery by that [employee], by a release or by a refusal to prosecute, for the reason that the rights of third persons are not included in the terms of the act.”\nIn Slavinsky v. National Bottling Torah Co., 267 Mass. 319 (1929), a mother sued her minor son’s employer in tort for expenses incurred in her son’s care and treatment. The employee also brought an action of tort against the employer for personal injuries. We held that, under the King rule, the Workmen’s Compensation Act barred the employee’s claim, but did not bar the mother’s claim. Nevertheless, since the mother’s claim was based solely on the alleged negligence of a fellow employee, we held the employer could invoke the fellow servant rule as a defense. Hence, despite the favorable King precedent, the mother could not recover. Cf. G. L. c. 153, § 1 (fellow servant rule may not apply in certain employee actions against employer).\nFinally, in Zarba v. Lane, 322 Mass. 132 (1947), we applied the King rule even after workmen’s compensation had become compulsory for most employers. A minor brought a tort action against his employer, who was not a subscriber under the Workmen’s Compensation Act, for personal injuries inflicted by a fellow employee. The boy’s father brought a count seeking consequential damages. The plaintiffs sought the benefit of G. L. c. 152, § 66, which abolished a nonsubscribing employer’s common law defenses, including the fellow servant rule, in actions by employees injured in the course of employment. We held that the employer was not entitled to a directed verdict that the son’s injury occurred outside of his employment. Therefore, the son did not, as a matter of law, fall outside of the statute’s protection. However, under the King rule, the father’s right of action was independent of the son’s. As in Slavin-sky, the fellow servant rule defeated the parent’s claim.\nThe line of authority from King to Zarba spans thirty-three years and extends beyond the 1943 revision of the Workmen’s Compensation Act. The cases rest on the principle that employees have always had an election to participate in the workmen’s compensation system. Yet the plaintiffs in cases like King were not “employees” under the act. See White v. George A. Fuller Co., 226 Mass. 1, 4-5 (1917). They did not choose to waive their common law rights to redress of personal injuries. Nor did they receive compensation payments for their injuries. In light of the limited language of G. L. c. 152, § 24, it would be unfair to hold that the employee waived a third party’s right as well as his own. See Pinnick v. Cleary, 360 Mass. 1, 21-22 (1971); Clark v. M.W. Leahy Co., 300 Mass. 565, 569 (1938). The Legislature has created various incentives to induce an employer to comply with the act. However, avoiding the threat of nonemployee actions under the King rule is not part of the employer’s incentive for complying with the act.\nThe defendant O’Connell raises several arguments to attack application of the King rule in this case. First, O’Connell characterizes G. L. c. 152, § 24, as an isolated statutory provision which must be read in the broad context of the purposes of the act. As O’Connell would have it, permitting third party actions of this nature will render uncertain an employer’s costs for employee injuries. Moreover, the employer will have to litigate the issue of fault. According to O’Connell, workmen’s compensation was designed to relieve the employer of these burdens. Smither & Co. v. Coles, 242 F.2d 220, 222 (D.C. Cir.), cert, denied, 354 U.S. 914 (1957).\nWe recognized in King v. Viscoloid Co., supra at 422, that the employee’s remedy should be exclusive, and we do not question that proposition today. “But we find in the act nothing which goes further than this for the protection of the employer.” Id. In Massachusetts, employers within the compensation act have never been in a position to rely on determinate liability for derivative third party injuries. And fault has never been purged entirely from the statutory scheme. This is the legacy of the King decision and our unusual statute, G. L. c. 152, § 24, whose language unambiguously limits the scope of the employee’s waiver. Despite numerous legislative reports on workmen’s compensation, a revision of the participation requirement of the act, and many amendments of the section in question, that strict language remains. Few exclusive liability provisions in workmen’s compensation statutes are so narrowly drawn. 2A A. Larson, Workmen’s Compensation §§ 66.00-66.20 (1976 & Supp. 1980). In the construction of statutes resembling ours, King v. Viscoloid Co., supra, is the acknowledged leading case. 2A A. Larson, supra § 66.20, at 12-24. Without a declaration of legislative intent to the contrary, we are disinclined to disturb our rule, which has weathered sixty-six years unscathed.\nThe defendant’s second attack seems to rest on the suggestion that the Legislature has tacitly overruled King. When King was decided, the act did not provide for payment of dependency benefits to the parent of an injured, unmarried, minor employee. In St. 1926, c. 190, current version at G. L. c. 152, § 32 (e), the Legislature created a conclusive presumption of dependency for a parent of an unmarried minor employee living with the parent at the time of an injury resulting in death. In Pierces Case, 267 Mass. 208, 211 (1929), the court remarked that workmen’s compensation benefits were the sole remedy for a parent of an unmarried minor employee whose injuries resulted in death. Statute 1945, c. 717, inserted G. L. c. 152, § 35A, which provided for dependency benefits for injured employees and incorporated the presumption of dependency for parents of an unmarried, minor child. According to O’Connell, this history implies that the mother in King could no longer recover for loss of her son’s services.\nThis argument rests on several mistakes. The defendant looks to Pierce’s Case, supra, for authority that workmen’s compensation is the sole remedy for a deceased employee’s dependents. In fact, the original basis for that proposition is McDonnell v. Berkshire St. Ry., 243 Mass. 94 (1922). The King case was expressly stated to be of “no pertinency to the facts here disclosed.” Id. at 96. Moreover, G. L. c. 152, § 68, inserted by St. 1911, c. 751, Part I, § 4, states that the wrongful death statute, G. L. c. 229, § 2B, does not apply to employees of employers covered by the provisions of G. L. c. 152. According to G. L. c. 152, § 1 (4), dependents of a deceased employee are “employees” under the compensation act. Thus, G. L. c. 152, § 68, deprives them of a remedy against such employers under the wrongful death act. As the McDonnell court recognized, the King rule has no application in this context. The court in King said its rule would not apply when the Legislature expressly withdrew such rights. See King, supra at 425.\nUnlike recipients of death benefits, who receive direct payments, the mother in King would not receive direct payments herself as a matter of right. Also, she would not have had a chance to give notice to preserve her common law rights under § 24. It follows that the status of the mother’s right of action in King would be unsettled at best under the present Workmen’s Compensation Act. We find nothing in G. L. c. 152, § 35A, indicating that the Legislature intended to overrule King The employer next argues that application of the King rule in the present case would create an anomaly. According to O’Connell, dependents of injured employees could recover for loss of consortium, but dependents of deceased employees could not.\nWe acknowledge that G. L. c. 152, §§ 1 (4) and 68, bar a deceased employee’s dependents from recovering under G. L. c. 229, §§ 2 and 2B, for loss of consortium, as against an employer covered by G. L. c. 152. Furthermore, we recognize that the dependents of a deceased employee generally suffer more severe loss of consortium than dependents of an employee who is merely injured. Nevertheless, we point out that dependents entitled to death benefits enjoy all of the advantages available to any injured employee under the act. Although dependents of an injured employee seeking damages for loss of consortium may have a chance for a large award, they must litigate the issue of fault and prevail against common law defenses. There is no certainty they will recover. It would not be unreasonable for the Legislature to have granted the more certain remedy of workmen’s compensation to families of deceased employees. Furthermore, the two classes of dependents have never been treated with perfect parity. As O’Connell implicitly admits, death benefits paid to dependents have been available since 1911, St. 1911, c. 751, yet dependency benefits to injured employees did not become available until 1945. St. 1945, c. 717. Thus, the Legislature may have chosen to continue the historical pattern of different treatment for the two classes.\nRejecting the defendant’s arguments, we conclude that the rule of King v. Viscoloid Co., supra, governs the present case. The Workmen’s Compensation Act does not bar the plaintiffs’ claims for loss of consortium and society.\n4. The plaintiffs’ claims for negligent infliction of mental distress stand on the same footing as the claims for loss of consortium and society. We find no Massachusetts cases in which members of an employee’s family sought damages from a subscribing employer for emotional harm caused by injury to the employee in the course of employment. The defendant cites no authority from any court holding that a workmen’s compensation statute bars actions of that type. Cf. Diebler v. American Radiator & Standard Sanitary Corp., 196 Misc. 618 (N.Y. Sup. Ct. 1949); Price v. Yellow Pine Paper Mill Co., 240 S.W. 588 (Tex. Civ. App. 1922) (family member can recover for physical and emotional harm caused by employer’s independent act following injury to employee). See also Foley v. Polaroid Corp., post 545 (1980) (barring employee action for intentional infliction of mental distress). We conclude that the King rule applies to the plaintiffs’ claims for negligent infliction of mental distress, and those claims are not barred.\n5. The judge’s ruling denying the motion for summary judgment on the claims for loss of consortium and society (par. I, [5], of his report) is affirmed. His ruling allowing the motion for summary judgment on the claims for mental anguish and impaired health (par. I, [6], of his report) is reversed. The case is remanded to the Superior Court for further proceedings consistent with this opinion.\nSo ordered.\nSee Diaz v. Eli Lilly & Co., 364 Mass. 153, 154 (1973); Note, The Child’s Right to Sue for Loss of a Parent’s Love, Care and Companionship Caused by Tortious Injury to the Parent, 56 R.U.L. Rev. 722, 724 (1976).\nThe most recent abduction action to reach this court appears to be Rice v. Nickerson, 9 Allen 478 (1864). The most recent seduction action to reach this court appears to be Thibault v. Lalumiere, 318 Mass.. 72 (1945) (female employee’s action for seduction by employer).\nProsser points out an even earlier basis for an abduction action: a writ “giving an action for the taking away of an heir, which apparently was based upon the pecuniary loss to the parent of the heir’s marriage prospects, and so did not apply to any other children.” W. Prosser, Torts, § 124 at 882 (4th ed. 1971). See Barham v. Dennis, 78 Eng. Rep. 1001 (C.P.1600).\nWe find no Massachusetts cases in which a mother attempted to recover in a common law abduction or seduction action. Cf. Worcester v. Marchant, 14 Pick. 510 (1834) (widowed mother, since remarried, may not recover in statutory abduction action). However, at least after the enactment of the married women’s acts, current version at G. L. c. 209, §§ 1-13, the father’s death or desertion permitted the mother to sue for loss of services and consequential damages resulting from personal injury to her minor child. King v. Viscoloid Co., 219 Mass. 420 (1914). Torn-roos v. R.H. White Co., 220 Mass. 336 (1915). Horgan v. Pacific Mills, 158 Mass. 402 (1893). In some jurisdictions, a mother could also recover for loss of services of an illegitimate son. W. Prosser, supra, § 125, at 891.\nIn Dennis v. Clark, 2 Cush. 347 (1848), the father sought consequential damages for expenses incurred in his son’s care and for his own and his family’s mental suffering. The trial judge nonsuited the plaintiff. This court reversed, sustaining the claim for expenses, but saying nothing about the claim for mental suffering. Apart from the Dennis decision, we find no early Massachusetts authority in which a parent even sought damages for sentimental harm resulting from injury to his child.\nAt common law, a husband was entitled to damages for loss of his wife’s consortium in actions for alienation of affections, criminal conversation, and intentional or negligent infliction of personal injury. Diaz, supra at 154-155. Before Diaz, a wife could recover for loss of the husband’s consortium in actions for alienation of affections and criminal conversation, but not for injuries to the husband. Id. at 156. By contrast, a parent has been denied recovery for alienation of his child’s affections. Ronan v. Briggs, 351 Mass. 700 (1966). And as our previous discussion indicates, a parent could receive damages for loss of his child’s society in an action for abduction, and perhaps in an action for seduction. However, the parent could not recover such damages in an action involving intentional or negligent injury to the child. See, e.g., Grant v. Crook, 468 F. Supp. 404 (D. Mass. 1979). But see, e.g., Yordon v. Savage, 279 So. 2d 844, 846 (Pia. 1973); Shockley v. Prier, 66 Wis. 2d 394 (1975). For compilations of cases and statutes upholding recovery, see Baxter v. Superior Court, 19 Cal. 3d 461, 464-465 n.1 (1977). Annot., 69 A.L.R.3d 553, 559-561 (1976). We need not consider today the scope of the parent’s right.\n“We may observe that, in these relative injuries [i.e., injuries to the master-servant, husband-wife and parent-child relationships], notice is only taken of the wrong done to the superior of the parties related, by the breach and dissolution of either the relation itself, or at least the advantages accruing therefrom; while the loss of the inferior by such injuries is totally unregarded. One reason for which may be this: that the inferior hath no kind of property in the company, care, or assistance of the superior, as the superior is held to have in those of the inferior; and therefore the inferior can suffer no loss or injury.” 3 W. Blaekstone, Commentaries 142-143 (1768).\nSee Borer v. American Airlines, Inc., 19 Cal. 3d 441, 449-450 n.2 (1977), and cases cited. See generally Annot., 69 A.L.R.3d 528 (1976). See also Hinde v. Butler, 408 A.2d 668 (Conn. Super. 1979); Hickman v. Parish of East Baton Rouge, 314 So. 2d 486 (La. App. 1975); Rothv. Bell, 24 Wash. App. 92 (1979). Outside of Massachusetts, we count eighteen jurisdictions that currently deny recovery.\nSee, e.g., Hill v. Sibley Memorial Hosp., 108 F. Supp. 739, 741 (D.D.C. 1952); Borer v. American Airlines, Inc., supra at 453; Hankins v. Derby, 211 N.W.2d 581, 582 (Iowa 1973); Hoffman v. Dautel, 189 Kan. 165, 168-169 (1962); Russell v. Salem Transp. Co., 61 N.J. 502 (1972); Duhan v. Milanowski, 75 Misc. 2d 1078, 1084 (N.Y. 1973).\n“It is not easy to understand and appreciate this reluctance to compensate the child who has been deprived of the care, companionship and education of his mother, or for that matter his father, through the defendant’s negligence.” W. Prosser, supra, § 125, 896-897. See Love, Tortious Interference with the Parent-Child Relationship: Loss of an Injured Person’s Society and Companionship, 51 Ind. L. J. 590 (1976); Note, The Child’s Right to Sue for Loss of a Parent’s Love, Care and Companionship Caused by Tortious Injury to the Parent, 56 B.U.L. Rev. 722 (1976); Comment, The Child’s Claim Appeal, 13 San Diego L. Rev. 231 (1975). See also 8 S.C.L.Q. 477 (1956); 2 St. Louis U.L.J. 305 (1953); 6 Vand. L. Rev. 926 (1953). Contra: 42 Cornell L.Q. 115 (1956); 54 Mich. L. Rev. 1023 (1956).\nFor reasons similar to those expressed in Diaz, we declare that, where a spouse’s claim for loss of consortium has been concluded by judgment or settlement or the running of limitations before this opinion is issued, no child’s action for loss of parental society thereafter instituted and arising from the same incident will be allowed, even if that action would not otherwise be barred by limitations. See Diaz v. Eli Lilly & Co., 364 Mass. 153, 167 (1973).\nThe plaintiffs’ complaint contains allegations of wilful, wanton, and reckless infliction of mental distress. However, neither the statement of agreed facts nor the plaintiffs’ brief contains anything to support the view that these are viable claims or claims that the plaintiffs press before us. We have not ruled on the validity of a claim for intentional infliction of mental distress through conduct directed at a third party. See Agis v. Howard Johnson Co., 371 Mass. 140 (1976); George v. JordanMarsh Co., 359 Mass. 244, 253 (1971). Compare Restatement (Second) of Torts § 46 (1) (1965) with § 46 (2). We do not reach the issue today.\nSee generally L. Locke, Workmen’s Compensation § 24, at 24 (1968).\nGeneral Laws c. 152, § 24, as amended through St. 1955, c. 174, § 5, provides in pertinent part: “An employee shall be held to have waived his right of action at common law ... to recover damages for personal injuries if he shall not have given his employer, at the time of his contract of hire, written notice that he claimed such right, or, if the contract of hire was made before the employer became an insured person or self-insurer, if the employee shall not have given the said notice within thirty days of the time said employer became an insured person or a self-insurer.”\nGeneral Laws c. 152, § 23, as amended through St. 1953, c. 314, § 6, provides: “If an employee files any claim for, or accepts payment of, compensation on account of personal injury under this chapter, or makes any agreement, or submits to a hearing before a member of the division under section eight, such action shall constitute a release to the insured or self-insurer of all claims or demands at law, if any, arising from the injury.”\nThe principle that the compensation act should not bar a person from asserting rights at law unless he waived his rights also appears in Reidy v. Old Colony Gas Co., 315 Mass. 631 (1944). In that death action, only some of the dead employee’s beneficiaries were receiving compensation. The court held that the nondependent children had not had an election under G. L. c. 152, § 15, as appearing in St. 1929, c. 326, § 1. Therefore, their rights could not be subordinated to those of the insurer.\nGeneral Laws c. 152, § 66, abolishes an employer’s common law defenses in employee suits for injuries sustained in the course of employment. “The purpose ... is to place the employee of an employer who is not a subscriber under the workmen’s compensation’ act as nearly as possible in the same position as is the employee of an employer who is a subscriber.” Zarba v. Lane, 322 Mass. 132, 134 (1947). See Barrett v. Transformer Serv., Inc., 374 Mass. 704 (1978). Only employers participating in the compensation system are entitled to raise such defenses as the fellow servant rule. G. L. c. 152, § 67. However, in Zarba, the court permitted even a nonsubscribing employer to raise the fellow servant defense against a nonemployee plaintiff.\nIn addition, application of the King rule will not result in wholly indeterminate liability for employers. Although actual liability may be harder to predict than costs under the Workmen’s Compensation Act, employer losses will probably be capable of actuarial prediction, and insurance will probably be available.\nEven if that language were ambiguous, the legislative history of G. L. c. 152, § 24, would support a strict interpretation of the phrase, “[a]n employee . . . shall be held to have waived his right of action at common law. . . .” St. 1911, c. 751, Pt. I, § 5. In 1911, the Governor’s Commission on Compensation for Industrial Accidents submitted three different drafts of a workmen’s compensation act. 1911 House Doc. No. 1925. One of those drafts contained the language eventually enacted. The other two, however, contained a much broader exclusivity provision: “The right to compensation and the remedy therefor herein granted shall be in lieu of all rights and remedies now existing either at common law or under [certain statutes], and such rights and remedies shall not accrue to employees entitled to compensation under this act while it is in effect.” Our Legislature chose the narrow version.\n1911 House Doc. No. 300; 1912 House Doc. No. 346. Report of the Massachusetts Commission on Compensation for Industrial Accidents (July 1, 1912) (unnumbered). 1917 Senate Doc. No. 370. 1927 House Doc. No. 999. 1947 House Doc. No. 1803. 1948 Senate Doc. No. 427. 1949 Senate Doc. No. 580. 1954 Senate Doc. No. 760.\nSt. 1943, c. 529.\nSt. 1912, c. 666, § 2. St. 1927, c. 309, § 2. St. 1943, c. 529, § 6. St. 1955, c. 174, § 5.\nFor example, the defendant looks to Smither & Co.v. Coles, 242 F.2d 220, 222 (D.C. Cir.), cert, denied, 354 U.S. 914 (1957), which we cited in Diaz v. Eli Lilly ér Co., 364 Mass. 153, 165 n.42 (1973). In Smither the court held that the District of Columbia workmen’s compensation statute bars a wife’s action for loss of consortium of her employee husband. The court construed D.C. Code 1951, § 36-501, which adopted the Longshoremen’s and Harbor Workers Compensation Act, 33 U.S.C. §§ 901 et seq. (1976). Section 5 of that act, 33 U.S.C. § 905, inserted by March 4, 1927, c. 509, § 5, 44 Stat. 1426, then provided: “The liability of an employer . . . shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer ... on account of such injury or death.” This statute expressly bars a wife’s action arising from the injury of her employee husband. The dramatic difference in language between the District of Columbia statute and G. L. c. 152, § 24, explains why the Smither court did not follow the King rule. It also indicates that Smither has limited persuasive value for our decision today.\nAllen v. Trester, 112 Neb. 515 (1924). LaBonte v. National Gypsum Co., 110 N.H. 314 (1970). Roxana Petroleum Co. v. Cope, 132 Okla. 152 (1928). Silurian Oil Co. v. White, 252 S.W. 569 (Tex. Civ. App. 1923). New Hampshire and Texas have since amended their statutes to forbid ac-tians for loss of consortium and loss of services. See O’Keefe v. Associated Grocers of New England, Inc., 117 N.H. 132 (1977); Martin v. Southland Corp., 463 S.W.2d 471 (Tex. Civ. App. 1971). See also Garrett v. Reno Oil Co., 271 S.W.2d 764 (Tex. Civ. App. 1954).\nThe employer points to Danek v. Hommer, 14 N.J. Super. 607 (1951), aff’d 9 N.J. 56 (1952), as a decision arising under a statute similar to ours, but reaching a result opposite to that which we reach today. The court held that N.J. Stat. Ann. § 34:15-8 (West) barred a husband’s action for loss of consortium. Assuming that it is fair to characterize this provision as similar to G. L. c. 152, § 24, Danek is still distinguishable from the present case. New Jersey had long before relied on a peculiarity of its statute as grounds for rejecting the King rule. Buonfiglio v. R. Neumann & Co., 93 N.J.L. 174 (1919). Unlike the situation we face today, the Danek court did not face a well-established body of precedent favoring third-party actions for loss of services or consortium.\nWe are mindful that legislative inaction following a judicial interpretation of a statute provides frail evidence that the Legislature approves of the court’s interpretation. We do not know whether the Legislature has been aware of the rule of King v. Viscoloid Co. during the years since 1914. However, relatively frequent legislative attention to the workmen’s compensation statute and to § 24, the unusual language of § 24, and the prominence of King in scholarly commentary provide some evidence of legislative approval. 2A C. Sands, Sutherland Statutory Construction § 49.10, at 261-262 (4th ed. 1973).\nThe defendant seems to argue that the Ferriter dependents’ eligibility for dependency benefits bars the plaintiffs’ actions. Nevertheless, in support of this argument, the defendant points to no section of the statute other than § 35A. That section says nothing about limiting common law rights.\nThe defendant also points out that Michael Ferriter receives no dependency benefits because his compensation payments, apart from dependency benefits, exceed the statutory limit. G. L. c. 152, § 35A. The defendant argues that the Ferriter dependents should be treated no differently from dependents of employees who actually receive benefits. According to the defendant, mere eligibility is sufficient.\nWe agree with the defendant that it is irrelevant whether Michael Fer-riter actually receives benefits under § 35A. However, even if he were receiving such benefits, G. L. c. 152 would not bar the actions before us. General Laws c. 152, § 23, applies only to an employee who accepts compensation payments. The Ferriter wife and children are not employees. Thus, an employee’s receipt of benefits under § 35A would not bar the claims of a spouse or child for loss of the employee’s consortium or society.\nThe defendant seeks support from Liberty Mut. Ins. Co. v. Westerlind, 374 Mass. 524 (1978). In that case, an insurer standing in an employee’s shoes sued a third party under G. L. c. 152, § 15. The defendant there sought to implead the employer for contribution. We held that the defendant would not be entitled to contribution even if the employer had been negligent. O’Connell sees the Westerlind decision as evidence that “it is difficult to conceive of any party with common-law or statutory rights deriving from an injury to an employee which do not come within . . . the Workmen’s Compensation Act.”\nWesterlind, however, depended upon construction of the Massachusetts contribution statute, G. L. c. 231B, § 1 (a), which requires that the potential contributor be “directly liable to the plaintiff.” Westerlind, supra at 526. Because the employee had accepted compensation payments, G. L. c. 152, § 23, absolved the employer of liability to the employee. Therefore, the employer could not be liable for contribution. The court did not articulate a broad principle that any third party action against an employer falls unless the employee himself could have recovered against the employer. Westerlind merely construed a statute not applicable to the case before us.\nThe employer makes one final attack upon application of the King rule. O’Connell argues that the plaintiffs’ actions are derivative; i.e., they stand or fall with Michael Ferriter’s claim. According to O’Connell, because the Workmen’s Compensation Act bars Michael Ferriter’s claims for personal injuries, the plaintiffs’ actions must fall. In support of this analysis, the employer points to our “recognition” in Diaz of the derivative character of a wife’s loss of consortium claim: “ The consortium claim . . . has been treated as so far derivative . . . that contributory negligence of the spouse who suffered the physical injuries is held to bar the plaintiff’s claim . . . .” Diaz, supra at 157 n.14. The employer also cites Thibeault v. Poole, 283 Mass. 480, 486 (1933). There we said that a husband could not recover consequential damages resulting from an injury to his wife if his wife had been contributorily negligent.\nThis argument is misconceived. The label “derivative” tells little about the state of affairs it purports to describe. Our remark in Diaz, placed in context, points out that in some jurisdictions the contributory negligence of an injured spouse bars the other spouse’s loss of consortium claim. We also noted that the injured spouse’s negligence has been held to reduce recovery in a comparative negligence State. Diaz, supra, n.14 at 157. The issue is open in Massachusetts. We cited Thibeault v. Poole, supra, to show that this court has applied a similar principle in the analogous context of a husband’s action for consequential damages.\nTo answer the defendant’s argument, we need only point to King v. Viscoloid Co. and its progeny. In actions for loss of services or consequential damages, we have consistently treated the employer’s workmen’s compensation defense differently from the defense that the employee was contributorily negligent.\nThe statement of agreed facts suggests that further proceedings in this case may necessitate determination whether the fellow servant rule is still vital in this Commonwealth. See, e.g., Zarba v. Lane, supra. As neither party has briefed that issue, we do not decide it."", ""type"": ""majority"", ""author"": ""Liacos, J.""}, {""text"": ""Quirico, J.\n(concurring in part and dissenting in part). 1. I concur with the general conclusion reached in part 1 of the court’s opinion that, as a general principle of the law of torts, one who by his tortious conduct causes personal injury to another should be liable in damages to the minor dependent children of the victim for the resulting interference with the parental relationship existing between the victim and the minor children. However, I have reservations about the application of that general principle of law to an injury which is within the coverage of the Workmen’s Compensation Act, G. L. c. 152. These reservations will be discussed later in this opinion.\n2. I dissent from that holding of the court in part 2 of its opinion which recognizes a right of the wife and minor children of Michael Ferriter, who were not present when he was injured, to recover for the mental distress and for physical injuries resulting from such distress which the wife and children suffered when they learned of the injury to Michael Ferriter and saw him in his injured condition. The court bases its holding on its prior decision in Dziokonski v. Babineau, 375 Mass. 555 (1978), from which I also dissented. The reasons for my present dissent are the same which I stated in my dissent in the Dziokonski case, at 569, viz., that I believe that recovery of damages for mental distress and resulting physical injury suffered by close relatives of an injured person should be limited to those relatives who were present, although not necessarily in the “zone of danger,” at the time of the alleged tortious conduct which caused the original physical injury out of which the claims for mental distress arise. See Dillon v. Legg, 68 Cal. 2d 728 (1968).\nHere again, I have reservations about the application of the principles of law allowing recovery for mental distress and resulting physical injuries suffered by close relatives of an injured person, to relatives of a person who sustains an injury which is within the coverage of the Workmen’s Compensation Act, G. L. c. 152. These reservations will be discussed later in this opinion.\n3. In part 3 of its opinion the court considers the question whether the Workmen’s Compensation Act, G. L. c. 152, bars recovery by the wife and dependent minor children of Michael Ferriter on claims for (a) their loss of consortium or familial relationship, and (b) their mental distress and resulting physical injuries, if any. After considerable discussion the court concludes that it does not bar recovery on either of such claims. I respectfully disagree and dissent from that conclusion for the reasons stated below.\nThe answer to the question before us depends almost entirely on the intent and purpose of the Legislature in enacting the Workmen’s Compensation Act, which originated with St. 1911, c. 751, and in enacting the various amendments thereto as the Act developed to its present state in G. L. c. 152. In Young v. Duncan, 218 Mass. 346, 349 (1914), this court said: “The purpose of this act . . . was to substitute a method of accident insurance in place of the common law rights and liabilities for substantially all employees. ... It was a humanitarian measure enacted in response to a strong public sentiment that the remedies afforded by actions of tort at common law and under the employers’ liability act had failed to accomplish that measure of protection against injuries and of relief in case of accident which it was believed should be afforded to the workman. It was not made compulsory in its application, but inducements were held out to facilitate its voluntary acceptance by both employers and employees. It is manifest from the tenor of the whole act that its general adoption and use throughout the Commonwealth by all who may embrace its privileges is the legislative desire and aim in enacting it. The act is to be interpreted in the light of its purpose and, so far as reasonably may be, to promote the accomplishment of its beneficent design”’\nIn King v. Viscoloid Co., 219 Mass. 420, 422 (1914), there is this further statement of the legislative intent: “It was undoubtedly the intention of the Legislature by that statute to take away from employees who should become subject to its provisions all other remedies that they had against their employers for injuries happening in the course of their employment and arising therefrom, and to substitute for such remedies the wider right of compensation given by the act.” The same statement appears in Zygmuntowicz v. American Steel & Wire Co., 240 Mass. 421, 424 (1922).\nThe intent and purpose for which the Workmen’s Compensation Act was enacted by the Legislature becomes obvious upon a study of social, economic, industrial, legal, and judicial conditions as they developed during the latter part of the Nineteenth and early part of the Twentieth Centuries. These conditions are described and documented in numerous publications, including the reports of a number of committees appointed by the Massachusetts General Court to study the subject and to make recommendations for legislation concerning compensation of injured employees.\nThe first such committee was established by Res. 1903, c. 87, and it was labeled the “Committee on Relations Between Employer and Employee.” The committee’s report, dated January 13, 1904, included in part V, at 36-56, a review of the law on employers’ liability for injuries to employees, with particular emphasis on the volume of such cases in the courts and the dissatisfaction by the parties on both sides of such cases,* and it concluded by recommending new legislation along the lines of the later Workmen’s Compensation Act. See 14 Yale L.J. 18 (1904). The legislation proposed in that report failed to pass the Legislature. Despite that failure, efforts to pass a comprehensive law for the compensation of employees injured in the course of their employment continued until the passage of St. 1911, c. 751. These efforts are described in detail in a document entitled “Report of the Massachusetts Commission on Compensation for Industrial Accidents” filed with the Legislature on July 1, 1912. This is a comprehensive report tracing the movement for legislation on this subject from 1887 through the passage of St. 1911, c. 751, and beyond that point to July 1, 1912.\nAlthough most of the references in judicial opinions and other writings to the rights and benefits created by, or resulting from the Workmen’s Compensation Act refer to rights and benefits enjoyed by employees, there are corresponding rights and benefits enjoyed by employers under the Act. Among the rights and benefits enjoyed by an employer insured under the Act is immunity against suits for damages for injuries to employees “arising out of and in the course of [their] employment.” G. L. c. 152, § 26, as amended through St. 1973, c. 855, § 1.\nThe original Workmen’s Compensation Act, as enacted by St. 1911, c. 751, included the following provision in Part V, § 1: “If an employee of a subscriber [insured employer] files any claim with or accepts any payment from the association [insurer] on account of personal injury, or makes any agreement, or submits any question to arbitration, under this act, such action shall constitute a release to the subscriber [insured employer] of all claims or demands at law, if any, arising from such injury” (emphasis supplied). A similar provision has continued to be a part of the Act to this date, and G. L. c. 152, § 23, now provides: “If an employee files any claim for, or accepts payment of, compensation on account of personal injury under this chapter, or makes any agreement, or submits to a hearing before a member of the division under section eight, such action shall constitute a release to the insured or self-insurer of all claims or demands at law, if any, arising from the injury” (emphasis supplied). This section was last amended in 1953. St. 1953, c. 314, § 6.\nThe original Act also contained the following provision in Part I, § 5: “An employee of a subscriber [insured employer] shall be held to have waived his right of action at common law to recover damages for personal injuries if he shall not have given his employer, at the time of his contract of hire, notice in writing that he claimed such right . . . .” A similar provision has continued to be a part of the Act at all times, and it now appears in G. L. c. 152, § 24, in almost the same language, the last amendment thereto having been made in 1955. St. 1955, c. 174, § 5.\nIt is clear that the Workmen’s Compensation Act gives an insured employer immunity against “all claims or demands at law, if any, arising from the injury,” if such claims or demands are brought by the injured employee himself, or by his administrator or executor for damages for his death resulting from such an injury. The problem in this case arises from the fact that the “claims or demands,” although arising out of the injury to an employee of an insured employer, are not being brought by the employee for his injury, but they are brought by his wife and children for loss of consortium and for emotional distress.\nIn holding that the claims of the plaintiffs are not barred by the Workmen’s Compensation Act, the court relies principally on the reasoning of the decision of this court in King v. Viscoloid Co., 219 Mass. 420 (1914). That case held that the acceptance of workmen’s compensation benefits by a sixteen year old injured employee did not bar a claim by his mother against the employer “to recover for medical and other expenses incurred by the [mother] in nursing and caring for her son and for the loss of his services during a certain period of time.” Id. at 421. The reasoning of the court in the King case was that the Legislature intended, by enacting the Workmen’s Compensation Act, “to take away from employees who should become subject to its provisions all other remedies that they had against their employers for injuries happening in the course of their employment and arising therefrom, and to substitute for such remedies the wider right of compensation given by the act.” Id. at 422. The court then stated that the common law right of a parent to recover for expenses and loss of services for wrongful injury to a minor child, was a right separate and distinct from that of the child and held that the child’s waiver of common law rights in the case before it did not take away the rights of the parent. Id. at 422-424.\nThe court, in the King decision, said that “ [i]n our statute there is no direct enactment taking away the parent’s right of action, and we find nothing which takes it away by necessary implication. The Legislature simply have not covered the case. ... If they had chosen not to leave the parent’s right of action unaffected, they might have taken it away altogether; they might have made some stated division of the alleged compensation between the minor employee and his parent. . . . But we have no right to conjecture what the Legislature would have enacted if they had foreseen the occurrence of a case like this; much less read into the statute a provision which the Legislature did not see fit to put there, whether the omission came from inadvertence or of set purpose.” Id. at 424-425.\nIt is clear from the language of the King decision that the court did not want to read the then new Workmen’s Compensation Act as meaning that by the child’s acceptance of benefits thereunder the parent lost the right then recognized by the common law to recover damages in such a case. That is not the situation in the present case. The rights which the plaintiffs seek to enforce in this case did not exist under the common law when the Workmen’s Compensation Act was first enacted, nor did they exist for many years thereafter. The right to recover for mental distress, absent prior physical injury, was first recognized in our decision of George v. Jordan Marsh Co., 359 Mass. 244 (1971), and was developed further in Agis v. Howard Johnson Co., 371 Mass. 140 (1976), and Dziokonski v. Babineau, 375 Mass. 555 (1978). The right to recover for loss of consortium was first introduced into the law of this Commonwealth by the Legislature in 1973 when it amended our death statute, G. L. c. 229, § 2, by defining one of the elements of damages recoverable to be “(1) the fair monetary value of the decedent to the persons entitled to receive the damages recovered, as provided in section one, including but not limited to compensation for the loss of the reasonably expected net income, services, protection, care, assistance, society, companionship, comfort, guidance, counsel, and advice of the decedent to the persons entitled to the damages recovered” (emphasis supplied). St. 1973, c. 699, § 1, approved August 27, 1973. The Legislature did not then or at any other time provide for recovery for loss of consortium by spouses of victims of injuries in employment. Recovery for the loss of consortium was later made a part of our common law of torts by our decision in Diaz v. Eli Lilly & Co., 364 Mass. 153 (1973), decided on October 10, 1973.\nIn my opinion it is one thing for the court to hold, as it did in King v. Viscoloid Co., supra, that in enacting the Workmen’s Compensation Act in 1911 the Legislature did not intend to take away the common law right of parents of a minor child to recover damages resulting from the child’s injury in employment, but it is quite a different thing for the court to hold as it does in its present opinion that notwithstanding the fact that the Workmen’s Compensation Act has been in effect for almost seventy years, during all of which insured employers have been immune from claims such as those pressed by the present plaintiffs, this court can now subject employers to liability for such claims. In the King decision this court held, in effect, that the Legislature, when it first enacted the Workmen’s Compensation Act, knew that parents of minor children injured through the tortious conduct of their employers were entitled to recover damages such as those involved in King, and yet used no language in the new statute to affect the rights of persons other than the injured employee. On the other hand, in the present case, this court, without any substantive amendments to the Workmen’s Compensation Act, imposes upon employers who are insured under the Act, new and additional obligations based on causes of action which did not become a part of the tort law of this Commonwealth until 1971 as to mental distress, 1973 as to spouses’ right of consortium, and the date of the present opinion as to the familial rights of minor dependent children.\nThere is nothing in the language of the Workmen’s Compensation Act or in its legislative history to indicate that the Legislature ever foresaw that many years later this court would by judicial decisions expand the scope of the law of torts to permit recovery by a spouse for wrongful interference with a right of consortium, by a child for wrongful interference with his familial rights, or by various persons for mental distress resulting in personal injuries. In these circumstances it seems appropriate to apply the same reasoning which was used in the King case, viz.: “The Legislature simply have not covered the case. . . . But we have no right to conjecture what the Legislature would have enacted if they had foreseen the occurrence of a case like this. . . .” King v. Viscoloid Co., supra at 424-425.\nBy the same reasoning as that applied to the Legislature, it can be said that there is nothing in our decisions in the George, Agis, Dziokonski, or Diaz cases, all supra, to indicate that we foresaw, or intended that the principles stated there were to apply to cases stemming from injuries covered under the Workmen’s Compensation Act. In my opinion we start with a clean slate as to the applicability of the rules of those cases to cases stemming from injuries under the Act. The expansion of our common law of torts such as that accomplished by the four decisions identified above is invariably followed by litigation to determine the scope or limitations of the new principles, and that is what we face here. Nothing we have done to date compels or requires that we now make these new principles applicable to cases stemming from injuries under the Workmen’s Compensation Act. It is not enough to determine whether the legal theories can be extended to cover the cases before us. The question is whether they should be. I believe that they should not. In this as in most situations, abstract theorization must yield to practicality at some point.\nAn examination of the volume of cases ndw covered by the Workmen’s Compensation Act may serve to give some idea of what may follow in the wake of today’s decision. The following figures from the 1979 Annual Report of the Division of Industrial Accidents are relevant on this subject.\n1976\n1977\n1978\n1979\nFirst Reports of Injury. (Employees of State, self-insurers and all others.)\n218,237\n235,128\n242,469\n249,404\nCases Completed\n11,594\n11,797\n11,382\n14,217\nLump Sum Settlements Approved\n5,896\n6,829\n6,880\n6,880\nLump Sum Awards\n$49,009,867\n$59,308,925\n$60,821,665\n$73,515,218\nThese statistics do not, of course, give the number of cases in which relatives of the injured employees might make claims against the employers for loss of consortium, interference with familial relationship, or mental distress, but they are sufficient to permit an inference that the number will be considerable. Will the opinion of the court in the present case put our courts on the road back to the situation of congestion which the Legislature sought to remedy in 1911? Will it place a new and heavy burden on the employers for the cost of defending against such claims and the cost of meeting whatever judgments or settlements may result from them? Will it be one more factor to contribute to the decline of industry in this Commonwealth?\nConcern over the inadequacy of the compensation provided for the injured employee and his or her family under the Workmen’s Compensation Act is understandable, and reasonable efforts by the courts to improve the benefits to the level of the employee’s actual wages, as a minimum, plus periodic adjustment of benefits to compensate for the ravages of inflation, would be commendable if such a decision were within the competence of the judiciary. See The Report of the National Commission on State Workmen’s Compensation Laws, c. 7, at 117-119 (1972), on subject “A Time for Reform.” However, under our system of a government of laws, such a decision is one of public policy entrusted primarily to the Legislature. Based on all of the considerations discussed above, it is my opinion that the question whether the long established and supposedly exclusive legislative plan for determination of the rights and liabilities arising out of injuries to employees should provide additional or different types of benefits for relatives of the injured employees is one which should be considered and addressed by the Legislature; and that the judiciary should not intrude itself into the making of that policy decision. Longever v. Revere Copper & Brass Inc., ante 221, 226 (1980).\nIf the Legislature determines, as a matter of policy, that it should bring about an increase in the benefits payable by insurers to injured employees, it will have an opportunity to decide not only the amount of such increase, but also the form which it should take, i.e., whether it should be in the form of an increase in payments to the injured employee, an increase in payments to the dependent relatives or other relatives of the employee, or a combination of increased payments to the employee and to his relatives. Much more important, however, is the fact that in doing so the Legislature will have the opportunity to decide whether the administration of any increased payments or benefits should be delegated and entrusted to the Industrial Accident Board (G. L. c. 23, §§ 15-24), the quasi judicial board which is now responsible for the administration of the Workmen’s Compensation Act (G. L. c. 152), rather than to have any part of the increased benefits, particularly those payable to persons other than the injured employees, be subject to adjudication by the judiciary. In view of the well-documented court congestion and other evils incident to litigation between injured employees and their employers which the Legislature sought to correct by its enactment of the Workmen’s Compensation Act in 1911, it would seem that if the Legislature were now given an opportunity to consider the matter, it probably would not elect to aggravate further our already congested court dockets by a return to the pre-1911 practices which produced an unmanageable glut of litigation with oppressive costs to all concerned. (See note 2, supra.)\nThis is the same case upon which the court relies in the present case for the proposition that an employee who has waived his right of action at common law by failing to give his employer written notice that he claims such right when he is hired does not by such waiver affect the rights of other persons. See G. L. c. 152, § 24.\nThe following are excerpts from the committee’s report: “The number of personal injury cases of all kinds in the community is very large, and is constantly increasing with the growth of population, the extension of industry and the development of means of transportation. The volume of litigation in this class of cases, not to mention those which are compromised before suits are instituted, is sufficiently large to engage almost the entire time of many sessions of courts and to demand from [time] to time the appointment of new judges, with accompanying increase in court expenses. A much greater proportion of personal injury cases than ever before, in comparison with other cases, occupies the attention of trial courts. These cases, good and bad, encumber the court dockets and in various ways delay the progress of justice. It has been estimated that, of this large volume of personal injury cases, those particularly relating to employees constitute from one-eighth to one-seventh.” Id. at 37-38.\nThere then followed a reference to improper conduct by lawyers and other persons on both sides of such litigation. The report then continued as follows: “At all events, there is a great waste of money, so far as justice and the rights of both employers and employees are concerned. The real beneficiaries frequently are not parties to the litigation, and oftentimes their selfish interests are served by defeating justice or by the promotion of injustice. It is no part of the duty of this committee, nor is it our intention, to censure the conduct of any persons for this condition of things, which indeed may be the result of forces and influences beyond the control of individuals. It would seem, however, to be for the true interest of the community, as well as for the interest of the employer and the injured employee, that some adequate remedy or remedies should be devised to correct these evils.” Id. at 39.\nIt is interesting to note that although the decision in the King case has been cited, and statements have been quoted therefrom with seeming approval in a number of later decisions by this court, there appears to be no opinion in which it has been applied to permit a relative of an employee who has received workmen’s compensation benefits to recover for loss of consortium, interference with familial relationship, mental distress, or even to permit a parent of a minor injured employee of a subscribing employer to recover for the loss of a minor’s services or to recover for medical expenses incurred for him. The following are some of the cases which seem to approve the holding in the King case, but which do not involve the same fact situation or legal issue: Erickson v. Buckley, 230 Mass. 467 (1918), Gilbert v. Wire Goods Co., 233 Mass. 570 (1919), Slavinsky v. National Bottling Torah Co., 267 Mass. 319 (1929), and Zarba v. Lane, 322 Mass. 132 (1947)."", ""type"": ""concurring-in-part-and-dissenting-in-part"", ""author"": ""Quirico, J.""}, {""text"": ""Hennessey, C.J.\n(dissenting). I agree with the opinion of the court in its conclusion and reasoning that a minor child should have a right to recover for loss of a parent’s society and companionship caused by a defendant’s culpable conduct. However, I do not agree that the child should recover in a case where the parent’s injury was compensable under the Workmen’s Compensation Act, and the statutes accordingly limited the legal liability of the defendant. On this point, I agree with the reasoning of both Justices Quirico and Wilkins in their separate opinions in this case.\nI do not agree with the court’s conclusion that there can be recovery for mental suffering and physical impairment by a wife and children who were not at the scene of the accident when it occurred or who did not arrive at the scene of the accident soon thereafter. First of all, in my view Dziokonski is not broad enough to cover this case. On the contrary, the opinion of the court here constitutes a large extension of Dziokonski. That case allows recovery to one who is at the scene when the accident occurs or arrives there soon after the accident. It could be argued that the last paragraph of that opinion contains some rather general language. However, as I read that last paragraph it kept the father’s case alive solely because the allegations were so general as not to preclude him under the principles stated.\nDziokonski is admittedly a somewhat arbitrary cutoff of the limits of culpability. So was the Spade rule. So is the Restatement rule. So, indeed, is the rule of Ferriter, as stated in the court’s opinion. All these are rules of policy designed to limit the great potential reach of the principle of reasonable foreseeability.\nDziokonski, on very compelling facts (mother died in the ambulance while accompanying injured child to hospital), was a modest policy extension of the Restatement policy rule. Not many cases will involve third parties on the scene. The opinion of the court in the instant case has the potential for extending liability of a defendant, in a ripple effect, to extraordinary lengths. This court in recent years has done milch to revise many common law principles which needed change. We should think seriously whether there are any good reasons for extending the defendant’s risk as far as the court’s opinion, and its implications, do in this case.\nI take some comfort that the majority of the Justices may have recognized some of my concerns by the emphasis in the court’s opinion that the plaintiffs must show that they suffered physical impairment caused by the mental suffering, and that the plaintiffs must suffer their mental shock “immediately after the accident” or “closely on the heels of the accident.”"", ""type"": ""dissent"", ""author"": ""Hennessey, C.J.""}, {""text"": ""Wilkins, J.\n(dissenting). I accept the logic of the opinion of the court that a minor child generally should have a right to recover for loss of a parent’s society and companionship resulting from a defendant’s negligence or intentional wrongdoing. I do this even though we become the first court of last resort in any State to do so.\nAs a matter of policy, however, I would decline to recognize a spouse’s right to recover for loss of consortium and a child’s right to recover for the loss of a parent’s companionship and society where the injury sustained by the parent-spouse was covered by the Workmen’s Compensation Act. In Diaz v. Eli Lilly & Co., 364 Mass. 153 (1973), we recognized a spouse’s right to recover for loss of consortium and society. In doing so, we noted the preferable circumstance, and the defendant’s right to insist, that the spouse’s consortium claim be tried with the underlying claim of the injured spouse in order to avoid redundant recovery. Id. at 162. We declared that spouses’ claims for loss of consortium would not be enforceable where the claim for physical injuries had been concluded by judgment, settlement, or otherwise. Id. at 167.\nIn the context of a workmen’s compensation injury, there is no litigable tort claim of the injured employee against the employer. Therefore, claims for loss of consortium or of companionship and society cannot be associated at trial with any underlying claim of the injured parent-spouse against the employer. The risk of the jury awarding damages for losses not properly within the scope of the injury to the spouse or child is obvious and substantial. I would not recognize a common law right of a spouse or a child to recover for the loss of consortium or of the companionship and society of a parent-spouse injured in circumstances where the employer’s common law liability to the parent-spouse is barred by the Workmen’s Compensation Act.\nFor the reasons already stated concerning the inappropriateness of permitting recovery for loss of consortium and companionship where the parent-spouse’s injury was covered under the Workmen’s Compensation Act, I would not extend the principles of Dziokonski v. Babineau, 375 Mass. 555 (1978), to this case and thus would deny recovery for substantial physical injuries arising from emotional distress caused by the plaintiffs’ seeing the injured parent-spouse.\nI suspect that the court’s recognition of these rights arising from a workmen’s compensation injury will come as a substantial surprise to employers, insurers, the Bar, and the Legislature. I agree with the view expressed in the dissent of Mr. Justice Quirico that, if there is to be a right to recovery for injuries of the type alleged by the plaintiffs, the Legislature (and not the courts) should establish that right."", ""type"": ""dissent"", ""author"": ""Wilkins, J.""}], ""attorneys"": [""Morton J. Sweeney for the plaintiffs."", ""Gerard L. Pellegrini for the defendant.""], ""corrections"": """", ""head_matter"": ""Judith A. Ferriter & others vs. Daniel O’Connell’s Sons, Inc.\nHampden.\nFebruary 6, 1980.\nSeptember 9, 1980.\nPresent: Hennessey, C.J., Quiraco, Braucher, Kaplan, Wilkins, Liacos & Abrams, JJ.\nWorkmen’s Compensation Act, Injuries to which act applies, Action by spouse or child, Emotional distress, Election of remedies. Husband and Wife, Consortium. Parent and Child, Companionship and society. Actionable Tort. Negligence, Causing loss of consortium, Causing loss of parental society, Emotional distress. Emotional Distress, Physical injuries to another.\nA child has a right to recover for loss of a parent’s society and companionship through a defendant’s negligence if the child is a minor who is dependent on the parent both economically and in filial needs for closeness, guidance, and nurture. [509-517]\nAllegations in a complaint that the plaintiffs, the wife and children of an employee seriously injured through his employer’s negligence, suffered mental anguish and physical impairment as a result of observing the employee in the hospital immediately after the accident were sufficient to state a claim upon which relief might be granted. [517-519] Hennessey, C.J., and Quirico, J., dissenting.\nClaims for loss of consortium and society by the wife and children of an employee who was injured in the course of his employment through the alleged negligence of the defendant employer were not barred by the Workmen’s Compensation Act even though the employee accepted compensation payments under G. L. c. 152, § 23 [519-530]; nor did the Workmen’s Compensation Act bar the plaintiffs’ claims for negligent infliction of emotional distress [530]. Hennessey, C.J., Quirico, J., and Wilkins, J., dissenting.\nCivil action commenced in the Superior Court Department on June 7, 1979.\nThe case was heard by Cross, J., on a motion for summary judgment and was reported by him to the Appeals Court. The Supreme Judicial Court granted a request for direct review.\nMorton J. Sweeney for the plaintiffs.\nGerard L. Pellegrini for the defendant.\nJason R. Ferriter and Leah N. Ferriter, children.""}, ""cites_to"": [{""cite"": ""351 Mass. 700"", ""year"": 1966, ""case_ids"": [3862203, 3860875, 3861846], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/351/0700-03"", ""/mass/351/0700-01"", ""/mass/351/0700-02""], ""opinion_index"": 0}, {""cite"": ""354 U.S. 914"", ""year"": 1957, ""weight"": 2, ""case_ids"": [6163748, 6164102, 6164048, 6163889, 6164176, 6163801], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/354/0914-01"", ""/us/354/0914-05"", ""/us/354/0914-04"", ""/us/354/0914-03"", ""/us/354/0914-06"", ""/us/354/0914-02""], ""opinion_index"": 0}, {""cite"": ""283 Mass. 480"", ""year"": 1933, ""weight"": 2, ""case_ids"": [478043], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""486""}], ""case_paths"": [""/mass/283/0480-01""], ""opinion_index"": 0}, {""cite"": ""374 Mass. 524"", ""year"": 1978, ""weight"": 2, ""case_ids"": [3871147], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""526""}], ""case_paths"": [""/mass/374/0524-01""], ""opinion_index"": 0}, {""cite"": ""93 N.J.L. 174"", ""year"": 1919, ""case_ids"": [194050], ""category"": ""reporters:state"", ""reporter"": ""N.J.L."", ""case_paths"": [""/njl/93/0174-01""], ""opinion_index"": 0}, {""cite"": ""N.J. Stat. Ann. § 34:15-8"", ""category"": ""laws:leg_statute"", ""reporter"": ""N.J. Stat. Ann."", ""opinion_index"": 0}, {""cite"": ""9 N.J. 56"", ""year"": 1952, ""case_ids"": [1325540], ""category"": ""reporters:state"", ""reporter"": ""N.J."", ""case_paths"": [""/nj/9/0056-01""], ""opinion_index"": 0}, {""cite"": ""14 N.J. Super. 607"", ""year"": 1951, ""case_ids"": [716741], ""category"": ""reporters:state"", ""reporter"": ""N.J. Super."", ""case_paths"": [""/nj-super/14/0607-01""], ""opinion_index"": 0}, {""cite"": ""271 S.W.2d 764"", ""year"": 1954, ""case_ids"": [10201103], ""category"": ""reporters:state_regional"", ""reporter"": ""S.W.2d"", ""case_paths"": [""/sw2d/271/0764-01""], ""opinion_index"": 0}, {""cite"": ""463 S.W.2d 471"", ""year"": 1971, ""case_ids"": [10149448], ""category"": ""reporters:state_regional"", ""reporter"": ""S.W.2d"", ""case_paths"": [""/sw2d/463/0471-01""], ""opinion_index"": 0}, {""cite"": ""117 N.H. 132"", ""year"": 1977, ""case_ids"": [4442871], ""category"": ""reporters:state"", ""reporter"": ""N.H."", ""case_paths"": [""/nh/117/0132-01""], ""opinion_index"": 0}, {""cite"": ""252 S.W. 569"", ""year"": 1923, ""case_ids"": [10314052], ""category"": ""reporters:state_regional"", ""reporter"": ""S.W."", ""case_paths"": [""/sw/252/0569-01""], ""opinion_index"": 0}, {""cite"": ""132 Okla. 152"", ""year"": 1928, ""case_ids"": [6265855], ""category"": ""reporters:state"", ""reporter"": ""Okla."", ""case_paths"": [""/okla/132/0152-01""], ""opinion_index"": 0}, {""cite"": ""110 N.H. 314"", ""year"": 1970, ""case_ids"": [2360360], ""category"": ""reporters:state"", ""reporter"": ""N.H."", ""case_paths"": [""/nh/110/0314-01""], ""opinion_index"": 0}, {""cite"": ""112 Neb. 515"", ""year"": 1924, ""case_ids"": [4552716], ""category"": ""reporters:state"", ""reporter"": ""Neb."", ""case_paths"": [""/neb/112/0515-01""], ""opinion_index"": 0}, {""cite"": ""44 Stat. 1426"", ""category"": ""laws:leg_session"", ""reporter"": ""Stat."", ""opinion_index"": 0}, {""cite"": ""33 U.S.C. § 905"", ""category"": ""laws:leg_statute"", ""reporter"": ""U.S.C."", ""opinion_index"": 0}, {""cite"": ""33 U.S.C. §§ 901"", ""year"": 1976, ""category"": ""laws:leg_statute"", ""reporter"": ""U.S.C."", ""pin_cites"": [{""page"": ""et seq.""}], ""opinion_index"": 0}, {""cite"": ""374 Mass. 704"", ""year"": 1978, ""case_ids"": [3872022], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/374/0704-01""], ""opinion_index"": 0}, {""cite"": ""315 Mass. 631"", ""year"": 1944, ""case_ids"": [904113], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/315/0631-01""], ""opinion_index"": 0}, {""cite"": ""359 Mass. 244"", ""year"": 1971, ""case_ids"": [294532], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""253""}], ""case_paths"": [""/mass/359/0244-01""], ""opinion_index"": 0}, {""cite"": ""371 Mass. 140"", ""year"": 1976, ""case_ids"": [320403], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/371/0140-01""], ""opinion_index"": 0}, {""cite"": ""54 Mich. L. Rev. 1023"", ""year"": 1956, ""category"": ""journals:journal"", ""reporter"": ""Mich. L. Rev."", ""opinion_index"": 0}, {""cite"": ""6 Vand. L. Rev. 926"", ""year"": 1953, ""category"": ""journals:journal"", ""reporter"": ""Vand. L. Rev."", ""opinion_index"": 0}, {""cite"": ""2 St. Louis U.L.J. 305"", ""year"": 1953, ""category"": ""journals:journal"", ""reporter"": ""St. Louis U. L.J."", ""opinion_index"": 0}, {""cite"": ""13 San Diego L. Rev. 231"", ""year"": 1975, ""category"": ""journals:journal"", ""reporter"": ""San Diego L. Rev."", ""opinion_index"": 0}, {""cite"": ""56 B.U.L. Rev. 722"", ""year"": 1976, ""category"": ""journals:journal"", ""reporter"": ""B.U. L. Rev."", ""opinion_index"": 0}, {""cite"": ""51 Ind. L. J. 590"", ""year"": 1976, ""category"": ""journals:journal"", ""reporter"": ""Ind. L.J."", ""opinion_index"": 0}, {""cite"": ""75 Misc. 2d 1078"", ""year"": 1973, ""case_ids"": [1267384], ""category"": ""reporters:state"", ""reporter"": ""Misc. 2d"", ""pin_cites"": [{""page"": ""1084""}], ""case_paths"": [""/misc2d/75/1078-01""], ""opinion_index"": 0}, {""cite"": ""61 N.J. 502"", ""year"": 1972, ""case_ids"": [1931897], ""category"": ""reporters:state"", ""reporter"": ""N.J."", ""case_paths"": [""/nj/61/0502-01""], ""opinion_index"": 0}, {""cite"": ""189 Kan. 165"", ""year"": 1962, ""case_ids"": [73476], ""category"": ""reporters:state"", ""reporter"": ""Kan."", ""pin_cites"": [{""page"": ""168-169""}], ""case_paths"": [""/kan/189/0165-01""], ""opinion_index"": 0}, {""cite"": ""211 N.W.2d 581"", ""year"": 1973, ""case_ids"": [10769264], ""category"": ""reporters:state_regional"", ""reporter"": ""N.W.2d"", ""pin_cites"": [{""page"": ""582""}], ""case_paths"": [""/nw2d/211/0581-01""], ""opinion_index"": 0}, {""cite"": ""108 F. Supp. 739"", ""year"": 1952, ""case_ids"": [313608], ""category"": ""reporters:federal"", ""reporter"": ""F. Supp."", ""pin_cites"": [{""page"": ""741""}], ""case_paths"": [""/f-supp/108/0739-01""], ""opinion_index"": 0}, {""cite"": ""24 Wash. App. 92"", ""year"": 1979, ""case_ids"": [460235], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""case_paths"": [""/wash-app/24/0092-01""], ""opinion_index"": 0}, {""cite"": ""314 So. 2d 486"", ""year"": 1975, ""case_ids"": [9649344], ""category"": ""reporters:state_regional"", ""reporter"": ""So. 2d"", ""case_paths"": [""/so2d/314/0486-01""], ""opinion_index"": 0}, {""cite"": ""408 A.2d 668"", ""year"": 1979, ""category"": ""reporters:state_regional"", ""reporter"": ""A.2d"", ""opinion_index"": 0}, {""cite"": ""69 A.L.R.3d 528"", ""year"": 1976, ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R. 3d"", ""opinion_index"": 0}, {""cite"": ""69 A.L.R.3d 553"", ""year"": 1976, ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R. 3d"", ""pin_cites"": [{""page"": ""559-561""}], ""opinion_index"": 0}, {""cite"": ""19 Cal. 3d 461"", ""year"": 1977, ""case_ids"": [2291122], ""category"": ""reporters:state"", ""reporter"": ""Cal. 3d"", ""case_paths"": [""/cal-3d/19/0461-01""], ""opinion_index"": 0}, {""cite"": ""66 Wis. 2d 394"", ""year"": 1975, ""case_ids"": [8669090], ""category"": ""reporters:state"", ""reporter"": ""Wis. 2d"", ""case_paths"": [""/wis-2d/66/0394-01""], ""opinion_index"": 0}, {""cite"": ""279 So. 2d 844"", ""year"": 1973, ""case_ids"": [9814729], ""category"": ""reporters:state_regional"", ""reporter"": ""So. 2d"", ""pin_cites"": [{""page"": ""846""}], ""case_paths"": [""/so2d/279/0844-01""], ""opinion_index"": 0}, {""cite"": ""468 F. 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Inc.""}","[0.033200853,0.022939287,0.019357689,0.062024195,-0.0059799906,-0.010332628,-0.0041074683,0.0065769237,-0.023848899,-0.010005736,0.049318045,-0.023294605,-0.006171862,-0.00162913,0.025881315,0.029363425,0.09812444,-0.03698143,0.010346841,0.0003006873,0.042638082,0.035702284,0.009025061,-0.06634485,-0.010275777,-0.025042765,0.044400454,-0.037322532,-0.0068327524,-0.0049744425,0.06805038,-0.014091886,-0.016330386,-0.00050366233,-0.015790302,0.02596659,0.010112331,0.0060759266,0.0015411889,-0.012421894,0.0015749441,-0.04454258,-0.005677971,0.007404813,-0.018106971,0.001177877,0.02147538,0.045253217,0.043775097,-0.016969956,-0.031751156,-0.022598183,0.019059222,0.03735096,-0.030187761,0.018106971,-0.05434934,0.02274031,0.025682338,-0.028311685,-0.002407275,0.010275777,-0.031410053,-0.014909116,-0.06424137,0.0149375405,-0.00095491536,0.015065455,-0.019414539,0.04056303,0.04127366,0.013132528,0.053326026,0.025611274,-0.037549935,0.015804514,0.04977285,0.00078480714,-0.033797786,0.0026026994,0.030926822,-0.0042211697,0.009039273,0.04940332,-0.01731106,0.04585015,-0.048152607,0.00015955968,-0.039937668,-0.036441345,0.0014230459,0.025355445,-0.016742554,0.025980804,0.044968963,-0.07572523,-0.018249098,-0.0013146742,-0.0024836683,0.009650419,0.014596436,-0.04405935,-0.030216185,0.02616557,0.035702284,0.024360556,-0.034309443,0.0061647557,0.018661266,-0.0033275469,0.029931933,-0.002201191,-0.05756141,0.029448701,-0.011100113,-0.020665256,-0.051506802,-0.017780079,-0.035076927,0.041245237,-0.03371251,-0.01184628,-0.008961103,-0.006054607,0.065094136,-0.033684082,0.029562403,-0.009494079,-0.040250346,-0.05540108,0.027643688,0.0056424392,-0.0080301715,-0.018249098,-0.054889422,0.0096291,0.018149609,0.0076748542,-0.028667003,-0.059295356,0.02190176,0.018533353,-0.0056530987,0.0039831074,-0.009323527,0.026506674,0.0702107,0.013331506,-0.017751655,-0.0025902633,-0.028979681,0.024744298,0.011306197,0.06600375,8.921796e-05,-0.013452314,0.0084281275,0.010183395,-0.007561153,-0.03894278,-0.03234809,-0.0007306213,0.002695082,-0.016387235,-0.02094951,0.06651541,0.00762511,0.010304202,-0.044144627,-0.0156766,0.017637953,-0.0022225098,-0.02517068,0.025796039,-0.021134276,-0.023280391,0.0077530243,-0.03399676,0.021446954,-0.03547488,0.024971703,0.016287746,-0.0119813,0.017225785,-0.027629476,0.022655033,-0.028567513,0.019243987,0.007173857,0.008349957,0.059352208,-0.028624365,0.030585716,-0.07532728,-0.01863284,-0.022470267,-0.009913353,0.03905648,-0.01873233,-0.0044379137,0.020622618,-0.030784694,0.048351582,0.005507419,0.020295726,0.03777734,-0.009650419,0.017780079,0.025767613,-0.005887608,0.026265057,-0.04238225,0.04448573,0.022171801,0.0068149865,-0.0149233285,-0.03223439,0.009693057,-0.020452065,0.018277524,0.03260392,0.055344228,-0.007845406,-0.0010082129,0.026790926,0.018007483,-0.046248104,0.013701037,-0.02079317,-0.011313304,0.034337867,0.03456527,-0.016714128,-0.041387364,-0.015577112,-0.022697672,-0.054974698,-0.011725472,-0.011100113,0.034849524,-0.0070210705,-0.04832316,-0.0108656045,-0.015605537,0.016500937,0.020494703,-0.0068611777,-0.021972824,-0.013878695,-0.00947276,0.028197983,-0.0367256,0.07117717,0.030670993,-0.07271214,0.04965915,0.043462418,-0.03547488,0.02416158,0.030102484,-0.00085498235,0.025753401,0.008989529,-0.05798779,-0.033797786,-0.017055232,0.028269047,-0.048578985,0.028169557,0.034792673,-0.0066124555,0.029931933,0.0015571782,0.03192171,-0.0051307823,0.0008030172,-0.007070815,-0.022470267,0.034849524,0.004427254,0.004331318,-0.0062642447,0.0014798967,-0.001471902,0.0115336,0.04832316,0.018092759,0.036839303,-0.033200853,0.01583294,-0.027771603,-0.026122931,0.028482238,-0.056850772,0.035560157,0.011256454,0.035446458,-0.022356566,0.0047861245,0.11159807,-0.019713005,0.07106347,-0.031438477,0.03155218,0.013409676,-0.026691439,0.022868223,0.005425696,-0.0015882684,-0.03598654,-0.03371251,-0.02950555,-0.04886324,-0.02168857,-0.030955246,-0.04965915,0.045025814,0.019272413,-0.0012489405,-0.0036100242,0.0003697521,-0.0041714255,0.01316806,0.01561975,-0.022598183,-0.019400327,-0.024474258,-0.029903507,-0.019599304,0.0030628354,-0.025554422,-0.0024516897,0.009394591,0.0078027686,0.016515149,-0.07299639,0.018476501,0.029676104,0.06156939,0.000596489,-0.020551555,-0.01013365,0.008556042,-0.004963783,0.031410053,-0.012265555,-0.029050745,-0.025312807,0.014752775,0.06731132,-0.062365297,-0.03328613,-0.027060969,-0.0072413674,-0.030699417,0.024090515,0.014639074,-0.0734512,0.02659195,0.0060297353,-0.013494953,0.023621496,0.020054111,0.048465285,-0.017524252,0.042552803,-0.03277447,0.018035907,0.021247977,-0.01200262,-0.019755645,0.012308192,0.043547694,0.029363425,-0.023251966,0.0024214876,-0.01719736,-0.018860243,-0.00068576244,-0.020935297,0.024559535,-0.016017705,-0.0063033295,-0.0076819607,0.025085405,0.0010766116,-0.023180904,0.0133244,-0.053468153,0.00079191354,0.036213942,-0.005393717,-0.04664606,0.02902232,-0.023522008,-0.043860372,0.05361028,0.066799656,0.027728966,-0.029448701,0.04295076,-0.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+819052,"{""id"": 819052, ""name"": ""Douglas C. Alton, Jr. vs. Manufacturers and Merchants Mutual Insurance Company"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""1fcd5db9c950b229909aee4d96c8180f524ad4d238595881acfbc29e9c0e3586"", ""simhash"": ""1:ff62595df98ca3dd"", ""pagerank"": {""raw"": 0.0000001502215460057485, ""percentile"": 0.6658735702351759}, ""char_count"": 8497, ""word_count"": 1355, ""cardinality"": 465, ""ocr_confidence"": 0.953}, ""casebody"": {""judges"": [], ""parties"": [""Douglas C. Alton, Jr. vs. Manufacturers and Merchants Mutual Insurance Company.""], ""opinions"": [{""text"": ""Lynch, J.\nThe plaintiff, Douglas C. Alton, Jr., appeals from summary judgment in favor of the defendant, Manufacturers and Merchants Mutual Insurance Company. A Superior Court judge ruled that the terms of the plaintiffs insurance policy excluded from coverage damage to the plaintiffs building caused by the New Bedford police during the execution of various search warrants. We granted the plaintiff’s application for direct appellate review and now affirm the judgment.\nWe briefly summarize the facts. On June 29, 1989, New Bedford police obtained a search warrant for the first and second floors of a building owned but not occupied by the plaintiff at 113 Clark Street. The warrant authorized the police to search for cocaine, implements used in the administration and preparation of controlled substances, currency, records, and receipts used in relation to the distribution, sale, or purchase of cocaine. On June 30, 1989, at 9:45 p.m., the police executed the warrant and seized cocaine, currency, and miscellaneous documents from the first floor; but found no contraband on the second floor. On September 6, 1989, the police again obtained a warrant for the search of the first and second floors of the building. In the course of the search authorized by this warrant, no drugs were found on the first floor; cocaine, United States currency, records, and assorted drug paraphernalia were discovered on the second floor of the building.\nWhile executing the warrants the police caused a total of $17,274 worth of damage to the premises. This case arises from the plaintiff’s claim for reimbursement for the cost of this damage under his policy of insurance with the defendant. The parties agreed to the essential facts and stipulated that “the only issue as to Plaintiff’s right to policy coverage is whether the government actions exclusion is a bar to the Plaintiff’s claim.” The judge treated the matter as cross motions for summary judgment and allowed the defendant’s motion.\nThe section of the policy entitled, “Causes of Loss,” provides, in part:\n“B. EXCLUSIONS\n“1. We will not pay for loss or damage caused directly or indirectly by any of the following. Such loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence\nto the loss.\n66...\n“c. Governmental Action\n“Seizure or destruction of property by order of governmental authority.”\nThe plaintiff argues that a search warrant does not constitute an “order of governmental authority” within the meaning of that policy provision. The warrants in question instructed the police as follows: “You are therefore commanded within a reasonable time and in no event later than seven days from the issuance of this search warrant to search for the following property . ...” In view of such unequivocal language, it is clear that such warrant constitutes an order of governmental authority. See also K.B. Smith, Criminal Practice and Procedure § 167 (2d ed. 1983). The plaintiff contends, however, that the warrant does not order the destruction of property, but rather that property be searched for and seized. The policy excludes from coverage, however, damage caused directly or indirectly by seizure or destruction of property by order of governmental authority. The judge ruled that the damage to the plaintiffs building was the indirect result of orders of governmental authority — the search warrants. The officers were ordered to search the plaintiffs building and any damage to the plaintiffs building resulted from the action by the police in carrying out that order. The plaintiff does not contend that the damage was done maliciously or exceeded what was reasonably necessary in the circumstances. The judge correctly ruled, therefore, that the damage falls within the policy’s governmental authority exclusion.\nThe reasoning of Danulevich v. Hartford Fire Ins. Co., 36 Conn. Supp. 570 (1980), does not support the plaintiffs cause. In Danulevich, the police, acting pursuant to a warrant authorizing the seizure of two items, took over 2,000 items from the plaintiffs apartment. Id. at 572. Even after the charges against the plaintiff were dismissed, the police failed to return the items seized. The Danulevich court held that the warrant did not sanction the actions of the police. Id. at 574. Contrary to the circumstances of Danulevich, damage to the plaintiffs building in this case was caused, directly or indirectly, by the police in executing the legal order of governmental authority. It was, therefore, within the exclusion of the plaintiffs policy.\nThe plaintiff also contends that his policy covers damage caused by a tenant’s criminal activity. Therefore, he argues it also covers damage caused by police in apprehending a tenant. This argument is an attempt to come within the train of events principle. In applying this theory to determine whether certain damage is an insured risk, we have recognized that, “[if the proximate] cause is an insured risk, there will be coverage even though the final form of the property damage, produced by a series of related events, appears to take the loss outside the terms of the policy.” Jussim v. Massachusetts Bay Ins. Co., 415 Mass. 24, 27 (1993). In Jussim, however, we recognized that the insurer might have excluded liability under the train of events theory by providing in the exclusion that the policy “did not insure for loss caused di rectly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss.” (Emphasis supplied.) Id. at 30-31. Here the policy provides that there is no coverage for loss or damage caused directly or indirectly by, among other things, “[s]eizure or destruction of property by order of governmental authority,” and such loss or damage is excluded “regardless of any other cause or event that contributes concurrently or in any sequence to the loss.”\nJudgment affirmed.\nThe damage included the following:\nFirst floor: fourteen storm windows, twelve interior windows, twenty-one sheets of plywood, twenty-two sheets of mylight, five ceiling lights, one ceiling fan, one heater, one gas stove, fourteen sheets of paneling, and the bathroom (vanity, bathtub, cabinet, and sink).\nSecond floor: fifteen interior windows, twelve storm windows, fourteen sheets of paneling, twenty-four sheets of plywood, three wall cabinets, the bathroom (vanity, bathtub, cabinet, and sink), a gas heater, a stove heater, and six lights.\nThe plaintiff relies on Board of Health of N. Adams v. Mayor of N. Adams, 368 Mass. 554 (1975), and Old Colony Trust Co. v. Merchants Enters., Inc., 332 Mass. 484 (1955), to support his contention that the search warrants were not orders. These cases involve the interpretation of the term “order” in two different statutes. Board of Health of N. Adams involved whether a statute, authorizing local boards of health to “order” fluoridation of water, included the power to compel appropriation of funds for the fluoridation. Old Colony Trust Co. involved whether a building permit should be deemed an “order” pursuant to a statute which permitted a person aggrieved by an order of the building inspector to appeal to the Superior Court. We believe neither case controls whether, under the terms of the policy, a search warrant is an order of governmental authority."", ""type"": ""majority"", ""author"": ""Lynch, J.""}], ""attorneys"": [""Paul S. Hughes (Michael A. Crowe with him) for the plaintiff."", ""Anna Katherine Bennett for the defendant.""], ""corrections"": """", ""head_matter"": ""Douglas C. Alton, Jr. vs. Manufacturers and Merchants Mutual Insurance Company.\nBristol.\nNovember 2, 1993.\nDecember 16, 1993.\nPresent: Lucos, C.J., Nolan, Lynch, O’Connor, & Greaney, JJ.\nInsurance, Property damage, Coverage, Construction of policy, Government actions exclusion.\nA search warrant was an “order of governmental authority” within the meaning of an exclusionary clause in a policy of insurance, with the result that “loss or damage caused directly or indirectly” by police officers executing a search warrant was not covered by the policy. [613-614]\nThe terms of an exclusionary clause in a policy of insurance operated to exclude coverage for damage caused by police officers executing a search warrant in response to a tenant’s criminal activity. [614-615]\nCivil action commenced in the Superior Court Department on March 11, 1991.\nThe case was heard by William H. Carey, J., on motions for summary judgment.\nThe Supreme Judicial Court granted a request for direct appellate review.\nPaul S. Hughes (Michael A. Crowe with him) for the plaintiff.\nAnna Katherine Bennett for the defendant.""}, ""cites_to"": [{""cite"": ""332 Mass. 484"", ""year"": 1955, ""case_ids"": [938256], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/332/0484-01""], ""opinion_index"": 0}, {""cite"": ""368 Mass. 554"", ""year"": 1975, ""case_ids"": [307089], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/368/0554-01""], ""opinion_index"": 0}, {""cite"": ""415 Mass. 24"", ""year"": 1993, ""weight"": 2, ""case_ids"": [3905656], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""27""}, {""page"": ""30-31""}], ""case_paths"": [""/mass/415/0024-01""], ""opinion_index"": 0}, {""cite"": ""36 Conn. Supp. 570"", ""year"": 1980, ""weight"": 3, ""case_ids"": [1665104], ""category"": ""reporters:state"", ""reporter"": ""Conn. Supp."", ""pin_cites"": [{""page"": ""572""}, {""page"": ""574""}], ""case_paths"": [""/conn-supp/36/0570-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""416 Mass. 611"", ""type"": ""official""}], ""file_name"": ""0611-01"", ""last_page"": ""615"", ""first_page"": ""611"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T17:27:52.341546+00:00"", ""decision_date"": ""1993-12-16"", ""docket_number"": """", ""last_page_order"": 637, ""first_page_order"": 633, ""name_abbreviation"": ""Alton v. 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Murray et al., Appellants, v. A. A. Bousquet et al., Respondents"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""f3b6365ca49f1059466a8454767aa3ebc350cb716dcf8091bcfb014b57cf6a9b"", ""simhash"": ""1:6749b4d130d9afd9"", ""pagerank"": {""raw"": 0.00000033676175094320825, ""percentile"": 0.8756292355268589}, ""char_count"": 16065, ""word_count"": 2849, ""cardinality"": 705, ""ocr_confidence"": 0.516}, ""casebody"": {""judges"": [], ""parties"": [""Charles A. Murray et al., Appellants, v. A. A. Bousquet et al., Respondents.""], ""opinions"": [{""text"": ""Millard, J.\nPlaintiffs commenced this action to quiet title to, and enjoin trespasses on, a parcel of land. By cross-complaint, the defendants claimed the same tract and prayed that their title thereto be quieted. The cause was tried to the court, and no findings of fact or conclusions of law were made. From the decree in favor of the defendants, the plaintiffs have appealed.\nAppellants contend that a stream known as Swakane creek flows across their land, which is described as the south half of the southwest quarter of section seven, township twenty-four north, range twenty east, in Chelan county, the stream coming off of a government section on the west; thence across section eighteen and then flows across the north half of section seventeen and a small corner of the south half of section seventeen. It is insisted that the valley land and the stream are within the area of land purchased by appellants in accordance with the official government plat and survey; that, if not within the tract shown by the official plat as the south half of the southwest quarter of section seven, the appellants have by actual possession, use and occupancy of the land for the statutory period acquired title by adverse possession.\nIt is respondents’ position that the creek and valley land are located on the lands belonging to the Entiat Lumber Company and leased to Bousquet and wife. The lands claimed by respondents, and in whom title thereto was quieted in this action, are described as\n“. . . all of section seven except the south half of the southivest quarter, and the south half of section seventeen except the northeast quarter of the northeast quarter of the southwest quarter of township twenty-four north, range twenty east.”\nAppellants make no claim to the lands described as the property of the respondents; nor do the respondents assert ownership of any of the lands described as the property of appellants.\nAppellants first complain that the court erred in adopting a private survey, rather than the official government plat and survey, with reference to the location of Swakane creek.\nThe appellants and the Entiat Lumber Company deraign their respective titles through the Wenatchee Land Company, from the Northern Pacific Railway Company, which in turn acquired title from the United States government. Appellant Murray testified that in 1908, the appellants ascertained from the government map in the land office at Olympia that Swakane creek flowed across the south half of the southwest quarter of section seven, whereupon the appellants purchased that and other subdivisions; that they at once appropriated the water of the stream and began cultivation of the land; that in 1911 or 1912 they built a fence across the valley on the west line of section seven, and they continuously maintained, for a longer period, a similar fence across the valley on the east line of section seventeen. The official government map, upon which appellants rely, illustrates the topography of the country in which the land in controversy is located. The map contains no legend explanatory of the unnamed lines, and there is nothing from which we may conclude that the white lines upon the map indicate the location of the creek or whether the lines represent depressions. It appears from appellant Murray’s letter to respondents, under date of April 30, 1923, that appellants were doubtful as to the location of Swakane creek, and they endeavored to lease from respondents the land in dispute. That letter reads as follows:\n“The official United States government survey shows the Swaulkane creek to cross the S% SW%. of Section 7-24N-20E. It appears that an unofficial survey shows the stream to cross farther to the north. The Sy> S'Wy4 belongs to us. I am informed that the section, except that eighty, is included in the lease made by you to the Squillchuck Go. When they drove down from the hills last fall, we had some controversy as to their being on our lands. They were very courteous about it and there was no trouble at all. Of course, the official survey must control in the absence of monuments placed by surveyors, and so far as I know, there is no monument at any corner of this section. In the absence of established monuments, the location would be determined by the natural monuments, an unquestionable one in this case being the creek. However, without regard to where the stream' is located, I would like to hear from you on the subject of leasing the section, less the eighty acres, to me upon the expiration of the existing lease, with an option on my part to purchase, giving terms, etc. You are, of course, aware that the land has no value except for grazing purposes.”\nA former United States deputy mineral surveyor, a civil engineer of more than twenty-five years’ experience, made a survey to ascertain the location of Swakane creek. The map prepared by him, showing the result of that survey, is an exhibit in this action. From this it appears that the creek is approximately one-half mile north of the south half of the southwest quarter of section seven, and not located on the land of appellants. The civil engineer testified that he located the government corner between sections sixteen and seventeen at the quarter corner, and started from that point as the nearest known corner, then proceeded to tie known corners together. He recited in detail the measurements made, and further testified:\n“Q. Did you locate the north line of 7 by any method? A. Why, the north line of 7, I can’t tell you that I located it by any particular method, except by proportioning the distance north. I was particularly interested in locating the southeast corner of one, the government maps indicate as ieing also the northwest corner of section 7. Q. Did you locate that quarter corner of section one? A. I did. I found that on the ground. Q. Is that an original stake? A. It appears to be an original corner. Q. How did it check with the field notes? A. It checked very good with the field notes with both the south and west from the corner. Q. How far south from that point on the east line of section one is your location of the creek bed, the south slope of the creek bed? A. From my points that I indicated . . . 732.7. Q. Did that indicate that the creek bed was in the south half of the southioest quarter of section 7, or to the north of it? A. It would indicate 'that it was to the north of it. Q. What did yon do to verify the location of that corner . . . the southeast corner of section one? A. I measured that due south from the northeast corner of section one, the amount given in the government field notes as 84.15 . . . I think it is 84.15 chains.”\nThe foregoing testimony was properly admitted. The result of a survey made by a qualified surveyor who runs his lines from established government corners, as was done in this case, is competent evidence to show an error in a government map. We do not thereby hold that the court may correct errors in the location. The corners of the government subdivisions are where the government surveyors placed them, and corners thus established are conclusive as to location of boundary lines of sections. If original corners can be found, they govern, though inconsistent with the description in the map.\n“We think the law is well established that the true corner is where the United States surveyor established it, notwithstanding its location may not be such as is designated in the plat or field notes.” Greer v. Squire, 9 Wash. 359, 37 Pac. 545.\nThe proof is clear and convincing that Swakane creek is not in the south half of the southwest quarter of section seven.\nAppellants next complain that the court erred in refusing to hold that the appellants had acquired title by adverse possession to the Swakane creek valley between the west line of section seven and the east line of section seventeen.\nThe appellants, relying upon the government map in the land office at Olympia, from which it appeared that the Swakane creek flowed across the -south half of the southwest quarter of section seven, purchased that and other subdivisions in 1908. In 1911 or 1912, they built a fence across the Swakane valley on the west line of section seven. A similar fence across the valley on the east line of section seventeen was built prior to 1912. The unfenced sides of the valley are inclosed on both sides by steep mountains, which appellants testified are effective to retain stock within the valley. The evidence in behalf of appellants is to the effect that, since the purchase of the land, the appellants have claimed the valley from fence to fence, and have kept their stock within the inclosure during the summer; that no one ever made any claim to the land during appellants’ period of occupancy until 1926, when the Bousquets entered with their sheep, which were removed the next morning on request of appellants’ caretaker. In 1925 or 1926, the appellants built a pipe line for the carrying of water from the creek. The only purpose for which the land was used by appellants was for the pasturing of a few head of cattle and horses during the summer.\nIt appears from the evidence on the part of respondents that the respondents have paid taxes on the disputed tract of land for the years 1916 to 1926, inclusive. The land, which is fit only for grazing, was leased by respondents in 1921 to the Squillchuck Sheep Company. One of the employees of that company grazed sheep there for a week in 1921. That employee testified that some one on the premises\n“. . . wanted to know if we would get our sheep out of there, that he would like to have it for his cattle. Q. Did you? A. No. Q. Did he come back again? A. No, he didn’t come back any more. He didn’t order us off, he said he would like to have us leave that for his cattle.”\nIn 1926, when the Squillchuck Sheep Company’s lease expired, Bousquet leased the land. He testified:\n, “Q. Are you interested in any way in the lands described in the complaint as being owned by the Entiat Lumber Company? A. I have a lease on them. For grazing purposes. Q. Does your lease tie up in point of time, with that of the Squillchuck Sheep Company? A. Yes. They had it up to 1926 and in 1926 they didn’t use it, and I was short of feed and they told me I could use it, so I went down in the bottom of the creek and told the boys to feed it off. The following year, when their lease was up, I leased it, and have had it since. Q. Have you fed the creek bottom on 7, that part of 7 that is described in your lease and set up in the complaint as being owned by the Entiat Lumber Company? A. Yes. Q. That is all of 7 except the south half of the southwest quarter of 7? A. Yes; last year I didn’t go down, because feed was very plentiful and I had my sheep in two bands, and I didn’t have to go down there. I had plenty of feed, and didn’t need to use that. Q. Was the water necessary to water your stock in 1926? A. Yes, we watered in there. Q. Is the land in section 7 put to any other purpose than grazing? A. No, all it is is just grazing land.”\nThe fence is described by respondents’ witnesses as a drift fence, or a fence with four or five strands of wire on posts that will turn cattle, but will not prevent the entry of sheep on to the land.\nThe appellants have maintained a fence at each end of the valley for not less than fifteen years. The land inclosed has not been improved or cultivated by the appellants, but has been used solely for the pasturing of a few head of cattle and horses during the summer. There is no .evidence of the erection of any buildings of any kind upon the property. The lessees of the respondent Entiat Lumber Company have used the land intermittently since 1921 for sheep grazing. The owner of the land is an absentee landlord with offices in Chicago, Illinois. The entry o'f th'e appellants upon the land was made in good faith. They believed that the valley land was located, as they understood the description on the government map, in the south half of the southwest quarter of section seven. The good faith of appellants is disclosed by the letter from appellant Murray to respondents in 1923, when appellants endeavored to lease or buy the land, having learned that the creek was not on the subdivision purchased by appellants in 1908. That letter was the first information received by the Entiat Lumber Company that its title to the valley land might be challenged.\nIn asserting title by adverse possession to land of the character of that here involved, the element of notice is important. This is a wild country, broken, mountainous, very sparsely settled, and a small portion of it might be taken and held for years without any one knowing whether there was a trespass or not. Appellants mistook their boundaries and, we are convinced, never intended to set up a claim to lands not within the description in their deed. They were willing to lease or to buy the land, when they learned there was a question as to the location of the creek.\n“There are various circumstances which may be relevant as showing whether or not the possession was hostile and adverse; such as the absence of the owner and his consequent ignorance of the adverse claim, or the unsettled condition of the country and consequent lack of notoriety of the claim. But the presumption is not necessarily defeated by the mere ignorance or inattention of the owner as to the adverse claim, as the use may continue so long without objection as to warrant the inference of an implied consent or of a grant.” Jones Commentaries on Evidence (2d Rev. ed.), § 318.\n“All the authorities hold that the question of adverse possession is a question of fact, and it must be a possession that is known to the owner of the legal title. If there is direct proof that the owner of the legal title knew of the adverse possession, it is not necessary to go further, hut the presumption is that if the adverse possession is open and notorious the owner of the title will know it.” McAuliff v. Parker, 10 Wash. 141, 38 Pac. 744.\n“Possession, in order to effect an ouster or disseisin of the true owner, must possess such notoriety that the owner may be presumed to have notice of it, so that the owner is guilty of laches in failing to assert his title during the statutory period against the claimant. ‘Notorious’ means such elements of notoriety as that the owner may he presumed to have notice of it and its extent. Occupancy must be so notorious that the owner may be presumed to have knowledge that the occupancy is adverse.” Thompson on Eeal Property, § 2520.\nTo hold that the entry and occupation here relied on as adverse are of such nature and notoriety that the owner must be presumed to know that there was a possession of the land, would be to announce a rule under which a man might be disseised without his knowledge, and the statute of limitations would run against him when he had no reason to believe that his seisin had been interrupted. The land is located in a wild and mountainous country and is used only for grazing. The possession of appellants is limited to the pasture season. New people, other than hunters and sheep herders, visit the land. A parcel of such land might be taken, fenced and held for years and none know — and this, of course, includes the taxpaying owner three thousand miles away who leased the land to sheep herders — that a trespass was being committed. There is no evidence that, prior to appellants’ letter in 1923 to the Entiat Lumber Company, respondents had knowledge or notice of a claim by adverse possession of the land; nor, under the facts of this case, was the occupancy of such nature and notoriety that the respondents are presumed to have knowledge thereof.\nThe decree is affirmed.\nMitchell, C. J., Parker, French, and Main, JJ., concur."", ""type"": ""majority"", ""author"": ""Millard, J.""}], ""attorneys"": [""Carroll B. Graves, L. B. da Ponte, and Arthur E. Simon, for appellants."", ""D. A. Shiner, for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 21516.\nDepartment Two.\nSeptember 27, 1929.]\nCharles A. Murray et al., Appellants, v. A. A. Bousquet et al., Respondents.\nCarroll B. Graves, L. B. da Ponte, and Arthur E. Simon, for appellants.\nD. A. Shiner, for respondents.\nReported in 280 Pac. 935.""}, ""cites_to"": [{""cite"": ""280 Pac. 935"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""38 Pac. 744"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""10 Wash. 141"", ""case_ids"": [2442012], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/10/0141-01""], ""opinion_index"": 0}, {""cite"": ""37 Pac. 545"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""9 Wash. 359"", ""case_ids"": [5056865], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/9/0359-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""154 Wash. 42"", ""type"": ""official""}], ""file_name"": ""0042-01"", ""last_page"": ""51"", ""first_page"": ""42"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T22:16:56.028519+00:00"", ""decision_date"": ""1929-09-27"", ""docket_number"": ""No. 21516"", ""last_page_order"": 79, ""first_page_order"": 70, ""name_abbreviation"": ""Murray v. 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+821843,"{""id"": 821843, ""name"": ""Moris Larson, Respondent, v. Arthur E. Eldridge et al., Appellants"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""3544720ec47f310ae7bacf8a5d91e9c9efa2b1ea99917fee73ed08ea75dca5c1"", ""simhash"": ""1:0763c20315a6d4f4"", ""pagerank"": {""raw"": 0.00000007127136129276547, ""percentile"": 0.42795467998327313}, ""char_count"": 14016, ""word_count"": 2463, ""cardinality"": 725, ""ocr_confidence"": 0.548}, ""casebody"": {""judges"": [], ""parties"": [""Moris Larson, Respondent, v. Arthur E. Eldridge et al., Appellants.""], ""opinions"": [{""text"": ""Parker, J.\nThe plaintiff, Larson, who occupied a room in an apartment as sub-tenant of a Mrs. Berg, who was tenant as lessee of the apartment from the defendants Eldridge and wife, owners of the apartment house, seeks recovery of damages from them for personal injuries alleged as suffered by him as the result of their negligence in failing to maintain in a safe condition the railing on the balcony adjoining the room so occupied by him. Trial in the superior court for King county, sitting with, a jury, resulted in verdict and judgment awarding to plaintiff recovery, from which the defendants have appealed to this court.\nThe principal contention here made in behalf of appellants, Eldridge and wife, is that, by reason of the tenancy of Mrs. Berg under which she held the apartment from them and thereby her entire control over the apartment and the balcony, they are not liable to her or respondent, Larson, her sub-tenant; and that the trial court should have so decided, as a matter of law, in response to appropriate timely motions made in that behalf by counsel for appellants.\nThe controlling facts, conceded or conclusively proven, as we view this record, touching this contention, may be summarized as follows: The apartment house in question, situated in Seattle and owned by appellants, is a two-story wooden building of considerable size, containing ten residence flats or apartments. Mrs. Berg rented from appellants one of the apartments, containing several rooms, just how many is not shown. Her renting contract was oral, and created only a month-to-month tenancy. Nothing whatever was said by either party to the renting contract as to maintenance or repairs of any portion of the apartment or the building. While the apartment so rented by Mrs. Berg is on the first or street floor of the building, just back of its front room, and opposite its kitchen, there is in the side of the building a recessed balcony, the floor of which is on the same level as the floor of the apartment and about eight feet above the ground at the side of the building. This is caused by the ground sloping downward from the street level. At the time in question, there was a railing, of apparently substantial and safe character, clear along the outer edge of the balcony; that, is, along the line of the extreme outer side of the building.\nAccess to the balcony was only through windows opening from the front room at the end of the balcony, the kitchen alongside the balcony and one of the rear rooms at the other end of the balcony. There was no access to the balcony from any other flat or apartment of the building. No one had any use of it whatever, or rightful access to it, other than Mrs. Berg and her subtenant or tenants, occupants of her apartment. There was no access to the balcony from the outside of the building. The sills of these windows were not over two feet above the floor, so there was fairly convenient access through them to the balcony, and it was manifestly intended that they should be freely so used by the occupants of the apartment. Potted plants and other things were kept on the balcony by the occupants of Mrs. Berg’s apartment, as was done on similar balconies of the building by occupants of apartments opening thereon.\nSome time after the renting of the apartment to Mrs. Berg, she rented the front room thereof to respondent, Larson. He kept some potted plants on the balcony, and frequently went out through the window to tend to them. At the time he was injured, he went out on the balcony for that purpose. Two boys were then playing ball by the building on that side. One of them playfully threw the ball up to respondent, intending him to catch it. He then leaned, slightly as he claims, against the railing of the balcony, reaching for the ball, when the railing gave way, causing him to fall to the ground about eight feet below, and so received the injuries for which he here seeks recovery. There is no evidence indicating in any degree that appellants had any knowledge or reason to suspect, at the time they rented the apartment to Mrs. Berg, that the railing of the balcony was other than safe and in a good state of repair.\nAssuming for the present the facts above noticed to be all the controlling facts of the case, we first inquire as to whether or not appellants owed Mrs. Berg, their tenant, any duty of repair or maintenance of the balcony railing. The law is well stated by Judge Ellis, speaking for this court in Mesher v. Osborne, 75 Wash. 439, 134 Pac. 1092, 48 L. R. A. (N. S.) 917, as follows:\n“It is a general principle that, in the absence of express contract to the contrary, a tenant takes the demised premises as he finds them and there is no implied warranty by the landlord that they are safe or fit for the purpose for which they are hired. The maxim caveat emptor applies. 3 Shearman & Eedfield, Negligence (6th ed.), § 709; . . .”\nOur decisions in Ward v. Hinkleman, 37 Wash. 375, 79 Pac. 956; Baker v. Moeller, 52 Wash. 605, 101 Pac. 231, and Johnston v. Nichols, 83 Wash. 394, 145 Pac. 417, adhere to this view of the law. It is the law in most, if not all, the states of the Union; 16 R. C. L. 1031; as it is also the law in England; Woodfall’s Law of Landlord & Tenant (20th. ed.) 212.\nAt the commencement of Mrs. Berg’s tenancy of the apartment, the balcony railing was apparently safe and in a good state of repair, and appellants did not then have any knowledge or reason to suspect that it was otherwise. The balcony was also at all times exclusively accessible from the apartment Mrs. Berg rented from the appellants; it being to all intents and purposes a part of that apartment and exclusively for use in connection therewith. This is not a question of a landlord’s duty to maintain in a safe state of repair hallways, stairs, porches, roofs or other portions of his building, retained under his control for the common use or benefit of his several tenants in the building, as has often been drawn in question in such cases as McGinnis v. Keylon, 135 Wash. 588, 238 Pac. 631; Davies v. Kelley, 112 Ohio 122, 146 N. E. 888; Charlow v. Blankenship, 80 W. Va. 200, 92 S. E. 318; Merritt v. Haas, 106 Minn. 275, 118 N. W. 1023, 119 N. W. 247, and Hinthorn v. Benfer, 90 Kan. 731, 136 Pac. 247. It seems clear to us under these facts that appellants did not owe to Mrs. Berg any duty whatever of repair or maintenance of the balcony railing, since she, as tenant, had possession and was in as complete control of the apartment and the balcony, as a part of it, as if they had constituted a separate dwelling house.\nWe next inquire, What, if any, was the duty of appellants to respondent with reference to maintenance and repair of the balcony railing? Our decisions, in harmony with the law, as announced in other jurisdictions, are to the effect that the original lessor does not owe any higher duty to his tenant’s sub-tenants, customers or invitees than he owes to his own tenant. Baker v. Moeller, 52 Wash. 605, 101 Pac. 231; Hogan v. Metropolitan Building Co., 120 Wash. 82, 206 Pac. 959; Uhl Brothers v. Hull, 130 Wash. 90, 226 Pac. 723. Clearly, we think, in the light of the facts above noticed, appellants ’ duty to respondent, with reference to repair and maintenance of the balcony railing, was no greater than their duty to Mrs. Berg, their tenant, to whom we have concluded they owed no duty of repair and maintenance.\nTestimony was offered in behalf of respondent, and permitted by the trial court to be received in evidence before the jury, over the objection of counsel for appellants, tending to show that, at the time of the renting of the apartment by appellants to Mrs. Berg, there was in existence in real estate renting circles in Seattle a local custom to the effect that there was impliedly incorporated in, and became a part of, all rental contracts of apartments in apartment houses a covenant on the part of the owner to maintain and keep in repair the outside portions of an apartment building. This testimony counsel for respondent contends was such as warranted the jury in concluding that such a covenant on the part of appellants did in fact become a part of their rental contract with Mrs. Berg, and was applicable to the repair and maintenance of the balcony railing. Counsel for appellants contend that the evidence falls short of proving such custom applicable to the maintenance and repair of the balcony railing, since that was a part of the apartment within Mrs. Berg’s possession and control and exclusively for the use of the apartment of which she was a tenant. The proof, it seems to us, went no farther than tending to show that landlords in such cases customarily repaired the outside of their buildings in so far as it was to their interest to do so, and not as an obligation owing to their tenants. However this may be, we are of the opinion that no proof of custom was admissible in this case, which could have the effect of importing into the rental contract between Mrs. Berg and appellants a covenant on their part to repair and maintain the balcony railing which was so exclusively for her use as tenant of the apartment. To allow proof of such nature to be controlling, would be to allow local custom to override thoroughly established law. The problem of the admissibility of proof of custom looking to the importing of such a covenant into a tenancy contract under conditions very similar to those here presented, was learnedly and exhaustively reviewed by Chief Justice Rugg of the supreme judicial court of Massachusetts in the comparatively late case of Conahan v. Fisher, 233 Mass. 234, 124 N. E. 13. Speaking for the court and holding to our view of the law, he there said in part:\n“The tenant offered testimony to show that there was a universal custom, in Boston, where the accident occurred, in the letting of tenements without written lease, when nothing was said between the owner and the prospective tenant as to repairs, for the owner to make necessary repairs and keep the property tenant-able and in a safe condition. It was excluded subject to the plaintiffs’ exception.\n“Certain rules of law touching the respective rights and liabilities of landlord and tenant have become thoroughly fixed. No warranty is implied by the letting of premises that they are reasonably fit for use. The lessee takes an estate in the demised premises and he assumes the risk of their quality in the absence of an express warranty or deceit. Tuttle v. Gilbert Manuf. Co., 145 Mass. 169. There is no duty implied by the relation of lessor and lessee that the former shall keep the premises in a safe condition while in the possession of the latter, or in the same condition as they were in at the beginning of the tenancy. Walsh v. Schmidt, 206 Mass. 405. Kearines v. Cullen, 183 Mass. 298. It was said in Galvin v. Beals, 187 Mass. 250, 252, with ample citation of authorities, that ‘The general rule in this Commonwealth must be considered as settled that a tenant cannot recover against his landlord for personal injuries occasioned by the defective condition of the premises let, unless the landlord agrees to repair, makes the repairs, and is negligent in making them.’ This rule has been reaffirmed in numerous cases subsequently decided. See, for example, Mackey v. Lonergan, 221 Mass. 296; Lane v. Raynes, 223 Mass. 514; Rolfe v. Tufts, 216 Mass. 563; Miles v. Janvrin, 200 Mass. 514; Baum v. Ahlborn, 210 Mass. 336. See also Tredway v. Machin, 91 L. T. (N. S.) 310.\n“These are the well settled incidents of the contract between the parties arising out of the relation of landlord and tenant. They are the terms of the contract implied from the existence of that relation. They also are the principles of law controlling the rights of lessor and lessee when not varied by the provisions of an express contract. They spring from the essential attributes of a lease, whether oral or written. These principles of law have been much discussed throughout our reports, because the contract implied from an oral lease of a tenement is so common and extends widely through the Commonwealth. The governing rules have become rules of property.\n“The practical effect of admitting testimony of such a custom would be to overrule by evidence all these and many other like decisions. It is not the province of custom or usage as recognized by the law to accomplish any such result.\n“The law itself has, however, fixed with precision the respective rights and obligations of landlord and tenant under an oral lease as to repairs upon the demised premises in the absence of definite contract. It is beyond the province of custom to vary this rule. It can be done only by express contract. Two diametrically opposed principles of law cannot govern the same facts at the same moment. ’ ’\nThis exposition of the law upon this subject finds support in abundance of authority. See 27 B. O. L. 164, where many decisions of the courts are collected in the note. It seems to us quite unnecessary for us to cite further authority upon the subject.\nWe conclude that the trial court erred in receiving in evidence testimony tending to show the establishment of a local custom in Seattle with a view of impliedly importing into the tenancy contract between Mrs. Berg and appellants a covenant to repair and maintain the balcony railing; and that such evidence should have been excluded from the jury, which leaving no ground for the award of damage to respondent, as against appellants, to rest upon, the case should have been, by the trial court, taken from the jury and dismissed as a matter of law in response to appropriate timely motions made in that behalf by counsel for appellants.\nThe judgment is reversed and the action dismissed.\nMillard, Main, Beals, and French, JJ., concur."", ""type"": ""majority"", ""author"": ""Parker, J.""}], ""attorneys"": [""Shank, Belt & Fairbrook, for appellants."", ""Vanderveer & Levinson, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 21847.\nDepartment Two.\nJuly 9, 1929.]\nMoris Larson, Respondent, v. Arthur E. Eldridge et al., Appellants.\nShank, Belt & Fairbrook, for appellants.\nVanderveer & Levinson, for respondent.\nReported in 279 Pac. 120.""}, ""cites_to"": [{""cite"": ""279 Pac. 120"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""210 Mass. 336"", ""case_ids"": [5675669], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/210/0336-01""], ""opinion_index"": 0}, {""cite"": ""200 Mass. 514"", ""case_ids"": [3495427], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/200/0514-01""], ""opinion_index"": 0}, {""cite"": ""216 Mass. 563"", ""case_ids"": [88143], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/216/0563-01""], ""opinion_index"": 0}, {""cite"": ""223 Mass. 514"", ""case_ids"": [42017], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/223/0514-01""], ""opinion_index"": 0}, {""cite"": ""221 Mass. 296"", ""case_ids"": [36848], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/221/0296-01""], ""opinion_index"": 0}, {""cite"": ""187 Mass. 250"", ""case_ids"": [833817], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""252""}], ""case_paths"": [""/mass/187/0250-01""], ""opinion_index"": 0}, {""cite"": ""183 Mass. 298"", ""case_ids"": [822509], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/183/0298-01""], ""opinion_index"": 0}, {""cite"": ""206 Mass. 405"", ""case_ids"": [78874], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/206/0405-01""], ""opinion_index"": 0}, {""cite"": ""145 Mass. 169"", ""case_ids"": [770476], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/145/0169-01""], ""opinion_index"": 0}, {""cite"": ""124 N. E. 13"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.E."", ""opinion_index"": 0}, {""cite"": ""233 Mass. 234"", ""case_ids"": [3457110], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/233/0234-01""], ""opinion_index"": 0}, {""cite"": ""226 Pac. 723"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""130 Wash. 90"", ""case_ids"": [768356], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/130/0090-01""], ""opinion_index"": 0}, {""cite"": ""206 Pac. 959"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""120 Wash. 82"", ""case_ids"": [754440], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/120/0082-01""], ""opinion_index"": 0}, {""cite"": ""136 Pac. 247"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""90 Kan. 731"", ""case_ids"": [243337], ""category"": ""reporters:state"", ""reporter"": ""Kan."", ""case_paths"": [""/kan/90/0731-01""], ""opinion_index"": 0}, {""cite"": ""119 N. W. 247"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.W."", ""opinion_index"": 0}, {""cite"": ""118 N. W. 1023"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.W."", ""opinion_index"": 0}, {""cite"": ""106 Minn. 275"", ""case_ids"": [124315], ""category"": ""reporters:state"", ""reporter"": ""Minn."", ""case_paths"": [""/minn/106/0275-01""], ""opinion_index"": 0}, {""cite"": ""92 S. E. 318"", ""category"": ""reporters:state_regional"", ""reporter"": ""S.E."", ""opinion_index"": 0}, {""cite"": ""80 W. Va. 200"", ""case_ids"": [8634424], ""category"": ""reporters:state"", ""reporter"": ""W. Va."", ""case_paths"": [""/w-va/80/0200-01""], ""opinion_index"": 0}, {""cite"": ""146 N. 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+823654,"{""id"": 823654, ""name"": ""Lumbermens Mutual Casualty Company vs. Offices Unlimited, Inc.; Federal Insurance Company, third-party defendant"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""86258ca9c94ecee652931c3307b310bac49e0355d58bf675eecca12d86468548"", ""simhash"": ""1:ef47178a8170f097"", ""pagerank"": {""raw"": 0.0000013769991352386397, ""percentile"": 0.9904148851921483}, ""char_count"": 15348, ""word_count"": 2500, ""cardinality"": 694, ""ocr_confidence"": 0.951}, ""casebody"": {""judges"": [], ""parties"": [""Lumbermens Mutual Casualty Company vs. Offices Unlimited, Inc.; Federal Insurance Company, thirdparty defendant.""], ""opinions"": [{""text"": ""Lynch, J.\nThis appeal arises from an insurance coverage dispute, which also prompted allegations of unfair and deceptive business practices, pursuant to the Consumer Protection Statute, G. L. c. 93A, § 11 (1992 ed.). Lumbermens Mutual Casualty Company (Lumbermens) filed an action seeking a declaration that its insurance policy with Offices Unlimited, Inc. (OUI), did not cover an automobile tort claim against one of GUI’s employees. In response to Lumbermens’ complaint, OUI filed a counterclaim against Lumbermens alleging violations of G. L. c. 93A and G. L. c. 176D. OUI also filed an action against Federal Insurance Company (Federal) seeking a declaration that insurance provided by Federal would apply in the event that Lumbermens’ does not, or that Lumbermens’ coverage is not adequate. Federal also filed an action seeking a declaration of the rights and responsibilities of the parties and that, in handling the investigation and defense of the underlying action, Lumbermens breached its fiduciary obligations to Federal and to OUI.\nArising from these various claims, three separate summary judgments were issued, two of which are currently before us. On January 5, 1993, a judge allowed GUI’s and Federal’s joint motion for summary judgment on Lumbermens’ declaratory relief action. Lumbermens filed a timely notice of appeal. On July 1, 1993, the same judge allowed Lumbermens’ motion for summary judgment on GUI’s counterclaim, alleging that Lumbermens violated G. L. c. 9 3A. OUI and Federal filed a timely notice of appeal. We transferred the case here on our own motion. We reverse the order of January 5, 1993, and affirm the order of July 1, 1993.\nIn January, 1988, Gary E. Rand was struck by a 1987 Ford F-150 pickup truck which was owned and operated by an employee of OUI. When the accident occurred, the OUI employee was transporting furniture to GUI’s Natick store. At the time of this motor vehicle accident, Lumbermens insured OUI under a standard Massachusetts motor vehicle and physical damage policy issued for the period January 1, 1988, through January 1, 1989, with a limit of one million dollars. Part of this policy included an employers’ nonownership liability endorsement. Additionally, Federal insured OUI under a commercial umbrella liability policy issued for the policy period November 1, 1987, through November 1, 1988. In its declaratory relief action, Lumbermens requested that the judge rule that the underlying action fell outside the scope of its insurance policy. In support of this request, Lumbermens argued that the employee’s pickup truck constituted a “non-owned” automobile of the commercial type used on more than an occasional and infrequent basis in the employer’s business and, therefore, pursuant to the policy’s employers’ nonownership liability endorsement, coverage was not available.\nOUI and Federal sought summary judgment on their respective claims. On April 10, 1990, in ruling on GUI’s motion for partial summary judgment, the judge found that GUI’s liability in the underlying action will be covered by either Lumbermens’ policy or Federal’s policy and that OUI has no real interest in the outcome of Lumbermens’ declaratory action. Therefore, the judge dismissed Lumbermens’ case against OUI and ordered that the defense shall be assumed by Federal as the real party in interest. With respect to GUI’s counterclaim against Lumbermens, alleging violations of G. L. c. 93A, the judge ruled that this claim raised a question of fact and, therefore, denied OUI’s motion for summary judgment.\nThe order of January 5, 1993, granted summary judgment in favor of OUI and Federal, with respect to Lumbermens’ declaratory judgment complaint. A second judge ruled that a pickup truck qualified as a private passenger automobile and, therefore, that Lumbermens’ coverage applied. The judge denied the joint motion for summary judgment on the c. 93A action.\nIn the judgment of July 1, 1993, the same judge ruled that, even assuming Lumbermens’ actions were deceptive with respect to OUI, OUI cannot demonstrate that it has suffered a loss of money or property within the meaning of G. L. c. 93A, § 11. Therefore, the judge allowed Lumbermens’ motion for summary judgment.\nPolicy interpretation. Summary judgment shall be granted where there are no material facts in dispute, and the moving party is entitled to judgment as a matter of law. See Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974). There are no material facts in dispute relevant to whether the terms of Lumbermens’ policy afford coverage for the tort claim. The resolution of this issue depends on the proper interpretation of the term “private passenger automobile” as it is used in the policy’s employers’ nonownership liability endorsement, and, therefore, raises only a question of law. Massachusetts Bay Transp. Auth. v. Allianz Ins. Co., 413 Mass. 473, 476 (1992), citing Nelson v. Cambridge Mut. Fire Ins. Co., 30 Mass. App. Ct. 671, 673 (1991). There is no question that the pickup truck was a “non-owned” vehicle being frequently used in GUI’s business. The crucial question is, therefore, whether the truck is a “private passenger automobile” within the terms of Lumbermens’ policy. The judge ruled that the term “private passenger automobile” is not clearly defined, and therefore, the policy is ambiguous. Because the language of the policy is within the control of the insurer, the judge construed the policy strictly against the insurer and found that the pickup truck is included as a private passenger automobile. We conclude that the term “private passenger automobile” is not ambiguous and that the truck was not covered under Lumbermens’ policy.\nWe recognize that an ambiguity exists in an insurance contract when the language contained therein is susceptible of more than one meaning. Ober v. National Casualty Co., 318 Mass. 27, 30 (1945). However, an ambiguity is not created simply because a controversy exists between parties, each favoring an interpretation contrary to the other. Jefferson Ins. Co. v. Holyoke, 23 Mass. App. Ct. 472, 475 (1987), citing Southern Constr. Co. v. United States, 364 F.2d 439, 453 (Ct. Cl. 1966). We conclude that the term “private passenger automobile” is clear and unambiguous and that its plain and ordinary meaning does not include a pickup truck. See Johnsen v. Harper, 213 Neb. 145, 147 (1982); Ohio Casualty Ins. Co. v. Tyler, 85 Ill. App. 3d 410, 413 (1980); Concord General Mut. Ins. Co. v. Hills, 345 F. Supp. 1090, 1096 (S.D.Me. 1972). Certainly the plain meaning of the term “pickup truck” suggests that it is not an automobile of the private passenger type, designed primarily for transporting persons. See Hall v. Gamble Alden Life Ins. Co., 34 Ill. App. 3d 837, 838-839 (1975).\nEven though we conclude that the term “private passenger automobile” is clear and unambiguous, we recognize that words, which are clear by themselves, may become ambiguous when read in the context of an insurance policy. See Save-Mor Supermarkets, Inc. v. Skelly Detective Serv., Inc., 359 Mass. 221, 226 (1971). In this case, however, the context of the policy does not create ambiguity but rather further clarifies the term. The endorsement states that coverage applies to a “non-owned” private passenger automobile and to any “non-owned” automobile of the commercial type used infrequently or occasionally in OUI’s business. Although “commercial type” vehicle is not specifically defined, it is clear that the policy is making a distinction between vehicles designed primarily to carry passengers and vehicles designed primarily to carry goods. This conclusion is further supported by the fact that the pickup truck was registered as a commercial vehicle.\nAlthough it is not necessary for us to look at how the vehicle was being used in order to resolve the coverage question, see Ohio Casualty Ins. Co. v. Tyler, supra at 414, citing Hall v. Gamble Alden Life Ins. Co., supra at 838-839; Marshall v. Washington Nat'l Ins. Co., 246 N.C. 447, 448 (1957), in this instance, the way in which this pickup truck was used supports the conclusion that it does not qualify as a private passenger automobile. The employee-owner of the truck testified that the sole purpose for purchasing the truck was to expedite the transport of products between locations. He further testified that he used the truck for transporting furniture almost on a daily basis. Prior to purchasing the truck, the employee informed GUI that he would like to buy a truck to use for the benefit of the customers of OUI. After purchasing the truck, OUI paid the employee two hundred dollars a month to defray the cost and expenses of the truck. Additionally, at the time of the accident, the employee had furniture in the back of the pickup truck, and he was on his way to drop off the furniture at GUI’s Natick location. Lumbermens’ policy did not cover the pickup truck in question.\nEstoppel. GUI and Federal argue that, even if the specific terms of Lumbermens’ policy do not cover the underlying action, Lumbermens should be held liable based on the principies of estoppel. This .argument is without merit. In order to succeed on an estoppel theory, it must be shown that one has been induced by the conduct of another to do something different from what otherwise would have been done and that harm has resulted. See DiMarzo v. American Mutual Ins. Co., 389 Mass. 85, 112 (1983) (O’Connor, J., concurring), citing Lunt v. Aetna Life Ins. Co., 261 Mass. 469, 471 (1928). There is no evidence in this case that OUI relied to its detriment on any of Lumbermens’ actions. As soon as Lumbermens was notified of the underlying motor vehicle accident, it began an investigation of the circumstances of the apcident. From the outset, Lumbermens informed OUI that there was an issue as to whether Lumbermens’ policy applied to the underlying action. Additionally, since Federal was determined to be the real party in interest in this dispute, Federal was informed of all settlement negotiations in the underlying action. In April, 1990, Federal and Lumbermens settled the underlying action, within the limits of Lumbermens’ policy, and no judgment was entered against OUI. Federal and Lumbermens satisfied the settlement amount and OUI was not liable for any of the settlement. Even assuming some sort of adverse reliance on the part of OUI existed, no harm could have arisen from it.\nGeneral Laws c. 93A. An insurance company which in good faith denies a claim of coverage on the basis of a plausible interpretation of its insurance policy cannot ordinarily be said to have committed a violation of G. L. c. 93A. Gulezian v. Lincoln Ins. Co., 399 Mass. 606, 613 (1987). See Van Dyke v. St. Paul Fire & Marine Ins. Co., 388 Mass. 671, 675-678 (1983). In this case, Lumbermens went beyond a mere plausible interpretation of the policy and denied coverage based on a legally correct interpretation of the policy. In such circumstances there are no facts that support a claim that Lumbermens acted unfairly or deceptively. Neither could OUI satisfy its burden of proving that it has suffered a “loss of money or property” within the meaning of G. L. c. 93A, § 11. Baldassari v. Public Fin. Trust, 369 Mass. 33, 45 (1975). GUI’s reliance on DiMarzo v. American Mut. Ins. Co., 389 Mass. 85, 94-95 (1983), is misplaced. Here, a judgment never entered against OUI and OUI did not have to pay any of the loss. There is no violation of G. L. c. 93A.\nWe reverse the order of January 5,- 1993, granting summary judgment on the declaratory judgment action, and affirm the order of July 1, 1993, granting summary judgment on the c. 93A claim. •\nSo ordered.\nThe defendants advance no separate argument based on G. L. c. 176D, and, therefore, we confine our discussion to G. L. c. 93A.\nThe summary judgment issued by the court on April 10, 1990, dismissed Lumbermens’ declaratory complaint against OUI and declared that Federal was the real party in interest in the coverage dispute. Federal joins with OUI in urging that Lumbermens violated G. L. c. 93A. Therefore, it is not necessary for us to comment on the procedural distinction in light of our conclusion that summary judgment was appropriate on the c. 93A counterclaim.\nThe declaratory relief action also named Gary E. Rand, his wife Marilyn Rand, and his children Russell J. and Rebecca C. Rand, as party defendants. These defendants are not part of this appeal.\nThe policy provides in pertinent part: “2. Application of Insurance.\n“b. The insurance applies only to the use, by any person other than the named insured, of any non-owned private passenger automobile in the business of the named insured as stated in the declarations, and to the use in such business, by an employee of the named insured, of any non-owned automobile of the commercial type if such use of such automobile is occasional and infrequent.”\nThe defendants argue and the motion judge pointed out that the policy only defines “private passenger motor vehicle” and does not specifically define “private passenger automobile”. However, the policy defines both “motor vehicle” and “automobile” as a land motor vehicle or trailer, indicating that the terms can be used interchangeably. Additionally, the language of the endorsement states, “ ‘motor vehicle’ or ‘automobile’ wherever used in the policy, with respect to the insurance afforded under this endorsement, shall include ‘non-owned automobile.’ ” This language also supports the conclusion that the words are used interchangeably."", ""type"": ""majority"", ""author"": ""Lynch, J.""}], ""attorneys"": [""Kevin M. Truland for the plaintiff."", ""Robert P. Powers (Michael R. Byrne with him) for the defendants.""], ""corrections"": """", ""head_matter"": ""Lumbermens Mutual Casualty Company vs. Offices Unlimited, Inc.; Federal Insurance Company, thirdparty defendant.\nMiddlesex.\nDecember 8, 1994.\nFebruary 9, 1995.\nPresent: Abrams, Nolan, Lynch, O’Connor, & Greaney, JJ.\nPractice, Civil, Summary judgment. Insurance, Coverage, Construction of policy, Motor vehicle insurance. Estoppel. Consumer Protection Act, Insurance. Words, “Private passenger automobile.”\nThe term “private passenger automobile” as used in an employers’ non-ownership liability endorsement included in a standard policy of motor vehicle insurance was not ambiguous and did not encompass within its meaning a pickup truck; as a result the policy did not cover the use by an employee of the insured of a pickup truck, not owned by the insured, in the business of the insured, where the use of such a vehicle was not “occasional and infrequent.” [465-467]\nThere was no merit to a claim in an action on an insurance contract that liability should be based on principles of estoppel where there was no evidence of any reliance to any party’s detriment. [467-468]\nIn circumstances where an insurer in good faith and in a timely manner denied coverage of a claim based on a legally correct interpretation of its policy and where the insured could not demonstrate it had suffered a “loss of money or property,” there was no factual basis for a finding of any violation of G. L. c. 93A. [468-469]\nCivil action commenced in the Superior Court Department on March 28, 1989.\nThe case was heard by Judith A. Cowin, J., on motions for summary judgment.\nThe Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.\nKevin M. Truland for the plaintiff.\nRobert P. Powers (Michael R. Byrne with him) for the defendants.""}, ""cites_to"": [{""cite"": ""369 Mass. 33"", ""year"": 1975, ""case_ids"": [309572], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""45""}], ""case_paths"": [""/mass/369/0033-01""], ""opinion_index"": 0}, {""cite"": ""388 Mass. 671"", ""year"": 1983, ""case_ids"": [911010], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""675-678""}], ""case_paths"": [""/mass/388/0671-01""], ""opinion_index"": 0}, {""cite"": ""399 Mass. 606"", ""year"": 1987, ""case_ids"": [3795187], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""613""}], ""case_paths"": [""/mass/399/0606-01""], ""opinion_index"": 0}, {""cite"": ""261 Mass. 469"", ""year"": 1928, ""case_ids"": [850046], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""471""}], ""case_paths"": [""/mass/261/0469-01""], ""opinion_index"": 0}, {""cite"": ""389 Mass. 85"", ""year"": 1983, ""weight"": 2, ""case_ids"": [912958], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""112"", ""parenthetical"": ""O'Connor, J., concurring""}, {""page"": ""94-95""}], ""case_paths"": [""/mass/389/0085-01""], ""opinion_index"": 0}, {""cite"": ""246 N.C. 447"", ""year"": 1957, ""case_ids"": [8626884], ""category"": ""reporters:state"", ""reporter"": ""N.C."", ""pin_cites"": [{""page"": ""448""}], ""case_paths"": [""/nc/246/0447-01""], ""opinion_index"": 0}, {""cite"": ""359 Mass. 221"", ""year"": 1971, ""case_ids"": [294630], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""226""}], ""case_paths"": [""/mass/359/0221-01""], ""opinion_index"": 0}, {""cite"": ""34 Ill. App. 3d 837"", ""year"": 1975, ""case_ids"": [2964843], ""category"": ""reporters:state"", ""reporter"": ""Ill. App. 3d"", ""pin_cites"": [{""page"": ""838-839""}], ""case_paths"": [""/ill-app-3d/34/0837-01""], ""opinion_index"": 0}, {""cite"": ""345 F. Supp. 1090"", ""year"": 1972, ""case_ids"": [3525407], ""category"": ""reporters:federal"", ""reporter"": ""F. Supp."", ""pin_cites"": [{""page"": ""1096""}], ""case_paths"": [""/f-supp/345/1090-01""], ""opinion_index"": 0}, {""cite"": ""85 Ill. App. 3d 410"", ""year"": 1980, ""weight"": 2, ""case_ids"": [3195919], ""category"": ""reporters:state"", ""reporter"": ""Ill. App. 3d"", ""pin_cites"": [{""page"": ""413""}, {""page"": ""414""}], ""case_paths"": [""/ill-app-3d/85/0410-01""], ""opinion_index"": 0}, {""cite"": ""213 Neb. 145"", ""year"": 1982, ""case_ids"": [2982307], ""category"": ""reporters:state"", ""reporter"": ""Neb."", ""pin_cites"": [{""page"": ""147""}], ""case_paths"": [""/neb/213/0145-01""], ""opinion_index"": 0}, {""cite"": ""364 F.2d 439"", ""year"": 1966, ""case_ids"": [10817002, 811365], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""453""}], ""case_paths"": [""/us-ct-cl/176/1339-01"", ""/f2d/364/0439-01""], ""opinion_index"": 0}, {""cite"": ""23 Mass. App. Ct. 472"", ""year"": 1987, ""case_ids"": [3993550], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""475""}], ""case_paths"": [""/mass-app-ct/23/0472-01""], ""opinion_index"": 0}, {""cite"": ""318 Mass. 27"", ""year"": 1945, ""case_ids"": [929780], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""30""}], ""case_paths"": [""/mass/318/0027-01""], ""opinion_index"": 0}, {""cite"": ""30 Mass. App. Ct. 671"", ""year"": 1991, ""case_ids"": [1418766], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""673""}], ""case_paths"": [""/mass-app-ct/30/0671-01""], ""opinion_index"": 0}, {""cite"": ""413 Mass. 473"", ""year"": 1992, ""case_ids"": [3902028], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""476""}], ""case_paths"": [""/mass/413/0473-01""], ""opinion_index"": 0}, {""cite"": ""365 Mass. 824"", ""year"": 1974, ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""opinion_index"": 0}, {""cite"": ""390 Mass. 419"", ""year"": 1983, ""case_ids"": [916685], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""422""}], ""case_paths"": [""/mass/390/0419-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""419 Mass. 462"", ""type"": ""official""}], ""file_name"": ""0462-01"", ""last_page"": ""469"", ""first_page"": ""462"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T17:29:32.925592+00:00"", ""decision_date"": ""1995-02-09"", ""docket_number"": """", ""last_page_order"": 491, ""first_page_order"": 484, ""name_abbreviation"": ""Lumbermens Mutual Casualty Co. v. 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+828223,"{""id"": 828223, ""name"": ""Albert Boyer et al., Appellants, v. The City of Tacoma, Respondent"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""f28d575ae81658d28d7641b071dc6f7fb9f269aed1ad26f3a56f423cae6e2469"", ""simhash"": ""1:9afc6bdfd74057c5"", ""pagerank"": {""raw"": 0.00000018424398832539737, ""percentile"": 0.7223326533709108}, ""char_count"": 16362, ""word_count"": 2821, ""cardinality"": 854, ""ocr_confidence"": 0.514}, ""casebody"": {""judges"": [""Mitchell, C. J., Main, Fullerton, Tolman, Beals, Millard, and Parker, JJ., concur.""], ""parties"": [""Albert Boyer et al., Appellants, v. The City of Tacoma, Respondent.""], ""opinions"": [{""text"": ""French, J.\nThis is an action for damages claimed to have been suffered by appellants by reason of the fact that the main sewer to which their property was connectéd became clogged or overtaxed causing the sewage to be deposited upon their property. The facts are as follows:\nAppellants are the owners of certain premises on South Park avenue in Tacoma. In 1927 they built a new house on these premises with a basement seven and a half feet deep. By means of a connection run from their basement, they were joined to the sewer running through an alley some sixty feet distant from their house, there being a drop of some four or five feet between the basement and the alley. It is conceded that this sewer connection was required by the city under the terms of a city ordinance, and it is also conceded that the connection as made in every way conformed to the ordinance, and was approved by the proper inspectors of the city.\nOn Thanksgiving Day, November 24, 1927, appellants having in the meantime moved into the property and occupying it as their home, this eight-inch main sanitary sewer became either clogged by some obstruction therein or overtaxed to such an extent that the sewage was forced back through the drain pipes of appellants into their basement covering the floor of the basement to a depth of approximately four feet. This occurred from time to time on some three or four occasions prior to April 3, 1928. By reason thereof appellants suffered substantial damage, not only by reason of the fact that many articles stored in the basement were destroyed, but also by reason of the fact that the premises became extremely foul and unsanitary, the uncontradicted testimony tending to show that the damages aggregated a considerable amount.\nThis action being commenced, the city denied negligence, and alleged contributory negligence, but no evidence of any kind was introduced tending to show any contributory negligence on the part of appellants. The eight-inch sanitary sewer which served the property of appellants and with which they were required to connect had been installed approximately twenty years prior to the time of the flooding of the premises. At the time of its installation, it was undoubtedly of ample size to serve all of the residents in the vicinity which it was expected to serve. However, by reason of the growth of the territory, it had become inadequate.\nThe city also alleged that the flooding of this property at this particular time had been by reason of sudden, unexpected and excessive rainfall, but the evidence tends to show that the normal rainfall for the month of November was 6.59 inches, and that during that month 7.95 inches of rain actually fell. The rainfall during the months of January, February and March, the months during which the other floodings occurred, was considerably below normal.\nThe evidence introduced on behalf of the city also tends to show that inspectors were constantly watching this sewer during periods of heavy rainfall and that, at the time of the flooding which took place on Thanksgiving Day, the sewer was running to its full capacity, although there is evidence in the record showing that something was done to this sewer in March, 1928, and that thereafter there were no floodings.\nThe record in this case clearly indicates that, while there may have been, and probably were, at the times when the basement was actually flooded, rather heavy rains, no extraordinary storm conditions existed. As was heretofore stated, the record conclusively shows that the rainfall for the month of November was slightly above normal, and for the subsequent months considerably below normal.\nThe question* then, is squarely presented, Is the city liable under circumstances such as these for sewage discharged on appellants’ property, they having been compelled by ordinance to connect with the sewer, the connection having been made in the manner approved by the city, and there being no negligence of any kind on their part?\nIt may be conceded at the outset that the authorities are divided on this question, many authorities holding that the city will not be liable for damages caused by the construction of a sewer of insufficient capacity, and others holding that, if the sewer system is not reasonably sufficient to take care of sewage and water reasonably expected to accumulate under ordinary circumstances, the municipality will be liable for resultant damages. McQuillin, Municipal Corporations, Yol. 6, § 2694.\nOne of the leading cases holding the city liable under circumstances such as those apparent in this case is Tate v. City of St. Paul, 56 Minn. 527, 58 N. W. 158, where the court said:\n“The action is to recover damages arising from a sewer laid by defendant, and with which plaintiff had connected, as he had a right to do, setting the water in it back so that it flooded plaintiff’s basements. The defect alleged in the sewer was that it was of insufficient capacity to carry off the water brought into it. The defect appears to have existed in the original plan for sewering that part of the city; that is, the city, in determining upon a system of sewers, determined upon the sizes required for the main sewer and for the lateral sewers running into it, and the size determined on for the former proved too small.\n“The rule is uniformly conceded that for injuries wholly incidental to and consequential upon the exercise by a municipal corporation of the legislative or discretionary powers intrusted to it (as distinguished from its ministerial acts) no action will lie against it. Instances of the application of that rule are furnished by Lee v. City of Minneapolis, 22 Minn. 13, where the power exercised was by establishing the grade of a street under the charter, and Alden v. City of Minneapolis, 24 Minn. 254, where the city had established a system of grades for streets and sidewalks, and drains, gutters, catch-basins and sewers, and had constructed the streets, sidewalks, drains, and gutters, and partially completed the sewers.\n“Some of the earlier cases do not clearly recognize the distinction between injuries incidental to the exercise of municipal legislative functions, and direct and positive wrongs — such for instance, as trespass — caused by it. The later and better authorities, however, recognize the distinction, and, while adhering to the rule that for the former no action will lie, hold that for the latter the party may recover. The distinction is apparent, though it is not clearly discussed in either of the cases, of O’Brien v. City of St. Paul, 18 Minn. 176 (Gil. 163), and 25 Minn. 331; Kobs v. City of Minneapolis, 22 Minn. 159; and the Lee and Alden cases, above cited.\n“But for a direct invasion of one’s right of property, even though contemplated by, or necessarily resulting from, the plan adopted, an action will lie; otherwise, it would be taking private property for public use without compensation. Thus, if, in cutting a street down a grade, the soil of an abutting lot is precipitated into the cut, or if, in filling up to grade, the slope of the embankment is made to rest on private property, that is a direct invasion of property rights which cannot be justified, even though the plan adopted contemplates, or will necessarily produce, the result.\n“Judge Dillon, in his work on Municipal Corporations (4th Ed., §§1047-1051), approves the rule, laid down in more recent decisions by some of our ablest courts, that if a sewer, whatever its plan, is so constructed as to cause a positive and direct invasion of private property, as by collecting and throwing upon it, to its damage, water or sewage which would not otherwise have flowed or found its way there, the corporation is liable. Conspicuous for their ability, among the cases referred to by him, are Ashley v. Port Huron, 35 Mich. 296, and Seifert v. City of Brooklyn, 101 N. Y. 136, 4 N. E. 321-each, the former, especially, a very interesting case. See, also, Brayton v. Fall River, 113 Mass. 218; Lehn v. City and County of San Francisco, 66 Cal. 76, 4 Pac. 965; Weis v. City of Madison, 75 Ind. 241. It is impossible to answer the reasoning of these cases, especially where the injury complained of constitutes a taking. That making one’s premises a place of deposit for the surplus waters in the sewers in times of high water, or creating a nuisance upon them so as to deprive the owner of the beneficial use of his property, is an appropriation requiring compensation to be made, see Weaver v. Mississippi & R. R. Boom Co., 28 Minn. 534, 11 N. W. 114.”\nThat the city is liable as for trespass, and that building a sewer adequate in size at the time of its construction and lack of actual acts of negligence in its maintenance and operation, is no defense, see City of Louisville v. Leezer, 143 Ky. 244, 136 S. W. 223, where the court stated:\n“Under these authorities and others that might be cited, we think it may be regarded as fully established in this jurisdiction that when a municipal corporation undertakes to establish a system of sewers it must make provision for the increase that may naturally and reasonably be expected in the population of the city. The fact that the sewers when first constructed were adequate to meet the demands of conditions then existing will not relieve the city from responsibility if by growth and population they become inadequate for the use they were intended to supply. . . . The question is not whether the improvement was sufficient when it was built, but is — was it adequate when the injury complained of occurred. It results from these views that the principal defense relied on by the city is not tenable.”\nTo the same general effect, see, Weis v. City of Madison, 75 Ind. 241; Seaman v. City of Marshall, 116 Mich. 327, 74 N. W. 484; Lewenthal v. Mayor, etc., of New York, 61 Barb. (N. Y.) 511; City of Dixon v. Baker, 65 Ill. 519.\nThat this court has indicated it will follow the more liberal rule as announced by these cases, see Lennon v. Seattle, 69 Wash. 447, 125 Pac. 770, a case where damages were obtained by reason of the breaking of a sewer and the resultant flooding of property by sewage. This court quoted with approval from certain cases as follows:\n“In Ashley v. Port Huron, 35 Mich. 296, 24 Am. Rep. 552, a well-considered case, in which damage to private property was occasioned by a sewer, Judge Cooley, after citing and discussing numerous decisions, well said:\n“ ‘It is very manifest from the reference to authorities that they recognize in municipal corporations no exemption from responsibility where the injury an individual has received is a direct injury accomplished by a corporate act which is in the nature of a trespass upon him. The right of an individual to the occupation and enjoyment of his preraisés is exclusive, and the public authorities have no more liberty to trespass upon it than has a private individual. If the corporation send people with picks and spades to cut a street through it without first acquiring the right of way, it is liable for a tort; but it is no more liable under such circumstances than it is when it pours upon his land a flood of water by a public sewer so constructed that the flooding must be a necessary result. The one is no more unjustifiable and no more an actionable wrong, than the other. Each is a trespass, and in each instance the city exceeds its lawful jurisdiction. A municipal charter never gives and never could give authority to appropriate the freehold of a citizen without compensation, whether it is done through an actual taking of it for streets or buildings, or by flooding it so as to interfere with the owner’s possession. His property right is appropriated in the one case as much 81S 111 th.6 otllBlT, *\n“In Roberts v. Dover, 72 N. H. 147, 153, 55 Atl. 895, a sewer case, the court, discussing the duties and liabilities of a municipal corporation, said:\n“ In Rowe v. Portsmouth, 56 N. H. 291, it was held that in maintaining a public sewer a city is bound to use that degree of care and prudence which a discreet and cautious individual would use if the whole loss or risk was to be his alone. The case renders unnecessary a discussion of the liability of a city or town, which builds a sewer under legislative authority, for defects in the plan adopted. When, having constructed a sewer, it connects it with other sewers and drains, overtaxing its capacity, and allows insoluble materials to accumulate in it and obstruct the flow of water, causing it to flow back upon private property, its liability for the resulting damage does not differ from that of an individual, who so unreasonably manages his property as to cause damage to the adjoining property of his neighbor. The fact that it is a public corporation, performing certain public duties, does not exempt it from liability for negligence when performing a work not imposed upon it as a public agent, but voluntarily assumed by it under a legislative license. Having undertaken the construction and management of a system of sewerage for the local accommodation and convenience, its duties to individuals liable to be damaged thereby is measured by the same rule of ordinary care and prudence under the circumstances as would be applied if it were a private business corporation, partnership, or individual engaged in the same work. ’\n“In King v. Kansas City, 58 Kan. 334, 49 Pac. 88, the court said:\n“ ‘The city cannot without liability collect sewage and filth and precipitate it upon the property of a citizen, even if the plan is devised in good faith and the best material is used in the construction. It is immaterial from which end of the sewer the discharge is made; the consequence and liability are necessarily the same. “Courts of the highest respectability have held that if the sewer, whatever its plan, is so constructed by the municipal authorities as to cause a positive and direct invasion of the plaintiff’s private property by collecting and throwing upon it to his damage water or sewage which would not otherwise have flowed or found its way there, the corporation is liable.” 2 Dillon, Municipal Corporations (4th ed.), § 1047. See, also, Ashley v. Port Huron, 35 Mich. 296; Tate v. St. Paul, 56 Minn. 527; Seifert v. City of Brooklyn, 101 N. Y. 136; Lehn v. San Francisco, 66 Cal. 76; North Vernon v. Vogler, 89 Ind. 77; Orange v. Field, 37 N. J. Eq. 600.’ ”\nIt is true that in other cases from this court statements have been made by way of argument which indicate that the contrary rule might be followed. See Vittucci Importing Co. v. Seattle, 72 Wash. 192, 130 Pac. 109. But the statements therein contained are not necessary to a decision of the case. The theory of all of the cases which we have examined, which hold the city liable under circumstances such as we have outlined above, seems to be that the property owner is required to connect with the sewer; that he is not permitted to dispose of his sewage in any other way than the one way provided by the city; that he has no power or authority to remove the cause, or to in any way remedy the defect from which his injury arises; that the city alone has the power and the means to remedy the defective sewer or to replace an inadequate sewer, and that no person should be required to suffer an injury caused by an agency over which he has no control and over which the city has absolute control, and that if an injury is inflicted by such an agency he should be properly compensated therefor. \""We think this is the better rule and is well supported by both reason and authority.\nReversed for further proceedings in accordance with this opinion.\nMitchell, C. J., Main, Fullerton, Tolman, Beals, Millard, and Parker, JJ., concur."", ""type"": ""majority"", ""author"": ""French, J.""}, {""text"": ""Holcomb, J.-\n(dissenting) — The negligence of the city either in construction, maintenance or operation was denied. It was wholly a question of fact, tried to the court, an experienced trier of facts, and decided in favor of the city. There was certainly no preponderant evidence against such finding. The cases cited as supporting the views of the majority do not apply to such . case as we have before us."", ""type"": ""dissent"", ""author"": ""Holcomb, J.-""}], ""attorneys"": [""John E. Gallagher, for appellants."", ""E. K. Murray, Leo Teats, and Bartlett Rummell, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 22019.\nEn Banc.\nApril 9, 1930.]\nAlbert Boyer et al., Appellants, v. The City of Tacoma, Respondent.\nJohn E. Gallagher, for appellants.\nE. K. Murray, Leo Teats, and Bartlett Rummell, for respondent.\nReported in 286 Pac. 659.""}, ""cites_to"": [{""cite"": ""286 Pac. 659"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""130 Pac. 109"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""72 Wash. 192"", ""case_ids"": [591457], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/72/0192-01""], ""opinion_index"": 0}, {""cite"": ""37 N. J. Eq. 600"", ""case_ids"": [775743], ""category"": ""reporters:state"", ""reporter"": ""N.J. Eq."", ""case_paths"": [""/nj-eq/37/0600-01""], ""opinion_index"": 0}, {""cite"": ""89 Ind. 77"", ""case_ids"": [1346762], ""category"": ""reporters:state"", ""reporter"": ""Ind."", ""case_paths"": [""/ind/89/0077-01""], ""opinion_index"": 0}, {""cite"": ""49 Pac. 88"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""58 Kan. 334"", ""case_ids"": [1172099], ""category"": ""reporters:state"", ""reporter"": ""Kan."", ""case_paths"": [""/kan/58/0334-01""], ""opinion_index"": 0}, {""cite"": ""56 N. H. 291"", ""case_ids"": [1803622], ""category"": ""reporters:state"", ""reporter"": ""N.H."", ""case_paths"": [""/nh/56/0291-01""], ""opinion_index"": 0}, {""cite"": ""55 Atl. 895"", ""category"": ""reporters:state_regional"", ""reporter"": ""A."", ""opinion_index"": 0}, {""cite"": ""72 N. H. 147"", ""case_ids"": [1809743], ""category"": ""reporters:state"", ""reporter"": ""N.H."", ""pin_cites"": [{""page"": ""153""}], ""case_paths"": [""/nh/72/0147-01""], ""opinion_index"": 0}, {""cite"": ""24 Am. Rep. 552"", ""category"": ""reporters:state_regional"", ""reporter"": ""Am. Rep."", ""opinion_index"": 0}, {""cite"": ""125 Pac. 770"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""69 Wash. 447"", ""case_ids"": [566944], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/69/0447-01""], ""opinion_index"": 0}, {""cite"": ""65 Ill. 519"", ""category"": ""reporters:state"", ""reporter"": ""Ill."", ""opinion_index"": 0}, {""cite"": ""74 N. W. 484"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.W."", ""opinion_index"": 0}, {""cite"": ""116 Mich. 327"", ""case_ids"": [1443204], ""category"": ""reporters:state"", ""reporter"": ""Mich."", ""case_paths"": [""/mich/116/0327-01""], ""opinion_index"": 0}, {""cite"": ""136 S. W. 223"", ""category"": ""reporters:state_regional"", ""reporter"": ""S.W."", ""opinion_index"": 0}, {""cite"": ""143 Ky. 244"", ""case_ids"": [8587838], ""category"": ""reporters:state"", ""reporter"": ""Ky."", ""case_paths"": [""/ky/143/0244-01""], ""opinion_index"": 0}, {""cite"": ""11 N. W. 114"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.W."", ""opinion_index"": 0}, {""cite"": ""28 Minn. 534"", ""case_ids"": [769001], ""category"": ""reporters:state"", ""reporter"": ""Minn."", ""case_paths"": [""/minn/28/0534-01""], ""opinion_index"": 0}, {""cite"": ""75 Ind. 241"", ""weight"": 2, ""case_ids"": [1944266], ""category"": ""reporters:state"", ""reporter"": ""Ind."", ""case_paths"": [""/ind/75/0241-01""], ""opinion_index"": 0}, {""cite"": ""4 Pac. 965"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""66 Cal. 76"", ""weight"": 2, ""case_ids"": [2249630], ""category"": ""reporters:state"", ""reporter"": ""Cal."", ""case_paths"": [""/cal/66/0076-01""], ""opinion_index"": 0}, {""cite"": ""113 Mass. 218"", ""case_ids"": [741037], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/113/0218-01""], ""opinion_index"": 0}, {""cite"": ""4 N. E. 321"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.E."", ""opinion_index"": 0}, {""cite"": ""101 N. Y. 136"", ""weight"": 2, ""case_ids"": [2201452], ""category"": ""reporters:state"", ""reporter"": ""N.Y."", ""case_paths"": [""/ny/101/0136-01""], ""opinion_index"": 0}, {""cite"": ""35 Mich. 296"", ""weight"": 3, ""case_ids"": [1317390], ""category"": ""reporters:state"", ""reporter"": ""Mich."", ""case_paths"": [""/mich/35/0280-01""], ""opinion_index"": 0}, {""cite"": ""22 Minn. 159"", ""case_ids"": [561926], ""category"": ""reporters:state"", ""reporter"": ""Minn."", ""case_paths"": [""/minn/22/0159-01""], ""opinion_index"": 0}, {""cite"": ""25 Minn. 331"", ""case_ids"": [765809], ""category"": ""reporters:state"", ""reporter"": ""Minn."", ""case_paths"": [""/minn/25/0331-01""], ""opinion_index"": 0}, {""cite"": ""18 Minn. 176"", ""case_ids"": [736577], ""category"": ""reporters:state"", ""reporter"": ""Minn."", ""case_paths"": [""/minn/18/0176-01""], ""opinion_index"": 0}, {""cite"": ""24 Minn. 254"", ""case_ids"": [752485], ""category"": ""reporters:state"", ""reporter"": ""Minn."", ""case_paths"": [""/minn/24/0254-01""], ""opinion_index"": 0}, {""cite"": ""22 Minn. 13"", ""case_ids"": [561825], ""category"": ""reporters:state"", ""reporter"": ""Minn."", ""case_paths"": [""/minn/22/0013-01""], ""opinion_index"": 0}, {""cite"": ""58 N. W. 158"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.W."", ""opinion_index"": 0}, {""cite"": ""56 Minn. 527"", ""weight"": 2, ""case_ids"": [568732], ""category"": ""reporters:state"", ""reporter"": ""Minn."", ""case_paths"": [""/minn/56/0527-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""156 Wash. 280"", ""type"": ""official""}], ""file_name"": ""0280-01"", ""last_page"": ""288"", ""first_page"": ""280"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T21:19:51.165639+00:00"", ""decision_date"": ""1930-04-09"", ""docket_number"": ""No. 22019"", ""last_page_order"": 318, ""first_page_order"": 310, ""name_abbreviation"": ""Boyer v. 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+833115,"{""id"": 833115, ""name"": ""James K. McCourtie, by his Guardian ad litem Estella McCourtie, Respondent, v. Edith F. Bayton et al., Appellants"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""992d30e3b0a7dd742684b6551a3440c1d15825121f005b1f20c0c784a96e2584"", ""simhash"": ""1:3567034ddfaef05d"", ""pagerank"": {""raw"": 0.0000001828548963642499, ""percentile"": 0.72038775233614}, ""char_count"": 9695, ""word_count"": 1698, ""cardinality"": 592, ""ocr_confidence"": 0.48}, ""casebody"": {""judges"": [], ""parties"": [""James K. McCourtie, by his Guardian ad litem Estella McCourtie, Respondent, v. Edith F. Bayton et al., Appellants.""], ""opinions"": [{""text"": ""Holcomb, J.\n— This is an appeal from an order of the trial court granting a new trial on the sole ground that an erroneously prejudicial instruction had been given which probably induced a verdict by the jury in favor of appellants. The material facts, some of which are undisputed, are substantially as follows:\nRespondent, a minor suing by his mother as guardian ad litem, is a telegraph messenger delivering messages by motorcycle. He lived with his mother, who was the housekeeper for one John DeBoer, and a young brother. DeBoer rented a house in Georgetown, a suburb of Seattle, belonging to appellant Edith F. Bayton. James Gordon was the agent in charge of the renting of the house. On or before February 5, 1929, the precise time being in dispute, DeBoer was first shown the house by a young son of Gordon’s who was employed in the office of his father. After inspection, DeBoer went to the office of Gordon, closed the deal for the rental of the house, paid one month’s rent in advance and, as he testified, was then given the key. Gordon would not say that he gave the key to DeBoer, but that he might have given it to the plumber whom he employed to make repairs.\nA receipt given by Gordon to DeBoer was first dated February 5, 1929. DeBoer testified that he started to move into the house on February 5, but found that the water pipes were frozen, as the weather was very cold, and that they would have to be thawed out and some slight repairs made. He went to the office of Gordon and discussed the matter, and it was then agreed that the rental receipt should be changed so as to recite that the rental which had been paid on February 5 should not begin until February 8 and recite that it was in payment of rental from that date to March 8, 1929. The dates were accordingly changed.\nOn February 6, DeBoer, respondent’s mother, respondent and the young brother, moved into the house. Gordon had employed a repair man named Shoner to thaw out the pipes and make the necessary repairs. Shoner went to work on February 6 and was at work thawing the pipes, and when Gordon went to inspect the work, he saw respondent’s mother and DeBoer on the premises and noticed that the furniture had been moved in and most of it in place. Gordon testified that he made no objection to their occupancy as being-premature or without right; and that he gave them no notice to vacate and took no steps to eject them, is shown by the absence of any proof thereof.\nThe repairmen were obliged, in order to make repairs to the pipe, to make an opening in the back porch by removing several pieces of plank in the flooring of the porch, making an opening about twenty inches wide by thirty inches long. The evidence is conflicting as to whether or not, when the workmen left the premises that evening, they made any barricade around the opening. Respondent, after his working-hours were over on the night of February 6, about midnight, returned to the house, and, in passing over the back porch, stepped into the hole, which he testified the workmen had left unguarded, and sustained a fracture of the leg.\nAt the trial, counsel for appellants requested the court to give the following instruction:\n“An invitation to use the property on which work is being done extends to the property in its then condition, and licensees using the property assume the risk of such condition.\n“If you find from the evidence that, at the time of the accident in question, the tenancy of John DeBoer had not commenced, bnt that he and James McCourtie and the plaintiff were enjoying the use of the premises without compensating the landlord therefor, merely occupying the premises gratuitously until the beginning of the tenancy, and if you find further that the defendants or the repairman Shoner did not wantonly set a deliberate trap by which James McCourtie should be injured, the plaintiff cannot recover, even though the defendants or the repairman Shoner were guilty of negligence in leaving the porch in a dangerous condition, and your verdict will be for the defendants.”\nIn support of this request, counsel cited 45 C. J. 834, 837, §§ 241, 244; Glass v. Colman, 14 Wash. 635, 45 Pac. 310.\nOn appeal, appellants insist that it is conclusively shown by the rental receipt that the relation of landlord and tenant did not exist between DeBoer, Mrs. McCourtie and the owner of the premises, Mrs. Bayton, prior to February 8, and that consequently the relation existing was no more than that of a licensee by permission during the period from February 5 to February 8. Some authorities are cited to the effect that the relation of landlord and tenant arises only from contract, express or implied; 35 C. J. 952; Glass v. Colman, supra; Nordgren v. Lawrence, 74 Wash. 305, 133 Pac. 436; Woolen v. Sloan, 94 Wash. 551, 162 Pac. 985; and that occupancy is not synonymous with tenancy. Browder v. Phinney, 37 Wash. 70, 79 Pac. 598; 45 C. J. 788 and 789.\nAppellants also, quote and rely upon Bern. Comp. Stat., § 10619, as follows:\n“When premises are rented for an indefinite time, with monthly or other periodic rent reserved, such tenancy shall be construed to be a tenancy from month to month, or from period to period on which rent is payable, . . . ”\nWhether a contractual tenancy for the three days was established or not is in dispute; and a mere receipt for rent is no more final and unalterable than any other simple receipt. It is not a contract. It may be varied, explained or added to, by parol evidence.\nThis case is not controlled by the cases cited by appellants. None of them involved the question of when a tenant’s rights began, as against the landlord.\nThe relation of landlord and tenant is established where the owner of the premises permits another to take possession thereof for any determinate period. McLennan v. Grant, 8 Wash. 603, 36 Pac. 682.\nConceding, however, that the jury had the right to resolve the testimony in favor of Gordon that he did not give permission to DeBoer and his household to take possession at any time prior to February 8, nevertheless, when they did take possession on February 6 and he made no complaint thereof, they must be considered as tenants by sufferance. Another statute, not cited by either party, Rem. Comp. Stat., § 10621, reads:\n“Whenever any person obtains possession of premises without the consent of the owner or other person having the right to give said possession, he shall be deemed a tenant by sufferance merely, and shall be liable to pay reasonable rent for the actual time he occupied the premises, and shall forthwith on demand surrender his said possession to the owner or person who had the right of possession before said entry, and all his right to possession of said premises shall terminate immediately upon said demand.”\nIt is manifest that, under the foregoing statute, the landlord was protected by the legal right to recover reasonable rent for the actual time of the occupancy and the right to demand immediate possession of the premises which would terminate the right of possession at once. No such steps were taken. Therefore, even granting that no agreement had been reached as to the tenancy from February 5 to 8, there was a tenancy by sufferance. As was said in Williamson v. Hallett, 108 Wash. 176, 182 Pac. 940, quoting the same statute: “ . . . the legislature has put the question at rest in this state by statute.” Compare Sheppard v. Coeur D’Alene Lumber Co., 62 Wash. 12, 112 Pac. 932, Ann. Cas. 1912C 909, 44 L. R. A. (N. S.) 267.\nUnder our law, the relation of landlord and tenant manifestly existed as between DeBoer and appellant Mrs. Bayton. Eespondent was rightfully upon the premises as a member of the household of DeBoer. It was his residence, and he was not a trespasser.\nThe instruction, under the theory of appellants regarding an invitation to use the property gratuitously, while work was being done, and referring to the occupants as licensees assuming the risk of the condition of the premises as they then were, and to the effect that the landlord and her agent would be liable only in case they or their repairmen had wantonly set a deliberate trap by which respondent was injured, and even though appellants were negligent in leaving the porch in a dangerous condition, respondent could not recover, was manifestly and prejudicially erroneous.\nIt is also settled in this state that, if the landlord agrees or assumes to make repairs on the rented premises, he is liable for negligence in so doing. Mesher v. Osborne, 75 Wash. 439, 134 Pac. 1092, 48 L. R. A. (N. S.) 917. And that the real estate agent handling the premises for a non-resident landlord is likewise liable for negligence in failing to make necessary repairs; there being no distinction as regards the agent’s liability whether the injuries flow from his nonfeasance or misfeasance. Lough v. John Davis & Co., 30 Wash. 204, 70 Pac. 491, 94 Am. St. 848, 59 L. R. A. 802.\nWe have also held that the guest, servant, etc., of the tenant is usually held to be so identified with the tenant that Ms right of recovery for injury as against the landlord is neither more nor less than that of the tenant would be, had he suffered the injury. Moohr v. Victoria Investment Co., 144 Wash. 387, 258 Pac. 43.\nFor the foregoing reasons, we conclude that the order granting a new trial was right and it is affirmed.\nMitchell, O. J., Tolman, Parker, and Main, JJ., concur."", ""type"": ""majority"", ""author"": ""Holcomb, J.""}], ""attorneys"": [""Arthur M. Karris and John E. Rowley, for appellants."", ""Ryan, Desmond & Ryan, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 22537.\nDepartment One.\nDecember 2, 1930.]\nJames K. McCourtie, by his Guardian ad litem Estella McCourtie, Respondent, v. Edith F. Bayton et al., Appellants.\nArthur M. Karris and John E. Rowley, for appellants.\nRyan, Desmond & Ryan, for respondent.\n‘Reported in 294 Pac. 238.""}, ""cites_to"": [{""cite"": ""294 Pac. 238"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""258 Pac. 43"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""144 Wash. 387"", ""case_ids"": [802278], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/144/0387-01""], ""opinion_index"": 0}, {""cite"": ""59 L. R. A. 802"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A."", ""opinion_index"": 0}, {""cite"": ""70 Pac. 491"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""30 Wash. 204"", ""case_ids"": [5222447], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/30/0204-01""], ""opinion_index"": 0}, {""cite"": ""48 L. R. A. (N. S.) 917"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A.N.S."", ""opinion_index"": 0}, {""cite"": ""134 Pac. 1092"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""75 Wash. 439"", ""case_ids"": [622661], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/75/0439-01""], ""opinion_index"": 0}, {""cite"": ""44 L. R. A. (N. 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+846624,"{""id"": 846624, ""name"": ""C. Kirk Hillman, doing business as C. Kirk Hillman Company, Respondent, v. The City of Seattle et al., Appellants"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""1fb2bf996d129a7762c0fa8ee252fd4a1ccd2bbf80cbc175874c70110512e16d"", ""simhash"": ""1:59a9b4bdf7740915"", ""pagerank"": {""raw"": 0.00000007349410823568316, ""percentile"": 0.4408745451954921}, ""char_count"": 8472, ""word_count"": 1467, ""cardinality"": 521, ""ocr_confidence"": 0.506}, ""casebody"": {""judges"": [""Main, Parker, Mitchell, and Holcomb, JJ., concur.""], ""parties"": [""C. Kirk Hillman, doing business as C. Kirk Hillman Company, Respondent, v. The City of Seattle et al., Appellants.""], ""opinions"": [{""text"": ""Tolman, C. J.\nRespondent, as plaintiff, brought this action to recover damages for injuries, alleged to have been caused to his office and warehouse building through the negligent construction of a sewer in a street upon which the building abutted.\nA trial was had to a jury, which returned a verdict in favor of the plaintiff in the sum of one dollar. The defendants interposed a motion for judgment n. o. v., and the plaintiff moved for a new trial.\nThe trial court, being of the opinion that the verdict of the jury was a finding in favor of the plaintiff on the question of liability, and that the evidence introduced warranted a verdict in a substantial amount, denied the motion for judgment n. o. v. and granted the motion for a new trial, with the alternative option to the defendants to submit to the entry of a judgment against them and in favor of the plaintiff in the sum of $1,500 in lieu of standing a new trial. This option being rejected, a formal order granting a new trial was entered, and the defendants have appealed therefrom.\nThe errors assigned are but two in number, involving the challenge to the sufficiency of the evidence at the close of plaintiff’s case,and the-alternative order for a new trial; but these present every material fact in the case.\nThe voluminosity of the record, together with the elaborateness with which the case has been briefed and argued on the part of appellants, prevents a detailed discussion, or even a complete setting out, of all of the facts, which seem to be considered pertinent. We must perforce give only a bare'outline of'the situation'.\nThe building in question was erected in 1923, having a frontage of sixty feet on First avenue, in the city of Seattle, and running back 148 feet to Hanford street, with presumably a like frontage there. The land upon which it is situated is a part of the Seattle tide lands filled in twenty-five years or more ago. The soil is of a light, sandy nature. Because of the soil, extra large concrete footings were placed under the building when it was erected, and other means were used to obtain a solid foundation and a sound and substantial building suitable for warehouse purposes. The plans and specifications for the building were approved by the building department of the city, which department, after the completion, approved the completed structure.\nThe building was used up to the time complained of, with satisfactory results. There was no noticeable settlement of any part, and no cracks appeared except the natural cracks along the cold joints of the concrete floor.\nPrior to March, 1929, the city had awarded a contract to appellant George Nelson & Co. to construct a trunk sewer in Hanford street, and the appellant C. & P. Teaming and Trucking Co. became the sub-contractor under Nelson & Co. who actually excavated the ditch for the sewer. Hanford street, where respondent’s building abuts upon it, is 150 feet wide; but instead of placing the ditch in or near the center of the street, it was constructed along a line some six or seven feet distant from the line of the respondent’s building.\nThe construction work approached respondent’s property about the middle of March, 1929, and at that time the ditch was open to a depth of some six or eight feet, and no cribbing was placed therein; nor were there any supports placed to hold the earth adjoining and under the respondent’s building, and to prevent the natural effects of the removal of lateral support. The tide was permitted to ebb and flow in the ditch, and there was abundant evidence from which the jury may have found that, because of these conditions, large quantities of sand and earth slid out and by the action of the ground water were washed into the ditch and carried away, thus undermining the building and causing it to settle and crack to an extent justifying a substantial recovery.\nNor was this all. There was also evidence tending to show that, as the ditch was deepened, it was very inadequately cribbed or sheathed, so that large quantities of earth were negligently allowed to escape through the openings and cracks in the cribbing, and in addition, with the ditch in that open condition, a large pile driver was used to drive piles in the bottom of the ditch to furnish a foundation for the concrete to be laid, and the concussion and jarring of this operation shook the building and the whole surrounding terrain, thus’ adding to the escape of the soil' which supported the building and immediately causing cracks and settlement of the building to appear.\nThere was evidence clearly showing that these results were not due solely to the fault of the city’s plans and specifications, and that the contractors had a free hand in selecting the manner and method of doing the work, and that they did follow their own method.\nOf course, the evidence in regard to the matters we have mentioned was by no means undisputed. Much testimony was introduced presenting an issue on many and perhaps most of the material questions; but these issues were for the jury, and, since there is no complaint that the jury was not properly instructed, the verdict is conclusive. Certainly the evidence was sufficient at the close of the respondent’s case to carry the case to the jury, and there was no error in then denying the motion for a non-suit.\nWe think the case of Small v. Seattle, 139 Wash. 559, 247 Pac. 925, 48 A. L. R. 125, a sufficient authority for these views, and, in view of the facts as we see them, a sufficient answer to appellants’ contentions. It was there said:\n“Some contention is made in behalf of the dredging company that it, in no event, should be held liable, because it was doing the work as an independent contractor, according to plans and specifications prepared by the city. We have seen that the dredging company was entirely free to bring the earth to the Ninth avenue improvement, either by sluicing or as dry earth, sluicing it into place thereafter, which, of course, would require very much less water. This, we think, is sufficient to render it liable for the damage. The conveyance of the earth by sluicing operations was not doing something that it was necessary for it to do in the construction of the improvement. The sluicing was a mere alternative means to an end; it was not the end which the city contracted to have the dredging company accomplish.\n“It is contended in behalf of the city that it in any event should not be held liable to Small for the damage to his house, because the dredging company was an independent contractor. This contention, we think, is not well founded, in view of the city sanctioning the conveyance of the earth to the Ninth avenue improvement by sluicing process. This it manifestly did by the express provision of the specifications above noted; and besides, it is manifest that the city had an inspector upon the work watching its progress, who had full knowledge of the dredging company so using the sluicing process for conveyance of the earth and also had full knowledge of the possibility of damage from the turning loose of such a large volume of water in that neighborhood continuously for a period of six days, especially in view of the fact that the slough outlet through the grade of the railway on Fifth avenue was manifestly already nearly taxed to its limit. We do not think that the city ought to be permitted to escape liability merely because the dredging company was acting for it, generally speaking, as an independent contractor.”\nThe second question needs no elaborate discussion. As we have seen, the verdict of the jury was a finding in favor of respondent on the question of negligence of the appellants. The fact is clear that, such negligence being established, substantial damages should have been allowed. This exact question, to all intents and purposes, was passed upon by this court in Bingaman v. Seattle, 139 Wash. 68, 245 Pac. 411. The trial court followed the rule laid down in that case, and its judgment must be affirmed.\nJudgment affirmed.\nMain, Parker, Mitchell, and Holcomb, JJ., concur."", ""type"": ""majority"", ""author"": ""Tolman, C. J.""}], ""attorneys"": [""A. C. Van Soelen and E. I. Jones, for appellant City of Seattle."", ""Edwin H. Flick and Herald A. O’Neill, for appellants Geo. Nelson & Co. and C. & F. Teaming and Trucking Co."", ""Peyser & Bailey, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 22921.\nDepartment One.\nJuly 15, 1931.]\nC. Kirk Hillman, doing business as C. Kirk Hillman Company, Respondent, v. The City of Seattle et al., Appellants.\nA. C. Van Soelen and E. I. Jones, for appellant City of Seattle.\nEdwin H. Flick and Herald A. O’Neill, for appellants Geo. Nelson & Co. and C. & F. Teaming and Trucking Co.\nPeyser & Bailey, for respondent.\nReported in 299 Pac. 514.""}, ""cites_to"": [{""cite"": ""299 Pac. 514"", ""case_ids"": [8741485], ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""case_paths"": [""/okla-crim/51/0064-01""], ""opinion_index"": -1}, {""cite"": ""245 Pac. 411"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""139 Wash. 68"", ""case_ids"": [788675], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/139/0068-01""], ""opinion_index"": 0}, {""cite"": ""48 A. L. R. 125"", ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R."", ""opinion_index"": 0}, {""cite"": ""247 Pac. 925"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""139 Wash. 559"", ""case_ids"": [788763], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/139/0559-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""163 Wash. 401"", ""type"": ""official""}], ""file_name"": ""0401-01"", ""last_page"": ""406"", ""first_page"": ""401"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T21:41:34.193595+00:00"", ""decision_date"": ""1931-07-15"", ""docket_number"": ""No. 22921"", ""last_page_order"": 436, ""first_page_order"": 431, ""name_abbreviation"": ""Hillman v. 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+8504476,"{""id"": 8504476, ""name"": ""A. DeLambre vs. M. J. Williams"", ""court"": {""id"": 9109, ""name"": ""Louisiana Supreme Court"", ""name_abbreviation"": ""La.""}, ""analysis"": {""sha256"": ""eb44be3521326882c58f40143344a6b839dfa6e49d0cadab52137504b2cc76b7"", ""simhash"": ""1:b45b85ac21926b72"", ""pagerank"": {""raw"": 0.00000038186080776364676, ""percentile"": 0.8981998564395067}, ""char_count"": 6800, ""word_count"": 1130, ""cardinality"": 414, ""ocr_confidence"": 0.339}, ""casebody"": {""judges"": [], ""parties"": [""A. DeLambre vs. M. J. Williams.""], ""opinions"": [{""text"": ""The opinion of the Court was delivered by\nPocmS. J.\nThis suit is for the recovery of damages for alleged violations of a contract, and for certain amounts alleged to have been overpaid by plaintiff on said contract.\nIn January, 1832, the defendant contracted to construct a steam-train and other sugar-house apparatus on plaintiff’s plantation at a stipulated price, evidenced by a written contract.\nIn addition thereto ho sold to plaintiff, for use in the sugar-house, other machinery, all of which had been delivered and erected by the middle of October of that year, and for all of which plaintiff settled by drafts on time and by notes of hand.\nHe used the machinery and the apparatus for the purpose of taking off Ms crop of that year, which amounted to about 100 hogsheads of sugar and corresponding molasses.\nOn the score of damages, iris complaint is that the defendant violated his contract in using' inferior material, principally in the matter of connecting, charging, and discharging pipes, adapted to'the clarifiers and evaporators, forming part of the steam-train, in consequence of which he lost sugar by leakage of juice and syrup. He nest charges defect in the steam generating apparatus, in consequence of which he lost time and fuel, and he finally charges, that owing to tinskillful turning and defective setting of the rollers of his mill, the cane was not sufficiently mashed, in consequence of which ho lost a great quantity of sacharme matter.\nHe fixes all such damages at tho aggregate sum of two thousand dollars.\nThe defendant admits the contract, but disclaims any responsibility for alleged deficiencies in the engineer’s work, and in the carpenter’s work, on the ground that plaintiff had made a separate and distinct contract with same, for work not necessarily connected with the steam-train. He also pleaded tho general denial and estoppel.\nPlaintiff has taken this appeal from a judgment rejecting Ms entire claim.\nOur examination of the record has brought us to the conclusion’thafc defendant is not responsible for alleged defects in the engineer’s and in tlie carpenter’s works. The stipulation fixing the value of those two elements in the construction, is contained, it is true, in the written contract, but from tho tenor of tho stipulation itself, and from other evidence, it appears clearly to our minds that they formed' no part of defendant’s contract, and that these two details were thus inserted at plaintiff’s request, and for the purpose of showing by one paper, to his merchants, the entire costs of the whole enterprise. Hence we conclude that, although the defendant had the general supervision of the whole construction, including the work of the engineer and of the carpenter, be cannot be bold responsible for deficiencies in their labor or acts, not more than be could have been .held responsible to either for bis stipulated compensation under the contract.\nThese views eliminate from the cause the discussion of all damages alleged to have been caused by the defects in wooden troughs, in the cane and bagasse carrier, in the rollers and in the steam generating apparatus.\nIn answer to the alleged defects in the steam-train proper, the defendant urges that after using the same and manufacturing therewith some hundred hogsheads of sugar, after expressing himself as satisfied with the job, and after settling in full for the price thereof, plaintiff is estopped from claiming damages for alleged violations of the contract which he had heretofore treated as satisfactorily executed, We find in the record full proof, in the shape of verbal statements by plaintiff, of letters and other evidence, documentary and otherwise, in support of that plea.\nThe record shows to our entire satisfaction that all the charges which were made in the work, all defects in the job had been fully considered by plaintiff, and satisfactorily accounted for and explained in his mind, and that he had knowingly and unequivocally accepted the work and had settled for the same advisedly, and without any error or concealment on the part of the defendant. Hence his lips must be sealed from the utterance of any complaint.\nHis counsel relies on the decision in the case of Levy vs. Schwartz & Bro., 34 A. 211, which he holds as precisely similar in its facts with the present case.\nBut in that assertion he is mistaken. In that case the construction was not accepted and used without objection, and the plaintiff was not shown, as in this case, to have expressed his satisfaction with the -work. We adhere to the principle therein announced, that payment of the price will not by itself be conclusive proof of a waiver of damages. But we do hold here, as we did there, that such a. settlement must be considered as one of the links in the chain of evidence which demonstrates that by his acts in the premises, this plaintiff has effectually waived all claims to damages.\nOn the score of errors in his settlement, plaintiff charges that defendant interpolated in one of his drafts a stipulation for interest from demand, and he claims the return of interests thus unlawfully collected. But the record shows that he was informed of the addition made to his draft, and that he approved of the same. He charges error in a debit of fifteen dollars which should have been set to his credit on the account. But it appears that he was allowed credit for thirty dollars on a note of his held by defendant. He complains that he was charged twenty-eight dollars and twenty-four cents for a strike-tank which figured in the contract of the value of eighteen dollars. But the record shows that at his own request, the tank furnished was larger in dimensions, and, therefore, more costly. Ho charges several other minor errors, but his complaint is met by satisfactory explanations and by full proof of the correctness of each item alleged to be erroneous.\nWe have failed to find any error, to his prejudice, either in his settlement with the defendant or in the conclusions of the district judge.\nJudgment affirmed."", ""type"": ""majority"", ""author"": ""PocmS. J.""}], ""attorneys"": [""A. K. Gross for Plaintiff and Appellant."", ""Knox c£ Layeoelc for Defendant and Appellee.""], ""corrections"": """", ""head_matter"": ""No. 9098.\nA. DeLambre vs. M. J. Williams.\nA party for whom constructions consisting of improvements and appurtenances have been made under contract, who has accepted the work, has expressed his satisfaction therewith, and settled therefor without objection or complaint, is estopped for claiming damages for alleged violations of said contract.\nUnder a contract for general work, in which the owner makes a direct contract with a carpenter and engineer for these respective specialties, the general contractor cannot be held responsible in damages for the alleged shortcomings oí either.\nAPPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Sherburn, J.\nA. K. Gross for Plaintiff and Appellant.\nKnox c£ Layeoelc for Defendant and Appellee.""}, ""cites_to"": [{""cite"": ""34 A. 211"", ""category"": ""reporters:state_regional"", ""reporter"": ""A."", ""opinion_index"": 0}], ""citations"": [{""cite"": ""36 La. Ann. 330"", ""type"": ""official""}], ""file_name"": ""0330-01"", ""last_page"": ""333"", ""first_page"": ""330"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 10, ""name"": ""La."", ""name_long"": ""Louisiana""}, ""last_updated"": ""2024-02-27T21:20:02.804890+00:00"", ""decision_date"": ""1884-03"", ""docket_number"": ""No. 9098"", ""last_page_order"": 361, ""first_page_order"": 358, ""name_abbreviation"": ""DeLambre v. 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+918583,"{""id"": 918583, ""name"": ""Continental Casualty Company vs. Gilbane Building Company & another"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""5b5345aa6461fdb3339c45b2d42f3abc2e7e572d1dcca52fc08fb93e30129c1a"", ""simhash"": ""1:1b12e1df091dca6c"", ""pagerank"": {""raw"": 0.0000015041854580539466, ""percentile"": 0.9918020317014621}, ""char_count"": 30331, ""word_count"": 4800, ""cardinality"": 1097, ""ocr_confidence"": 0.879}, ""casebody"": {""judges"": [], ""parties"": [""Continental Casualty Company vs. Gilbane Building Company & another.""], ""opinions"": [{""text"": ""Abrams, J.\nContinental Casualty Company (Continental) brought an action for a declaratory judgment against Gil-bane Building Company (Gilbane) and H. H. Robertson Company (Robertson) to determine whether Continental had a duty to defend Gilbane and Robertson in actions brought by John Hancock Mutual Life Insurance Company (Hancock) and Mamma Leone’s of Boston, Inc. (Mamma Leone), claiming damages from Gilbane and Robertson for the faulty design of the John Hancock Tower (Tower). A judge of the Superior Court, on Continental’s motion for a judgment on the pleadings or, in the alternative, for summary judgment, and on Robertson’s cross motion for summary judgment, ruled against Continental and declared that Continental had a duty to defend Gilbane in the Mamma Leone action and Robertson in both actions. Continental appealed the judge’s order for summary judgment and renewed its notice of appeal after judgment was entered in the Superior Court as to Robertson. We granted Continental’s application for direct appellate review. We affirm.\nWe summarize the facts. In 1968, Hancock purchased two insurance policies from Continental pursuant to specifications outlined in the construction contract for the Tower. The comprehensive general liability policy provided personal injury and property damage coverage for, among others, Hancock, the owner, Gilbane, the general contractor, and Robertson, the curtain wall subcontractor. At Hancocks insistence, the printed policy was amended to read: “The insurance afforded applies separately to each insured against whom claim is made or suit is brought.”\nIn 1975, Hancock sued Gilbane, Robertson, and others associated with the design and construction of the Tower curtain wall. In relevant part, the action alleged that in 1972 significant numbers of glass panels failed in the Tower’s curtain wall. As a consequence, the Tower was not weathertight “and could not withstand the forces and conditions to which it was subjected.” Hancock further alleged that the problem was the result of negligent design and construction by Gilbane and Robertson, and that Hancock sustained substantial damages, including “the deprivation of the use of the Tower, diminution in value of the Tower, and lost income on rentals for the Tower.”\n1. The duty to defend. “It is settled in this jurisdiction, and generally elsewhere, that the question of the initial duty of a liability insurer to defend third-party actions against the insured is decided by matching the third-party complaint with the policy provisions: if the allegations of the complaint are ‘reasonably susceptible’ of an interpretation that they state or adumbrate a claim covered by the policy terms, the insurer must undertake the defense. See Vappi & Co. v. Aetna Casualty & Sur. Co., 348 Mass. 427, 431 (1965); Magoun v. Liberty Mut. Ins. Co., 346 Mass. 677, 681-682 (1964); Terrio v. McDonough, 16 Mass. App. Ct. 163, 166 (1983). See also 7C J.A. Appleman, Insurance Law and Practice § 4683 (rev. ed. 1979); 14 M.H. Rhodes, Couch’s Cyclopedia of Insurance Law § 51.42 (2d ed. rev. 1982); 1 R. Long, Liability Insurance § 5.03 (1981); A.D. Windt, Insurance Claims and Disputes § 4.01 (1982); Annot., 50 A.L.R.2d 458 (1956). Otherwise stated, the process is one of envisaging what kinds of losses may be proved as lying within the range of the allegations of the complaint, and then seeing whether any such loss fits the expectation of protective insurance reasonably generated by the terms of the policy” (footnote omitted). Sterilite Corp. v. Continental Casualty Co., 17 Mass. App. Ct. 316, 318 (1983). See Terrio v. McDonough, supra at 169. We turn to the allegations of the underlying complaints to determine whether they are or may be envisioned to be within the provisions of the policy.\n2. “Property damage” under the insurance policies. Continental argues that the loss of use of property is not covered by the policy unless there is physicalInjury to tangible property. The comprehensive general liability policy defines property damage as “injury to or destruction of tangible property.” See, e.g., Hamilton Die Cast, Inc. v. United States Fidelity & Guar. Co., 508 F.2d 417, 419-420 (7th Cir. 1975). The judge ruled that because the complaints may be read to allege “both physical injury to and loss of use of the John Hancock Tower, the claims for damages result from 'property damage’” and were within the coverage of the policy. We agree.\nWe read the policy as written. We are not free to revise it or change the order of the words. “There is nothing in the definition [of property damage] requiring physical injury or destruction of property. The guide to determination of coverage is the kind of property rather than the kind of injury. Tangible property rendered useless is injured and hence is covered, since the definition of damages includes ‘loss of use of property resulting from property damage.’” 3 R. Long, Liability Insurance App. B, § 6 (1981). We, like a majority of courts considering this issue, conclude that “the term property damage does not require actual physical damage but can include intangible damage such as the diminution in value of tangible property.” McDowell-Wellman Eng’g Co. v. Hartford Accident & Indem. Co., 711 F.2d 521, 525-526 n.7 (3d Cir. 1983). See Sola Basic Indus., Inc. v. United States Fidelity & Guar. Co., 90 Wis. 2d 641, 653-654 (1979); Pittway Corp. v. American Motorists Ins. Co., 56 Ill. App. 3d 338, 342 (1977), and cases cited.\n(a) Hancock complaint. The Hancock complaint alleges “substantial damages, including the cost of labor and materials for removing and replacing the glass units, additional design, engineering and construction costs, increased operating expenses and other costs for the Tower, the deprivation of the use of the Tower, diminution in value of the Tower, and lost income on rentals for the Tower.” The complaint also alleges that the defects were not apparent until after the wall had been “completed and been subjected to normal forces and conditions.” Further, the complaint suggests that Gilbane and Robertson fraudulently lulled Hancock into a false sense of security by assuring Hancock that the curtain wall would not fail once it “was completed and sealed” in the Tower.\nContinental argues that the curtain wall was not integrated into the Tower, and therefore damages were limited to the curtain wall itself and the cost of repair and replacement. Such damages are explicitly excluded from coverage by exclusion (1) and (m). See 151-155, infra. As we read the Hancock complaint, we think the allegations are “reasonably susceptible of an interpretation” that Hancock suffered its damages after the curtain wall was “completed and sealed” in the Tower. The allegations of damages are not limited to repair and replacement or intangible damages. They also encompass damage to the Tower itself after installation of the curtain wall.\nSince the complaint may be read as claiming damages after integration of the defective curtain wall into the Tower, the allegations are sufficient to trigger the duty to defend. “[CJommon sense dictates there was substantial property damage to the entire . . . building when the exterior walls presented a faded, discolored, mottled and unsightly appearance in contrast to a uniform and eye-pleasing manifestation envisioned by the original plans. To say the damage in such instance can be confined to the blocks as distinct from the . . . building, we feel, is unrealistic and loses sight of the forest because of the trees.” Dakota Block Co. v. Western Casualty & Sur. Co., 81 S.D. 213, 218 (1965). See United States Fidelity & Guar. Co. v. American Ins. Co., 169 Ind. App. 1 (1976). See also Beacon Textiles Corp. v. Employers Mut. Liab. Ins. Co., 355 Mass. 643, 646 (1969); Sturges Mfg. Co. v. Utica Mut. Ins. Co., 37 N.Y.2d 69 (1975); Lipton, Inc. v. Liberty Mut. Ins. Co., 34 N.Y.2d 356 (1974).\n(b) Mamma Leones complaint. The judge, citing R. Long’s treatise, found that Mamma Leone’s complaint alleged property damage within the policy because “[tjangible property rendered useless is injured and hence is covered .... The discharge of noxious gas from the insured’s plant renders a nearby business building unfit for human occupancy, the resulting loss of profits is covered.” 3 R. Long, Liability Insurance App. B, § 6, 38-39 (1981). Accord: R. Elliot, The New Comprehensive General Liability Policy 12-6 (definition of property damage “omits any requirements that there be physical injury as a prerequisite for coverage. Thus, if tangible property is not physically damaged but is made useless by an act of an insured, the policy will cover the insured’s legal liability assuming no specific exclusion applies. As an example: a large piece of contractor’s equipment breaks down in a public street in such a manner that the street must be closed off for a period of time and the public has limited or no access to the stores located in the block affected. Loss of use claims from the operators of those stores would be covered”).\nMamma Leone’s allegations also are “reasonably susceptible of an interpretation” that the falling glass caused the area surrounding the restaurant to be cleared of pedestrians and roped off on numerous occasions. As a result of the falling glass, the public may not have been able to gain access to the premises. A “business may state a claim in nuisance for severe economic harm resulting from loss of access to its premises by its customers.” Stop & Shop Cos. v. Fisher, 387 Mass. 889, 896 (1983).\nIn categorizing loss of access to property that results in severe economic harm, with physical damage to property with respect to a plaintiff’s ability to sue in public nuisance, we implicitly recognized that “in cases where an established business may have been virtually destroyed,” Stop & Shop Cos. v. Fisher, supra at 895, the business has suffered injury to its property. The Mamma Leone complaint envisions an interpretation that encompasses such a claim. Because our function simply is to decide whether Mamma Leone’s allegations are “reasonably susceptible of the interpretation that they assert injury to property caused by accident and of a type not within the . . . [policy’s] exclusion[s],” Vappi & Co. v. Aetna Casualty & Sur. Co., 348 Mass. 427, 431 (1965), we conclude that the judge correctly determined that Continental had a duty to defend this action.\n3. Exclusions. Continental argues that coverage for property damage is excluded by four clauses in the comprehensive liability policy. “Each exclusion is meant to be read with the insuring agreement, independently of every other exclusion.” Tinker, Comprehensive General Liability Insurance — Perspective and Overview, 25 Fed’n Ins. Counsel Q. 217, 223 (1975). We therefore consider each exclusion separately.\n(a) Care, custody, or control exclusion. Exclusion (i) of the comprehensive general liability policy excludes coverage of “property damage to property owned by the Insured, leased or rented equipment, or property being installed, erected or worked upon by the insured, his agents or subcontractors” (emphasis supplied). Continental argues that this exclusion applies because the property allegedly damaged in the Hancock complaint was “being installed, erected or worked upon by [Gilbane and Robertson], [their] agents or sub-contractors” at the time of the “occurrence” specified in the Hancock complaint. The crux of this argument is that the failure of the curtain wall constituted a single occurrence that commenced when Robertson was still working on the curtain wall.\nIn making this argument, Continental relies on the contractual definition of occurrence in the policy: “Occurrence means: (1) with respect to . . . property damage, an accident, including injurious exposure to conditions which results, during this policy period, in . . . property damage neither expected nor intended from the standpoint of the insured. All. . . property damage arising out of continuous or repeated exposure to substantially the same conditions shall be considered as arising out of one occurrence.” Continental concludes that the damage incurred during the later period was an extension of the initial breakage of the curtain wall and therefore is not within the policy. We do not agree.\n“The time of the occurrence of an accident within the meaning of an indemnity policy is not the time the wrongful act was committed, but the time when the complaining party was actually damaged.” Bartholomew v. Insurance Co. of N. Am., 502 F. Supp. 246, 252 (D. R.I. 1980), aff’d sub nom. Bartholomew v. Appalachian Ins. Co., 655 F.2d 27 (1st Cir. 1981), quoting United States Fidelity & Guar. Co. v. American Ins. Co., 169 Ind. App. 1, 7 (1976). As we read the Hancock complaint, its allegations are reasonably susceptible of an interpretation that Robertson and Gilbane turned over a completed but defective Tower, and that when the Tower malfunctioned, Hancock suffered property damage.\nThe Hancock complaint states that “[w]hen some of the glass units in the curtain wall failed during or shortly after installation, Robertson assured John Hancock that the failures were a result of normal problems incident to installation or were due to causes other than Robertson’s negligent design, and would not continue once the entire curtain wall was completed and sealed. Robertson replaced glass units which failed during or shortly after installation.” The Hancock complaint then claims that Robertson and Gilbane “fraudulently concealed from John Hancock the cause of the failures. Significant numbers of glass units did not fail until November, 1972.” Hancock’s complaint further alleges that “John Hancock has sustained substantial damages, including but not limited to the cost of labor and materials for removing and replacing the glass units in the curtain wall, additional design, engineering and construction costs, increased operating expenses and other costs for the Tower, the deprivation of the use of the Tower, diminution in value of the Tower, and lost income on rentals for the Tower.”\nThe complaint is “reasonably susceptible” of the interpretation that stresses to which the curtain wall was subjected as part of the Tower differed significantly from the stresses which were placed on the individual glass panels during construction. Further, as we read the complaint, the repairs made while the Tower was still in the “custody and control” of Gilbane and Robertson could have alleviated the conditions that led to the precompletion breakage. Thus, the complaint fairly read suggests an interpretation that precompletion and postcompletion property damage did not arise “out of continuous or repeated exposure to substantially the same conditions [so as to] be considered as arising out of one occurrence.”\nContinental argues additionally “[t]he only fair reading of exclusion (i) is to exclude from coverage all damage to property which was the subject of the insured’s work.” Before the insurance contract was signed, however, Hancock sought an explanation of exclusion (i) and Continental responded to Hancock’s request by stating, “We . . . draw your attention to the severability of interests phraseology appearing under the persons insured section which confirms that ‘the insurance afforded applies separately to each Insured against whom claim is made or suit is brought . . ., etc.’ The question to ask is whether the Property damaged falls into the category of . . . property being installed, erected or worked upon by the Insured, his Agents or Subcontractors. In this case, the Insured is that entity against whom claim is being brought.”\nHancock negotiated for and Continental agreed to the severability clause providing that each of the named insured be covered “as if separate policies . . . had been issued to each Insured hereunder.” As we read its letter, Continental told Hancock that, although it was not providing builder’s risk insurance under its third-party liability policies, the various named insured companies would be considered third parties with respect to each other under exclusion (i) unless the property allegedly damaged was being worked upon by the insured.\nExclusion (i) as written and exclusion (i) as Continental would have us read it are concerned with different actuarial problems. “[Ijnsurance premiums are based upon risk-allocation, and the risk of damaging property handled in the course of work is greater than the risk of damaging other property.” Mustachio, Manufacturers’ and Contractors’ Liability Insurance Policy: The Care, Custody, or Control Exclusion Clause, 6 Hous. L. Rev. 359, 359 (1968). Thus, exclusion (i) as written excludes a high risk occurrence (property being worked on) and provides a powerful incentive for the insured to exercise optimum care with respect to property being worked on and still within its care, custody and control. Continental would transform exclusion (i) into a sweeping exclusion of coverage for property damage to all property on which the insured worked, even after completion. Such an interpretation contradicts the plain language of the clause.\n(b) Injury to products exclusion. Exclusion (1) of the general liability policy excludes coverage “to property damage to the named insured’s products arising out of such products or any part of such products.” “[N]amed insured’s products” is defined as “goods or products manufactured, sold, handled or distributed by the named insured or by others trading under his name, including any container thereof.”\nContinental does not contend that the whole Tower was Robertson’s “product.” According to Continental, however, the curtain wall was Robertson’s product, and all damage alleged by Hancock was a consequence of “property damage to the named insured’s products arising out of such products.” Continental’s theory is that, if the insurance does not cover damage to the curtain wall itself, it cannot cover consequential damages resulting from failure of the Tower after installation of the curtain wall. We have rejected Continental’s definition of “property damage.” Supra at 148. Because the complaint suggests that the curtain wall was integrated into the Tower in a manner causing “injury to . . . tangible property,” we conclude that exclusion (1) does not relieve Continental of its duty to defend Robertson on the Hancock claim. See Sturges Mfg. Co. v. Utica Mut. Ins. Co., 37 N.Y.2d 69 (1975).\n(c) Injury to work exclusion. Exclusion (m) of the comprehensive general liability policy excludes coverage “to property damage to work performed by or on behalf of the named insured arising out of work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith.”\nIn arguing that exclusion (m) should apply to property damage to the Tower as a whole, Continental makes the identical argument that it made with respect to exclusion (1) and the Mamma Leone claim, i.e., that the only actual physical injury to property alleged in either complaint was injury to the curtain wall, that such injury is excluded, and, therefore, that consequential damages such as loss of use do not constitute property damage under the insurance contract. We reject Continental’s argument that, as a matter of law, we must hold that the curtain wall was not integrated into the Tower, and, therefore, there was no “injury to . . . tangible property.” As we have said, the complaint fairly read suggests that the curtain wall was integrated into the Tower. See note 7, supra. Thus, Continental must defend Robertson with respect to the loss of use or diminution of value of the Tower. See supra at 147-148 (discussing “property damage”) and supra at 154-155 (discussing exclusion [1]).\n(d) The “Sistership” exclusion. Exclusion (n) of the comprehensive general liability policy excludes coverage for “damages claimed for the withdrawal, inspection, repair, replacement, or loss of use of the named insured’s products or work completed by or for the named insured or of any property of which such products or work form a part, if such products, work or property are withdrawn from the market or from use because of any known or suspected defect or deficiency therein.” Continental argues that the judge created an ambiguity in a clause that clearly excluded coverage and then construed the clause against the insurer. We disagree.\nExclusion (n) “is intended to exclude from coverage the cost of preventative or curative action by withdrawal of a product in situations in which a danger is to be apprehended. It is not, however, intended to exclude from coverage damages caused by the very product whose failure to perform properly aroused apprehension about the quality of ‘sister’ products. . . . Still less is it intended to exclude from coverage damages arising from the malfunctioning of a product where no ‘sister’ products are involved” (citations omitted). Todd Shipyards Corp. v. Turbine Serv., Inc., 674 F.2d 401, 419 (5th Cir. 1982). 3 R. Long, Liability Insurance App. B, § 15 (1981); Henderson, Insurance Protection for Products Liability and Completed Operations — What Every Lawyer Should Know, 50 Neb. L. Rev. 415, 445 (1971).\nThe complaints allege failure of the Tower itself; no sister products are involved. The Tower is unique, and thus exclusion (n) does not apply. This matter is remanded to the Superior Court where a judgment shall enter declaring that Continental has a duty to defend Gilbane in the Mamma Leone action and Robertson in both actions.\nSo ordered.\nAn action was also brought against I. M. Pei, the architect. The judge ruled that the insurance policy specifically excluded the damages alleged in that action, and that Continental had no duty to defend Pei. No appeal from that ruling is before us in this case.\nThe judge originally ruled that Continental had no duty to defend Gilbane in either action. Gilbane subsequently filed a motion to reconsider the summary judgment with respect to the Mamma Leone action, stating that exclusion (m) did not apply to Mamma Leone. The judge granted Gilbane’s motion and held that Continental had a duty to defend Gilbane in the Mamma Leone action because the restaurant was not located in the Tower, which was Gilbane’s work product, but was situated across the street in the John Hancock garage. Thus, the judge concluded exclusion (m) did not apply to the Mamma Leone action.\nIn its brief Gilbane does not contest the judge’s determination on proceedings for summary judgment that Continental has no duty to defend Gilbane in the Hancock action. We deem Gilbane’s failure to brief this issue as a waiver. Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 919 (1975).\nWith respect to the Mamma Leone action, Gilbane argues that because a final judgment was not entered in that case, Mass. R. Civ. P. 58 (a), as amended, 371 Mass. 908 (1977), appeal is not ripe. See Tisei v. Building Inspector of Marlborough, 5 Mass. App. Ct. 328, 330 (1977) (final judgment required before appeal). At oral argument, the parties informed us that the underlying actions have been settled, and that the only question remaining to be adjudicated is Continental’s duty to defend Gübane and Robertson. In these circumstances, we decline to remand this matter to the Superior Court for the entry of judgment in accordance with the judge’s memorandum and then decide Continental’s duty to defend Gil-bane in a later appeal.\nWe derive the facts from those found by the judge. In the court below, Gilbane contested the propriety of a summary judgment, arguing that there was a factual matter in dispute. The judge held that the case was ripe for summary judgment and, on appeal, Gilbane has not challenged that holding. Thus, we deem the matter waived. See Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 919 (1975).\nHancock also purchased an umbrella excess third-party liability policy to cover personal injury and property damage in excess of that covered by the primary insurance. Since we hold that Continental has a duty to defend under the comprehensive general liability policy, we do not reach or discuss the excess liability policy.\nThe policy states that Continental “shall have the right and duty to defend any suit against the insured seeking damages on account of such . . . property damage . . . , even if any of the allegations of the suit are groundless, false or fraudulent . . . .”\nOn appeal, the parties differ as to whether the curtain wall was integrated into the Tower. None of the parties asks that we remand this matter to the Superior Court for resolution of this factual dispute. Because the complaint may be read to allege that the curtain wall was integrated into the Tower, we do not remand this matter on this issue.\nThe claim of “additional design, engineering and construction costs” also may be read to include correcting damage done by the failure of the curtain wall to parts of the Tower not worked on by Robertson.\nContinental states in its argument headings that the exclusions also apply to the Mamma Leone action. In its brief, however, Continental merely restates its position that property damage is not covered unless it results from physical injury to property not excluded. Continental thus argues that it has no duty to defend the Mamma Leone actions because the damages alleged therein do not in themselves constitute property damage under the policy and are consequential to damages excluded by policy exclusions. Because we hold that the allegation of loss of access to Mamma Leone’s restaurant is, in itself, an allegation of injury to tangible property, this argument fails. None of the other exclusions has any other bearing on the Mamma Leone action.\nThe judge held that exclusion (1) did not apply to Gilbane or Robertson because neither defendant was a manufacturer or supplier of goods. Relying on Paxton-Mitchell Co. v. Royal Indem. Co., 279 Or. 607 (1977), the judge stated that “ ‘insured’s products’ refer to that in which the insured trades or deals, and not all goods handled by an insured in the process of completing its business function.” Other courts have accepted this interpretation. See Gulf Miss. Marine Corp. v. George Engine Co., 697 F.2d 668, 672-673 (5th Cir. 1983). Because the Hancock complaint alleges damage to the Tower, we need not decide whether the curtain wall was Robertson’s “product” so as to invoke exclusion (1).\nRobertson does not dispute the fact that it worked on the curtain wall and concedes that if Hancock exclusively alleged property damage to the curtain wall, rather than to the Tower, such claim would be excluded by exclusion (m)."", ""type"": ""majority"", ""author"": ""Abrams, J.""}], ""attorneys"": [""Thomas D. Burns (Charles Mark Furcolo & Steven H. Goldberg with him) for the plaintiff."", ""Anthony M. Feeherry (Cerise H. Lim Epstein with him) for H. H. Robertson Company."", ""Francis J. Sally for Gilbane Building Company.""], ""corrections"": """", ""head_matter"": ""Continental Casualty Company vs. Gilbane Building Company & another.\nSuffolk.\nOctober 6, 1983.\nFebruary 13, 1984.\nPresent: Hennessey, C.J., Liacos, Abrams, Nolan, & Lynch, JJ.\nInsurance, Insurer’s obligation to defend, Construction of policy, Contractor’s insurance, Property damage. Negligence, Faulty design of building. Words, “Property damage.”\nThe property damage coverage of a comprehensive general liability insurance policy included certain intangible damage which diminished the value of property or rendered it useless. [147-148]\nIn a civil action by a building owner against the contractor which allegedly installed a defective “curtain wall” in the building, the complaint, fairly read, encompassed consequential damage to the building occurring after the curtain wall was installed and thus was sufficient to bring into operation the liability insurer’s obligation to defend the action. [148-149]\nWhere, in a civil action by the operator of a restaurant against the construction contractor and a subcontractor on a nearby building from which glass panels had fallen on numerous occasions, the complaint sufficiently alleged economic harm to the restaurant resulting from loss of public access to its premises, the liability insurer had the duty to defend the action. [149-150]\nThe “care, custody and control” exclusion clause in a policy of comprehensive general liability insurance was inapplicable in actions by the owner of a building against the general contractor and a subcontractor to recover for property damage resulting from the contractors’ installation of a defective “curtain wall” in the building, where the complaints, fairly read, alleged that the contractors turned over to the owner a completed, but defective, building, rather than that the pre-completion and postcompletion property damage resulted from a single occurrence during construction. [151-154]\nWhere the complaint in an action by the owner of a building against a subcontractor could be read to allege that the building’s “curtain wall” was installed by the subcontractor in a manner causing injury to the owner’s tangible property, the loss alleged was not within the “injury to products” clause of a policy of comprehensive general liability insurance, excluding coverage of the curtain wall itself. [154-155]\nThe “injury to work” exclusion in a policy of comprehensive general liability insurance covering construction of a building did not exclude coverage of consequential damage, such as loss of use, resulting from a subcontractor’s defective design and installation of the building’s “curtain wall,” where the building owner’s complaint in an action against the subcontractor fairly alleged that the curtain wall was integrated into the building when the damage occurred. [155]\nWhere complaints by the owner of a building in actions against the contractor and a subcontractor for the building’s construction could be read to allege failure of the building itself, as distinct from failure or threatened failure of any of its component parts, the “sistership exclusion” in the policy of comprehensive general liability insurance covering the construction had no application. [155-156]\nCivil action commenced in the Superior Court on April 26, 1976.\nThe case was heard by Adams, J., on motions for summary judgment.\nThe Supreme Judicial Court granted a request for direct appellate review.\nThomas D. Burns (Charles Mark Furcolo & Steven H. Goldberg with him) for the plaintiff.\nAnthony M. Feeherry (Cerise H. Lim Epstein with him) for H. H. Robertson Company.\nFrancis J. Sally for Gilbane Building Company.\nH. H. Robertson Company.""}, ""cites_to"": [{""cite"": ""697 F.2d 668"", ""year"": 1983, ""case_ids"": [1502644], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""672-673""}], ""case_paths"": [""/f2d/697/0668-01""], ""opinion_index"": 0}, {""cite"": ""279 Or. 607"", ""year"": 1977, ""case_ids"": [2151437], ""category"": ""reporters:state"", ""reporter"": ""Or."", ""case_paths"": [""/or/279/0607-01""], ""opinion_index"": 0}, {""cite"": ""5 Mass. App. Ct. 328"", ""year"": 1977, ""case_ids"": [5730201], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""330"", ""parenthetical"": ""final judgment required before appeal""}], ""case_paths"": [""/mass-app-ct/5/0328-01""], ""opinion_index"": 0}, {""cite"": ""371 Mass. 908"", ""year"": 1977, ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""opinion_index"": 0}, {""cite"": ""367 Mass. 919"", ""year"": 1975, ""weight"": 2, ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""opinion_index"": 0}, {""cite"": ""50 Neb. L. Rev. 415"", ""year"": 1971, ""category"": ""journals:journal"", ""reporter"": ""Neb. L. Rev."", ""pin_cites"": [{""page"": ""445""}], ""opinion_index"": 0}, {""cite"": ""674 F.2d 401"", ""year"": 1982, ""case_ids"": [1150785], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""419""}], ""case_paths"": [""/f2d/674/0401-01""], ""opinion_index"": 0}, {""cite"": ""6 Hous. L. Rev. 359"", ""year"": 1968, ""category"": ""journals:journal"", ""reporter"": ""Hous. L. 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+925372,"{""id"": 925372, ""name"": ""Mary C. McGeorge vs. The Grand Realty Trust, Inc."", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""3c65047e303d6ace9aab444b285fe72f8cc6bb0bb376c08deaf654821aeae514"", ""simhash"": ""1:323a85bf909e5971"", ""pagerank"": {""raw"": 0.0000003674775066686131, ""percentile"": 0.8911222237281016}, ""char_count"": 12241, ""word_count"": 2157, ""cardinality"": 634, ""ocr_confidence"": 0.601}, ""casebody"": {""judges"": [], ""parties"": [""Mary C. McGeorge vs. The Grand Realty Trust, Inc.""], ""opinions"": [{""text"": ""Wilkins, J.\nThis is an action of tort by a tenant in an apartment house against her landlord for personal injuries sustained from a fall on an unnatural accumulation of ice on the steps of a common entrance to the building due to alleged negligent maintenance of a gutter. The jury returned a verdict for the plaintiff.\n1. One of the defendant’s exceptions was to the denial of a motion to direct a verdict in its favor. This ruling was right. On the evidence most favorable to the plaintiff the following could have been found: The building contained four apartments, and in May, 1937, the plaintiff became a tenant of the apartment on the second floor. On January 2, 1938, following a heavy rain and sleet storm, the plaintiff ascended “the outside flight of stairs, which was the main stairway, the principal front way for getting into the house.” There was a thin coating of ice on the steps. When “she got up to the thirteenth step and went to reach for the door, there was a hard lumpy coating of ice in the center” of the step “not at all like what it was on the other steps; . . . the lumpy ice extended from about one foot and a half to two feet from the rail on the right over to about one foot or a foot and a half on the step.” She lost her balance and fell. A Mrs. Miller, the janitor of the building for more than a year before January, 1938, had charge of cleaning and shoveling the front stairway. On the evening of January 1, 1938, she observed that “on the thirteenth step there was a hard, rough, lumpy coating of ice about three inches thick.” Both at that time and on the following day Mrs. Miller noticed that a gutter under the windows on the top floor was dripping down onto a small, narrow porch roof over the front door, and then down onto the thirteenth step. The first time that Mrs. Miller had noticed this dripping was in September or October, 1937, and “through that fall and during the whole winter it did that.” Mrs. Miller brought this to the attention of an agent of the defendant. At the place where Mrs. Miller “noticed the dripping from the gutter, she noticed the gutter was rotted; that the rot extended for a distance of more than two feet; that she did not know whether the gutter was wood or metal but believed it was metal.”\nThe defendant’s duty to the plaintiff was to use reasonable care to keep the gutter in as good a condition as that in which it was or appeared to be at the beginning of the tenancy. Rogers v. Dudley Realty Corp. 301 Mass. 104, 105, and cases cited. See Sneckner v. Feingold, 314 Mass. 613, 614; Sullivan v. Belding, 315 Mass. 701, 703. While there was no direct evidence whether the rotted condition existed, in May, 1937, at the time of the letting, or how long before September or October, 1937, it first appeared, the jury could warrantably infer that it first became so rotted as to permit dripping at the time when Mrs. Miller, whose duty it was to take care of the steps, first noticed it. Silver v. Cushner, 300 Mass. 583, 586. Shwartz v. Feinberg, 306 Mass. 331, 334-335. The defendant is not exonerated because the condition resulted from deterioration. Griffin v. Rudnick, 298 Mass. 82, 86. Rogers v. Dudley Realty Corp. 301 Mass. 104, 106-107. The jury could have found that the defendant had sufficient notice to permit repairs before the plaintiff was injured. See Silver v. Cushner, 300 Mass. 583, 586. It also could have been found that independently of notice the defendant should have discovered and remedied the defect. Chambers v. Durling, 306 Mass. 327, 331.\n2. One of the defendant’s exceptions related to the exclusion on cross-examination of a signed statement of Mrs. Miller, who was called as a witness for the plaintiff. It appeared that this statement, which was inconsistent in material respects with her direct testimony, had been written out by a man who interviewed her on January 25, 1938. Under examination by counsel for the defendant she testified that before signing she understood it, that it was true, but that she did not remember the name of the man or exactly what she said. Counsel for the defendant stated in response to a question by the judge that he would produce the man who took the statement. After some further questions about the contents of the statement counsel for the defendant offered it in evidence. The following colloquy occurred: “The Judge: Are you going to produce the man that took the statement? You said you would. Counsel for the defendant: We will produce him, but I don’t think it makes any difference as far as the admissibility of this is concerned. The Judge: When he is produced I will permit you to offer it at that time. Counsel for the defendant: May I offer it now without producing him? The Judge: No. Counsel for the defendant: My exception, your Honor. The Judge: You have a right to offer it when you produce him. Counsel for the defendant: I would like to offer it and read it now while this witness is here in the court room and on the stand. The Judge: I will permit you to do it at the time I suggested.” From remarks of the judge in the presence of the jury at the close of the evidence it appears that at some later time the defendant’s counsel informed the judge in the lobby that for reasons of his own he was not going to produce this man. This exception fails to show error. There is no question but that it is “well settled as a rule of evidence that if a witness, either upon direct or cross-examination, testifies to a fact that is relevant to the issue on trial, the adverse party, for the purpose of impeaching his testimony, may show that the witness has made previous inconsistent or conflicting statements either by eliciting such statements upon cross-examination of the witness himself, or by proving them by other witnesses.” Commonwealth v. West, 312 Mass. 438, 440, and cases cited. It is also true that, where the contradictory statements concern the main issue tried, admissibility is not within the rule leaving the extent of cross-examination largely to the discretion of the trial judge. Commonwealth v. Hunt, 4 Gray, 421, 423. Robinson v. Old Colony Street Railway, 189 Mass. 594, 596. Commonwealth v. West, supra, at page 440. It is equally true, however, that “there is a time and place for the introduction of such contradictory evidence and, in the orderly conduct of a trial, much must be left to the sound discretion of the judge.” Perrott v. Leahy, 302 Mass. 318, 322. As long as the defendant’s counsel did not withdraw his promise to produce as a witness the man who took the statement, the offer was subject to the controlling principle that the order of proof was within the discretion of the trial judge, who in the course of events did not rule against the admissibility of the evidence, but in substance indicated that he would pass upon this question when the other witness should testify. Sullivan v. Brabason, 264 Mass. 276, 284. Milliken v. Warwick, 306 Mass. 192, 195-196. Undoubtedly the defendant’s counsel could change his position with respect to calling this witness in the circumstances. See Commonwealth v. Retkovitz, 222 Mass. 245, 252-253. He did not do so while Mrs. Miller was on the stand. The inquiry, “May I offer it now without producing him?” did not amount to that, and the paper was never reoffered after the change of position was communicated to the judge outside the court room, apparently at the close or near the close of the evidence.\n3. Certain exceptions to the exclusion of questions asked Mrs. Miller on cross-examination are without merit. One question as to what “was apparent” to the witness as to the condition of the sidewalk and another as to whether it “was apparent” to the witness it was “icy everywhere,” were wholly immaterial, and were at most within the discretion of the judge. His refusal to allow an offer of proof respecting one of these questions was not error. Compare Stevens v. William S. Howe Co. 275 Mass. 398, 402. Three other questions related to the signed statement and were of no weight without it. They also were all objectionable for one reason or another.\n4. Other exceptions relate to the refusal of the judge to allow the counsel for the defendant to comment in argument on the absence of the plaintiff’s husband and son, who lived with the plaintiff at the time of the accident. The son, whose age does not appear, apparently was a witness to the plaintiff’s fall, and the plaintiff testified that following the accident she sent both husband and son out to ascertain on what step she had fallen. This ruling was not erroneous. It did not appear whether either of them was available as a witness. Heina v. Broadway Fruit Market, Inc. 304 Mass. 608, 611. Commonwealth v. O’Rourke, 311 Mass. 213, 222. See Fitzpatrick v. Boston Elevated Railway, 223 Mass. 475, 477; Wigmore on Evidence (3d ed.) § 286. In Commonwealth v. Spencer, 212 Mass. 438, 452, the defendant’s wife was in the court room. “The practice of permitting counsel to comment on the failure of the opposing party to call witnesses to facts needs to be used with caution, and such comment should be permitted only where it appears that the witnesses could have been produced, and that it is a fair inference from the conduct of the party, under all the circumstances, that he knew or believed that the testimony of the witnesses would be adverse, and for that reason did not produce them.” McKim v. Foley, 170 Mass. 426, 428.\nThe remaining exceptions arising during the argument of counsel for the defendant have been considered and are without merit.\nExceptions overruled."", ""type"": ""majority"", ""author"": ""Wilkins, J.""}], ""attorneys"": [""J. G. Ashe, for the defendant."", ""J. T. Doherty, (A. C. Rome with him,) for the plaintiff.""], ""corrections"": """", ""head_matter"": ""Mary C. McGeorge vs. The Grand Realty Trust, Inc.\nSuffolk.\nApril 10, 1942.\nJune 5, 1944.\nPresent: Field, C.J., Lummus, Qua, Dolan, Ronan, Wilkins, & Spalding, JJ.\nLandlord and Tenant, Landlord’s liability to tenant or Ms family or Ms invitee, Common stairway, Snow and ice. Practice, Civil, Discretionary control of evidence, Argument by counsel. Evidence, Failure to produce evidence. Snow and Ice.\nEvidence that the jamtor in charge of cleamng outside steps of a common entrance of an apartment building first observed a leaky condition of a gutter from which water dripped onto one of the steps four months after the letting of an apartment to a tenant and notified an agent of the landlord, and that about three months after such condition was observed the tenant was injured by falling on an unnatural accumulation of ice on that step warranted an inference that the leaky condition of the gutter first arose at the time it was so observed and warranted a finding that the landlord had failed in Ms duty to the tenant to use reasonable care to keep the gutter in as good condition as it was or appeared to be in at the time of the letting.\nA landlord of an apartment buildmg was not relieved of liability to a tenant, who sustained a fall on ice caused by water dripping from a leaky gutter to a common entrance, merely because the condition of the gutter resulted from deterioration after the letting.\nAfter the defendant’s counsel had sought to offer in evidence a written statement to contradict a witness for the plaintiff whom he was cross-examining and had stated to the judge that he would produce the person who took the statement from the witness, a ruling by the judge that he would postpone determination of the admissibility of the statement and would not permit it to be offered until that person should be produced was a permissible exercise of discretion in control of the order of proof and disclosed no error.\nNo error appeared in a refusal by a trial judge to permit an argument commenting on the absence of witnesses who apparently had knowledge of facts material to an issue on trial, where it did not appear that the witnesses were available.\nTort. Writ in the Municipal Court of the South Boston District dated October 18, 1938.\nUpon removal to the Superior Court, the case was tried before Hurley, J.\nIn this court the case was argued at the bar in April, 1942, before Field, C.J., Donahue, Dolan, Cox, & Ronan, JJ., and after the retirement of Donahue & Cox, JJ., was submitted on briefs to Lummus, Qua, Wilkins, & Spalding, JJ.\nJ. G. Ashe, for the defendant.\nJ. T. Doherty, (A. C. Rome with him,) for the plaintiff.""}, ""cites_to"": [{""cite"": ""170 Mass. 426"", ""case_ids"": [465839], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""428""}], ""case_paths"": [""/mass/170/0426-01""], ""opinion_index"": 0}, {""cite"": ""212 Mass. 438"", ""case_ids"": [5672287], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""452""}], ""case_paths"": [""/mass/212/0438-01""], ""opinion_index"": 0}, {""cite"": ""223 Mass. 475"", ""case_ids"": [41973], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""477""}], ""case_paths"": [""/mass/223/0475-01""], ""opinion_index"": 0}, {""cite"": ""311 Mass. 213"", ""case_ids"": [889351], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""222""}], ""case_paths"": [""/mass/311/0213-01""], ""opinion_index"": 0}, {""cite"": ""304 Mass. 608"", ""case_ids"": [873540], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""611""}], ""case_paths"": [""/mass/304/0608-01""], ""opinion_index"": 0}, {""cite"": ""275 Mass. 398"", ""case_ids"": [3829712], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""402""}], ""case_paths"": [""/mass/275/0398-01""], ""opinion_index"": 0}, {""cite"": ""222 Mass. 245"", ""case_ids"": [40201], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""252-253""}], ""case_paths"": [""/mass/222/0245-01""], ""opinion_index"": 0}, {""cite"": ""306 Mass. 192"", ""case_ids"": [871893], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""195-196""}], ""case_paths"": [""/mass/306/0192-01""], ""opinion_index"": 0}, {""cite"": ""264 Mass. 276"", ""case_ids"": [841662], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""284""}], ""case_paths"": [""/mass/264/0276-01""], ""opinion_index"": 0}, {""cite"": ""302 Mass. 318"", ""case_ids"": [867825], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""322""}], ""case_paths"": [""/mass/302/0318-01""], ""opinion_index"": 0}, {""cite"": ""189 Mass. 594"", ""case_ids"": [461660], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""596""}], ""case_paths"": [""/mass/189/0594-01""], ""opinion_index"": 0}, {""cite"": ""4 Gray, 421"", ""case_ids"": [2075595], ""category"": ""reporters:state"", ""reporter"": ""Gray"", ""pin_cites"": [{""page"": ""423""}], ""case_paths"": [""/mass/70/0421-01""], ""opinion_index"": 0}, {""cite"": ""312 Mass. 438"", ""weight"": 2, ""case_ids"": [483037], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""440""}], ""case_paths"": [""/mass/312/0438-01""], ""opinion_index"": 0}, {""cite"": ""306 Mass. 327"", ""case_ids"": [871808], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""331""}], ""case_paths"": [""/mass/306/0327-01""], ""opinion_index"": 0}, {""cite"": ""298 Mass. 82"", ""case_ids"": [888035], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""86""}], ""case_paths"": [""/mass/298/0082-01""], ""opinion_index"": 0}, {""cite"": ""306 Mass. 331"", ""case_ids"": [871860], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""334-335""}], ""case_paths"": [""/mass/306/0331-01""], ""opinion_index"": 0}, {""cite"": ""300 Mass. 583"", ""weight"": 2, ""case_ids"": [864332], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""586""}, {""page"": ""586""}], ""case_paths"": [""/mass/300/0583-01""], ""opinion_index"": 0}, {""cite"": ""315 Mass. 701"", ""case_ids"": [904052], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""703""}], ""case_paths"": [""/mass/315/0701-01""], ""opinion_index"": 0}, {""cite"": ""314 Mass. 613"", ""case_ids"": [932111], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""614""}], ""case_paths"": [""/mass/314/0613-01""], ""opinion_index"": 0}, {""cite"": ""301 Mass. 104"", ""weight"": 2, ""case_ids"": [866154], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""105""}, {""page"": ""106-107""}], ""case_paths"": [""/mass/301/0104-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""316 Mass. 373"", ""type"": ""official""}], ""file_name"": ""0373-01"", ""last_page"": ""378"", ""first_page"": ""373"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T16:24:47.371604+00:00"", ""decision_date"": ""1944-06-05"", ""docket_number"": """", ""last_page_order"": 424, ""first_page_order"": 419, ""name_abbreviation"": ""McGeorge v. 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+932111,"{""id"": 932111, ""name"": ""Letitia Sneckner vs. David Feingold"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""459ad66952c12bd0d189a1690567b6820d92bc0ceca0d95c5ccb5afc4695310c"", ""simhash"": ""1:023fe04681ba96fa"", ""pagerank"": {""raw"": 0.0000011022950991538806, ""percentile"": 0.9855974228613329}, ""char_count"": 5874, ""word_count"": 1077, ""cardinality"": 438, ""ocr_confidence"": 0.711}, ""casebody"": {""judges"": [], ""parties"": [""Letitia Sneckner vs. David Feingold.""], ""opinions"": [{""text"": ""Lummus, J.\nThis is an action of tort, brought by a mother living with a daughter who was the tenant of an apartment in an apartment house owned by the defendant, to recover for bodily injuries sustained on August 14, 1940, when the plaintiff fell because her heel caught in the brass edging or “nosing,” about an inch and a half wide, of the third step from the top of a common stairway provided for all the tenants. The jury returned a verdict for the plaintiff, but under leave reserved (G. L. [Ter. Ed.] c. 231, § 120) the judge entered a verdict for the defendant, subject to the exception of the plaintiff to that action, which presents the only question in the case, '\nThere was evidence of the following facts. The plaintiff’s daughter hired the apartment in the summer of 1937. When the tenancy began, the steps and the nosing were firm and in good condition. But beginning two or three weeks before the accident, the nosing on the tread of the third step became loose and “wobbly,” and raised up about an eighth of an inch, so that one could “tip it up,” the “back end of it up over a quarter of an inch.” The screws by which it was fastened to the tread had become loose, so that the nosing “flopped up and down.” One of the screws was raised a sixteenth of an inch above the nosing.\nThe general rule as to the liability of a landlord to a tenant and, among others, to a member of the tenant’s family (Coupe v. Platt, 172 Mass. 458; Domenicis v. Fleisher, 195 Mass. 281, 283, 284; Peirce v. Hunnewell, 285 Mass. 287, 290; Wynn v. Sullivan, 294 Mass. 562, 565; Marquis v. John Nesmith Real Estate Co. 300 Mass. 203, 205; Silver v. Cushner, 300 Mass. 583; Diamond v. Simcovitz, 310 Mass. 150, 153; McNeill v. Home Savings Bank, 313 Mass. 664, 666), for defects in a common passageway, is well settled. The landlord owes a duty, not to keep the common passageway 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. Andrews v. Williamson, 193 Mass. 92. Grady v. Gardiner, 272 Mass. 491. London Tobacco Co. Inc. v. Freeman, 280 Mass. 368. Sordillo v. Fradkin, 282 Mass. 255. Griffin v. Rudnick, 298 Mass. 82. Marquis v. John Nesmith Real Estate Co. 300 Mass. 203. Dunlea v. R. D. A. Realty Co. 301 Mass. 505, 508. Russo v. Rizzo, 302 Mass. 177. Shwartz v. Feinberg, 306 Mass. 331. Bacon v. Jaques, 312 Mass. 371. This is made wholly clear by Williams v. Pomeroy, 254 Mass. 290, Berg v. Elder, 290 Mass. 540, and Chambers v. Durling, 306 Mass. 327, 330.\nThe defendant contends that the variation from the normal was not enough to warrant a finding of negligence on the part of the defendant. We have found no case in which a projection or protrusion as small as that in this case has been held sufficient to allow a case to go to the jury. In Jennings v. Tompkins, 180 Mass. 302, and in Johnson v. Fainstein, 219 Mass. 537, a nail projected three sixteenths of an inch. In Frappier v. Lincoln Stores, Inc. 279 Mass. 14, the projection was of half an inch or less. See also Douglas v. Shepard Norwell Co. 217 Mass. 127; Murray v. Lincoln, 277 Mass. 557; Boisse v. Goldberg, 306 Mass. 336. In Vellante v. Watertown, 300 Mass. 207, a variation of three quarters of an inch in the height of adjoining granolithic slabs in a sidewalk was held insufficient evidence of negligence on the part of the town. See also Galante v. Brockton, 305 Mass. 480. In all these cases recovery was denied.\nIn cases where recovery has been allowed, the projection or protrusion has been greater. In Young v. Snell, 200 Mass. 242, and Shavelson v. Marcus, 273 Mass. 237, a nail stuck up out of the floor an inch or more. In Serota v. Salmansohn, 256 Mass. 224, the original papers show a projection of a nail for about one and a half inches. In Shwartz v. Feinberg, 306 Mass. 331, a nail projected about an inch, and had been projecting for several months. In Solomon v. Boston Elevated Railway, 276 Mass. 139, a broken metallic tread projected three quarters of an inch. In Hillis v. Sears, Roebuck & Co. 284 Mass. 320, a ragged metal band projected about an inch. In Fowler v. South End Amusement Co. 299 Mass. 317, the nosing was pulled forward three quarters of an inch and was high enough above the step to catch the plaintiff’s low heel. See also Wheeler v. Sawyer, 219 Mass. 103. In Dunlea v. R. D. A. Realty Co. 301 Mass. 505, the nosing was raised high enough to admit fingers under it. In Loudon v. Beaulieu, 277 Mass. 33, a brass nosing of a step was raised half an inch or more.\nIn this case we think there was no sufficient evidence of negligence on the part of the defendant.\nExceptions overruled."", ""type"": ""majority"", ""author"": ""Lummus, J.""}], ""attorneys"": [""N. M. Harvey & J. H. Mulcare, for the plaintiff."", ""E. H. Wright, for the defendant.""], ""corrections"": """", ""head_matter"": ""Letitia Sneckner vs. David Feingold.\nHampden.\nSeptember 23, 1943.\nOctober 28, 1943.\nPresent: Field, C.J., Donahue, Lummus, Dolan, & Ronan, JJ.\nLandlord and Tenant, Common stairway, Landlord's liability to tenant or his family or his invitee. Negligence, One owning or controlling real estate.\nEvidence that, after the beginning of a tenancy of an apartment in an apartment house, the nosing on a step of a common stairway under the control of the landlord became loose and “wobbly” and \""raised up” about an eighth of an inch, so that one could “tip it up,” the “back end of it up over a quarter of an inch,” and that the screws fastening the nosing became loose and one of them raised one sixteenth of an inch so that the nosing “flopped up and down,” did not warrant a finding of negligence of the landlord toward a member of the tenant’s family who was caused to fall by such condition.\nTort. Writ in the Superior Court dated September 6, 1940.\nThe case was tried before Donahue, J., and in this court was submitted on briefs.\nIt was agreed that the building in question was “under the control of the defendant.”\nN. M. Harvey & J. H. Mulcare, for the plaintiff.\nE. H. Wright, for the defendant.""}, ""cites_to"": [{""cite"": ""277 Mass. 33"", ""case_ids"": [861517], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/277/0033-01""], ""opinion_index"": 0}, {""cite"": ""219 Mass. 103"", ""case_ids"": [33602], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/219/0103-01""], ""opinion_index"": 0}, {""cite"": ""299 Mass. 317"", ""case_ids"": [12254476], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/299/0317-01""], ""opinion_index"": 0}, {""cite"": ""284 Mass. 320"", ""case_ids"": [3834274], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/284/0320-01""], ""opinion_index"": 0}, {""cite"": ""276 Mass. 139"", ""case_ids"": [3829520], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/276/0139-01""], ""opinion_index"": 0}, {""cite"": ""256 Mass. 224"", ""case_ids"": [853067], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/256/0224-01""], ""opinion_index"": 0}, {""cite"": ""273 Mass. 237"", ""case_ids"": [3828011], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/273/0237-01""], ""opinion_index"": 0}, {""cite"": ""200 Mass. 242"", ""case_ids"": [3494506], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/200/0242-01""], ""opinion_index"": 0}, {""cite"": ""305 Mass. 480"", ""case_ids"": [3837025], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/305/0480-01""], ""opinion_index"": 0}, {""cite"": ""300 Mass. 207"", ""case_ids"": [864497], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/300/0207-01""], ""opinion_index"": 0}, {""cite"": ""306 Mass. 336"", ""case_ids"": [871882], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/306/0336-01""], ""opinion_index"": 0}, {""cite"": ""277 Mass. 557"", ""case_ids"": [861473], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/277/0557-01""], ""opinion_index"": 0}, {""cite"": ""217 Mass. 127"", ""case_ids"": [89586], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/217/0127-01""], ""opinion_index"": 0}, {""cite"": ""279 Mass. 14"", ""case_ids"": [3830472], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/279/0014-01""], ""opinion_index"": 0}, {""cite"": ""219 Mass. 537"", ""case_ids"": [33640], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/219/0537-01""], ""opinion_index"": 0}, {""cite"": ""180 Mass. 302"", ""case_ids"": [32176], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/180/0302-01""], ""opinion_index"": 0}, {""cite"": ""306 Mass. 327"", ""case_ids"": [871808], ""category"": ""reporters:state"", 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""613"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T16:23:36.530740+00:00"", ""decision_date"": ""1943-10-28"", ""docket_number"": """", ""last_page_order"": 663, ""first_page_order"": 661, ""name_abbreviation"": ""Sneckner v. 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+932153,"{""id"": 932153, ""name"": ""Samuel Brian & another vs. B. Sopkin & Sons, Inc."", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""19aa077b7a3d6cc52d5c21678bbc9a5f94580794e065b734febcbb1c800700c3"", ""simhash"": ""1:4af2cce90662818d"", ""pagerank"": {""raw"": 0.00000035628514902019396, ""percentile"": 0.8858906445897039}, ""char_count"": 8067, ""word_count"": 1391, ""cardinality"": 526, ""ocr_confidence"": 0.645}, ""casebody"": {""judges"": [], ""parties"": [""Samuel Brian & another vs. B. Sopkin & Sons, Inc.""], ""opinions"": [{""text"": ""Lummus, J.\nThis is an action of tort. The declaration alleges negligence in permitting water to leak from the defendant’s premises to the plaintiffs’ premises on the floor below, causing damage to the plaintiffs’ property. The three counts allege such negligence on three different days, respectively, March 27, March 29, and March 30, 1937.\nThe case was referred to an auditor whose findings of fact were to be final, and comes here on his report. On his report judgment was ordered for the defendant on the first two counts, and for the plaintiffs on the third count with damages of $1,051.09. Both parties appealed.\nThe findings of the auditor may be summarized as follows. The plaintiffs occupied the second floor, and the defendant the third floor, in the Durfee Mills in Fall River. There was a leakage of water from the defendant’s premises to the plaintiffs’ premises on each of the three days mentioned in the declaration. The leakage came from a recently installed pressing system using thirty irons through which steam passed. The water came through a leaky valve connected with one of the irons. The leaks occurred at about seven o’clock in the morning, when the steam was turned on and forced whatever condensation was' in the system to escape through the leaky valve and the iron attached thereto. The plaintiffs gave no notice to the defendant of any leakage on March 27, and the first notice was given on March 29, evidently after the leakage had occurred. There was no finding that before such notice the defendant knew or ought to have known of the leakage. The auditor finds as follows: “Up to this date March 29, 1937, no leak of any importance had ever developed in the pressing system of the defendant. The pressing system had been frequently inspected and kept in good order.” The floor of the defendant’s premises consisted of wide boards loosely jointed, which would allow water to leak through.\nIn our opinion judgment for the defendant was rightly ordered on the first two counts. The defendant had no reason to apprehend injury to the plaintiffs until after the leak that occurred on the morning of March 29. The principle of Rylands v. Fletcher, L. R. 3 H. L. 330 (Gorham v. Gross, 125 Mass. 232, 238) does not impose liability for ordinary uses of property like the one presented in this case, which involved no great threat to neighbors. Ainsworth v. Lakin, 180 Mass. 397, 399. Kaufman v. Boston Dye House, Inc. 280 Mass. 161. Bratton v. Rudnick, 283 Mass. 556, 560-562. Garrett v. M. McDonough Co. 297 Mass. 58. Neither is this a case to which the doctrine res ipsa loquitur is applicable. This has been decided in cases where, as in this case, a leak occurred in a pipe. Morrow v. Otis, 251 Mass. 65, 67. Goldman v. Boston, 274 Mass. 329. Gerard v. Boston, 299 Mass. 488. Moreover, that doctrine merely permits, and does not require, the conclusion that there was negligence (Roscigno v. Colonial Beacon Oil Co. 294 Mass. 234; Garrett v. M. McDonough Co. 297 Mass. 58, 60), and here negligence is negatived, in our opinion, by the findings already recited.\nThe case is different with respect to the leakage which occurred on March 30. The defendant had notice on the day before that water had escaped and had damaged a large quantity of the plaintiffs’ goods. “An employee of the plaintiff[s] went to the defendant’s premises to ascertain what had caused the leak, and found that the water had come from the defendant’s pressing system.” At that time “employees of the defendant were busy mopping up the floor, and trying to absorb the water with dress shavings.” An employee of the defendant called the contractor who had installed the system and informed him that a leak existed in it. The leaky valve was found and a pail was placed under it. All this occurred before the leakage of March 30. But no precaution appears to have been taken to prevent leakage through the iron. Although the auditor’s report constituted a case stated, and we are at liberty to draw from it a different. conclusion from that drawn by the judge (United States Fidelity & Guaranty Co. v. English Construction Co. 303 Mass. 105, 108, 109; Keefe v. Johnson, 304 Mass. 572, 573; Galante v. Brockton, 305 Mass. 480, 481; Lewis v. Conrad & Co. Inc. 311 Mass. 541, 543, 544; Lamereaux v. Tula, 312 Mass. 359, 361), we are of opinion that the judge was right in finding that the defendant was negligent in not taking effective measures to prevent the leakage of water on March 30.\nWe have left to consider whether there was error in assessing the damages at $1,051.09. The plaintiffs are engaged in the manufacture of boys’ wash suits, woollens and cottons. The leakage on March 30 caused damage to goods of the plaintiffs of a fair market value of $1,201.25 before the damage. But after the damage the market value was only $150.16. The plaintiffs made no effort to salvage the damaged goods. If they had spent $125 in washing, cleaning and pressing them, they could have made the damaged goods worth $790.84. The plaintiffs suffered no damage to their remaining stock by reason of broken lots or sizes.\nA party injured by a tort has a duty to use reasonable care to minimize the damages. Loker v. Damon, 17 Pick. 284, 288. Eastman v. Sanborn, 3 Allen, 594. Atwood v. Boston Forwarding & Transfer Co. 185 Mass. 557. Ingraham v. Pullman Co. 190 Mass. 33. Sullivan v. Old Colony Street Railway, 200 Mass. 303, 309. Fairfield v. Salem, 213 Mass. 296. Gray v. Boston Elevated Railway, 215 Mass. 143, 147. In this case, although goods of the value of $1,201.25 were damaged, by the expenditure of $125 they could have been made worth $790.84. The net loss would have been $535.41. To compensate the plaintiffs for the delay in obtaining recovery, we think that their damages should be increased by adding interest on that amount from March 30, 1937. Young v. New York, New Haven & Hartford Railroad, 273 Mass. 567, 571, 572. Potier v. A. W. Perry, Inc. 286 Mass. 602, 606. Judgment should be entered for the plaintiffs with damages consisting of $535.41 plus interest thereon from March 30, 1937.\nSo ordered."", ""type"": ""majority"", ""author"": ""Lummus, J.""}], ""attorneys"": [""H. W. Radovsky & C. Soforenko, for the plaintiffs."", ""B. Horvitz & L. A. Horvitz, for the defendant.""], ""corrections"": """", ""head_matter"": ""Samuel Brian & another vs. B. Sopkin & Sons, Inc.\nBristol.\nOctober 28, 1941.\nJune 28, 1943.\nPresent: Field, C.J., Donahue, Lummus, Qua, & Ronan, JJ.\nNegligence, Leakage of water, Res ipsa loquitur. Dangerous Substance. Water. Damages, For tort, Mitigation. Interest.\nThe mere maintenance by the occupant of an upper floor-of a building of a steam pressing system from which water leaked and caused damage to an occupant of a floor below would not render the occupant of the upper floor absolutely liable for said damage without regard to whether he was negligent or the system was a nuisance.\nThe doctrine res ipsa loquitur was not applicable in an action for damage caused by water leaking from a steam pressing system.\nFindings showed that the owner of a steam pressing system was not negligent respecting leakage of water therefrom which he had no reason to apprehend and did not know about until.after it had occurred; but that he was negligent in not taking measures to prevent further leakage the next day after he learned of it.\nAn owner of goods who, by a certain expenditure, could have restored a part of the value of the goods lost when they were damaged by tortious-conduct of another, but who made no attempt to salvage them, was entitled to recover from the tortfeasor only the difference between their value, before the damage and the value to which they could have been so restored plus the amount of the expenditure necessary for their restoration and, in the circumstances, to compensate for delay in obtaining recovery, interest on that total from the date on which the damage occurred.\nTort. Writ in the Second District Court of Bristol dated April 23, 1937.\nUpon removal to the Superior Court, the action .was referred to an auditor, upon whose report judgments were ordered by Hurley, J. In this court the case was submitted on briefs.\nH. W. Radovsky & C. Soforenko, for the plaintiffs.\nB. Horvitz & L. A. Horvitz, for the defendant.""}, ""cites_to"": [{""cite"": ""286 Mass. 602"", ""case_ids"": [923042], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""606""}], ""case_paths"": [""/mass/286/0602-01""], ""opinion_index"": 0}, {""cite"": ""273 Mass. 567"", ""case_ids"": [3826479], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""571, 572""}], ""case_paths"": [""/mass/273/0567-01""], ""opinion_index"": 0}, {""cite"": ""215 Mass. 143"", ""case_ids"": [85287], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""147""}], ""case_paths"": [""/mass/215/0143-01""], ""opinion_index"": 0}, {""cite"": ""213 Mass. 296"", ""case_ids"": [839932], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/213/0296-01""], ""opinion_index"": 0}, {""cite"": ""200 Mass. 303"", ""case_ids"": [3492975], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""309""}], ""case_paths"": [""/mass/200/0303-01""], ""opinion_index"": 0}, {""cite"": ""190 Mass. 33"", ""case_ids"": [837838], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/190/0033-01""], ""opinion_index"": 0}, {""cite"": ""185 Mass. 557"", ""case_ids"": [826430], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/185/0557-01""], ""opinion_index"": 0}, {""cite"": ""3 Allen, 594"", ""case_ids"": [2098552], ""category"": ""reporters:state"", ""reporter"": ""Allen"", ""case_paths"": [""/mass/85/0594-01""], ""opinion_index"": 0}, {""cite"": ""17 Pick. 284"", ""case_ids"": [2024027], ""category"": ""reporters:state"", ""reporter"": ""Pick."", ""pin_cites"": [{""page"": ""288""}], ""case_paths"": [""/mass/34/0284-01""], ""opinion_index"": 0}, {""cite"": ""312 Mass. 359"", ""case_ids"": [483124], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""361""}], ""case_paths"": [""/mass/312/0359-01""], ""opinion_index"": 0}, {""cite"": ""311 Mass. 541"", ""case_ids"": [889328], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""543, 544""}], ""case_paths"": [""/mass/311/0541-01""], ""opinion_index"": 0}, {""cite"": ""305 Mass. 480"", ""case_ids"": [3837025], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""481""}], ""case_paths"": [""/mass/305/0480-01""], ""opinion_index"": 0}, {""cite"": ""304 Mass. 572"", ""case_ids"": [873509], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""573""}], ""case_paths"": [""/mass/304/0572-01""], ""opinion_index"": 0}, {""cite"": ""303 Mass. 105"", ""case_ids"": [869767], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""108, 109""}], ""case_paths"": [""/mass/303/0105-01""], ""opinion_index"": 0}, {""cite"": ""294 Mass. 234"", ""case_ids"": [481438], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/294/0234-01""], ""opinion_index"": 0}, {""cite"": ""299 Mass. 488"", ""case_ids"": [12254938], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/299/0488-01""], ""opinion_index"": 0}, {""cite"": ""274 Mass. 329"", ""case_ids"": [3828528], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/274/0329-01""], ""opinion_index"": 0}, {""cite"": ""251 Mass. 65"", ""case_ids"": [4026664], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""67""}], ""case_paths"": [""/mass/251/0065-01""], ""opinion_index"": 0}, {""cite"": ""297 Mass. 58"", ""weight"": 2, ""case_ids"": [886377], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""60""}], ""case_paths"": [""/mass/297/0058-01""], ""opinion_index"": 0}, {""cite"": ""283 Mass. 556"", ""case_ids"": [478710], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""560-562""}], ""case_paths"": [""/mass/283/0556-01""], ""opinion_index"": 0}, {""cite"": ""280 Mass. 161"", ""case_ids"": [858411], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/280/0161-01""], ""opinion_index"": 0}, {""cite"": ""180 Mass. 397"", ""case_ids"": [32068], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""399""}], ""case_paths"": [""/mass/180/0397-01""], ""opinion_index"": 0}, {""cite"": ""125 Mass. 232"", ""case_ids"": [730969], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""238""}], ""case_paths"": [""/mass/125/0232-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""314 Mass. 180"", ""type"": ""official""}], ""file_name"": ""0180-01"", ""last_page"": ""184"", ""first_page"": ""180"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T16:23:36.530740+00:00"", ""decision_date"": ""1943-06-28"", ""docket_number"": """", ""last_page_order"": 232, ""first_page_order"": 228, ""name_abbreviation"": ""Brian v. 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+932205,"{""id"": 932205, ""name"": ""Fred J. Donahue vs. Dal, Inc."", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""7a0d3bd2e6a7b35a2356b4836c11cb3dc8835507288528b64e719f7385174c12"", ""simhash"": ""1:e902c26bc7f48b74"", ""pagerank"": {""raw"": 0.0000005226036484202001, ""percentile"": 0.9408948166476115}, ""char_count"": 11964, ""word_count"": 2084, ""cardinality"": 578, ""ocr_confidence"": 0.623}, ""casebody"": {""judges"": [], ""parties"": [""Fred J. Donahue vs. Dal, Inc.""], ""opinions"": [{""text"": ""Cox, J.\nThe first count of the declaration is upon an account annexed for services rendered as sales agent. The second count is upon an alleged contract whereby the defendant employed the plaintiff to introduce its goods to the trade, and to make sales, as its exclusive representative, for a reasonable period, sufficient to enable him to earn from the agreed commissions substantial remuneration to compensate him for his time and expenses. Further allegations are that the defendant dismissed the plaintiff after he had rendered valuable service under the contract. It is not alleged that both counts are for the same cause of action. The defendant’s answer, among other things, contains a claim of recoupment on account of leather alleged to belong to it which the plaintiff refused to return.\nThe case was heard by an auditor whose findings of fact were not to be final. Thereafter the case was tried to a jury upon auditor’s report and other evidence, and a general verdict was returned for the plaintiff. The trial judge, subject to the defendant’s exceptions, denied a motion for the direction of a general verdict, for a directed verdict on each count, and for a directed verdict on both counts because of a material variance between the pleadings and the evidence. The defendant also excepted to matters of evidence, to the denial of its requests for rulings, its motion for a new trial, and requests for rulings thereon.\nIt could have been found that the defendant, through one Stybel, who, as the auditor found, acted for it, agreed orally with the plaintiff that he was to represent it as its exclusive agent; that his employment was to be permanent; and that he was to receive a commission of two per cent on all sales made. The defendant concedes that, from the plaintiff’s own testimony, he had a contract of permanent employment, although it questions whether it was binding, as hereinafter appears. It is apparent that such a contract is materially different from that upon which the plaintiff declared. If, however, the contract was broken by the defendant, as could have been found, the plaintiff could-sue on an account annexed to recover for the value of his services. Fitzgerald v. Allen, 128 Mass. 232. Dalton v. American Ammonia Co. 236 Mass. 105, 108. See Dixon v. Lamson, 242 Mass. 129, 137. Moreover, if a plaintiff fails to establish the special contract declared on, he may recover on an account annexed, if the evidence warrants it. Manilla v. Houghton, 154 Mass. 465, 467. Humes v. Barron, 263 Mass. 583, 584. See Greene v. Boston Safe Deposit & Trust Co. 255 Mass. 519, 523. The matter of variance will be considered hereinafter.\nThe judge instructed the jury, without objection from either party, that the first question presented was whether this was a contract giving the plaintiff an exclusive agency “of continuance duration”; that if it was concluded that there was no such contract, there was still another question, namely, whether the plaintiff did some work for the defendant for which he was entitled to be paid a fair and reasonable sum. Regardless of what may have been in the mind of the pleader when drawing the declaration, we are of opinion that the law, as laid down at the trial, left the plaintiff's case one in which the plaintiff was seeking recovery on a special contract, and also one in which, if he failed to prove the special contract but did prove that he had rendered services in circumstances entitling him to compensation, he was seeking to recover therefor without reference to any special contract. The verdict was general and it is enough if the evidence supports it on one of the counts. McFadden v. Bancroft Hotel Corp. 313 Mass. 56, 61-62, and cases cited. In the circumstances, there was no error in refusing to direct a general verdict or a verdict on each count.\nThe defendant has directed its argument to the proposition that a verdict should have been directed on the second count on the grounds that there was a variance; that the interpretation of the contract there declared on, as the contract was made in New York, was governed by the law of that State; and that it did not appear that the contract was binding on the defendant, it having been made without authority and never ratified.\nOn the question of variance, it is to be borne in mind that this was called to the judge’s attention by the motion for a directed verdict in which it was asked, among other things, that a verdict be directed on \""both counts” because of a material variance; and also by a request for a ruling hereinafter referred to. See Pacheco v. Medeiros, 292 Mass. 416, 422-423. From what has been said there was no variance as to the count on an account annexed, and the judge could not properly allow the motion on the ground of variance for, if he did, the plaintiff would have been out of court on a proper count. See Botti v. Venice Grocery Co. 309 Mass. 450, 458.\nThe case was tried without any reference whatever to the law of New York as far as the record discloses. No requests as to that law were made. It does not appear that any cases from that State were called to the judge’s attention. No exceptions were taken to the judge’s charge. But now for the first time, for all that appears, the defendant contends that the contract, having been made in New York, is governed by its law and it cites cases as to that law, relative to contracts for permanent employment. In the circumstances we do not consider them. The defendant is seeking here to raise an issue for the first time. It is too late. It would be a manifest injustice to allow it to do so. Tompkins v. Sullivan, 313 Mass. 459, 463. See Aldworth v. F. W. Woolworth Co. 295 Mass. 344, 345. The interpretation by this court of G. L. (Ter. Ed.) c. 233, § 70, is not at variance. See Bradbury v. Central Vermont Railway, 299 Mass. 230, 233-234; Hite v. Hite, 301 Mass. 294, 298-299; Smith v. Brown, 302 Mass. 432, 433; Pilgrim v. MacGibbon, 313 Mass. 290.\nThe auditor, whose report was in evidence, after stating the contentions of the defendant that Stybel, who negotiated whatever contract or arrangement was made with the plaintiff, had no authority in the premises, found that Stybel \""did act for” the defendant. Without reference to ratification this was enough to make the question of authority one for the jury. Cook v. Farm Service Stores, Inc. 301 Mass. 564, 569. Friedman v. Berthiaume, 303 Mass. 159, 162.\nThere was no error in the denial of the request for a ruling that there was “no evidence” upon which the jury was warranted in finding for the plaintiff on either count. Upon conflicting evidence it could have been found that there was or was not a special contract, and that, if there was not, the plaintiff, in any event, rendered services to the defendant for which he was entitled to be paid. Walker v. Russell, 240 Mass. 386, 393. Humes v. Barron, 263 Mass. 583, 584. Moreover, a request for a ruling is not the proper method of raising the question of the sufficiency of the evidence in a trial before a jury. Rule 71 of the Superior Court (1932). Schusterman v. Rosen, 280 Mass. 582, 588. Sullivan v. Ward, 304 Mass. 614, 616. Zawacki v. Finn, 307 Mass. 86, 89.\nThe defendant’s fourth request for a ruling was as follows: “Where the plaintiff, by his evidence, has proven an express contract, he cannot recover on an implied contract.” The defendant in its brief merely refers us to the first count “which is' on a common count, an account annexed,” and then “submits” that there was error in denying the request. This is hardly an argument. Surely it is of little help to the court. Commonwealth v. Dyer, 243 Mass. 472, 508. Commissioner of Banks v. Cosmopolitan Trust Co. 247 Mass. 334, 346. See Burgess v. Giovannucci, ante, 252, 254. Moreover, the request, assuming without deciding that it is correct in form or substance as an abstract principle of law, was, in effect, covered in the judge’s charge, as already pointed out, where the judge stated to the jury the two main questions involved.\nThe defendant’s fifth request called for a ruling that there was a material variance between the pleadings and the evidence. This was a general request, not directed to either count specifically. If we assume, without deciding, that this request does not come within Rule 71 of the Superior Court (1932), nevertheless, from what has been said already on the question of variance, we are of opinion that there was no error in denying the request.\nThe plaintiff was properly allowed to testify as to the value of his services. Rizzo v. Cunningham, 303 Mass. 16, 25, and cases cited. Compare Williamson v. Feinstein, 311 Mass. 322, 323-324; Downey v. Union Trust Co. of Springfield, 312 Mass. 405, 417-419.\nWe do not consider the defendant’s contention that certain instructions to the jury, to which no exceptions were taken, and which were not involved in any requests for rulings, were erroneous. Squires v. Fraska, 301 Mass. 474, 477-478. Oldakowski v. Myrick, 308 Mass. 600, and cases cited.\nWhat action should be taken by the trial judge on the motion for new trial was a matter within his sound discretion. We cannot say that there was any error in its denial. Kinnear v. General Mills, Inc. 308 Mass. 344, 348-349, and cases cited. The requests for rulings on this motion related to matters that could have been raised at the trial, and need not be considered. Pins v. I. J. Fox, Inc. 302 Mass. 601, and cases cited.\nExceptions overruled."", ""type"": ""majority"", ""author"": ""Cox, J.""}], ""attorneys"": [""H. T. Tally, for the defendant."", ""Lee M. Friedman, for the plaintiff.""], ""corrections"": """", ""head_matter"": ""Fred J. Donahue vs. Dal, Inc.\nMiddlesex.\nMay 5, 1943.\nJuly 17, 1943.\nPresent: Field, C.J., Qua, Dolan, & Cox, JJ.\nContract, Implied. Pleading, Civil, Declaration. Practice, Civil, Ordering verdict; Variance; Exceptions: what questions open; Requests, rulings and instructions; New trial. Evidence, Foreign law, Of value. Agency, Scope of authority or employment.\nUnder a declaration with a first count on an account annexed for services rendered and a second based on a special contract for services, the plaintiff, on proper evidence, might recover on the first count either if he proved a special contract broken by the defendant or if he failed to prove the special contract.\nA general motion for a directed verdict for the defendant was properly denied where there was evidence warranting a verdict for the plaintiff on at least one of the counts of his declaration.\nA motion for a directed verdict on “both counts” of the declaration on the ground of variance was properly denied where, even if there was a variance between a special contract for services proved and a special contract for services alleged in one count of the declaration, the evidence warranted a verdict for the plaintiff on the other count, which was upon an account annexed.\nCitations of the law of another State, directed to the attention of this court by the defendant at the hearing of his exceptions after a verdict for the plaintiff need not be considered by it where the subject matter of that law had not been raised in any way in the trial court.\nEvidence that an alleged agent “did act for” a corporation in making a contract warranted a finding that he made the contract by its authority.\nUnder Rule 71 of the Superior Court (1932), a request for a ruling is not a proper method of raising the question of the sufficiency of the evidence to warrant a verdict at a trial before a jury.\nAn exception to the denial of a request for a ruling whose subject matter is sufficiently covered by the charge must be overruled.\nThe plaintiff in an action for services rendered the defendant as a sales agent was properly allowed to testify as to the value of his services.\nRequests for rulings made at the hearing of a motion for a new trial and raising only matters which could have been raised at the trial need not be considered.\nConteact. Writ in the Superior Court dated August 2, 1939.\nThe action was tried before Beaudreau, J.\nH. T. Tally, for the defendant.\nLee M. Friedman, for the plaintiff.""}, ""cites_to"": [{""cite"": ""302 Mass. 601"", ""case_ids"": [867840, 867850, 867886], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/302/0601-01"", ""/mass/302/0601-03"", ""/mass/302/0601-02""], ""opinion_index"": 0}, {""cite"": ""308 Mass. 344"", ""case_ids"": [3839662], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""348-349""}], ""case_paths"": [""/mass/308/0344-01""], ""opinion_index"": 0}, {""cite"": ""308 Mass. 600"", ""case_ids"": [3838720, 3839947], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/308/0600-01"", ""/mass/308/0600-02""], ""opinion_index"": 0}, {""cite"": ""301 Mass. 474"", ""case_ids"": [866208], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""477-478""}], ""case_paths"": [""/mass/301/0474-01""], ""opinion_index"": 0}, {""cite"": ""312 Mass. 405"", ""case_ids"": [483009], 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""1943-07-17"", ""docket_number"": """", ""last_page_order"": 513, ""first_page_order"": 508, ""name_abbreviation"": ""Donahue v. Dal, 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+936572,"{""id"": 936572, ""name"": ""Enterprises, Inc. vs. Giro J. Cardinale & another"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""c85fb2faa992798445b3dc3a34da35880494005e7c7ce1e4d70340ce07355218"", ""simhash"": ""1:9a77fd06c0e61656"", ""pagerank"": {""raw"": 0.00000030771960877979924, ""percentile"": 0.8577523245563737}, ""char_count"": 8441, ""word_count"": 1426, ""cardinality"": 452, ""ocr_confidence"": 0.612}, ""casebody"": {""judges"": [], ""parties"": [""Enterprises, Inc. vs. Giro J. Cardinale & another.""], ""opinions"": [{""text"": ""Lummus, J.\nThe plaintiff, a corporation, on August 28, 1952, brought this suit in equity against the defendants, who are husband and wife. On April 28, 1952, the parties had entered into an agreement under seal whereby the plaintiff agreed to buy and the defendants agreed to sell, for $21,000, a two family house in Malden. The agreement contained a covenant by the defendants that “the rental for suite #1 is $100 monthly and the said apartment is registered at the rent control office for not less than $100.” The bill alleges that the rent for suite 1 is only $80 a month, that the rent is so registered at the rent control office, and that the representation by the defendants that the rent is higher was knowingly false and fraudulent. The prayer of the bill is that the agreement be rescinded, and that the $2,000 deposited by the plaintiff be returned with interest. The defendants in their answer denied the material allegations of the bill, and inserted a counterclaim alleging that the plaintiff has made substantial changes in the property which have seriously injured it, for which the defendants claim damages.\nThe evidence is reported, but the judge made no express findings of fact. A final decree was entered on February 19, 1953, dismissing both the bill and the counterclaim without costs. Further, the final decree provided that the defendants shall offer the plaintiff a deed within fifteen days, and if the plaintiff should accept it and pay the balance of $19,000, the bill is to be dismissed, and if the plaintiff should not accept the deed the defendants should keep the $2,000 deposited as liquidated damages. The plaintiff appealed.\nIt was agreed that on April 28, 1952, when the parties entered into the agreement of purchase and sale, suite 1 was registered at the rent control office at a rental of only $80 a month. The defendants were responsible for the misrepresentation, even though they believed in the truth of the fact stated. That fact was susceptible of actual knowledge, and was stated as a fact and not as matter of opinion, estimate or judgment. Chatham Furnace Co. v. Moffatt, 147 Mass. 403. Weeks v. Currier, 172 Mass. 53, 55. Bates v. Cashman, 230 Mass. 167, 168. Although the defendants at all material times received $100 a month as rent for suite 1, such receipt was unlawful under Federal law and made them liable to the tenant paying such rent. U. S. C. (1946 ed.) Sup. V, Title 50, Appendix, §§ 1895, 1896. The misrepresentation by the defendants was of concern to the plaintiff, for if the registration should continue at $80 a month the plaintiff, after taking title, could lawfully receive no more than the registered rent. By the agreement, title was to be conveyed to the plaintiff on or before August 1, 1952. But the time for conveyance was postponed until September 1, 1952. Before that day, the plaintiff gave notice that it rescinded the agreement on account of the misrepresentation, and demanded its deposit back.\nIt is true that on September 1, 1952, suite 1 was registered at the rent control office at a rental of $105 a month. But at the time when the plaintiff rescinded the agreement the registered rental remained less than $100 a month. The subsequent increase in the registered rental did not cure the misrepresentation. Rykiel v. Sklaver, 259 Mass. 608. The plaintiff was entitled to rescind at the time when it gave its notice of rescission, and was entitled to receive back its deposit. The final decree should have rescinded the agreement and ordered the defendants to repay the plaintiff’s deposit with interest.\nThe final decree, as originally entered on February 19, 1953, dismissed the counterclaim of the defendants. An amendment of the final decree, entered on July 27, 1953, purported to strike out that dismissal. A final decree properly disposes of both bill and counterclaim. Blume v. Oil-O-Chron, Inc. 287 Mass. 52, 55. Day Trust Co. v. Malden Savings Bank, 328 Mass. 576, 577-578. MacDonald v. Goff, 329 Mass. 220, 224. Apart from the correction of some purely clerical error, no change in a final decree can be made after it has been entered. Thompson v. Goulding, 5 Allen, 81. White v. Gove, 183 Mass. 333, 340. Sullivan v. Sullivan, 266 Mass. 228, 229. Kingsley v. Fall River, 280 Mass. 395, 398. Prenguber v. Agostini, 289 Mass. 222. Brooks v. National Shawmut Bank, 323 Mass. 677, 684. The amendment of the final decree cannot be considered as purely clerical. It purported to take out of the decree the determination of an issue that was a proper and even a necessary part of the final decree in the case. The effective final decree from which the plaintiff appealed on March 6, 1953, was the one originally entered on February 19, 1953, without any amendment.\nThere was no error in that part of the final decree that dismissed the counterclaim of the defendants. That counterclaim was for injuries alleged to have been done to the real estate by the plaintiff. There was evidence tending to show that what the plaintiff did improved the property. By dismissing the counterclaim, the judge impliedly found that no substantial harm was done to the defendants. A reading of the evidence fails to convince us that the judge was in error.\nIn its bill, the plaintiff sought rescission. The defendants contented themselves with contesting the plaintiff’s claim, except for their counterclaim for injury to the property. Neither party sought specific performance of the agreement. Nevertheless in the final decree the judge attempted to provide for specific performance. It is settled that in equity a party may not obtain relief, that is inconsistent with the specific relief prayed for, even though an express or implied prayer for general relief is contained in the pleading. Bleck v. East Boston Co. 302 Mass. 127, 130. Parry v. Parry, 316 Mass. 692, 698. Brennan v. Bonnoyer, 319 Mass. 307, 308. West v. Day Trust Co. 328 Mass. 381, 383. There was error in providing for specific performance in the final decree.\nThe result is that the final decree is reversed, and a new final decree is to be entered, with costs to the plaintiff, rescinding the agreement of April 28, 1952, ordering the defendants to repay to the plaintiff the deposit of $2,000 with interest from April 28, 1952, and dismissing the counterclaim of the defendants.\nSo ordered."", ""type"": ""majority"", ""author"": ""Lummus, J.""}], ""attorneys"": [""Herbert L. Barrett, (M. Arthur Gordon with him,) for the plaintiff."", ""Harry M. Lack, for the defendants.""], ""corrections"": """", ""head_matter"": ""Enterprises, Inc. vs. Giro J. Cardinale & another.\nSuffolk.\nJanuary 5, 1954.\nMarch 30, 1954.\nPresent: Qua, C.J., Lummus, Honan, Williams, & Counihan, JJ.\nFraud. Deceit. Contract, Rescission. Equity Jurisdiction, Rescission. Equity Pleading and Practice, Decree.\nA suit in equity could be maintained to rescind an agreement under seal for the purchase by the plaintiff from the defendant of a two family house and to recover the plaintiff’s deposit where the agreement contained a covenant by the defendant that “the rental for suite #1 is $100 monthly and the said apartment is registered at the rent control office for not less than $100” and it appeared that the registered rental of the suite was in fact substantially less than $100 monthly both when the agreement was made and when the plaintiff gave a notice to rescind it, although the defendant believed the truth of the representation as to the registered rental and actually received rent of $100 per month and although on the date for passing papers, subsequent to the plaintiff’s notice of rescission, the registered rental exceeded $100 a month. [245-246]\nAfter the entry of a final decree in a suit in equity dismissing the bill and a counterclaim, the entry of an amendment of the decree purporting to strike out the dismissal of the counterclaim was ineffectual and the effective final decree was the original decree without amendment. [246-247]\nThere was error in a final decree in a suit in equity in providing for specific performance of an agreement for the purchase by the plaintiff and sale by the defendant of certain real estate where the plaintiff in the bill sought rescission of the agreement and recovery of his deposit and the defendant in the answer contested the plaintiff’s claim and counterclaimed for damage to the property, and neither party sought specific performance. [247]\nBill in equity, filed in the Superior Court with a writ of summons and attachment dated August 28, 1952.\nThe suit was heard by Swift, J.\nHerbert L. Barrett, (M. Arthur Gordon with him,) for the plaintiff.\nHarry M. Lack, for the defendants.""}, ""cites_to"": [{""cite"": ""328 Mass. 381"", ""case_ids"": [514086], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""383""}], ""case_paths"": [""/mass/328/0381-01""], ""opinion_index"": 0}, {""cite"": ""319 Mass. 307"", ""case_ids"": [497484], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""308""}], ""case_paths"": [""/mass/319/0307-01""], ""opinion_index"": 0}, {""cite"": ""316 Mass. 692"", ""case_ids"": [925389], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""698""}], ""case_paths"": [""/mass/316/0692-01""], ""opinion_index"": 0}, {""cite"": ""302 Mass. 127"", ""case_ids"": [867855], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""130""}], ""case_paths"": [""/mass/302/0127-01""], ""opinion_index"": 0}, {""cite"": ""323 Mass. 677"", ""case_ids"": [503984], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""684""}], ""case_paths"": [""/mass/323/0677-01""], ""opinion_index"": 0}, {""cite"": ""289 Mass. 222"", ""case_ids"": [492847], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/289/0222-01""], ""opinion_index"": 0}, {""cite"": ""280 Mass. 395"", ""case_ids"": [858445], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""398""}], ""case_paths"": [""/mass/280/0395-01""], ""opinion_index"": 0}, {""cite"": ""266 Mass. 228"", ""case_ids"": [846893], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""229""}], ""case_paths"": [""/mass/266/0228-01""], ""opinion_index"": 0}, {""cite"": ""183 Mass. 333"", ""case_ids"": [822489], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""340""}], ""case_paths"": [""/mass/183/0333-01""], ""opinion_index"": 0}, {""cite"": ""5 Allen, 81"", ""case_ids"": [2102372], ""category"": ""reporters:state"", ""reporter"": ""Allen"", ""case_paths"": [""/mass/87/0081-01""], ""opinion_index"": 0}, {""cite"": ""329 Mass. 220"", ""case_ids"": [490769], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""224""}], ""case_paths"": [""/mass/329/0220-01""], ""opinion_index"": 0}, {""cite"": ""328 Mass. 576"", ""case_ids"": [514093], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""577-578""}], ""case_paths"": [""/mass/328/0576-01""], ""opinion_index"": 0}, {""cite"": ""287 Mass. 52"", ""case_ids"": [924064], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""55""}], ""case_paths"": [""/mass/287/0052-01""], ""opinion_index"": 0}, {""cite"": ""259 Mass. 608"", ""case_ids"": [854870], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/259/0608-01""], ""opinion_index"": 0}, {""cite"": ""230 Mass. 167"", ""case_ids"": [71226], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""168""}], ""case_paths"": [""/mass/230/0167-01""], ""opinion_index"": 0}, {""cite"": ""172 Mass. 53"", ""case_ids"": [475235], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""55""}], ""case_paths"": [""/mass/172/0053-01""], ""opinion_index"": 0}, {""cite"": ""147 Mass. 403"", ""case_ids"": [782396], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/147/0403-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""331 Mass. 244"", ""type"": ""official""}], ""file_name"": ""0244-01"", ""last_page"": ""247"", ""first_page"": ""244"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T16:34:16.537480+00:00"", ""decision_date"": ""1954-03-30"", ""docket_number"": """", ""last_page_order"": 287, ""first_page_order"": 284, ""name_abbreviation"": ""Enterprises, Inc. v. 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+938184,"{""id"": 938184, ""name"": ""Claude W. Yorke vs. W. Randolph Taylor & others"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""cb41068b32d13be52add39135f6fa199b08aec630ab079f40e085e1a4047ed38"", ""simhash"": ""1:4ff6e56b3d6cdc02"", ""pagerank"": {""raw"": 0.0000014989997310314683, ""percentile"": 0.991751449601888}, ""char_count"": 14041, ""word_count"": 2400, ""cardinality"": 714, ""ocr_confidence"": 0.615}, ""casebody"": {""judges"": [], ""parties"": [""Claude W. Yorke vs. W. Randolph Taylor & others.""], ""opinions"": [{""text"": ""Spalding, J.\nThe purpose of this bill in equity is to rescind a sale of a parcel of real estate because of the alleged fraud and misrepresentation of the defendants. The judge made findings of material facts and ordered a decree to be entered dismissing the bill. From a decree entered accordingly the plaintiff appealed. The evidence is reported.\nFacts found by the judge and by us are these. In August, 1953, and for some time prior thereto the defendants were the owners of property at 265 Clarendon Street, Boston, consisting of land, the building thereon, and furnishings. On August 24, 1953, one Gould, a real estate broker, who had been employed by the defendants to sell the property, approached the plaintiff with a view to selling it to him. At that time Gould submitted to the plaintiff a statement of income and expenses which contained the words “Assessed $12,500,” and the plaintiff visited the property with Gould. This was in fact the assessment for the year 1952. It appeared from the statement that during 1952 the building had been extensively remodeled (as in fact it had) at a cost of $22,000, and the plaintiff, after telling Gould that he did not understand why the assessment was so low, asked him if it had been raised for the current year, 1953. Gould told the plaintiff that he would find out. On the following day Gould asked Robert W. Taylor, his cobroker and a brother of the defendant W. Randolph Taylor, whether the assessment had been increased and Robert after communicating with his brother over the telephone informed Gould that the assessment was the same for 1953 as it was for 1952. Gould conveyed this information to the plaintiff and on August 26 the plaintiff, Gould, and Robert W. Taylor inspected the property.\nOn August 27, 1953, a purchase and sale agreement was executed by the plaintiff and the defendant W. Randolph Taylor whereby the plaintiff was to purchase the property for the sum of $30,000. The property was to be sold subject to an existing first mortgage on which there was a balance due of $19,738.72, and the plaintiff was to pay the remainder of the purchase price by note and second mortgage in the amount of $5,500, and cash in the sum of $4,671.66.\nAfter the agreement was executed the plaintiff employed an experienced attorney to examine the title and to act for him in the purchase of the property. The attorney checked the public records relating to municipal liens touching the property but these records revealed nothing beyond the year 1952. On the basis of this information he reported to the plaintiff that the assessment for that year was $12,500. He made no inquiry, however, at the assessors’ office as to the assessed value. Papers were passed on September 17, 1953, and the plaintiff’s attorney and Robert W. Taylor apportioned taxes on the basis of an assessment of $12,500.\nThe assessment for the year 1953 was in fact $26,000, an increase of $13,500 over the assessment for 1952. The tax bill for 1953 showing this increased assessment had been mailed to the defendants at 265 Clarendon Street on August 2, 1953, before any negotiations for the sale of the property to the plaintiff had commenced. The defendants did not reside at this property and since January, 1953, it was under the management of R. M. Bradley & Co., Inc.\nThe judge found that the defendants did not know that the assessed valuation had been increased when the information relating to the income and expenses of the property was submitted to the plaintiff. The judge further found that the defendants acted in good faith and had no intention of misleading or deceiving the plaintiff. These findings were supported by evidence and are not plainly wrong. But these findings would not defeat the right to rescind. In this Commonwealth one who has been induced to enter into a contract in reliance upon a false though innocent representation of a material fact susceptible of knowledge which was made as of the party’s own knowledge and was stated as a fact and not as matter of opinion is entitled to rescission. Chatham Furnace Co. v. Moffatt, 147 Mass. 403. Bates v. Cashman, 230 Mass. 167, 168. Rudnick v. Rudnick, 281 Mass. 205, 208. Enterprises, Inc. v. Cardinale, 331 Mass. 244.\nThe judge, however, made other findings which must be considered. He found that the plaintiff was not misled by the representation of the defendants that the assessment was $12,500, and he also found that the plaintiff sustained no damage. These findings under the familiar rule must be upheld unless they are plainly wrong, but we are of opinion that evidential support for them is lacking. The plaintiff obviously could not have relied on any statement by his attorney as to the 1953 assessment because the attorney reported that he found only the 1952 assessments available in the records examined by him. The assessment on the property was undoubtedly a matter of materiality and it seems clear from the evidence that both the plaintiff and the defendants so considered it. The defendants included the information in the statement of income and expenses which they caused to be furnished to the plaintiff. And the plaintiff’s inquiries to the defendants’ brokers, concerning the assessment show that he was seeking information on a matter he also considered important. Where, as here, the tax rate was $70.70 per thousand for the year 1953, concern as to what the property was assessed for is readily understandable. The judge in his findings seems to have been influenced by the fact that the property was worth what the plaintiff paid for it. But the plaintiff does not seek rescission on the basis of any misrepresentation touching the value of the property. Rescission is sought on the ground that the amount of the assessment was misrepresented.\nBut there is another finding which we must also consider. The judge found that the “assessed value . . . was a matter of public information equally within the reach of plaintiff and the defendants.” This suggests that even had the plaintiff relied on the defendants’ representation such reliance would have been unreasonable and unjustified because the plaintiff could easily have ascertained the truth by recourse to the records in the assessors’ office.\nIt is true that statements may be found in some of our decisions to the effect that a plaintiff ought not to obtain relief from the consequences of false representations wherel he has failed to use due care and diligence in protecting hisl rights. The reasoning of these cases appears to be that the court should exhibit no greater interest in protecting al plaintiff’s rights than he himself has shown. Brown v. Castles, 11 Cush. 348, 350. Nowlan v. Cain, 3 Allen, 261, 263-264. Silver v. Frazier, 3 Allen, 382. Mabardy v. McHugh, 202 Mass. 148, 151. See Manning v. Albee, 11 Allen, 520, 522; Savage v. Stevens, 126 Mass. 207, 208; Holst v. Stewart, 161 Mass. 516, 522; Brady v. Finn, 162 Mass. 260, 266; Whiting v. Price, 172 Mass. 240, 241; Lee v. Tarplin, 183 Mass. 52, 57; Thomson v. Pentecost, 206 Mass. 505, 512. Or, as was said in Silver v. Frazier, “The law will not relieve those who suffer damages by reason of their own negligence or folly” (page 384). But the trend of modern authority is opposed to this philosophy. Restatement: Torts, § 540. Prosser on Torts, § 88. Harper on Torts, § 224. Franklin v. Nunnelley, 242 Ala. 87, 89. Halla v. Chicago Title & Trust Co. 412 Ill. 39, 46. Nash Mississippi Valley Motor Co. v. Childress, 156 Miss. 157, 162-163. Wright v. Noyes, 80 N. H. 172, 174. Albany City Savings Institution v. Burdick, 87 N. Y. 40, 49. Harrell v. Nash, 192 Okla. 95, 100. Crompton v. Beedle, 83 Vt. 287, 300-302. Certainly where a defendant has wilfully made false representations with intent to deceive he ought not to be relieved of liability because of his victim’s lack of diligence, and the authorities just cited are to this effect. “No rogue should enjoy his ill-gotten plunder for the simple reason that his victim is by chance a fool.” Chamberlin v. Fuller, 59 Vt. 247, 256. And support for this view is not lacking in our own decisions. David v. Park, 103 Mass. 501. Commonwealth v. Lee, 149 Mass. 179. Rollins v. Quimby, 200 Mass. 162, 163. Reggio v. Warren, 207 Mass. 525. In Rollins v. Quimby the defendant falsely represented to the plaintiff that certain mortgages which he was offering to the plaintiff for sale were first mortgages whereas they were second and third mortgages. The defence was that the plaintiff did not use due diligence and could readily have ascertained from the documents themselves and the records that the mortgages were not first mortgages. It was held that this defence did not preclude recovery, the court saying at page 163, “The law does not attempt to save parties from the consequences of their own improvidence and negligence; but it looks with even less favor upon misrepresentation and fraud. And, accordingly, in later decisions, this court has manifested a disinclination to extend the immunity of vendors for statements or representations made by them beyond the limits already established.” See Kabatchnick v. Hanover-Elm Building Corp. 328 Mass. 341. But whatever our rule has been formerly on the subject of diligence ■— and it is not easy to reconcile all that has been said — we prefer the rule of the Restatement that “The recipient in a business transaction of a fraudulent misrepresentation of fact is justified in relying on its truth, although he might have ascertained the falsity of the representation had he made an investigation.” Restatement: Torts, § 540.\nWe recognize, of course, that the representations of the defendants here were not consciously false. But as pointed out above that does not deprive the injured party of the right to rescind. In this Commonwealth, where the rule is stricter than that in many jurisdictions, a false though innocent representation of a fact made as of one’s own knowledge may be the basis of liability. The same legal consequences attach to this type of representation as to one that is deliberately and consciously false. On principle, lack of diligence on the part of the victim ought not to have any better standing as a defence to rescission in the one case than in the other, and we are not disposed to treat these situations differently. The plaintiff here was not relying on a statement of opinion nor on a representation that was either preposterous or palpably false. See Restatement: Torts, § 541. He could reasonably rely on the representation as being a fact within the defendants’ knowledge and he was not obliged to go further and ascertain its truth.\nWe are of opinion that, in the light of all the evidence, the finding that the plaintiff was not misled by the representations of the defendants cannot stand. And that is likewise true of the finding that the plaintiff sustained no damage. By reason of the increased assessment in 1953 the plaintiff was faced with a tax bill which Was larger by $954.45 than his bill would have been on the basis of an assessment of $12,500.\nIt follows that the decree dismissing the bill must be reversed and a new decree entered rescinding the sale, ordering the defendants upon reconveyance of the property to return the consideration paid by the plaintiff, and cancel-ling the $5,500 note and the mortgage securing it. The plaintiff is to have costs of this appeal.\nSo ordered\nThe findings include the following: “I find that the plaintiff knew that the assessed value of property was not its true market value, and that he knew that the property was worth much more than $12,500 by his assumption of the several obligations for the payment of the purchase price of said premises. ... I find that it was obvious, and that the plaintiff knew the ‘assessed value of $12,500’ was no evidence of the real market value of said premises.”"", ""type"": ""majority"", ""author"": ""Spalding, J.""}], ""attorneys"": [""Max L. Rubin, for the plaintiff."", ""Walter Powers, Jr., for the defendants.""], ""corrections"": """", ""head_matter"": ""Claude W. Yorke vs. W. Randolph Taylor & others.\nSuffolk.\nNovember 3, 1954.\nMarch 8, 1955.\nPresent: Qua, C.J., Ronan, Wilkins, Spalding, & Williams, JJ.\nFraud. Deceit. Sale, Rescission, Sale of real estate: Equity Jurisdiction, Rescission.\nA right of a purchaser to rescind a sale of real estate to him in 1953 because of his reliance on a false representation made by the seller as of his own knowledge that the assessed valuation for 1953 was the same as it had been for 1952 was not defeated by the fact that the seller did not know when he made the representation that the assessed valuation had been increased and made it in good faith without intent to mislead or to deceive the purchaser. H371j|\nIn a suit in equity to rescind a sale of real estate by the defendant to the plaintiff in 1953 on the ground that the defendant falsely represented that the assessed valuation for 1953 was the same as it had been for 1952, a finding by the trial judge that the plaintiff sustained no damage thereby was plainly wrong where reported evidence disclosed that the valuation for 1952 was $12,500 but for 1953 was $26,000, resulting in a tax $954.45 larger than it would have been at the lower valuation. [371,374]\nDiscussion by Spalding, J., of lack of diligence on the part of a plaintiff in failing to ascertain the falsity of a representation made by the defendant as a bar to the plaintiff’s obtaining relief from the consequences of reliance on the representation. [372-374]\nA right of the purchaser to rescind a sale of real estate in 1953 because of a false representation innocently made to him by the seller as of his own knowledge that the assessed valuation for 1953 was the same as it had been for 1952 was not precluded even though the “assessed value . . . was a matter of public information equally within the reach” of the purchaser and the seller and the purchaser relied on the representation without ascertaining the truth by recourse to the records in the assessors’ office. [372,374]\nBill in equity, filed in the Superior Court on October 13, 1953.\nThe suit was heard by Dowd,- J.\nMax L. Rubin, for the plaintiff.\nWalter Powers, Jr., for the defendants.""}, ""cites_to"": [{""cite"": ""328 Mass. 341"", ""case_ids"": [514128], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/328/0341-01""], ""opinion_index"": 0}, {""cite"": ""207 Mass. 525"", ""case_ids"": [3476607], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/207/0525-01""], ""opinion_index"": 0}, {""cite"": ""200 Mass. 162"", ""case_ids"": [3494647], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""163""}], ""case_paths"": [""/mass/200/0162-01""], ""opinion_index"": 0}, {""cite"": ""149 Mass. 179"", ""case_ids"": [778474], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/149/0179-01""], ""opinion_index"": 0}, {""cite"": ""103 Mass. 501"", ""case_ids"": [2146219], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/103/0501-01""], ""opinion_index"": 0}, {""cite"": ""59 Vt. 247"", ""case_ids"": [11267231], ""category"": ""reporters:state"", ""reporter"": ""Vt."", ""pin_cites"": [{""page"": ""256""}], ""case_paths"": [""/vt/59/0247-01""], ""opinion_index"": 0}, {""cite"": ""83 Vt. 287"", ""case_ids"": [4476263], ""category"": ""reporters:state"", ""reporter"": ""Vt."", ""pin_cites"": [{""page"": ""300-302""}], ""case_paths"": [""/vt/83/0287-01""], ""opinion_index"": 0}, {""cite"": ""192 Okla. 95"", ""case_ids"": [8893027], ""category"": ""reporters:state"", ""reporter"": ""Okla."", ""pin_cites"": [{""page"": ""100""}], ""case_paths"": [""/okla/192/0095-01""], ""opinion_index"": 0}, {""cite"": ""87 N. 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+938206,"{""id"": 938206, ""name"": ""William H. Campbell & another vs. Raymond E. Shea"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""7bdaf84621c7db7cc079e1d6f699ea4211b8d31c7186963542e7b12a09288907"", ""simhash"": ""1:afa2be801ab67e61"", ""pagerank"": {""raw"": 0.000000494081399242731, ""percentile"": 0.9346996678184712}, ""char_count"": 10247, ""word_count"": 1769, ""cardinality"": 476, ""ocr_confidence"": 0.623}, ""casebody"": {""judges"": [], ""parties"": [""William H. Campbell & another vs. Raymond E. Shea.""], ""opinions"": [{""text"": ""Counihan, J.\nOn July 29, 1946, the plaintiffs and the defendant entered into a written agreement for the purchase and sale of all of the capital stock of The Lido of Worcester, Inc., hereinafter called Lido, which conducted a restaurant with an all alcoholic liquor license in Worcester. The defendant was the owner of all of this capital stock. The sale was completed on August 9, 1946. The plaintiffs alleged that they were induced to purchase said stock by reason of misrepresentations of the defendant regarding the earnings of Lido upon which they relied. The action was originally tried to a jury who returned a verdict for the plaintiffs which thus established the liability of the defendant for fraud and deceit. Upon motion the judge ordered a new trial to be limited to the question of damages only. A new trial was had on this question and the jury returned a verdict for the plaintiffs in a substantial amount. The action comes here upon exceptions of the defendant taken at this trial. These exceptions relate to the exclusion of certain evidence, the denial of requests for rulings, and the denial of the defendant’s motion for a directed verdict. There was no error.\nWe need not pass upon the defendant’s exception to the denial of his motion for a directed verdict since this question was not argued in his brief. Rule 13 of the Rules for the Regulation of Practice before the Full Court (1952), 328 Mass. 698.\nWe first consider the exceptions to the exclusion of evidence. During the course of the trial there was introduced in evidence a mortgage from Lido to Kane Discount Company of Boston on all of the goods and chattels of Lido in the sum of $34,500. The mortgage was signed by both plaintiffs as officers of Lido and also individually, and part of the $34,500 was used as part of the purchase price. Counsel for the defendant asked one of the plaintiffs if he had not paid the mortgage. Subject to the exception of the defendant the judge excluded this question although counsel offered to prove that the answer would be in the affirmative. We are of opinion that this question was properly excluded for it had no bearing upon the question of damages. Such payment was no evidence of ratification of the sale or waiver of fraud and deceit. The plaintiffs were free to pay off the mortgage to avoid personal liability. They could later seek damages from the defendant for fraud and deceit. Compare Forman v. Hamilburg, 300 Mass. 138, 142.\nSubsequently the defendant was questioned about the weekly receipts of Lido from January 25, 1946, when it first started to operate, to August 8, 1946. The judge excluded these questions and the defendant excepted. ' The judge in the course of a colloquy regarding the admission of this evidence said that he would permit the defendant to testify regarding weekly receipts of Lido for a period of five or six weeks immediately preceding the sale, but the defendant did not avail himself of this offer. Plainly the judge was right in excluding the offered evidence for it appears from other evidence that during much of the period about which he was questioned the defendant was operating a dining room as well as dispensing liquor. This dining room was closed on July 6, 1946, and any receipts from that source could have no bearing upon the value of the business on August 9, 1946.\nLater the judge excluded certain questions put to two expert witnesses called by the defendant relating to the value of Lido on August 8, 1946. Without reciting the questions verbatim it is enough to say that the reasons for the exclusion of these questions do not appear in the record. The admission of questions to experts is ordinarily in the discretion of the judge and he will be reversed only if clearly erroneous as matter of law. Murphy v. Chichetto, 323 Mass. 11, 15. The reason for the exclusion of this evidence well might have been that the judge felt that a sufficient foundation for such questions had not been laid. The record would bear this out.\nWe now consider the exceptions to the refusal to give requested rulings of the defendant. A judge is not required “to instruct the jury in the terms of a requested instruction • — ■ even if it is correct as matter of law and applicable to the pleadings and the evidence — if the subject matter thereof is dealt with adequately in the charge.” Squires v. Fraska, 301 Mass. 474, 476. Palmer Russell Co. v. Rothenberg, 328 Mass. 477, 482-483.\nThe measure of damages in an action such as this is “the difference in actual value between that which the plaintiff in fact got and that which he would have got if the representation had been true.” Piper v. Childs, 290 Mass. 560, 562. Leader v. Kolligan, 262 Mass. 63, 65. Forman v. Hamilburg, 300 Mass. 138, 143. Requests numbered 4 and 5 are correct in law and were given in substance in the charge. Requests numbered 6, 7, 8, 9, and 11 are not correct as matter of law in that they fail to apply the proper measure of damages. Request numbered 17 was given in substance even to the extent of quoting Brackett v. Commonwealth, 223 Mass. 119, at page 127. Request numbered 18 was fully covered in the charge in that the jury were instructed that they should consider all the evidence including the mortgage executed by the plaintiffs.\nExceptions overruled.\n“4. If the jury finds that there is no difference in value between what the plaintiffs in fact received and what they would have received if the representations made had been true, then the plaintiffs have failed to prove any damages and they are entitled only to nominal damages.\n“5. If the jury finds that the value of the articles that the plaintiffs received were equal to the value of the articles that the plaintiff [s] would have received if the representations were true, then the plaintiffs are entitled only to nominal damages.\n“6. If the jury finds that the value of the capital stock of The Lido of Worcester, Inc., was Sixty Thousand ($60,000) Dollars at the time the representations were made, then the plaintiffs are entitled only to nominal damages.\n“7. If the jury finds that the fair value of the articles which the plaintiffs got was Sixty Thousand ($60,000) Dollars at the time the representations were made, the plaintiffs are entitled only to nominal damages.\n“8. The plaintiffs having made an agreement to purchase the outstanding shares of stock in The Lido of Worcester, Inc., for Sixty Thousand ($60,000) Dollars, they are entitled only to receive shares of stock in The Lido of Worcester, Inc., to the value of Sixty Thousand ($60,000) Dollars.\n“9. If the jury finds that at the time of the sale, the value of all of the outstanding capital stock of The Lido of Worcester, Inc., was Sixty Thousand ($60,000) Dollars or greater, then the plaintiffs can recover only nominal damages.\n“11. If, notwithstanding the falsity of the representations, the things which the buyers acquired were of equal or greater value than the price paid, the buyers have suffered no loss and can recover only nominal damages.\n“ 17. The certificates of condition signed by both plaintiffs and containing statements as to the value of the furniture and fixtures and statements as to the value of the good will are competent evidence as admissions by both plaintiffs as to the value of the furniture and fixtures and as to the value of the good will.\n“18. In determining the value of the articles received, the jury can and should take in consideration the fact that the plaintiffs were able to obtain a mortgage from the Kane Discount Corporation upon the articles received in the face amount of Thirty-Four Thousand Five Hundred ($34,500) Dollars.”"", ""type"": ""majority"", ""author"": ""Counihan, J.""}], ""attorneys"": [""In this court the case was submitted on briefs."", ""Francis T. Mullin, for the defendant."", ""Clarence E. Tupper, for the plaintiffs.""], ""corrections"": """", ""head_matter"": ""William H. Campbell & another vs. Raymond E. Shea.\nWorcester.\nSeptember 28, 1954.\nApril 1, 1955.\nPresent: Qua, C.J., Lummus, Wilkins, Spalding, & Counihan, JJ.\nEvidence, Relevancy and materiality; Of value; Opinion: expert. Error, Whether error shown. Practice, Civil, Exceptions: whether error shown; Requests, rulings and instructions. Damages, For tort.\nAt a trial limited to the question of the damages sustained by the plaintiffs as a result of being induced by the defendant’s fraud and deceit to purchase a restaurant business from him, evidence that one of the plaintiffs had paid a mortgage on goods and chattels in the restaurant signed by them and given to a third person to secure a loan partly used to pay part of the purchase price was properly excluded as irrelevant. [424]\nOn the issue of the value of a restaurant business with an all alcoholic liquor license at a time when it was sold by the defendant to the plaintiffs, evidence of the weekly receipts of the business from the time it first started to operate six and one half months before the sale to the time of the sale was properly excluded where it appeared that during much of that period the seller had been both operating a dining room and dispensing liquor, but that the dining room had been closed a month before the sale. [424r-425]\nNo error appeared in the exclusion by a trial judge of questions put to expert witnesses where the reason for the exclusion was not disclosed by the record. [425]\nThere was no error in a trial judge’s refusal to give in terms correct and applicable instructions requested at a trial where the subject matter thereof was dealt with adequately in the charge. [425]\nIn an action for deceit based on misrepresentations by the defendant inducing a purchase of property from him by the plaintiff, it could not properly have been ruled that the plaintiff suffered no damage if the value of the property purchased was in fact at least as great as the purchase price: the correct measure of damages was the difference between the actual value of the property and the value it would have had if the defendant’s representations had been true. [425-426] '\nContract or tort by William H. Campbell. Writ in the Superior Court dated January 3, 1947.\nJames C. Flanagan, Jr., was subsequently added as a plaintiff.\nFollowing a verdict for the plaintiffs and the granting of a new trial limited to the question of damages, the new trial was held before Paquet, J.\nIn this court the case was submitted on briefs.\nFrancis T. Mullin, for the defendant.\nClarence E. Tupper, for the plaintiffs.""}, ""cites_to"": [{""cite"": ""223 Mass. 119"", ""case_ids"": [42055], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/223/0119-01""], ""opinion_index"": 0}, {""cite"": ""262 Mass. 63"", ""case_ids"": [3822518], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""65""}], ""case_paths"": [""/mass/262/0063-01""], ""opinion_index"": 0}, {""cite"": ""290 Mass. 560"", ""case_ids"": [494072], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""562""}], ""case_paths"": [""/mass/290/0560-01""], ""opinion_index"": 0}, {""cite"": ""328 Mass. 477"", ""case_ids"": [513985], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""482-483""}], ""case_paths"": [""/mass/328/0477-01""], ""opinion_index"": 0}, {""cite"": ""301 Mass. 474"", ""case_ids"": [866208], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""476""}], ""case_paths"": [""/mass/301/0474-01""], ""opinion_index"": 0}, {""cite"": ""323 Mass. 11"", ""case_ids"": [504106], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""15""}], ""case_paths"": [""/mass/323/0011-01""], ""opinion_index"": 0}, {""cite"": ""300 Mass. 138"", ""weight"": 2, ""case_ids"": [864509], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""142""}, {""page"": ""143""}], ""case_paths"": [""/mass/300/0138-01""], ""opinion_index"": 0}, {""cite"": ""328 Mass. 698"", ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""opinion_index"": 0}], ""citations"": [{""cite"": ""332 Mass. 422"", ""type"": ""official""}], ""file_name"": ""0422-01"", ""last_page"": ""426"", ""first_page"": ""422"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T16:34:58.622851+00:00"", ""decision_date"": ""1955-04-01"", ""docket_number"": """", ""last_page_order"": 464, ""first_page_order"": 460, ""name_abbreviation"": ""Campbell v. 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+938282,"{""id"": 938282, ""name"": ""Helen Rowland, administratrix, vs. Auto Service, Inc. (and a companion case)"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""bc21c9c17bc976d49a7f31706fe13e695f5dd2c1f57e0ead61c13fe89da49619"", ""simhash"": ""1:0ce4c1abc5ee0d4c"", ""pagerank"": {""raw"": 0.00000007825077781142134, ""percentile"": 0.45799716508568644}, ""char_count"": 5249, ""word_count"": 895, ""cardinality"": 353, ""ocr_confidence"": 0.629}, ""casebody"": {""judges"": [], ""parties"": [""Helen Rowland, administratrix, vs. Auto Service, Inc. (and a companion case).""], ""opinions"": [{""text"": ""Lummus, J.\nThese two actions of tort for personal injuries were brought by the late Portia Growl, who died after she had obtained verdicts in her favor against both defendants. These actions are now being prosecuted by the administratrix of her estate. The only exceptions of the defendants now argued are to the denial in each case of a motion for a directed verdict for the defendant. The defendant Joseph Protami, Junior, was an automobile salesman for the defendant Auto Service, Inc., of which his father was an officer.\nOn May 9, 1950, before the accident, according to evidence for the plaintiff, the defendant Joseph Protami, Junior, was driving an automobile owned by the corporate defendant, and asked the intestate to ride with him to Acushnet. She had recently talked with him about buying an automobile. On the way to Acushnet he resumed the talk about her buying an automobile, although she did not encourage him to expect her to buy. By G. L. (Ter. Ed.) c. 231, § 85A, the registration of the automobile in the name of the corporate defendant was prima facie evidence that it was legally responsible for the conduct of Joseph Protami, Junior. But that section did not make such registration evidence that the corporate defendant authorized the operator to invite the intestate to. ride. Welch v. O’Leary, 287 Mass. 69. Foley v. John H. Bates Inc. 295 Mass. 557, 561. Dineasoff v. Casey, 306 Mass. 555. Little v. Levison, 316 Mass. 159. But on the evidence the jury could have found that the operator gave the intestate a ride with the hope of selling her an automobile, either presently or in the future. This was within the apparent authority of the operator as a salesman. Cardoza v. Isherwood, 258 Mass. 165. Foley v. McDonald, 283 Mass. 96. The jury could have found that the intestate was a business invitee.\nThe declaration in each case alleged gross negligence. But liability is shown as to a business invitee by proof of ordinary negligence. We need not consider whether the plaintiff, having alleged gross negligence, must prove it. In our opinion a finding of gross negligence, if needed, was warranted by the evidence. There was evidence that during the ride while travelling at the rate of thirty-five or forty miles an hour a bee got into the automobile, that the operator started to hit the bee with a billfold, that the bee was at the second window directly in back of the operator, that he swung around four times to strike at the bee, the last time with his eyes completely off the road for forty seconds and with only his right hand on the steering wheel, and that the automobile hit a telephone pole, causing injury to the intestate. We think that upon the evidence the cases were properly left to the jury to find whether there was gross negligence or not. Dinardi v. Herook, 328 Mass. 572. Vallas v. Carzis, 331 Mass. 468. Furthermore, the defendants did not argue that there was no gross negligence. Their argument was confined to the question whether the intestate was a business invitee. Rules 13 and 15 of the Rules for the Regulation of Practice before the Full Court (1952), 328 Mass. 698, 699. Commonwealth v. Gale, 317 Mass. 274, 276. Jefferson Union Co. v. American Radiator & Standard Sanitary Corp. 329 Mass. 692, 694.\nIn each case the entry will be\nw 7 , Exceptions overruled."", ""type"": ""majority"", ""author"": ""Lummus, J.""}], ""attorneys"": [""Leo Schwartz, for the defendants."", ""Leonard E. Perry, for the plaintiff.""], ""corrections"": """", ""head_matter"": ""Helen Rowland, administratrix, vs. Auto Service, Inc. (and a companion case).\nBristol.\nOctober 26, 1954.\nDecember 29, 1954.\nPresent: Qua, C.J., Lummus, Wilkins, Spalding, & Williams, JJ.\nAgency, Scope of authority or employment. Negligence, Invited person, Motor vehicle, Gross. Motor Vehicle, Registration. Evidence, Presumptions and burden of proof. Supreme Judicial Court, Argument. Waiver.\nSection 85A of G. L. (Ter. Ed.) c. 231 does not make registration of an automobile evidence that the registered owner authorized an operator of the automobile to invite another person to ride in it. £1093 Evidence that an automobile salesman of a corporation had talked with a woman about buying an automobile shortly before a day when he invited her to ride with him in an automobile of the corporation while he drove to a nearby town and that on the way there he resumed the talk warranted findings that the invitation to ride was within his apparent authority and that she was a business invitee of the corporation. [109]\nEvidence that while an automobile was travelling at thirty-five or forty miles an hour the operator swung around to strike at a bee directly in back of him and took his ejms completely off the road for forty seconds and left only his right hand on the steering wheel, whereupon the automobile struck a pole and a passenger was injured, warranted a finding of gross negligence on the part of the operator. [109]\nA defence of absence of gross negligence in actions against the owner and an operator of an automobile for personal injuries sustained by the plaintiff while riding therein was waived by failure to argue it in this court. [109]\nTwo actions of tort. Writs in the Superior Court dated July 21, 1950.\nThe actions were tried before Smith, J.\nLeo Schwartz, for the defendants.\nLeonard E. Perry, for the plaintiff.\nThe companion case was brought by the same plaintiff against Joseph Protami, Junior.""}, ""cites_to"": [{""cite"": ""329 Mass. 692"", ""case_ids"": [490772], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""694""}], ""case_paths"": [""/mass/329/0692-01""], ""opinion_index"": 0}, {""cite"": ""317 Mass. 274"", ""case_ids"": [927276], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""276""}], ""case_paths"": [""/mass/317/0274-01""], ""opinion_index"": 0}, {""cite"": ""328 Mass. 698"", ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""699""}], ""opinion_index"": 0}, {""cite"": ""331 Mass. 468"", ""year"": 1952, ""case_ids"": [936513], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/331/0468-01""], ""opinion_index"": 0}, {""cite"": ""328 Mass. 572"", ""year"": 1952, ""case_ids"": [514053], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/328/0572-01""], ""opinion_index"": 0}, {""cite"": ""283 Mass. 96"", ""case_ids"": [478357], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/283/0096-01""], ""opinion_index"": 0}, {""cite"": ""258 Mass. 165"", ""case_ids"": [3820080], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/258/0165-01""], ""opinion_index"": 0}, {""cite"": ""316 Mass. 159"", ""case_ids"": [925357], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/316/0159-01""], ""opinion_index"": 0}, {""cite"": ""306 Mass. 555"", ""case_ids"": [871879], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/306/0555-01""], ""opinion_index"": 0}, {""cite"": ""295 Mass. 557"", ""case_ids"": [883664], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""561""}], ""case_paths"": [""/mass/295/0557-01""], ""opinion_index"": 0}, {""cite"": ""287 Mass. 69"", ""case_ids"": [924112], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/287/0069-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""332 Mass. 107"", ""type"": ""official""}], ""file_name"": ""0107-01"", ""last_page"": ""109"", ""first_page"": ""107"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T16:34:58.622851+00:00"", ""decision_date"": ""1954-12-29"", ""docket_number"": """", ""last_page_order"": 147, ""first_page_order"": 145, ""name_abbreviation"": ""Rowland v. Auto Service, 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+938288,"{""id"": 938288, ""name"": ""G. Wayne Gibbs vs. The Lido of Worcester, Inc. & others"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""31e07f19a9b906a024f7d5e6cac9517a6e32eb3e30c9f5e6e5e54238a376e191"", ""simhash"": ""1:b857be3a8cc64ed8"", ""pagerank"": {""raw"": 0.00000015587433008059967, ""percentile"": 0.6765465863067692}, ""char_count"": 12479, ""word_count"": 2221, ""cardinality"": 618, ""ocr_confidence"": 0.6}, ""casebody"": {""judges"": [], ""parties"": [""G. Wayne Gibbs vs. The Lido of Worcester, Inc. & others.""], ""opinions"": [{""text"": ""Counihan, J.\nThis is an action which ultimately resolved itself into a claim upon a promissory note given by The Lido of Worcester, Inc., hereinafter called Lido, to the plaintiff. It was originally brought in the Central District Court of Worcester against Lido. In that court motions were apparently allowed joining William H. Campbell and James C. Flanagan, Junior, as defendants and amending the declaration so as to include them. On motion a judge of the Superior Court transferred this case to the Superior Court to be tried with Campbell v. Shea, ante, 422. G. L. (Ter. Ed.) c. 223, § 2B, inserted by St. 1943, c. 369, § 1, as amended. The amended declaration is in four counts: (1) against Lido for money furnished it by the plaintiff; (2) against Lido on the promissory note above referred to; (3) against the individual defendants for money furnished them by the plaintiff; and (4) against the individual defendants for money had and received. The answer of Lido was a general denial; payment; that the note sued upon was not given for valid consideration; that Lido was an accommodation maker and that the plaintiff was not a holder in due course; that the act of Lido in giving said note was ultra vires; and misrepresentation by the plaintiff and others. No answer of the individual defendants appears in the record.\nAt the close of the evidence the judge directed a verdict for the plaintiff in his action against Lido. The judge did not specify upon which count of the declaration the verdict should be returned but the parties have agreed that it was on count 2 and that count 1 is waived. At the same time the judge directed verdicts for the individual defendants on counts 3 and 4. The case comes here upon the exceptions of Lido to the order of the judge directing a verdict for the plaintiff against it and to the denial of the motion of Lido for a directed verdict for it. No exceptions were taken to the order of the judge directing verdicts for the individual defendants. The only matter before us then is the action of the judge in respect to the promissory note. We are of opinion that the judge erred in directing a verdict for the plaintiff against Lido.\nThe general rule is that a “verdict will not be directed for a party unless the evidence when construed most favorably to the opposite party would not warrant a contrary verdict, or unless evidence by which such opposite party is bound would make impossible a verdict in his favor.” Reardon Importing Co. v. Security Trust Co. 318 Mass. 304, 307.\nWe summarize the evidence in its aspects most favorable to Lido. The individual defendants, Campbell and Flanagan, sometime prior to the delivery of the note had entered into an agreement with one Raymond E. Shea, who owned all of the capital stock of Lido, to purchase that stock for $60,000. They gave Shea a deposit of $5,000 when this agreement was made. Lido operated a restaurant with an all alcoholic liquor license in Worcester. It developed that Campbell and Flanagan were unable to raise more than $20,000 cash including the deposit, and Campbell asked Shea to take back a chattel mortgage for the balance of the purchase price. Shea declined to do this but told him that possibly he could arrange financing for him. He said, “I’ll have you meet an associate of mine.” He called the plaintiff who came to the place of business of Lido where he met Campbell. As a result the plaintiff, Shea, and Campbell went later to Boston to the office of Kane Discount Company. Arrangements were made then or later whereby Kane Discount Company agreed to lend Campbell and Flanagan $30,000. The purchasers were still $10,000 short of meeting the purchase price. After further talks with Shea he told them that the plaintiff would lend them $10,000 on a note so that the purchase could be consummated. Subsequently, on August 9, 1946, they all met at the office of Shea’s lawyer in Worcester for the purpose of closing the purchase of the Lido stock. It does not appear when Shea delivered the stock to the purchasers but at some time Shea received a check for $30,000, the proceeds of the loan from Kane Discount Company, and a check for $15,000 from Campbell. At the same time the plaintiff received the note in suit which appears earlier in the margin. About the same time he turned over to Campbell his personal check for $10,000 payable to Lido. Campbell indorsed this check to Shea who indorsed it and turned it back to the plaintiff in payment of part of a loan which he claimed he owed the plaintiff. This check was never cashed nor deposited but was destroyed by the plaintiff later on the same day. The plaintiff testified that Shea owed him $15,000 at that time and that Shea subsequently paid him $10,000 on this debt. The plaintiff had an account in the Millbury National Bank on which the check for $10,000 was drawn but he had no idea of his balance in that bank when this check was drawn. The plaintiff knew that he was to receive the note in suit as part of this transaction. The net result of the transaction was that the plaintiff wound up with the defendant’s note for $10,000 and that the check he purportedly gave was cancelled and destroyed.\nLido argues that there was no evidence as to who was its treasurer when this note was given, and that no one could have been elected as such in the time which elapsed between the delivery of the stock by Shea and the delivery of this note. At first blush, in the absence of any evidence of the authority of Campbell to sign as treasurer of Lido, this might appear to be a good defence to an action against Lido on this note by the plaintiff, who was cognizant of all the circumstances attending the delivery of the stock and the note.\nBut this question is governed by Auburn State Bank v. National Laundry Co. 289 Mass. 397, where this court said at pages 398-399: \""The pleadings did not put in issue the genuineness of the signature of the defendant as maker of the note or the authority of Harry Rosenfield to sign the note for the defendant. G. L. (Ter. Ed.) c. 231, § 29, provides that a 'signature to an instrument declared on or set forth as a cause of action . . . shall be taken as admitted unless the party sought to be charged thereby files in court, within the same length of time after such instrument is pleaded as is allowed for an answer, a specific denial of the genuineness thereof and a demand that it shall be proved at the trial.’ This provision includes within its scope not only the actual signing of the instrument but also the authority of the signer, and is not complied with by a mere denial of the signature and of the authority of the signer to execute the instrument in behalf of the party for whom he purported to act. Scholl v. Gilman, 263 Mass. 295, 298, and cases cited. That the signature to the note in suit was the authorized signature of the defendant therefore was admitted.” McDuffee v. Kelsey, 312 Mass. 458, 459-460. See Boutillier v. Wesinger, 322 Mass. 495, 496. Because not set up as required by c. 231, § 29, this defence is not open to Lido.\nThe question before us then is the liability of Lido upon a note such as we have here. It is undoubtedly a negotiable instrument and comes within the provisions of G. L. (Ter. Ed.) c. 107. We must first determine what sort of a negotiable instrument it is. The evidence discloses that the plaintiff had at no time any intention to lend Lido any money or thing of value. While the check may have been made out to Lido, the plaintiff delivered it to Campbell in pursuance of the understanding that it was to be used to consummate the sale from Shea. The plaintiff was fully aware that the check was to be used to pay personal obligations of Campbell and Flanagan and that Lido was to receive no consideration for it. Therefore Lido was an accommodation maker of the note. G. L. (Ter. Ed.) c. 107, § 52.\nIn these circumstances we are of opinion that it was a question for- the jury to determine for whose accommodation Lido signed this note. Was it for the accommodation of the plaintiff or for the accommodation of Campbell and Flanagan? It is plain that Lido would not be liable to a party for whose accommodation it signed. Fillebrown v. Hayward, 190 Mass. 472. Goodman v. Gaull, 244 Mass. 528. Beacon Trust Co. v. Barry, 260 Mass. 449, 451-452. In the case at bar the jury would not be obliged to find that Lido had signed for the accommodation of Campbell and Flanagan rather than for the plaintiff. They could find it more probable that Lido signed at the request of the plaintiff in order that he might be more secure in his loan to Campbell and Flanagan. Because of what hereinbefore appears the jury could find that the plaintiff never made any loan to Campbell and Flanagan. The check the plaintiff gave them was never cashed or deposited by anyone. “On this record it was for the jury to say for whose accommodation the defendant signed.” Leonard v. Woodward, 305 Mass. 332, 334, and cases cited. United Beef Co. v. Childs, 306 Mass. 187. See Salem Trust Co. v. Deery, 289 Mass. 431, 435-436.\nLido has pleaded that the making of this note by it was ultra vires. But nowhere is this point argued in its brief and we therefore do not consider it. Rule 13 of the Rules for the Regulation of Practice before the Full Court (1952), 328 Mass. 698. We deem it appropriate to say, however, that if such a defence is set up at a subsequent trial it would be well if some evidence were introduced of the corporate powers of the defendant. See Bennett v. Corporation Finance Co. Inc. 258 Mass. 306; New Hampshire National Bank v. Garage & Factory Equipment Co. 267 Mass. 483.\nExceptions sustained.\n“$10,000 August 9, 1946\nFor value received The Lido of Worcester, Inc. promise to pay to G. Wayne Gibbs or order ten thousand and no/100............dollars Payable in 12 equal monthly installments of $833.33 on the principal commencing January 1, 1947 with interest at 6% commencing September 1, 1946 being payable commencing January 1, 1947 together with the principal installments set forth above, with the right to anticipate any and all payments. at the rate of six jjércentum per annum, during said term, and for such further time as said principal sum, or any part thereof, shall remain unpaid.\nThe Lido op Worcester, Inc.\nBy: William H. Campbell\nTreas.\nSigned in presence of: s/J.”\n“An accommodation party is one who has signed the instrument as maker, drawer, acceptor or endorser, without receiving value therefor, and for the purpose of lending his name to some other person. Such a person is liable on the instrument to a holder in due course, notwithstanding such holder at the time of taking the instrument knew him to be only an accommodation party.”"", ""type"": ""majority"", ""author"": ""Counihan, J.""}], ""attorneys"": [""In this court the case was submitted on briefs."", ""Clarence E. Tupper, for the defendant The Lido of Worcester, Inc."", ""Francis T. Mullin, for the plaintiff.""], ""corrections"": """", ""head_matter"": ""G. Wayne Gibbs vs. The Lido of Worcester, Inc. & others.\nWorcester.\nSeptember 28, 1954.\nApril 1, 1955.\nPresent: Qua, C.J., Lummus, Wilkins, Spalding, & Counlhan, JJ.\nBills and Notes, Accommodation. Pleading, Civil, Special demand, Admission of facts.\nIn an action against a corporation upon a promissory note purporting to have been made by it and to have been signed on its behalf by a certain person as its treasurer, the defence that that person was not its treasurer authorized to sign the note was not open in the absence of a specific denial and demand for proof respecting the signature as required by G. L. (Ter. Ed.) c. 231, § 29. £430]\nIt was error to direct a verdict for the plaintiff at the trial of an action against a corporation on a negotiable promissory note made by it and payable to the plaintiff where the evidence taken most favorably to the defendant disclosed that the note was given to the plaintiff as part of a transaction in which two persons purchased all the stock of the corporation, that if any money was advanced by the plaintiff it was to be used by the purchasers to pay part of their purchase price, and the defendant received no value and was an accommodation maker of the note under G. L. (Ter. Ed.) c. 107, § 52, and that there was a question remaining for the jury whether the defendant gave the note for the accommodation of the plaintiff or for the accommodation of the purchasers. £431]\nContract. Writ in the Central District Court of Worcester dated October 6, 1949.\nUpon transfer to the Superior Court, the action was tried before Donnelly, J.\nIn this court the case was submitted on briefs.\nClarence E. Tupper, for the defendant The Lido of Worcester, Inc.\nFrancis T. Mullin, for the plaintiff.""}, ""cites_to"": [{""cite"": ""267 Mass. 483"", ""case_ids"": [844090], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/267/0483-01""], ""opinion_index"": 0}, {""cite"": ""258 Mass. 306"", ""case_ids"": [3821415], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/258/0306-01""], ""opinion_index"": 0}, {""cite"": ""328 Mass. 698"", ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""opinion_index"": 0}, {""cite"": ""289 Mass. 431"", ""case_ids"": [492829], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""435-436""}], ""case_paths"": [""/mass/289/0431-01""], ""opinion_index"": 0}, {""cite"": ""306 Mass. 187"", ""case_ids"": [871847], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/306/0187-01""], ""opinion_index"": 0}, {""cite"": ""305 Mass. 332"", ""case_ids"": [3836952], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""334""}], ""case_paths"": [""/mass/305/0332-01""], ""opinion_index"": 0}, {""cite"": ""260 Mass. 449"", ""case_ids"": [848630], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""451-452""}], ""case_paths"": [""/mass/260/0449-01""], ""opinion_index"": 0}, {""cite"": ""244 Mass. 528"", ""case_ids"": [750541], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/244/0528-01""], ""opinion_index"": 0}, {""cite"": ""190 Mass. 472"", ""case_ids"": [837849], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/190/0472-01""], ""opinion_index"": 0}, {""cite"": ""322 Mass. 495"", ""case_ids"": [502030], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""496""}], ""case_paths"": [""/mass/322/0495-01""], ""opinion_index"": 0}, {""cite"": ""312 Mass. 458"", ""case_ids"": [483013], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""459-460""}], ""case_paths"": [""/mass/312/0458-01""], ""opinion_index"": 0}, {""cite"": ""263 Mass. 295"", ""case_ids"": [851777], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""298""}], ""case_paths"": [""/mass/263/0295-01""], ""opinion_index"": 0}, {""cite"": ""289 Mass. 397"", ""case_ids"": [492850], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/289/0397-01""], ""opinion_index"": 0}, {""cite"": ""318 Mass. 304"", ""case_ids"": [929721], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""307""}], ""case_paths"": [""/mass/318/0304-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""332 Mass. 426"", ""type"": ""official""}], ""file_name"": ""0426-01"", ""last_page"": ""432"", ""first_page"": ""426"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T16:34:58.622851+00:00"", ""decision_date"": ""1955-04-01"", ""docket_number"": """", ""last_page_order"": 470, ""first_page_order"": 464, ""name_abbreviation"": ""Gibbs v. Lido of Worcester, 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+938300,"{""id"": 938300, ""name"": ""Margaret U. Horne vs. Boston Consolidated Gas Company"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""fe66cbf12555ad2aee710601a5883a640f14aac8b763acfac1ea1d7344112542"", ""simhash"": ""1:e8a0618080deec40"", ""pagerank"": {""raw"": 0.00000007910444093458357, ""percentile"": 0.4610481151603819}, ""char_count"": 6537, ""word_count"": 1202, ""cardinality"": 397, ""ocr_confidence"": 0.616}, ""casebody"": {""judges"": [], ""parties"": [""Margaret U. Horne vs. Boston Consolidated Gas Company.""], ""opinions"": [{""text"": ""Counihan, J.\nThis is an action of tort for injuries sustained by the plaintiff when she tripped and fell by reason of the alleged defective condition of the cover of a gate box owned and maintained by the defendant on the sidewalk of East Newton Street, Boston. There was a verdict for the plaintiff, and the action comes here upon the exceptions of the defendant to the failure of the judge to direct a verdict for the defendant and to the failure of the judge to enter a verdict for the defendant under leave reserved. We are of opinion that the judge erred in failing to direct a verdict for the defendant.\nWe summarize the evidence in its aspects most favorable to the plaintiff. The gate box in question is constructed of heavy cast iron and weighs 30 pounds. It is 9 inches high and hollow. For a depth of 1% inches from the top the gate box is square. The remaining portion, 7M inches, to the base is circular and is 7% inches in diameter. The top of the box is 8 by 8 inches. The gate box when installed rested upon a gas pipe in the ground in which there is a valve to turn off the gas. There is an opening in the top Q}/2 inches square, into which is fitted a cover designed to rest on flanges set in the inside of the box at each corner, 1 % inches from the top. The sides of the cover are l3/£ inches in depth and designed to rest upon these flanges. The border of the box from the outside edge of it to the opening into which the cover is set is 10/i6 of an inch. The top of the box and the cover when properly installed are flush with the surface of the sidewalk. On two sides of the cover, at right angles to each other, are semicircular openings to enable a tool to be inserted to lift the cover. As the plaintiff walked along the sidewalk she stepped on this box and cover. The cover tipped or tilted causing her to fall. The plaintiff’s son, who happened to be in the vicinity, saw his mother fall and went to her assistance. He noticed that the cover was 2 or 3 inches off the top of the box at its easterly side leaving an opening 2 or 3 inches on its westerly side. He put the cover back into place and noticed that it was ^2 of an inch short of meeting the top of the box at its easterly side. The cover moved when he stepped on it. In response to his telephone call employees of the defendant came to the scene. One of them stepped on the cover and it moved. One of them then wedged a piece of wood with a mallet into the opening at the easterly side of the cover to hold it in place. Another of these employees testified that “if the box were in good condition it would not tip when you stepped on the cover; that if it does tip, it would indicate that it was not in good condition. ”\nThis last evidence together with evidence of the necessity of wedging in a piece of wood to hold the cover in place appears to us to establish that the gate box and the cover were in a defective condition. There was no evidence of any direct negligence on the part of the defendant in that there was an inherent defect in the gate box or cover or for any other reason, or that it had actual knowledge prior to the accident of this defective condition.\nIn order to establish liability of the defendant therefore the plaintiff must prove that in the exercise of reasonable care and diligence the defendant should have discovered this defect and remedied it. The only evidence on this aspect of the case is meager and to say the least meaningless. It came from the son of the plaintiff who testified that he had lived in that neighborhood for 10 years before the day of the accident and that he frequently had observed this cover. On each occasion he said “it had the appearance as shown in a photograph, exhibit 2. ” We have this photograph before us. The difficulty with this testimony, however, is that even with the aid of a magnifying glass we are unable to discern any defect in the cover. We are of opinion that this evidence would not warrant a finding that the defendant by the exercise of care and diligence could have discovered the defect and remedied it.\nWe think that this case falls within the principle set forth in Campbell v. Boston, 189 Mass. 7, at page 10, where this court said, “Ordinarily what constitutes reasonable diligence in the performance of the duty imposed upon the defendant is a question of fact to be determined from all the circumstances. . . . But there are cases where this may be a question of law. Thus it has been decided that in the absence of proof of actual notice, or of faulty construction, or repairs, and where no surface indications existed showing a want of repair or unfitness of a public way, or if present, they had existed for so short a time as not to furnish any ground for holding that the city or town should be held to have impliedly known of the defect, no liability attaches.”\nWe believe that this action falls within the class of cases represented by Gunning v. King, 229 Mass. 177,178, McCabe v. Boston Consolidated Gas Co. 314 Mass. 493, 496, and Wagman v. Morse, 320 Mass. 462, 464, rather than Harrigan v. Worcester, 198 Mass. 354, 355, and Kelly v. Springfield, 328 Mass. 16, 18, relied upon by the plaintiff. In these last two cases there was evidence that the existence of the defect could have been discovered in time to remedy it. Here no such evidence appears.\nExceptions sustained.\nJudgment for the defendant."", ""type"": ""majority"", ""author"": ""Counihan, J.""}], ""attorneys"": [""Philip L. Berkeley, for the defendant."", ""John C. Johnston & Harry J. Finkelstein, for the plaintiff, submitted a brief.""], ""corrections"": """", ""head_matter"": ""Margaret U. Horne vs. Boston Consolidated Gas Company.\nSuffolk.\nOctober 8, 1954.\nMarch 2, 1955.\nPresent: Qua, C.J., Lummus, Roman, Wilkins, Spalding, Williams, & Counihan, JJ.\nNegligence, Gate box, Gas company. Way, Public: gate box.\nA finding of negligence on the part of a gas company toward a pedestrian who fell on a public sidewalk by reason of a defective condition of the cover of a gate box of the company set in the sidewalk was not warranted on evidence not showing that there was any inherent defect or that the company had had actual notice of the defective condition before the accident or that the appearance of the cover had been such that the company in the exercise of proper care ought to have discovered and remedied the defective condition before the accident.\nTort. Writ in the Superior Court dated April 14, 1949.\nThe action was tried before Dowd, J.\nIn this court the case was argued before Qua, C.J., Lummus, Wilkins, Williams, & Counihan, JJ., and after-wards was submitted on briefs to all the Justices.\nPhilip L. Berkeley, for the defendant.\nJohn C. Johnston & Harry J. Finkelstein, for the plaintiff, submitted a brief.""}, ""cites_to"": [{""cite"": ""328 Mass. 16"", ""case_ids"": [514136], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""18""}], ""case_paths"": [""/mass/328/0016-01""], ""opinion_index"": 0}, {""cite"": ""198 Mass. 354"", ""case_ids"": [3498759], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""355""}], ""case_paths"": [""/mass/198/0354-01""], ""opinion_index"": 0}, {""cite"": ""320 Mass. 462"", ""case_ids"": [498098], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""464""}], ""case_paths"": [""/mass/320/0462-01""], ""opinion_index"": 0}, {""cite"": ""314 Mass. 493"", ""case_ids"": [932157], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""496""}], ""case_paths"": [""/mass/314/0493-01""], ""opinion_index"": 0}, {""cite"": ""229 Mass. 177"", ""case_ids"": [3455551], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""178""}], ""case_paths"": [""/mass/229/0177-01""], ""opinion_index"": 0}, {""cite"": ""189 Mass. 7"", ""case_ids"": [461719], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/189/0007-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""332 Mass. 312"", ""type"": ""official""}], ""file_name"": ""0312-01"", ""last_page"": ""315"", ""first_page"": ""312"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T16:34:58.622851+00:00"", ""decision_date"": ""1955-03-02"", ""docket_number"": """", ""last_page_order"": 353, ""first_page_order"": 350, ""name_abbreviation"": ""Horne v. Boston Consolidated Gas 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+999413,"{""id"": 999413, ""name"": ""Everett A. Hogland, Appellant, v. John Klein et al., Respondents"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""4cd29d7eab4bf06cbc26268df70480dc03f08ec06ccc745b536bf12ca267883f"", ""simhash"": ""1:ba624f2fdd8ecaba"", ""pagerank"": {""raw"": 0.0000006079282991745973, ""percentile"": 0.9553443077183265}, ""char_count"": 10643, ""word_count"": 1781, ""cardinality"": 582, ""ocr_confidence"": 0.637}, ""casebody"": {""judges"": [], ""parties"": [""Everett A. Hogland, Appellant, v. John Klein et al., Respondents.""], ""opinions"": [{""text"": ""Finley, J.\nThis appeal involves an action by the plaintiff to recover the contract price for moving a building and a counterclaim by the defendants for damages to the building, occurring during the moving operations.\nThe plaintiff, Everett A. Hogland, d/b/a Hogland Transfer Company, orally agreed with defendants to move a certain building (owned by defendants) from the Arlington, Washington airport to the defendants’ farm. Plaintiff agreed to furnish the timber, dollies, and other equipment necessary to be used in preparing the building for moving for the sum of twenty-five dollars per day. It was agreed that, under the direction of plaintiff’s supervising foreman, defendant John Klein and his employees would prepare the building for moving, and that the defendants would pay an additional twenty-five dollars per day for the services of the foreman. In addition, defendants agreed to pay truck hire to plaintiff transfer company for the actual moving of the building in accordance with the rate schedule as established by the public service commission of the state of Washington. Plaintiff and his employees were experienced house movers. Defendant Klein was not.\nIt was necessary to divide the building into two parts in order to move it. Plaintiff’s supervising foreman gave exr plicit directions as to the work to be done by Klein and his employees regarding the preparation of the first section of the building for moving. It was moved successfully to Klein’s premises. As to the second part of the building, the foreman did not so closely supervise the actual lowering of the building onto two large seventy-five-f oot timbers placed upon dollies, but defendant followed the foreman’s directions and did as he was told in that regard.\nAfter Mr. Klein and his employees completed preparation of the second part of the building for moving, the plaintiff’s employees hooked the section of the building to its truck. After it was moved only a short distance, one of the large seventy-five-foot supporting timbers (furnished by the plaintiff) broke, and the building was practically demolished. At this point, plaintiff’s employees apparently abandoned the project. Thereupon, the defendant, using plaintiff’s house-moving dollies and certain other equipment of the plaintiff, proceeded with the project and moved the damaged building to his farm.\nThereafter, the plaintiff transfer company commenced this action to recover $1,734.77, alleged to be due under the oral agreement for the use of its equipment and for the services of its supervising foreman. The defendant cross-complained for damages to the building which, allegedly, resulted from plaintiff’s negligence. The trial judge, applying the doctrine of res ipsa loquitur, held that the defendant was liable and indebted to the plaintiff in the sum of $1,259.77, and disallowed plaintiff’s claim for rental of his equipment for the period of several days that it was used by defendant after the accident to the building. He allowed defendant an offset of $900 damages, representing the difference in the value of the building before and after the accident. Judgment was entered for the plaintiff in the sum of $359.79. The plaintiff appealed.\nWe are of the opinion that the following facts as found by the trial court clearly warrant an application of the doctrine of res ipsa loquitur in the case at bar:\n“V. That the plaintiff furnished the equipment, including supporting timber, which were, under the supervision of the plaintiff’s foreman, installed preparatory to moving of the building by the defendant and his employees.\n“VI. That after completion of the building for moving by the defendant, under the instructions of the plaintiff’s supervising foreman, the plaintiff’s employees hooked up the building to the plaintiff’s truck and started to move the same and moved the same a short distance when one of the supporting timbers furnished by the plaintiff broke while under the management and control of the plaintiff’s employees, resulting in damage to the building.\n“VII. That the accident would not have happened in the ordinary course of events if the plaintiff or his employees had used reasonable care; that the plaintiff and his employees had the best opportunity to ascertain the causes of the accident and that the plaintiff has failed to come forward with evidence to explain the cause of the accident.” (Italics ours.)\nThe appellant contends that the facts in the instant case do not warrant an application of the res ipsa loquitur rule. He argues that he was not in exclusive control of the timber which broke, causing the damage to the building; but that actually it was the respondent’s crew who performed all the work of loading the building onto the timbers and thereafter letting it down on the dollies. However, the requirement, that the offending instrumentality be under the management and control of the defendant or his servants, does not mean actual physical control but refers rather to the right of control at the time of the accident. Legal control or responsibility for the proper and efficient functioning of the instrumentality which caused the injury and a superior, if not exclusive, position for knowing or obtaining knowledge of the facts which caused the injury, provide a sufficient basis for application of the doctrine. 65 C. J. S. 1017, § 220 (8); 38 Am. Jur. 977, § 300; Oldis v. La Societe Francaise De Bienfaisance Mutuelle, 130 Cal. App. (2d) 461, 279 P. (2d) 184; Taylor v. Reading Co., 83 F. Supp. 804.\nIt is our conclusion that the respondent made a prima facie case establishing a legal presumption of negligence. Thereafter, it devolved upon the appellant to produce evidence to meet and offset the effect of the presumption. The evidence produced by the appellant did not as a matter of law overcome the presumption, but merely gave rise to an issue of fact to be determined by the trial court; Mahlum v. Seattle School Dist. No. 1, 21 Wn. (2d) 89, 149 P. (2d) 918. The evidence in the record does not preponderate against the trial court’s findings that the appellant failed to come forward with evidence explanatory of the occurrence sufficient to meet and offset the effect of the presumption of negligence; consequently, the findings of the trial court will not be disturbed.\nNow, as to the question of damages. The trial court found that the value of the damaged portion of the building prior to the accident was one thousand dollars; that immediately after the accident its value was one hundred dollars. The trial court also found that the cost of repairing the damaged portion of the building far exceeded its actual value prior to the accident. The court concluded that the proper measure of damages was not the cost of repair but the difference in the value of the building immediately before and immediately after the accident.\nThe measure of damages adopted by the trial court was in accord with the general rule stated in 15 Am. Jur. 524, § 113, as follows:\n“The owner is entitled to recover the entire cost of restoring a damaged building to its former condition unless such cost exceeds its diminution in value as the result of the injury, in which event the recovery must be limited to the amount of such diminution. Under this rule the court should receive evidence both as to the cost of restoring the building and as to the amount of its diminished value, and then adopt as the measure of damages the lesser of the two amounts.”\nThe amount of damages allowed by the trial court in the instant case was proper under the above-stated rule.\nFinally, the appellant assigns error to that portion of the trial court’s finding of fact No. IX, reading:\n“ . . . but that the plaintiff is allowed no rental for the use of the equipment after December 13, 1954, the date the job would have been finished but for the accident and defendant is indebted to plaintiff in the sum of $1259.77 being the sum prayed for in the complaint less a credit of $475.00, rental charged for the use of the equipment from December 14, 1954 to January 1, 1955. ...”\nThe appellant takes the position that the respondent, having elected to use the appellant’s equipment and to complete the moving of the building after the accident rather than to take the salvage value of the damaged building and to return the rented equipment to the appellant, became liable to the appellant for the rental thereof in the sum of $475, and that the trial court erred in rejecting this item. We do not agree. It must be remembered that the respondent was forced into the dilemma by the negligence of the appellant. After the accident, respondent had the choice of two courses of conduct. He chose the one which seemed the more reasonable to him at the time. The wrongdoer cannot now complain that one alternative rather than the other was chosen. The applicable principles of law are adequately stated in the following texts:\n“While it is economically desirable that personal injuries and business losses be avoided or minimized as, far as possible by persons against whom wrongs have been committed, yet we must not in the application of the present doctrine lose sight of the fact that it is always a conceded wrongdoer who seeks its protection. Obviously, there must be strict limits to the doctrine. A wide latitude of discretion must be allowed to the person who by another’s wrong has been forced into a predicament where he is faced with a probability of injury or loss. Only the conduct of a reasonable man is required of him. If a choice of two reasonable courses presents itself, the person whose wrong forced the choice cannot complain that one rather than the other is chosen.” (Italics ours.) McCormick on Damages 133 (Hornbook Series), § 35.\n“The party injured is not under any obligation to use more than ordinary diligence. Prudent action is required, but ‘not that action which the defendant, upon afterthought, may be able to show would have been more advantageous to him.’ The amount of care required is not to be measured by ‘ex post facto wisdom’; and the plaintiff is not bound at his peril to know the best thing to do.” I Sedgwick on Damages 415 (9th ed.), § 221.\nThe amount of the judgment entered by the trial court should be the sum of $359.77 rather than $359.79. As modified in this respect, the judgment of the trial court is hereby affirmed.\nHamley, C. J., Schwellenbach, Donworth, and Ott, JJ., concur."", ""type"": ""majority"", ""author"": ""Finley, J.""}], ""attorneys"": [""Clarence J. Coleman, for appellant."", ""Leslie R. Cooper, for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 33462.\nDepartment One.\nJuly 3, 1956.]\nEverett A. Hogland, Appellant, v. John Klein et al., Respondents.\nClarence J. Coleman, for appellant.\nLeslie R. Cooper, for respondents.\nReported in 298 P. (2d) 1099.""}, ""cites_to"": [{""cite"": ""298 P. (2d) 1099"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""149 P. (2d) 918"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""21 Wn. (2d) 89"", ""case_ids"": [2602549], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/21/0089-01""], ""opinion_index"": 0}, {""cite"": ""83 F. Supp. 804"", ""case_ids"": [674620], ""category"": ""reporters:federal"", ""reporter"": ""F. Supp."", ""case_paths"": [""/f-supp/83/0804-01""], ""opinion_index"": 0}, {""cite"": ""279 P. (2d) 184"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""130 Cal. App. (2d) 461"", ""case_ids"": [2164523], ""category"": ""reporters:state"", ""reporter"": ""Cal. App. 2d"", ""case_paths"": [""/cal-app-2d/130/0461-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""49 Wash. 2d 216"", ""type"": ""official""}], ""file_name"": ""0216-01"", ""last_page"": ""222"", ""first_page"": ""216"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T18:32:24.712905+00:00"", ""decision_date"": ""1956-07-03"", ""docket_number"": ""No. 33462"", ""last_page_order"": 252, ""first_page_order"": 246, ""name_abbreviation"": ""Hogland v. 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+1008408,"{""id"": 1008408, ""name"": ""James M. Taylor, Appellant, v. Douglas J. Stimson et al., Respondents"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""4109869274103284c2f7eeb0b1c4b7789a664eb43a1f9e5252e99b48861c2cd1"", ""simhash"": ""1:fc53edd62a6bb546"", ""pagerank"": {""raw"": 0.00000012484034062374462, ""percentile"": 0.6095021369971763}, ""char_count"": 6274, ""word_count"": 1113, ""cardinality"": 386, ""ocr_confidence"": 0.68}, ""casebody"": {""judges"": [], ""parties"": [""James M. Taylor, Appellant, v. Douglas J. Stimson et al., Respondents.""], ""opinions"": [{""text"": ""Hill, C. J.\nThe issue presented is whether a tenant has made a prima facie case against his landlord in an action for personal injuries and property damage, occasioned by the breaking of a large store-front, plate glass window. The trial court granted a motion to dismiss at the conclusion of the plaintiff’s evidence, and entered an order of dismissal. The plaintiff appeals. We shall hereafter refer to the parties as the tenant and the landlord.\nThe tenant paid two hundred dollars to the agent of the landlord on November 26, 1955, as rent for the month of December, 1955. This was for additional store space, which -the tenant, a florist, needed for the Christmas season. He took possession immediately after paying the rent and before the 1st of December.\nThe dangerous condition of the window (the glass was detached from its frame at one of the top corners and left an opening of approximately three inches) was discovered by an employee of the tenant when he started to wash the window, and was reported to an agent of the landlord by the tenant.\nThere is likewise no dispute that an agent of the landlord, some time around December the 1st or 2nd, promised to have the condition repaired; whatever the date, it was after the lease was entered into, the rent paid, and possession taken.\nA glass company was requested by the landlord’s agent to do whatever was required, -but on December the 6th, before anything was done, a strong wind blew the glass out with resulting damage to the property of the tenant and injury to his person, which occurred while he was endeavoring to minimize the property damage.\nThe tenant concedes that the general rule is that a landlord is not responsible for injuries to a tenant from defects which are actually known to the tenant. He urges, however, that he comes within certain exceptions to the general rule, and that he established a prima facie case (1) for breach of contract, and (2) in tort.\nWe do not agree with either contention, and conclude that the trial court was right in dismissing the action.\nThe plaintiff fails on his contract theory, because there was no covenant to keep in repair, and no evidence of any agreement to make the specific repairs involving the window prior to or at the time the lease was made. The discovery of the dangerous condition of the window did not occur until after the lease was made and the tenant had gone into possession. (This circumstance distinguishes Johnson v. Dye (1924), 131 Wash. 637, 230 Pac. 625, on which the tenant relies.)\nIt follows that there was no contractual obligation on the landlord to make the repairs; that the tenant took the premises as he found them, and there was no implied warranty by the landlord that they were safe or fit for the purpose for which they were rented. Miller v. Vance Lbr. Co. (1932), 167 Wash. 348, 9 P. (2d) 351. (In the case of Stoops v. Carlisle-Pennell Lbr. Co. (1923), 127 Wash. 82, 219 Pac. 876, also relied on by the tenant, this court declined to pass on the issue of whether such a gratuitous promise to make repairs could give rise to liability against the landlord, but we thereafter met that issue squarely in Miller v. Vance Lbr. Co., supra.)\nNor is this a case where a tenant threatens to terminate a lease unless certain repairs are made and remains in possession because of a promise to repair.\nThere is no evidence of any consideration for the landlord’s promise to have the necessary repairs made to the window, and no liability attached by reason of his failure so to do. Miller v. Vance Lbr. Co., supra.\nAs indicated in the Miller case, the landlord is at liberty to repudiate, or to perform, such a promise. If he elected to perform it, then he would be liable for the manner of performance. Here, it is clear, we are concerned with a delay to perform a promise for which there was no consideration, and we are not concerned with any negligence or want of care in the manner of performance.\nThe plaintiff fails also on his tort theory.\nThere could be tort liability on the part of the landlord for a defect in the premises only if it was known, or should have been known, to the landlord, and not known to the tenant at the time the tenancy agreement was entered into. In Miller v. Vance Lbr. Co., supra, we quoted the following language from Mesher v. Osborne (1913), 75 Wash. 439, 447, 134 Pac. 1092, 48 L. R. A. (N.S.) 917,\n“To the general rule of the landlord’s nonliability for injury from defects, there is. the well recognized exception that, even in the absence of warranty or express agreement by the landlord to repair, he is liable to the tenant or the tenant’s guest as for a tort, where, with actual knowledge of obscure defects or dangers at the time of the letting, he lets the premises without disclosing such defects to a tenant who does not know, and by the exercise of reasonable care would not discover, them. The duty to disclose such latent defects and dangers when actually known to the landlord exists without regard to any covenant or lack of covenant to repair. But in the absence of such covenant, there is no duty of inspection on the landlord’s part to discover latent and unknown defects.”\nThere is no evidence in this case that the landlord had any knowledge that the window was in a dangerous condition until it was called to the attention of his agent by the tenant; and, as indicated in the foregoing quotation, in the absence of a covenant to repair there was no duty of inspection on the landlord’s part to discover latent and unknown defects.\nThe plaintiff has endeavored to bring himself within the ambit of the cases which relieve a tenant, during a reasonable period of time for the making of repairs by the landlord, from the defense of assumption of risk. Assumption of risk by the tenant does not become an issue until a duty to repair on the part of the landlord is established. The trial court concluded, and we agree, that no such duty was established.\nThe judgment of dismissal is affirmed.\nDonworth, Weaver, Rosellini, and Foster, JJ., concur."", ""type"": ""majority"", ""author"": ""Hill, C. J.""}], ""attorneys"": [""John L. Vogel, for appellant."", ""Leo A. Anderson and Carl P. Zapp, for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 34389.\nDepartment Two.\nMay 1, 1958.]\nJames M. Taylor, Appellant, v. Douglas J. Stimson et al., Respondents.\nJohn L. Vogel, for appellant.\nLeo A. Anderson and Carl P. Zapp, for respondents.\nReported in 324 P. (2d) 1070.""}, ""cites_to"": [{""cite"": ""324 P. (2d) 1070"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""48 L. R. A. (N.S.) 917"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A.N.S."", ""opinion_index"": 0}, {""cite"": ""134 Pac. 1092"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""75 Wash. 439"", ""case_ids"": [622661], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""pin_cites"": [{""page"": ""447""}], ""case_paths"": [""/wash/75/0439-01""], ""opinion_index"": 0}, {""cite"": ""219 Pac. 876"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""127 Wash. 82"", ""case_ids"": [8841137], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/127/0082-01""], ""opinion_index"": 0}, {""cite"": ""9 P. (2d) 351"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""167 Wash. 348"", ""case_ids"": [849973], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/167/0348-01""], ""opinion_index"": 0}, {""cite"": ""230 Pac. 625"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""131 Wash. 637"", ""case_ids"": [770236], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/131/0637-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""52 Wash. 2d 278"", ""type"": ""official""}], ""file_name"": ""0278-01"", ""last_page"": ""281"", ""first_page"": ""278"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T18:32:29.092998+00:00"", ""decision_date"": ""1958-05-01"", ""docket_number"": ""No. 34389"", ""last_page_order"": 343, ""first_page_order"": 340, ""name_abbreviation"": ""Taylor v. 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+1011250,"{""id"": 1011250, ""name"": ""B. M. McCormick, Appellant, v. W. T. Hoyt et al., Respondents"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""3d95b03bfba70d63addd1920a039c78917082a3c9012cbc4b2b25d65b45a19ec"", ""simhash"": ""1:7f4196aa112feac1"", ""pagerank"": {""raw"": 0.00000025733769786277597, ""percentile"": 0.8164676782314336}, ""char_count"": 8739, ""word_count"": 1510, ""cardinality"": 512, ""ocr_confidence"": 0.675}, ""casebody"": {""judges"": [], ""parties"": [""B. M. McCormick, Appellant, v. W. T. Hoyt et al., Respondents.""], ""opinions"": [{""text"": ""Rosellini, J.\nThis is an action by the appellant to recover the balance of the price of “one lot of clocks and clock materials” sold to the respondents. The respondents cross-complained, alleging that the merchandise was faulty in that many of the clocks were without works and other materials were unusable. The respondents asked for rescission of the contract and for a return of the payments they had made. The trial court found that under the circumstances of the sale, there was an implied warranty of merchantability, which was breached, and awarded the respondents a judgment of rescission of the contract. The appeal is from that judgment.\nThere is little dispute regarding the facts. The appellant, for approximately seven years and until 1954, operated a clock repair shop in Seattle. He had closed that shop about a year before the sale with which this case is concerned and had moved the clocks, cases, parts and materials used in connection with the business 'to the basement of his residence. At the time of the sale the appellant was no longer engaged in the business of clock repair or clock sales.\nW. T. Hoyt, referred to hereafter .as the respondent, had been actively engaged in the business of wholesaling jewelry and watch repairing for over fifty years. His son, an active participant in his father’s business, was also an expert clockmaker. The appellant and respondent had been acquainted for several years, the respondent having sold clock parts and supplies to the appellant.\nIn May, 1955, the appellant moved out of the house in which the clocks, cases, parts and materials were stored. He decided to dispose of these items and approached the' respondent. As a result of their conversation the respondent went, with his son, to the appellant’s house where he was given the opportunity to inspect the items. When he left the house, the appellant gave.him the key and told him to inspect the clocks and materials further at his leisure and to let him know what he decided. About a week later, the respondent called the appellant to his place of business where he made an offer for the lot, which offer the appellant accepted; and thereupon the respondent drew up a memorandum of sale of “one lot of clocks and clock parts” for $1,000. A down payment, of $75 was made at that time, and the balance was to be paid in installments of $75 per month.\nOn the evening of May 20, 1955, following execution of the memorandum, the respondent and his son personally moved the clocks and clock materials from the basement of the appellant’s house to a storeroom adjacent to the respondent’s shop. The respondent began working on the clocks immediately upon taking possession thereof. A second installment was paid on or about July' 1, 1955, and a $5 payment was made in August. In the latter part of August, the respondent returned the goods to the appellant, who refused to accept them, and this law suit followed.\nIt was the testimony of the respondent that, although he was given a full opportunity to inspect the offered items, as a practical matter he could not utilize it because the clocks and containers were stacked so close together and there were so many of them that an unwarranted amount of time would be consumed in the inspection. He therefore relied on the appellant’s description of them as “clocks and clock materials” and assumed that the clock cases which he saw contained clock movements. After he had removed the goods to his place of business, he began to examine them. Two months later he concluded that ninety-five per cent of the cases contained no clock works and an equal amount of the materials were unusable. He admitted that he and his son personally had carried all of the items out of the basement, but stated that they were in too much of a hurry to examine them- at that time.\n• The trial court treated this sale as a sale by description under subd. (2) of RCW 63.04.160, the uniform sales act. That provision reads:\n“Where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be of merchantable quality.”\nWe think this provision clearly inapplicable. In the first place, it applies only where the goods are identified by description, and not where the goods to be purchased are specified. Williams v. S. H. Kress Co., 48 Wn. (2d) 88, 291 P. (2d) 662; American Soda Fountain Co. v. Medford Grocery Co., 128 Ore. 83, 262 Pac. 939; 1 Williston on Sales 588, § 230.\nThe parties to this transaction contracted with reference to the clocks and other materials stored in the appellant’s basement. It was not the agreement that the appellant would select from those items those which were merchantable or which conformed to the standard or trade definition of “clock.” Rather, it was agreed that the respondent would make whatever inspection he desired to make and decide whether he wished to purchase the lot. This was done.\nThe evidence also showed that at the time of this transaction, the respondent was not a dealer in any sense, but was making an isolated sale of his stock in trade.\nIn support of the judgment, the respondent argues that subd. (1) of RCW 63.04.160 should apply. Under that provision,\n“. . . where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose.”\nThe respondent testified that he had expected to repair the clocks which he thought were contained within the clock cases and sell them as second-hand clocks. There was no testimony that he so informed the appellant; but assuming that this intention was implicit in the transaction, there was nothing to indicate to the appellant that the respondent, in making his decision to purchase, relied on the skill and judgment of the appellant. A secret reliance on the skill and judgment of the seller is not enough to give rise to the warranty. It must appear, at the time, that there is such reliance. RCW 63.04.160. See Frisken v. Art Strand Floor Coverings, 47 Wn. (2d) 587, 288 P. (2d) 1087. There was no contention that the appellant made express representations concerning the quality of the goods, or that the respondent requested any evaluation of the goods by the appellant. On the contrary, the respondent was told to exercise his own judgment in evaluating them and to take his time in inspecting. Due to his own carelessness, he failed to inspect and made his offer on the basis of assumptions, uncommunicated to the appellant. For this, the appellant cannot be held liable.\nThe defects which the respondent found in the clocks and materials were not latent, but were readily observable on inspection. Furthermore, as an expert of many years experience, the respondent was at least as capable of judging the quality of the goods as was the appellant.\nThe mere fact that an inspection will require labor and inconvenience does not give the buyer the right to assert an implied warranty of quality and fitness after he has been given an opportunity to inspect and failed to take advantage of it. Salzman v. Maldaver, 315 Mich. 403, 24 N. W. (2d) 161, 168 A. L. R. 381; Bailey Trading Co. v. Levy, 72 Cal. App. 339, 237 Pac. 408. As the rule is stated in 1 Williston on Sales 603, § 234, under the uniform sales act, as well as at common law, the buyer must have relied on the seller’s skill and judgment, and if the buyer has equal or superior skill and opportunity to exercise it, no inference of reliance may be warranted.\nSubdivision (2) of RCW 63.04.160 provides:\n“If the buyer has examined the goods, there is no implied warranty as regards defects which such examination ought to have revealed.”\nSuch were the defects in the clocks involved in this case. The absence of clock works inside the cases was readily discernible on the slightest examination. The weight of a clock case alone should indicate this fact to a layman. The respondent chose not to make an inspection and not to ask for a warranty, but to rely upon his own assumptions. If, in doing so, he made a bad bargain, the responsibility is his and not that of the appellant.\nThe judgment is reversed.\nHill, C. J., Donworth, Weaver, and Poster, JJ., concur."", ""type"": ""majority"", ""author"": ""Rosellini, J.""}], ""attorneys"": [""Montgomery, Montgomery & Purdue and John D. Blankinship, for appellant."", ""Chavelle & Millard (Glenn W. Toomey, of counsel), for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 34621.\nDepartment Two.\nJanuary 2, 1959.]\nB. M. McCormick, Appellant, v. W. T. Hoyt et al., Respondents.\nMontgomery, Montgomery & Purdue and John D. Blankinship, for appellant.\nChavelle & Millard (Glenn W. Toomey, of counsel), for respondents.\nReported in 333 P. (2d) 639.""}, ""cites_to"": [{""cite"": ""333 P. (2d) 639"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""237 Pac. 408"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""72 Cal. App. 339"", ""case_ids"": [2222335], ""category"": ""reporters:state"", ""reporter"": ""Cal. App."", ""case_paths"": [""/cal-app/72/0339-01""], ""opinion_index"": 0}, {""cite"": ""168 A. L. R. 381"", ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R."", ""opinion_index"": 0}, {""cite"": ""24 N. W. (2d) 161"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.W.2d"", ""opinion_index"": 0}, {""cite"": ""315 Mich. 403"", ""case_ids"": [1890304], ""category"": ""reporters:state"", ""reporter"": ""Mich."", ""case_paths"": [""/mich/315/0403-01""], ""opinion_index"": 0}, {""cite"": ""288 P. (2d) 1087"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""47 Wn. (2d) 587"", ""case_ids"": [5041745], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/47/0587-01""], ""opinion_index"": 0}, {""cite"": ""128 Ore. 83"", ""weight"": 2, ""case_ids"": [2000424], ""category"": ""reporters:state"", ""reporter"": ""Or."", ""case_paths"": [""/or/128/0083-01""], ""opinion_index"": 0}, {""cite"": ""291 P. (2d) 662"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""48 Wn. (2d) 88"", ""case_ids"": [996360], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/48/0088-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""53 Wash. 2d 338"", ""type"": ""official""}], ""file_name"": ""0338-01"", ""last_page"": ""343"", ""first_page"": ""338"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T16:38:11.782036+00:00"", ""decision_date"": ""1959-01-02"", ""docket_number"": ""No. 34621"", ""last_page_order"": 367, ""first_page_order"": 362, ""name_abbreviation"": ""McCormick v. 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+1039885,"{""id"": 1039885, ""name"": ""James Sposari et al., Respondents, v. Matt Malaspina and Company, Inc. et al., Appellants"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""ddd5021c58cd99b396809a87563dcb3b423fed4a96ded8842495534b7808636a"", ""simhash"": ""1:54dbe713c4589dfe"", ""pagerank"": {""raw"": 0.00000021546912698229833, ""percentile"": 0.7690707064388697}, ""char_count"": 20492, ""word_count"": 3487, ""cardinality"": 1018, ""ocr_confidence"": 0.637}, ""casebody"": {""judges"": [], ""parties"": [""James Sposari et al., Respondents, v. Matt Malaspina and Company, Inc. et al., Appellants.""], ""opinions"": [{""text"": ""Hale, J.\nThe best laid plans of a sewer construction may go awry. If the ditch happens upon an underground bog, an action at law is sure to follow. This is such a case.\nMatt Malaspina & Company, Inc., as a prime contractor in competitive bidding, won the contract with the Lake City Sewer District to construct a sewer in King County. Matt Malaspina, president of and dominating figure in the company, had known James Sposari and Joseph Macri for many years. He knew them personally and as partners in the excavating business. He knew that their experience in putting in sewers, water pipes and utility lines underground came from smaller jobs for individuals and land developers and that they had insufficient capital to stand by themselves as subcontractors on his Lake City contract. He knew, too, that they had been in business together for more than 6 years and that their work and experience had shown them to be competent in excavation jobs, though of smaller scope than the subcontracts contemplated by the prime Lake City contract.\nSposari and Macri talked the matter of a subcontract over with Mr. Malaspina many times; they studied the contract carefully after its award to Malaspina & Company and made a bid on a part of it. They undertook to do all of the work and make all of the installations specified by the prime contract in the area between North 155th Street on the north and North 145th Street on the south, including installing sewers along Interlake, Wallingford and Meridian Avenues. They started the job about June 10, 1959.\nDuring the first week of construction, they met their own payroll with money received from another job. In their second week, Mr. Malaspina advanced them $1,500 for their payroll, but cautioned them that thereafter they must look elsewhere for financing. The third week’s payroll was met by Sposari and Maori with money taken in on a different contract, and later Mr. Malaspina, despite earlier'warnings, advanced them an additional $2,000 by check with which to meet their current payroll. Subsequently, in about the sixth week of construction, Malaspina paid them by check for a small job they had done for him elsewhere.\nOn this last check he stopped payment, explaining to Sposari and Macri that he had learned they were not paying their bills for materials and supplies put into the Lake City contract. He said he had stopped payment on the check in self-protection as he would be held liable for these bills in the long run.\nAside from a scarcity of money on which to operate — a problem readily anticipated — Sposari and Macri ran into more serious obstacles. After finishing the sewer installation along Wallingford Avenue with fair speed, and while extending the sewer from a point in the plans marked “manhole 139” to another point called “manhole 148,” they unexpectedly ran into an underground bog or swamp.\nTheir progress dropped, as they estimated it, from over 160 feet per day to 250 feet in two weeks. The ditch filled with water sometimes to a depth of 4 feet; in some places it caved in and widened; they installed well points and pumps, which, at times, they had their crews operate around the clock. At other times, their crews had to stand by for several hours while the ditch area drained and dried. Mr. Malaspina said that they were tardy in putting in the well points and niggardly in operating the pumps, and that these blunders inexcusably forced the crew to stand idle at times during the regular day shift.\nMalaspina, worried that the slow going in this sector would jeopardize his completion of the prime contract, pressed Sposari and Macri to speed up. He said that underground waters of this sort were to be expected and that, had Sposari and Macri put in well points and pumps early enough and kept them going day and night, the problems caused by the water would have been small. Sposari and Macri countered this, saying that they had taken all reasonable steps to keep the job moving and that, once through the bog, they would have easier going and could readily make up the lost time in the remaining portion of their part of the project.\nOut of the swamp, or bog, emerged an enigma: Did Spo-sari and Macri give up the job, or did Malaspina take it away from them? From conflicting evidence, a jury decided that Mr. Malaspina had, in violation of his agreement, terminated Sposari and Macri and turned the unfinished part of their subcontract over to others. The jury awarded Sposari and Macri $13,500 against Matt Malaspina & Company, Inc., as damages for breach of contract.\nFrom a judgment on this verdict, Malaspina & Company appeals; we will discuss two of the three assignments of error.\n(1) Did the court err in excluding evidence of debts incurred by the plaintiffs for materials and supplies delivered to and put into the construction by them as subcontractors which debts the prime contractor orally promised to the creditors he would pay but had not paid?\n(2) Did the court err in submitting to the jury the issue of anticipated profits?\nOn the point raised by the first assignment of error, Mr. Malaspina testified that the materialmen and suppliers had all done business with him for many years on excellent terms. Many of them, he said, looked to him for assurances of payment for materials ordered by, delivered to, and put into the job by Sposari and Macri. He said that a number of these creditors would not have delivered such items as concrete and metal pipe, crushed gravel and timber, to the jobsite but for his promises to them that he would see to the payment of their invoices and, if necessary, would pay them himself. The court struck from the record and removed from the jury’s consideration all invoices that were not actually paid by Malaspina. They came to a total of $3,521.09, owing and unpaid to five separate suppliers whom Malaspina had orally promised to pay if plaintiffs failed to do so. He now argues his own liability on these oral representations to these unpaid creditors as a proper offset to plaintiffs’ claim for loss of expected profits, even though none of these creditors have been joined as parties or appeared as witnesses to prove their claims. Appellants assert error in the trial court’s removal of these debts from the cause.\nAt the outset, the language of the statute of frauds gives us a clue to the proper decision. RCW 19.36.010(2). If the promises made come within the meaning of the act as being special promises to answer for the debt default or misdoings of another person, and are not in writing, they are unenforceable against the promissor and, thus, not available as an offset in defense to an action for lost profits. In trying to determine if the promises are of such nature as to fall within the statute of frauds, we must ascertain if the oral promise was a direct, original agreement, constituting an undertaking on the part of the promissor to the creditor to pay for the materials, or whether it was merely a collateral agreement by the promissor to answer for the debts of another if the latter did not discharge them. If the promise is merely collateral, it comes within the statute. RCW 19.36.010(2). If, on the other hand, it falls within the first category and is a direct, original undertaking to pay for goods delivered to another, then the agreement created by the promise on the one side and the delivery of the goods on the other is, though made in parol, enforceable. Stowell Lbr. Corp. v. Wyman, 19 Wn. (2d) 487, 143 P. (2d) 457.\nOur study of the evidence shows that, even in granting to appellants, every inference favorable to the forming of an enforceable promise to pay the materialmen, the promises created no binding contract on their part arising solely for the promise and delivery of the goods. Malaspina’s oral representations, that he would take care of the bills if they were not paid by respondents, we think, gave the suppliers no cause of action directly against him.\nAssuming, arguendo, though, that appellants’ oral representations to the materialmen place them in the status of guarantors — a position taken by them here — they would be bound to a conditional promise only, that is a promise to pay only if the respondents failed to do so. The undertaking, being thus conditional, imposed no liability upon appellants even though they were guarantors, until the creditors had exhausted their remedies against the purchasers. As to the creditors’ accounts stricken by the trial court, no proof was presented other than appellants’ declaration that Malaspina deemed himself and his company liable. 24 Am. Jur., Guaranty § 112. We have no proof that as to these particular claims the creditors ever sought enforcement or asserted any rights against Malaspina under the purported guaranty.\nThe materials involved were ordered by Sposari and Macri and delivered to them at the jobsite, and worked by them into the project. No creditors appeared at trial to declare that but for appellant Malaspina’s assurances they would not have made the delivery; nor had any part of the bills excluded by the court been paid by respondents. Thus, there was no evidence to submit to the jury that the assurances given by appellant Malaspina to the creditors were other than collateral promises, and promises thus collateral do not bring this case within our ruling in Fairview Lbr. Co. v. Makos, 44 Wn. (2d) 131, 265 P. (2d) 837. There, the promises were made directly to the suppliers in the presence of the purchaser after the supplier had announced that he would make no further deliveries on credit until his balance then due had been paid, and, in addition, the promissor actually paid a part of the bill then due.\nIn the instant case, the trial court had no basis in evidence to submit to the jury the issue of whether the appellant Malaspina had bound himself to pay the unpaid bills for materials. We should point out that the cases called to our attention which are said to hold otherwise (Fairview Lbr. Co. v. Makos, supra; Dybdahl v. Continental Lbr. Co., 133 Wash. 81, 233 Pac. 10; Drew-Warren Radio Elec. Co. v. Western Loan & Bldg. Co., 148 Wash. 435, 269 Pac. 496; and Stowell Lbr. Corp. v. Wyman, supra) are actions by the promisee against the promissor to enforce the promises and, hence, not controlling here.\nWhen Mr. Malaspina asserts his liability for debts which he may never be required to pay, he brings the case into analogy with Appleford v. Snake River Mining, Milling & Smelting Co., 122 Wash. 11, 210 Pac. 26, 29 A.L.R. 268. There, in an action for contributions by one guarantor against the maker and coguarantors on a promissory note, we denied recovery beyond the amount actually paid by plaintiff as guarantor, saying:\n“ . . . Since the respondent’s action is not on the notes but on the implied promise of the maker of them to protect him, his recovery can be only the amount which he was required to and did pay, plus the legal rate of interest and without any attorney’s fee. It would be inequitable for the respondent, as a guarantor, to recover of the maker of the notes a sum in excess of the amount he has been required to pay. For illustration, if the respondent had sue-ceeded in compromising this claim, and had discharged the notes for less than the amount due, he could not recover more than he had paid. Any other rule would not be one of protection, but would permit the guarantor to speculate and make a profit out of his guaranty. ...” (Italics ours.)\nThe trial court properly struck from the evidence proof of bills incurred by respondents but not paid by appellants.\nAppellants next invite our attention to the assignment of error directed against submitting the issue of anticipated profits to the jury. They challenge the proof on this issue as being conjectural and below the requirement of reasonable certainty.\nHere is the proof prima facie upon which respondents make their claim for loss of anticipated profits. Sposari and Macri proved that they had been partners in underground utility installation work since 1953, involving mostly smaller jobs for individuals or residential land developers. This was the largest contract undertaken by them. They studied the bids prepared by Malaspina & Company’s estimator, personally inspected all areas of the proposed construction and studied the plans and specifications in detail.\nThey then broke their subcontract down into components by listing all of the materials to be used, the prices thereof based on quotations from suppliers and materialmen, the equipment to be employed and the crew thought necessary to operate it; from this latter estimate they figured the crew at hourly and daily rates and then added the costs of overhead and maintenance, and to the total they added 20 per cent for anticipated profit. Their estimates and computations they based in part upon their general experience in the business and their handling of the same types of equipment, crews and materials for over 6 years.\nSposari, for example, testified in detail as to the make up of his bid. He figured laying of pipe with a five-man crew at $1.09 per foot, to which he added the cost of pipe at $2.05 per foot, a figure obtained from the suppliers. He added 6 cents per foot for office overhead, 5 cents for insurance and another 5 cents for miscellaneous costs which in-eluded gas and oil for trucks and equipment and the use of small tools.\nHis costs were broken down another way. Excavation was figured at $1.30 per foot, backfilling at 77 cents, grading at 10 cents and cleaning up at 5 cents a foot. They calculated the cost of installing each manhole separately as these varied in depth according to the plans and specifications.\nTo the estimated amount of materials, such as pipe, crushed gravel and timbering, necessarily going into the job, respondents applied the unit prices from the open market, and they correlated their total costs for materials, labor, supplies and equipment with estimates of the average number of feet of pipe they would expect to lay in a day. This last factor commonly referred to in the business as their “average daily footage” they figured at 160 feet in making up their bid.\nThey said that their profit on the entire subcontract figured at 20 per cent of their total costs would have come to $27,946.30, which, when included in their actual bid, gave them the final submitted figure of $140,000.\nThey presented proof that, before reaching the swamp, their daily footage came to just over 160 feet. Having a total of 330 feet of the inordinately wet area to traverse, they worked for 2 weeks installing 250 feet of pipe in it, but had only 80 feet more to go in that sector when Mr. Malaspina directed them to get off the project.\nIn submitting the issue of damages, the court instructed the jury that, if the defendant Malaspina wrongfully prevented plaintiffs from completing the contract, they would be entitled to recover the amount of profits they might reasonably be expected to earn on that part of the job they were prevented from performing.\nAppellants denounce the anticipated profits as being illusory, uncertain and speculative in general and not susceptible of proof in particular because the contract on which they were computed was never performed, thus leaving the matter of profits a matter of pure guess. Appellants insist that the claim of loss of profits is made on a prediction of 20 per cent profits to be derived from evidence that shows respondents actually lost money on that part of the contract actually performed. Thus, in appellants’ view, a claim of 20 per cent loss of profits on the total job — in the absence of expert testimony concerning the profits reasonably to be expected under all of the circumstances — resulted in a sheer guess by the jury.\nRespondents counter this argument by showing the precise and detailed manner of preparing their bid and pointing to their considerable experience in this line of work, and urge that damages need not be proved with absolute certainty but only to a reasonable degree. They say that the evidence showed á probability that the time lost in running the ditch through the swamp could readily be made up in the remaining area where the going would be easier.\nWe accept appellants’ statement that damages will not be allowed for loss of expected profits unless the loss be shown with reasonable certainty and a reasonable degree of accuracy, and that the testimony establishing the loss must be free of speculation and conjecture. Automatic Canteen Co. of Washington v. Automatic Canteen Co. of America, 182 Wash. 133, 45 P. (2d) 41; DeHoney v. Gjarde, 134 Wash. 647, 236 Pac. 290; Brinnon Logging Co. v. Carlsborg Mill & Tbr. Co., 122 Wash. 483, 210 Pac. 945.\nBut we also acknowledge and give equal status to the correlative rule that, where an enterprise or undertaking in which profits were contemplated is thwarted by tortious misconduct or by reason of a breach of contract, the loss of anticipated profits, if proved with reasonable certainty, may be an item of damages occasioned by the tortious misconduct or breach of contract. Difficulty in ascertaining the damages, or uncertainty as to the amount, provides no basis in logic for denial in toto. If the evidence affords a reasonable basis for establishing the loss, an issue arises to be resolved by the trier of the facts. Wenzler & Ward Plumbing & Heating Co. v. Sellen, 53 Wn. (2d) 96, 330 P. (2d) 1068; Gaasland Co. v. Hyak Lbr. & Millwork, 42 Wn. (2d) 705, 257 P. (2d) 784; Dunseath v. Hallauer, 41 Wn. (2d) 895, 253 P. (2d) 408.\nWe commend to this case the application of 1 Restatement, Contracts § 346:\na\n“(2) For a breach by one who has promised to pay for construction, if it is a partial breach the builder can get judgment for the instalment due, with interest; and if it is a total breach he can get judgment, with interest so far as permitted by the rules stated in § 337, for either\n“(a) the entire contract price and compensation for unavoidable special harm that the defendant had reason to foresee when the contract was made, less instalments already paid and the cost of completion that the builder can reasonably save by not completing the work; . . . ”\nExplanation of this rule, as stated in the comment thereto, covers the instant situation:\n“Another common form of stating the measure of recovery is as follows: Damages, measured by the builder’s actual expenditure to date of breach less the value of materials on hand, plus the profit that he can prove with reasonable certainty would have been realized from full performance. This is a correct rule and is in fact the equivalent of the rule stated in Clause (a) of this Subsection, provided that all the elements that justly enter into the determination of cost of completion are considered in determining expected profits. . . . ” 1 Restatement, Contracts § 346 Comment h.\nProfits here would have been the total amount in dollars to be received by respondents from appellants for completing the contract, minus their total costs of completion.\nAppellant Malaspina had every opportunity to meet respondents’ estimates from which loss of profits were derived with proof showing that no profit could be realized or that respondents must inevitably have suffered a loss had they completed the job.\nThe detailed and explicit evidence of costs and expenses to complete the job — and from which respondents made their bid — considered in relation to a computed percentage thereof for profits, in our view, met the law’s standards of proof of damage to a reasonable certainty. And, in so doing, it gave rise to the issue of loss of expected profits, an issue, the ultimate decision of which rested with the jury.\nJudgment affirmed.\nOtt, C. J., Hill, Rosellini, and Hunter, JJ., concur.\nTn the following cases, specified in this section, any agreement, contract and promise shall be void, unless such agreement, contract or promise, or some note or memorandum thereof, be in writing, and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized, that is to say: . . . (2) Every special promise to answer for the debt, default, or misdoings of another person; ...” RCW 19.36.010(2)."", ""type"": ""majority"", ""author"": ""Hale, J.""}], ""attorneys"": [""Lycette, Diamond & Sylvester and Lyle L. Iversen, for appellants."", ""Benson & Atwell, for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 36744.\nDepartment One.\nJanuary 30, 1964.]\nJames Sposari et al., Respondents, v. Matt Malaspina and Company, Inc. et al., Appellants.\nLycette, Diamond & Sylvester and Lyle L. Iversen, for appellants.\nBenson & Atwell, for respondents.\nReported in 388 P. (2d) 970.""}, ""cites_to"": [{""cite"": ""388 P. (2d) 970"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""253 P. (2d) 408"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""41 Wn. (2d) 895"", ""case_ids"": [4987255], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/41/0895-01""], ""opinion_index"": 0}, {""cite"": ""257 P. (2d) 784"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""42 Wn. (2d) 705"", ""case_ids"": [5002228], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/42/0705-01""], ""opinion_index"": 0}, {""cite"": ""330 P. (2d) 1068"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""53 Wn. (2d) 96"", ""case_ids"": [1011256], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/53/0096-01""], ""opinion_index"": 0}, {""cite"": ""210 Pac. 945"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""122 Wash. 483"", ""case_ids"": [759274], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/122/0483-01""], ""opinion_index"": 0}, {""cite"": ""236 Pac. 290"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""134 Wash. 647"", ""case_ids"": [782330], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/134/0647-01""], ""opinion_index"": 0}, {""cite"": ""45 P. (2d) 41"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""182 Wash. 133"", ""case_ids"": [872002], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/182/0133-01""], ""opinion_index"": 0}, {""cite"": ""29 A.L.R. 268"", ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R."", ""opinion_index"": 0}, {""cite"": ""210 Pac. 26"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""122 Wash. 11"", ""case_ids"": [759440], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/122/0011-01""], ""opinion_index"": 0}, {""cite"": ""269 Pac. 496"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""148 Wash. 435"", ""case_ids"": [794071], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/148/0435-01""], ""opinion_index"": 0}, {""cite"": ""233 Pac. 10"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""133 Wash. 81"", ""case_ids"": [784400], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/133/0081-01""], ""opinion_index"": 0}, {""cite"": ""265 P. (2d) 837"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""44 Wn. (2d) 131"", ""case_ids"": [2422382], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/44/0131-01""], ""opinion_index"": 0}, {""cite"": ""143 P. (2d) 457"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""19 Wn. (2d) 487"", ""case_ids"": [2590857], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/19/0487-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""63 Wash. 2d 679"", ""type"": ""official""}], ""file_name"": ""0679-01"", ""last_page"": ""690"", ""first_page"": ""679"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T20:27:35.964362+00:00"", ""decision_date"": ""1964-01-30"", ""docket_number"": ""No. 36744"", ""last_page_order"": 708, ""first_page_order"": 697, ""name_abbreviation"": ""Sposari v. Matt Malaspina & 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+1040156,"{""id"": 1040156, ""name"": ""Sam Sortland et al., Respondents, v. Richard Sandwick et al., Appellants, Edwin Swan, Defendant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""b72d4fab771d578a62759ad60c088e0751ce97775f7441d3d3315522d45bd329"", ""simhash"": ""1:ebe6b18a9a43dcfe"", ""pagerank"": {""raw"": 0.00000008643901920210839, ""percentile"": 0.4912087538694341}, ""char_count"": 8658, ""word_count"": 1467, ""cardinality"": 450, ""ocr_confidence"": 0.665}, ""casebody"": {""judges"": [], ""parties"": [""Sam Sortland et al., Respondents, v. Richard Sandwick et al., Appellants, Edwin Swan, Defendant.""], ""opinions"": [{""text"": ""Hill, J.\nThis is a rear-end collision case. Four cars are involved-; and we will designate the cars by the names of the drivers. Wayson is the lead car of the four, and he stopped behind other cars waiting at a traffic light; he is not involved in the litigation except as a witness. Sortland is the number two car, and he stopped behind Wayson. Swan is the number three car, and he stopped behind Sort-land. (This is the conclusion of the trial court, which was supported by substantial evidence, although the appellant Sandwick urges that Swan stopped because he hit Sort-land.) Sandwick is the number four car, and that he hit the Swan car and that it “surged” forward is not disputed. He further testified that he saw no brake lights on the Swan car.\nSortland sustained serious injuries (including brain damage), and brought an action against both Swan and Sandwick.\nThe case was submitted to the jury on the theory that there could be a recovery against Swan, or against Sand-wick, or against both if the jury found concurring negligence.\nThe jury apparently proceeded on the theory of concurring negligence because it brought in a verdict against both defendants in the sum of $16,000.\nThereafter, the trial court granted a judgment notwithstanding the verdict as to the defendant Swan, dismissed him from the case and entered judgment against the defendant Sandwick. The defendant Sandwick appeals.\nSandwick contends, in his brief,- that the verdict was excessive; but did not even refer to this contention, which we find to be entirely without merit, in his oral argument.\nAs appellant, Sandwick’s primary contention is: Sortland, as plaintiff, proved only that he was injured in consequence of being struck from the rear by Swan’s car, but failed to prove whether it was Swan’s negligence or Sandwick’s negligence. (It is his position that there was no evidence of concurring negligence having occasioned the Sortland injuries, and that there could not be a judgment against both.)\nIt was Sandwick’s theory that before he hit Swan the latter had already hit Sortland and caused him to collide with Wayson. This he refers to as the “two-crash” theory, and insists that if the case was to go to the jury, it should, in all events, have been limited to a choice between the “two-” and the “one-crash” theory.\nUnder the “two-crash” theory, it was the first crash— Swan hitting Sortland — that rendered the latter unconscious and was responsible for his injuries. Under this theory Swan had hit Sortland, and the impact had left his car some distance behind Sortland who had hit Wayson. Sand-wick then hit Swan, and this sent Swan into Sortland a second time and made Sortland bump Wayson, a second time, thus accounting for the second, lighter and almost simultaneous jolt concerning which Wayson testified.\nThe “one-crash” theory is that it was Sandwick’s hitting Swan which caused his car to “surge” forward and initiated the chain reaction that caused Sortland’s injuries. There was substantial evidence to sustain this theory, and the jury’s right to find that Sand wick was negligent cannot be gainsaid.\nThe trial court, after considering the post-trial motions, concluded that there was no substantial evidence of Swan’s negligence to sustain the “two-crash” theory and that it should not have been submitted to the jury; and, for that reason, granted the judgment n.o.v. as to Swan. We agree with the trial court.\nThe testimony of the witnesses, as it bore on the probability of the “two-crash” theory, was briefly as follows: Wayson testified that he felt two almost simultaneous “jolts,” the second one being the lighter of the two. Sort-land was rendered unconscious, when his car was hit, and did not know whether it was hit a second time. Swan testified that there was but one crash and that he was stopped behind the Sortland car 5 to 8 seconds before Sandwick hit him and caused him to hit Sortland.\nSandwick claimed that the Swan car stopped suddenly in front of him and that he saw no brake lights. He did not testify that he either saw or heard Swan hit Sortland; he merely conjectured that Swan stopped because he had hit Sortland inasmuch as he (Sandwick) did not see any brake lights.\nNeither Sandwick’s conjecture, nor the speculative inference from Wayson’s testimony about an almost simultaneous second and lighter “jolt,” is sufficient to establish two independent crashes — one caused by Swan, the second by Sandwick. Nor do the damages sustained by the cars add support to either the conjecture or the speculative inference. Sandwick’s car, damaged only on the front end, had a repair bill of $209. Swan’s car, sandwiched in between Sortland and Sandwick and thus damaged fore and aft, had a repair bill of $322. As the trial judge said,\n“ ... in collisions such as we are involved with here there is such a complexity of forces and results that the physical damage to the vehicles affords no idea whether there were one or two impacts.\n“The physical damage to the Swan and Sardwick vehicles taken alone or taken into consideration with the testimony of Wayson that he felt two impacts does not give rise to any reasonable inference that there were in fact two impacts, the first of which was initiated by the force of the Swan vehicle. ...”\nSupporting the trial court’s conclusion that the “two-crash” theory (predicated as that theory is upon the negligence of Swan, the evidence of which was speculative and conjectural) should not have been presented to the jury, are a number of cases of which Arnold v. Sanstol (1953), 43 Wn. (2d) 94, 260 P. (2d) 327, is typical. We there said (p. 99): “A verdict cannot be founded on mere theory or speculation.”\nThe jury, by its verdict, found that both Swan and Sand-wick were negligent and that the negligence of each was a proximate cause of Sortland’s injuries. There being no substantial evidence to sustain that finding, as to Swan, there could be no concurring negligence and no judgment against him. On the other hand, there was substantial evidence to sustain the finding that Sandwick was negligent and that his negligence was a proximate cause of Sortland’s injuries; and, hence, the trial court properly entered a judgment against him.\nSandwick, in his reply brief, vigorously presented the challenging contention that he was aggrieved by and, hence, could appeal from the judgment n.o.v. in favor of the defendant Swan and his dismissal from the case because Sandwick was entitled to contribution from Swan as a concurrent tort feasor.\nWe have had to consider the merits of Swan’s dismissal from the case in order to show that the judgment against Sandwick should be sustained; and that this was not a case of choosing one of two speculative and conjectural theories, as in Gardner v. Seymour, 27 Wn. (2d) 802, 180 P. (2d) 564, and Cambro v. Snook (1953), 43 Wn. (2d) 609, 262 P. (2d) 767; rather, that this was a case where only one theory was speculative and conjectural and the other was supported by substantial evidence. For that reason Sandwick has, in effect, had a consideration on the merits of the dismissal of Swan, whether or not the former was technically or practically an aggrieved party, insofar as the dismissal of the latter was concerned.\nHowever, further supporting his contention that he was aggrieved by the dismissal of Swan, the appellant Sand-wick urged that we should overrule our decisions holding that there was no contribution between joint or concurrent tort feasors.\nSustaining, as we do, the trial court’s conclusion that there was not sufficient evidence to take the issue of Swan’s negligence to the jury, we do not reach a consideration of the contribution issue.\nThe judgment against the defendant Sandwick is affirmed.\nOtt, C. J., Rosellini, and Hale, JJ., and Dawson, J. Pro Tern., concur.\nSortland did not appeal from the portion of the judgment dismissing Swan from the case.\nWilson v. Northern Pac. R. Co. (1954), 44 Wn. (2d) 122, 130, 265 P. (2d) 815; Stevens v. King Cy. (1950), 36 Wn. (2d) 738, 747, 220 P. (2d) 318; Carley v. Allen (1948), 31 Wn. (2d) 730, 737, 198 P. (2d) 827; Gardner v. Seymour (1947), 27 Wn. (2d) 802, 809, 180 P. (2d) 564; Home Ins. Co. v. Northern Pac. R. Co. (1943), 18 Wn. (2d) 798, 802, 803, 140 P. (2d) 507, 147 A.L.R. 849; Prentice Packing & Storage Co. v. United Pac. Ins. Co. (1940), 5 Wn. (2d) 144, 164, 106 P. (2d) 314."", ""type"": ""majority"", ""author"": ""Hill, J.""}], ""attorneys"": [""• Daniel Frederick Sullivan, for respondents."", ""McMullen & Prince and George N. Prince, for appellants.""], ""corrections"": """", ""head_matter"": ""[No. 36900.\nDepartment One.\nOctober 31, 1963.]\nSam Sortland et al., Respondents, v. Richard Sandwick et al., Appellants, Edwin Swan, Defendant.\n• Daniel Frederick Sullivan, for respondents.\nMcMullen & Prince and George N. Prince, for appellants.\nReported in 386 P. (2d) 130.""}, ""cites_to"": [{""cite"": ""386 P. (2d) 130"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""106 P. (2d) 314"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""5 Wn. (2d) 144"", ""case_ids"": [5804818], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""164""}], ""case_paths"": [""/wash-2d/5/0144-01""], ""opinion_index"": 0}, {""cite"": ""147 A.L.R. 849"", ""year"": 1940, ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R."", ""opinion_index"": 0}, {""cite"": ""140 P. (2d) 507"", ""year"": 1940, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""18 Wn. (2d) 798"", ""case_ids"": [2587085], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""802, 803""}], ""case_paths"": [""/wash-2d/18/0798-01""], ""opinion_index"": 0}, {""cite"": ""198 P. (2d) 827"", ""year"": 1947, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""31 Wn. (2d) 730"", ""case_ids"": [2496750], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""737""}], ""case_paths"": [""/wash-2d/31/0730-01""], ""opinion_index"": 0}, {""cite"": ""220 P. (2d) 318"", ""year"": 1948, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""36 Wn. (2d) 738"", ""case_ids"": [4938756], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""747""}], ""case_paths"": [""/wash-2d/36/0738-01""], ""opinion_index"": 0}, {""cite"": ""265 P. (2d) 815"", ""year"": 1950, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""44 Wn. (2d) 122"", ""case_ids"": [2422325], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""130""}], ""case_paths"": [""/wash-2d/44/0122-01""], ""opinion_index"": 0}, {""cite"": ""262 P. (2d) 767"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""43 Wn. (2d) 609"", ""case_ids"": [5007905], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/43/0609-01""], ""opinion_index"": 0}, {""cite"": ""180 P. (2d) 564"", ""year"": 1953, ""weight"": 2, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""27 Wn. (2d) 802"", ""weight"": 2, ""case_ids"": [2520169], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""809""}], ""case_paths"": [""/wash-2d/27/0802-01""], ""opinion_index"": 0}, {""cite"": ""260 P. (2d) 327"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""43 Wn. (2d) 94"", ""case_ids"": [5008635], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/43/0094-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""63 Wash. 2d 207"", ""type"": ""official""}], ""file_name"": ""0207-01"", ""last_page"": ""212"", ""first_page"": ""207"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T20:27:35.964362+00:00"", ""decision_date"": ""1963-10-31"", ""docket_number"": ""No. 36900"", ""last_page_order"": 230, ""first_page_order"": 225, ""name_abbreviation"": ""Sortland v. 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+1048245,"{""id"": 1048245, ""name"": ""In the Matter of the Petition of the Municipality of Metropolitan Seattle. The Municipality of Metropolitan Seattle, Respondent, v. Kenmore Properties, Inc., Appellant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""2affe0516eec1fd6e00261e181cebdecbcbb2b8487e2128539391869c2a4c4cd"", ""simhash"": ""1:9174f4aa4b241084"", ""pagerank"": {""raw"": 0.00000016750376346520154, ""percentile"": 0.6965496830124073}, ""char_count"": 18815, ""word_count"": 3160, ""cardinality"": 862, ""ocr_confidence"": 0.674}, ""casebody"": {""judges"": [], ""parties"": [""In the Matter of the Petition of the Municipality of Metropolitan Seattle. The Municipality of Metropolitan Seattle, Respondent, v. Kenmore Properties, Inc., Appellant.""], ""opinions"": [{""text"": ""Ward, J.\n— A property owner, Kenmore Properties, Inc., appeals from a judgment based upon an award made to it by a jury in eminent domain proceedings, as compensation for a part of its property taken and damaged for public use by the respondent, the Municipality of Metropolitan Seattle, herein called Metro. The respondent is a municipal corporation created under the Laws of 1957, ch. 213, RCW 35.58, “ . . . to provide for the people of the populous metropolitan areas in the state the means of obtaining essential services not adequately provided by existing agencies of local government. ...” including those arising in connection with garbage and sewage disposal. By RCW 35.58.320, Metro is granted the right of eminent domain to be exercised generally in the same manner and by the same procedure as is or may be provided by law for cities of the first class. Such procedure is set out in detail in RCW 8.12.\nMetro, pursuant to such statutory powers, took from appellant, Kenmore Properties, Inc., herein called Kenmore, through eminent domain proceedings, a permanent easement for an underground sewer line, which is more particularly described in the stipulation set out in footnote 1. This permanent easement was 15 feet wide across the tract of land owned by Kenmore. Metro also took what is referred to as a temporary easement across Kenmore’s property granting Metro the use of additional 30-foot strips on each side of the permanent easement for the period of construction of the sewer trunk line across the property.\nThe jury awarded $819 for the permanent easement, plus $15.40 a month for the temporary construction easement, to be paid only during the period of actual use.\nAppellant’s three-facet assignment of error No. 1 is set out in its brief as follows:\nThe respondent produced no construction plans, was allowed to use stipulations[] in lieu thereof and the Stipulation varied from the Order of Necessity.\nThe stipulation was supplemented by the engineer’s map showing the boundaries of the property included in both the permanent and the temporary taking, and also by an aerial photograph of the area, with the boundaries of Kenmore’s property shown, with the portion affected by the condemnation marked thereon.\nKenmore’s assignment of error is sufficient to question both the sufficiency and also the timeliness of the plan furnished by Metro disclosing the details of the property it was taking. Considering first the sufficiency of the plan, we have recognized the property owner’s right to be adequately advised of the exact nature of the proposed taking, so that he may evaluate the resultant damage.\nSufficient construction plans must be presented by the condemnor so that the extent of loss to the property owner can be understood and translated into monetary damages. State v. Basin Dev. & Sales Co., 53 Wn. 2d 201, 204, 332 P.2d 245 (1958).\nThis does not, in all cases, require that the details of the plan to be furnished the owner must be identical with those set out in the plans and specifications to be used in securing bids for the construction work to be done on the premises. The test of sufficiency is not one of form but one of substance. The test of the sufficiency of the plans to be furnished the owner is whether or not such plans properly and adequately inform the owner of the details of the planned taking so that he and his witnesses may understand exactly the nature of the taking, and evaluate the owner’s resultant damages.\nIn this case, Kenmore has failed to point out in what respect the details of the taking as disclosed by exhibit 12 and the supplemental maps, are insufficient to permit either an understanding or a valuation of its damage. Kenmore called no expert witness on values, but does not claim that its failure to do so was in any way related to the manner in which Metro made available its plans for the taking. For an underground structure such as the trunk sewer placed upon the appellant’s property, we cannot say that the details disclosed by the so-called stipulation were insufficient for the landowner’s protection, nor that there was error in permitting its consideration by the jury.\nThe record shows that exhibit 12 was not completed in final form until the second day of the trial of the condemnation action. It would appear that this permitted the landowner no time to adequately prepare for trial. But the appellant failed to make such objection in the trial court, and on appeal makes no claim that the details of the taking were so belatedly disclosed to it as to have made it impossible to prepare the case for trial. Neither does the record disclose that the appellant had made any pretrial motions to secure details of the taking. The trial court can and will, if requested, protect the landowner’s rights with respect to both the sufficiency and the timeliness of the details of the proposed taking. But conversely, this is a right of the landowner which he may waive. 6 Nichols, Eminent Domain § 24.64; 29A C. J. S. Eminent Domain § 226(d), at 1025.\nAppellant complains of variance between the designation of the property to be taken as set out in the order adjudicating public use and the detailed designation of property rights taken as set out in the stipulation used during the trial of the case. The statute which details the steps and proceedings in eminent domain does not require that the final plans for construction be available at the time of hearing upon the petition for an adjudication of public use. RCW 8.12.060 requires that the petition contain “a reasonably accurate description of the lots, parcels of land and property which will be taken or damaged”.\nUnder the statutory plan, there is, in most cases, no good reason why the detailed construction plans should be incorporated in the order which determines only that the use to be made of the property is really a public use. State ex rel. Eastvold v. Superior Court, 48 Wn.2d 417, 422, 294 P.2d 418 (1956).\nWhat the appellant really complains of under this assignment is not the variance as such, but rather the mitigation of damages resulting therefrom. It complains that the damages are mitigated by the terms of the stipulation which (1) forever eliminates manholes on the property, (2) provides that no right is taken to permanently damage the surface of the land, (3) permits the owner to build fences and install landscaping and streets, and (4) upon 30 days’ notice, permits installation of underground utilities within the area of the permanent easement. As the court said in State v. Ward, 41 Wn.2d 794, 252 P.2d 279 (1953), “This is mitigation, not substitution.”\nNeither statute nor decisional law of this state requires a condemnor to acquire a greater interest in property than that which is required for the use of the facilities for which condemnation is sought.\nTacoma Eastern R. R. v. Smithgall, 58 Wash. 445, 451, 108 Pac. 1091, 1094 (1910), held that\n“The law does not favor the taking or damaging of property for a public use beyond the necessities of the case, and if damages may be avoided by a waiver or stipulation definite and certain in its terms, which will fully protect the rights of all parties concerned, there is no reason why such a stipulation should not be received and acted upon. ...” State v. Basin Dev. & Sales Co., supra, at 204.\nSee, also, Feuerborn v. State, 59 Wn.2d 142, 367 P.2d 143 (1961); State ex rel. Eastvold v. Superior Court, supra.\nAppellant’s second assignment claims error in that the jury was permitted by the court to award damages for the taking of an easement only, rather than for the taking of the fee. In support of this assignment, appellant quotes 4 Nichols, Eminent Domain § 12.41 (2), at 277 (3d ed. 1962):\nNevertheless, when land is taken for such purposes as a highway or a railroad, which require a permanent and substantially exclusive occupation of the surface, the distinction between the taking of the fee and of the easement has no practical application in the determination of the compensation to be assessed for the land actually taken.\nAn examination of this authority, however, discloses that the author, in the same section, at 282, added:\nSo, also, when an easement is taken which does not require an exclusive occupation of the surface, such as the right to lay and maintain telegraph wires, or subterranean pipes, over or through private land, the owner is not entitled to recover the entire market value of the land subjected to the easement.\nMetro’s appraiser valued the permanent easement at 50 per cent of the value of the fee. Kenmore’s witness valued the easement taken at 100 per cent of the fee. This is a matter upon which the opinion of witnesses may differ. The jury evaluates such divergent opinions. It is not a matter for the court to determine.\nAppellant claims error in the failure of the court to strike the testimony of Metro’s witnesses, claiming that the lack of construction plans provided no basis for their opinion on damages. We find the terms of the stipulation sufficiently definite to permit Metro’s witness to formulate an opinion on damage. Appellant points out that the stipulation was not drafted until after Metro’s witness had testified. This is true, but the record discloses that the stipulation was offered orally and its terms were considered by Metro’s appraiser as a basis for his valuation.\nKenmore claims error in that the appraiser for Metro was permitted to testify with respect to the effect of a sewer easement upon the market value of other properties which he deemed comparable. The trial court, after permitting the appraisers to testify with respect to such other properties, ruled that such other properties were not sufficiently comparable to Kenmore’s situation to warrant consideration by the jury, and, on motion of Kenmore, the court struck such testimony, including the exhibits relating to the property, and instructed the jury to disregard all such evidence.\nAppellant claims that the prejudicial effect of such stricken evidence could not be removed from the jury’s consideration, by the court’s instruction.\nIn State v. Gay, 82 Wash. 423, 428, 144 Pac. 711 (1914), the court said:\nThe presumption in all cases is that the jury obeyed the instructions of the court, and this presumption must prevail until it is overcome by some showing that the fact is otherwise.\nNo such showing was made in this case. See, also, Ewer v. Johnson, 44 Wn.2d 746, 270 P.2d 813 (1954); DeHoney v. Gjarde, 134 Wash. 647, 236 Pac. 290 (1925).\nThe appellant asserts that the Metro appraiser did not include in his valuation any allowance for severance damages. The respondent’s witness was permitted to testify fully in support of its claim for severance damages and this issue was expressly submitted to the jury in instruction No. 5B, to which no exception was taken. The jury’s award was more than three times the valuation fixed by Metro’s appraiser for the permanent taking, and it cannot be said that the jury did not make an allowance for severance damages in its general verdict.\nAppellant’s third assignment asserts error in the refusal of the court to admit in evidence exhibit No. 16, a copy of the order of public use and necessity entered in the preliminary hearing. The appellant has failed to point out the materiality of.such evidence, and we are unable to find any. On the jury trial in this state, the sole issue for the jury’s determination in a condemnation case is the amount of just compensation to be awarded for the property taken or damaged. It is not concerned with the question before the court on the preliminary hearing which is limited to the determination by the court of three questions: (1) is the proposed use really a public use; (2) does the public interest require it; and (3) is the property sought necessary for such public use. State ex rel. Lange v. Superior Court., 61 Wn.2d 153, 377 P.2d 425 (1963). If there be such variance between the property as described in the preliminary hearing and the property to be valued by the jury as to constitute a fatal variance, that constitutes a legal question which must be addressed to the court, not to the jury.\nAppellant’s fourth assignment of error is based on the limitation by the court of damage arising out of the temporary easement to the period of Metro’s actual construction activities on the property. Appellant claims that from the date of the judgment and decree of appropriation entered, January 19, 1964, until December 31, 1965, the terminal date for use of the construction easement, almost 2 years, it would be unable at any time to use the construction area by reason of the right of Metro to enter at anytime and commence construction work.\nA similar contention was made in North Coast R. R. v. Aumiller, 61 Wash. 271, 274, 112 Pac. 384 (1910). Judge Dunbar, speaking for the court, said:\nConceding that the possession remains in the landowner, it cannot be said with any degree of reason that the value of his possession is not impaired by the judgment of damages. Possession is only one of the elements of value in land. The right to rent, the right to sell, the right to improve, are all valuable rights which must in the nature of things be affected by this relation. If so, it conclusively follows that he has not received full compensation.\nThe court in that case held, however, that the owner may be deemed compensated by the allowance of interest on the jury’s award from the date of the verdict. See, also, State ex rel. Willapa Elec. Co. v. Superior Court, 196 Wash. 523, 527, 83 P.2d 742 (1938). The theory of just compensation during such period of delay is well stated in the concurring opinion of Judge Beals in Public Util. Dist. No. 1 of Douglas Cy. v. Washington Water Power Co., 20 Wn.2d 384, 395, 147 P.2d 923 (1944):\nThe property owner is certainly always damaged, to some extent at least, by the fact that a proceeding in condemnation has been instituted, and his beneficial use of the property is further impaired when the value of the land being condemned has been fixed by the verdict. From that time until the amount of the award is paid and possession of the property taken by the condemner, the value of the property to the owner is manifestly greatly lessened. The allowance of interest on the award covers, to a greater or less extent, such damages, which in most cases cannot be accurately determined. The allowance is not strictly interest, but represents a fair equivalent to the owner for the damage suffered.\nWe therefore hold that interest from the date the verdict was filed, computed upon the total award, including the gross award for the temporary construction easement, until paid into court for the benefit of Kenmore, affords just compensation for any additional damages based on delay in the use of the temporary construction easement. The statutory provision with respect to interest on the award in eminent domain proceedings is not in conflict. RCW 8.28.040. The appellant makes no claim that it has not received the full amount of interest due.\nAssignment of error No. 5 is based on denial of motion for new trial, and, by this assignment, the appellant merely urges this court to again consider the matters heretofore discussed under the first four assignments of error.\nThe judgment is affirmed.\nRosellini, C. J., Hill, Finley, and Weaver, JJ., concur.\nJudge Ward is serving as a judge pro tempore of the Supreme Court pursuant to Art. 4, § 2(a) (amendment 38), state constitution.\nThe so-called “stipulation” was unilaterally prepared by Metro during the course of the trial, was admitted in evidence as exhibit 12, and was incorporated verbatim in the judgment entered. It provides:\n“The Municipality of Metropolitan Seattle, the petitioner herein, by and through its attorneys, Preston, Thorgrimson, Horowitz, Starin & Ellis, hereby stipulates that the extent and nature of the permanent easement and the temporary easement being condemned in the above-entitled action are more specifically delineated as follows:\n“1. The permanent easement includes such property rights as are necessary for the installation, construction, operation, maintenance, removal, repair, replacement and use of a single underground sewer line. The sewer line shall have an inside diameter not larger than seven feet and the top of the sewer and connections thereto shall be at least sixteen feet below the now existing average level of the surface of the ground.\n“2. No right is taken to locate a manhole on this property.\n“3. No right is taken to permanently damage the surface of said land. If the surface of the land is disturbed, the Municipality shall be responsible to restore it, including replacement of top soil, restoration of existing fences and restoration of permitted improvements which may be constructed hereafter.\n“4. The owner may not construct structures of a permanent nature within the permanent easement area. However, the owner may construct and install fences, landscaping, agricultural development, streets or roadways, whether unpaved or paved with blacktop or concrete, and may install any overhead or surface utility pipes or conduits, or any unroofed concrete slab, or structures of a temporary or movable nature within the permanent easement area.\n“5. Upon 30 days’ written notice to the Municipality, which notice shall include location and excavation plans, underground utility pipes or conduits may be installed and temporary or permanent excavations may be made in the permanent easement to within four feet of the top of the sewer line, as long as methods of excavation do not damage the sewer line.\n“6. The temporary construction easement condemned herein may be used for any purpose connected with actual construction of the sewer line and shall commence and be in effect as of the date of the commencement of the construction activity thereon and shall terminate on the date of completion of the construction activity, but in no event shall it extend beyond December 31, 1965. Only during this period shall the Municipality have the right to occupy the area of the temporary construction easement.”\nConst. art. 1, § 16, requires payment in advance for property taken or damaged. The judgment providing for payment of $15.40 per month during the construction period, if in conflict with the constitutional provision, is an error which we may not consider by reason of Rule on Appeal 43, RCW vol. 0."", ""type"": ""majority"", ""author"": ""Ward, J.""}], ""attorneys"": [""Michael R. Donovan, for appellant."", ""Preston, Thorgrimson, Horowitz, Starin & Ellis and Gordon G. Conger, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 37773.\nDepartment Two.\nFebruary 3, 1966.]\nIn the Matter of the Petition of the Municipality of Metropolitan Seattle. The Municipality of Metropolitan Seattle, Respondent, v. Kenmore Properties, Inc., Appellant.\nMichael R. Donovan, for appellant.\nPreston, Thorgrimson, Horowitz, Starin & Ellis and Gordon G. Conger, for respondent.\nReported in 410 P.2d 790.""}, ""cites_to"": [{""cite"": ""410 P.2d 790"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""147 P.2d 923"", ""year"": 1944, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""20 Wn.2d 384"", ""year"": 1944, ""case_ids"": [2596141], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""395""}], ""case_paths"": [""/wash-2d/20/0384-01""], ""opinion_index"": 0}, {""cite"": ""83 P.2d 742"", ""year"": 1938, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""196 Wash. 523"", ""year"": 1938, ""case_ids"": [1348564], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""pin_cites"": [{""page"": ""527""}], ""case_paths"": [""/wash/196/0523-01""], ""opinion_index"": 0}, {""cite"": ""112 Pac. 384"", ""year"": 1910, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""61 Wash. 271"", ""year"": 1910, ""case_ids"": [555797], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""pin_cites"": [{""page"": ""274""}], ""case_paths"": [""/wash/61/0271-01""], ""opinion_index"": 0}, {""cite"": ""377 P.2d 425"", ""year"": 1963, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""61 Wn.2d 153"", ""year"": 1963, ""case_ids"": [1034616], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/61/0153-01""], ""opinion_index"": 0}, {""cite"": ""236 Pac. 290"", ""year"": 1925, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""134 Wash. 647"", ""year"": 1925, ""case_ids"": [782330], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/134/0647-01""], ""opinion_index"": 0}, {""cite"": ""270 P.2d 813"", ""year"": 1954, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""44 Wn.2d 746"", ""year"": 1954, ""case_ids"": [2424118], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/44/0746-01""], ""opinion_index"": 0}, {""cite"": ""144 Pac. 711"", ""year"": 1914, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""82 Wash. 423"", ""year"": 1914, ""case_ids"": [607946], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""pin_cites"": [{""page"": ""428""}], ""case_paths"": [""/wash/82/0423-01""], ""opinion_index"": 0}, {""cite"": ""367 P.2d 143"", ""year"": 1961, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""59 Wn.2d 142"", ""year"": 1961, ""case_ids"": [1028319], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/59/0142-01""], ""opinion_index"": 0}, {""cite"": ""108 Pac. 1091"", ""year"": 1910, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""pin_cites"": [{""page"": ""1094""}], ""opinion_index"": 0}, {""cite"": ""58 Wash. 445"", ""year"": 1910, ""case_ids"": [526259], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""pin_cites"": [{""page"": ""451""}], ""case_paths"": [""/wash/58/0445-01""], ""opinion_index"": 0}, {""cite"": ""252 P.2d 279"", ""year"": 1953, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""41 Wn.2d 794"", ""year"": 1953, ""case_ids"": [4988771], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/41/0794-01""], ""opinion_index"": 0}, {""cite"": ""294 P.2d 418"", ""year"": 1956, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""48 Wn.2d 417"", ""year"": 1956, ""case_ids"": [996513], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""422""}], ""case_paths"": [""/wash-2d/48/0417-01""], ""opinion_index"": 0}, {""cite"": ""332 P.2d 245"", ""year"": 1958, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""53 Wn. 2d 201"", ""year"": 1958, ""case_ids"": [1011228], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""204""}], ""case_paths"": [""/wash-2d/53/0201-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""67 Wash. 2d 923"", ""type"": ""official""}], ""file_name"": ""0923-01"", ""last_page"": ""933"", ""first_page"": ""923"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T19:59:22.592870+00:00"", ""decision_date"": ""1966-02-03"", ""docket_number"": ""No. 37773"", ""last_page_order"": 951, ""first_page_order"": 941, ""name_abbreviation"": ""Municipality of Metropolitan Seattle v. Kenmore Properties, Inc.""}","[0.040028907,0.028261473,0.03267952,0.059300005,0.005964363,-0.0041094846,-0.04429267,-0.0061782524,-0.028289525,0.038233638,0.0952615,-0.02660646,-0.0011509713,-0.022328667,0.054839883,0.021711543,0.043843854,-0.03447479,-0.009677626,0.010512146,0.038458046,0.02392758,-0.016942859,-0.021290777,-0.014726822,-0.026788792,0.021935953,0.04347919,-0.004582847,-0.012047944,0.016984936,-0.019860173,-0.022819562,-0.01467072,-0.017055063,0.031529427,0.005547103,-0.028401729,-0.008962323,-0.036185905,0.01492318,-0.018808257,-0.0322307,0.0047090766,0.0072932835,0.02481119,-0.015778739,0.021529213,-0.0039271526,-0.022847613,-0.014362158,-0.012973629,0.037868973,-0.06642498,0.015722636,0.0080997525,-0.02405381,0.0044075274,-0.002114351,-0.030211024,0.019888222,-0.015386023,-0.02263723,0.010463057,-0.06070256,0.04864059,0.025330134,0.040533826,0.022202438,-0.0033187945,0.012587926,0.016031198,0.03545658,0.02779863,-0.010413967,-0.02600336,0.03831779,0.050660267,-0.044937845,-0.015975095,0.004691545,0.006553436,-0.020154709,0.029481696,-0.042469352,0.01826126,-0.06827635,-0.030772045,0.0004321621,-0.0028664707,-0.017167266,0.04965043,0.015063436,0.020884037,0.013674906,0.011031091,-0.009993201,0.01024566,0.019200971,-0.0012289884,0.03862635,-0.0069145937,-0.015862891,-0.0077771647,0.058346268,0.035596833,-0.02030899,0.0694545,0.05242749,-0.046705063,0.04735024,0.0038605314,-0.023408635,0.040253315,0.031445272,-0.036859132,-0.05613023,0.026073487,-0.010512146,0.034783352,-0.0066130445,-0.020351065,-0.009025439,-0.0023668108,0.060309842,-0.029565848,0.037336,0.02931339,-0.011830547,-0.016508067,0.012075994,0.015764713,-0.019327201,-0.046228196,-0.052820202,0.050632216,-0.03195019,0.005981895,-0.027097354,-0.01662027,0.005876703,0.034586996,0.010904862,-0.00262453,-0.034923606,0.02987441,0.023843426,0.0063220146,-0.010533185,0.02200608,-0.004712583,0.044937845,0.021683494,0.010561235,-0.001121167,-0.05405445,0.0057785246,0.051810365,-0.028247448,-0.01596107,-0.021010267,-0.00996515,0.01439021,0.015666533,0.011844573,0.017545957,0.010883823,0.004421553,-0.043815803,-0.0476588,-0.023604993,0.0067007043,0.0034467778,-0.014586567,-0.030463483,0.0019670827,0.026522307,0.00077973265,0.058290165,-0.016241582,-0.014642669,-0.03627006,0.005080754,0.047238037,-0.017658161,-0.0071179643,0.001988121,0.06754702,0.0136188045,-0.021318829,0.021851799,-0.020785857,0.021052344,-0.048864998,-0.064910226,-0.015512253,-0.015400048,0.04165587,-0.0032381478,0.007089913,0.01196379,-0.007153028,0.040197212,0.036690827,-0.041543666,0.033100285,-0.007728075,0.011178359,-0.013191025,-0.041908327,0.023703171,-0.027630324,0.01889241,0.067995846,-0.023226302,-0.021206625,-0.041908327,0.008541557,-0.035652936,0.04945407,0.03598955,0.018303337,-0.036410317,-0.013373357,-0.0013490821,0.06636888,-0.050127298,0.02764435,0.018205158,-0.03158553,0.016480016,0.011101219,-0.052371386,-0.0309123,-0.04611599,-0.06294665,0.006651615,-0.029930513,-0.030407382,0.049005255,-0.022931766,0.0019407849,0.008324161,-0.021571288,-0.00183384,0.013162974,-0.01596107,-0.041207053,-0.008380263,0.024236143,0.019635763,0.02200608,-0.0073563983,0.026732689,-0.05969272,0.0050597154,0.01021761,0.00488089,-0.018149056,-0.013990481,-1.5806132e-05,0.0072792578,-0.044573184,-0.03220265,-0.031248914,-0.01570861,0.0694545,-0.054419115,0.047602702,-0.0028857559,-0.03517607,0.034615044,-0.008148842,0.013716983,-0.00562775,0.021038318,-0.008190919,-0.021402981,0.023885503,-0.015638484,0.032006294,0.030407382,0.0065499297,0.051333494,0.0020459765,0.02648023,0.00946023,0.0041550677,-0.016423913,-0.002533364,0.0039622164,-0.013752047,-0.016199505,-0.009733728,0.03214655,0.014060609,0.021150522,-0.031361118,0.03447479,0.02878042,0.032595366,0.035624884,-0.02612959,0.008934272,-0.01681663,0.031192813,0.032258753,-0.0022475936,-0.015063436,-0.029565848,0.0069145937,0.0042707785,-0.07383047,-0.034811404,0.034138177,-0.032847825,0.06586396,-0.008282084,-0.032455113,-0.022034131,0.008141829,-0.049594328,0.01722337,-0.023801351,0.01234248,0.029369492,-0.0022861639,0.008920247,-0.008737914,0.03657862,-0.014979282,0.004056889,-0.012300403,-0.033801563,-0.040561877,-0.015568355,-0.01709714,0.00036071948,0.04920161,-0.027966937,0.0025982321,-0.046480656,0.013688932,-0.018078927,0.0074195135,-0.017433753,0.0016953378,-0.05969272,0.040533826,0.046705063,-0.050295606,-0.0073493854,-0.051614005,0.029285338,-0.03655057,-0.0021757127,-0.009523345,-0.009172707,0.0012184692,0.02676074,-0.014200864,0.014656695,0.010210597,0.022833588,-0.026494255,0.010070342,-0.05040781,0.023464737,-0.046733115,0.020884037,0.021529213,0.0102316355,-0.019369278,0.030407382,0.0065744743,-0.000962503,0.00408494,0.04140341,0.0042883107,-0.022440873,0.028107192,-0.029958565,-0.062890545,-7.062081e-05,0.045078102,0.032763675,-0.014025545,0.016508067,-0.05405445,-0.015736662,0.05767304,0.011213424,-0.03009882,0.03363326,0.008681812,-0.009684639,0.02521793,0.05099688,0.061936807,0.00746159,-0.013057782,0.017265446,-0.029481696,-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+1048287,"{""id"": 1048287, ""name"": ""Valley Construction Co., et al., Respondents, v. Lake Hills Sewer District, Appellant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""6632421cb85f271949fb61682ef6a042c4b44c01090f5e0ca7f79836869c0a0f"", ""simhash"": ""1:9d5479946d698bba"", ""pagerank"": {""raw"": 0.00000011331049175944518, ""percentile"": 0.57664114780437}, ""char_count"": 17181, ""word_count"": 2791, ""cardinality"": 869, ""ocr_confidence"": 0.677}, ""casebody"": {""judges"": [], ""parties"": [""Valley Construction Co., et al., Respondents, v. Lake Hills Sewer District, Appellant.""], ""opinions"": [{""text"": ""Langenbach, J.\n— Respondents, as contractor, sued to recover the unpaid balance on a contract and to recover costs for repairs which were requested by appellant. Appellant affirmatively counterclaimed for damages which allegedly resulted from respondents’ failure to follow contract specifications, but admitted a balance was still due on the contract.\nThe trial court granted judgment for respondents as pleaded, and dismissed the counterclaim with prejudice. This appeal was perfected.\nRespondents contracted to construct an 18-inch trunk sewer and two syphon lines according to contract specifications. The trunk sewer was satisfactorily completed; this dispute concerned only the installation of the syphon lines.\nThe syphon lines consisted of two pipes, one 10 inches and the other 12 inches, inside diameter, to be laid beside each other in a single trench for a distance of 4,100 feet with a minimum of 6 inches between them, and with the maximum trench width (at pipe level) of 16 inches plus the outside diameter of the pipe. The 12-inch pipe was to be laid 7 feet from the edge of a road, under a drainage ditch, with a minimum 36-inch cover. The lines were to follow the grade of the road.\nThe contract required the respondents to perform trench excavation and backfill, furnish and install pipe, manholes, fittings and other appliances. The respondents used 13-foot sections of asbestos cement pressure pipe as the syphon lines.\nThe applicable pipe bedding method was prescribed as follows:\n10. Pipe Bedding\nPipe bedding shall be accomplished as shown in the Standard Detail. Where the material at the bottom of the trench is unstable, the matter shall be brought to the attention of the Engineer. The unstable material shall be removed to the extent directed by the Engineer and back-filled with foundation gravel, bedding gravel, and/or bedding concrete.\nBoulders, rocks, roots and other obstructions shall be entirely removed or cut out to the full width of the trench and to a depth 6\"" below the pipe. The trench shall be backfilled and compacted to grade with select materials from the excavation or with bedding gravel.\nIn solid rock the trench shall be excavated 6\"" below the pipe bottom and backfilled as provided above.\nThe bottom of the trench shall be finished with hand tools to provide uniform bearing along the barrel of the pipe and to provide suitable holes to fit the pipe bells.\nWhenever the trench is excavated below the depth required for proper bedding, it shall be backfilled with bedding gravel and compacted as required by the Engineer.\nThe evidence disclosed that, as the syphon line trench was being excavated, hardpan was encountered. The contract stated respondents had inspected the area and were satisfied as to the conditions of the site and contract specifications prior to submitting a bid. The contract specified that respondents handshape the trench bottom to fit the pipe barrel so that the pipe would rest on the shaped trench bottom. Respondents admitted this, but asserted that, when the hardpan was reached, it became impossible to hand-shape the bottom of the trench.\nThis hardpan condition was orally called to the attention of appellant’s inspector, chief inspector, and project engineer, in an attempt to secure permission to use bedding material (pea gravel) in preparation of the trench bottom. Inspector Sims approved and reported favorably to his superiors, who refused this permission. Such requests were verbal, and none were in writing, as required by the contract:\n7. Corrections, Interpretations and Addenda\nAny omissions, discrepancies or need for interpretations should be brought to the attention of the Engineer in writing. The Engineer will issue written addenda to clarify questions which may arise. All interpretations or explanation of the Contract Documents shall be in writing in the form of an addendum and no oral statements by the Owner, Engineer or other representatives of the Owner shall in any way modify the Contract Documents whether made before or after letting the Contract.\n9. Omissions and Discrepancies:\nIf the Contractor, in the course of the work, finds any discrepancy between the drawings and the physical conditions of the locality, or any errors or omissions in drawings or in the layout as given by points and instructions, it shall be his duty to inform the Engineer immediately in writing, and the Engineer shall promptly verify the same. Any work done after such discovery, until authorized, will be done at the Contractor’s risk.\nThe contract provision for payment of bedding material was:\nItem No. 15\nUnit price includes furnishing, placing and compacting bedding and foundation gravel and pit run gravel backfill material other than materials available from trenching. Payment will be made for only such material as is ordered by the Engineer. Bedding or foundation material required by unauthorized excavation below the required trench depth or for special bedding for Class 3 clay pipe shown on the plans will not be paid for.\nFurnish & Install Bedding Gravel 500 CY $4.50 $2250.00.\nWhen these oral requests for use of bedding material in the hardpan trench were refused, respondents determined that handshaping the trench bottom for suitable support of the trench barrel was impracticable in all instances and impossible in hardpan. Consequently, a cushion course method of installation was utilized. From the excavation, selected material (excluding rocks, roots and foreign material) was used for a cushion course of approximately 4 inches in depth. This was compacted by men walking on it. Thereon mounds would be placed; one where each end of the pipe was to be laid. Due to over-excavation, the mounds in some instances were 12 inches high; normally, the mounds were approximately 4 inches high. These mounds would not be compacted nor tamped prior to laying the pipes. After the pipes were laid, select material was used to fill the ditch up to the middle portion of the pipes; then, the dirt was compacted by two-by-fours, handles of shovels, and men using their feet. Due to the narrowness of the trench, this compacting was difficult.\nThe material used for mounding and filling was relatively dry. When the rains fell, the mound and fill material (the pipes being laid under a drainage ditch) became so saturated that it turned into a mush substance. Accordingly, the pipes were allowed to change position to such an extent that they broke. The engineers testified that the breaks were caused by “beam action.” The plane of separation was nearly perpendicular to the center line of the pipe. This type of crack indicated that the top of the pipe had been in tension and the bottom in compression; the ends of the pipe sections deflected downward relative to the middle of the pipe. The number of the breaks totaled 48.\nAfter these breaks, appellant demanded that respondents make repairs and replace 1,000 feet of pipeline. Respondents made repairs but refused to replace the 1,000 feet of pipe; thereupon appellant retained another contractor. For this extra cost, appellant counterclaimed.\nAlthough appellant made several assignments of error, the critical one is finding of fact No. 4:\nThat following the execution of said Agreement aforesaid Plaintiffs entered upon the performance thereof on or about March 10, 1959, and proceeded to lay and install said 18\"" trunk sewer and syphons in a good and workmanlike manner and would have completed said Contract work in its entirety on October 22, 1959, to which said date the time for performance was extended by Defendant, save for conditions and circumstances beyond their control in that due to the nature of the soil in which the syphon lines were to be laid, the fact that said trench for the syphon lines generally was underneath the drainage ditch for the roadway adjoining and that the design of said syphon line installation called for both the 10\"" and 12\"" 150 foot head asbestos cement pressure pipe 13 feet in length to be laid in the same trench at the same elevation with a minimum 6\"" clearance between the two and with a maximum trench width at the top of the pipe as the outside diameter of the pipe barrel plus 16\"" it was not possible by the exercise of good workmanship and without the use of bedding gravel, as requested by Plaintiff of Defendant and the use of which as a pay item under said Contract was refused by Defendant, to obtain compaction of the material selected from the excavation for the bedding for the pipe so as to provide uniform support or bearing for and along the barrel of the pipe, by reason of all of which when the fall rains came commencing in September of 1959 and the soil in the trench became saturated there occurred approximately 48 leaks in the said syphon lines by beam action which required repair. (Italics ours.)\nThe questions are whether this finding is supported by the evidence, and whether, in any event, respondents were relieved of their contract specifications.\nThe general principles and law are well-settled:\n[I]n 88 A.L.R. 798.\n“ . . . [A] construction contractor who has followed plans and/or specifications furnished by the contractee, his architect or engineer, and which have proved to be defective or insufficient, will not be responsible to the contractee for loss or damage which results — at least after the work is completed — solely from the defective or insufficient plans or specifications, in the absence of any negligence on the contractor’s part, or any express warranty by him as to their being sufficient or free from defects.” (Italics ours.) Kenney v. Abraham, 199 Wash. 167, 170, 90 P.2d 713 (1939).\nContractors have no right to depart from working plans made a part of the contract. If they do so, it is at their peril, and they become guarantors as to the strength and safety of the structures. The parties were clearly entitled to contract to have the buildings erected in accordance with certain plans and specifications. An express contract admits of no departure from its terms, and the subcontractors could discharge themselves from liability only by constructing the buildings in accordance with the plans and specifications, unless a deviation was mutually agreed upon.\nWhen defendant departed from this specification they did so at their peril, and all attempted excuses for noncompliance became immaterial. Robert G. Regan Co. v. Fiocchi, 44 Ill. App. 2d 336, 340, 194 N.E.2d 665 (1963). The general rule is that a builder must substantially perform his contract according to its terms, and in the absence of contract governing the matter, he will be excused only by acts of God, impossibility of performance . . . . If he wish to protect himself against the hazards of the soil, the weather, labor or other uncertain contingencies, he must do so by his contract. White v. Mitchell, 123 Wash. 630, 634, 213 Pac. 10 (1923).\nIn Maryland Cas. Co. v. Seattle, 9 Wn.2d 666, 676, 116 P.2d 280 (1941), the court noted that the contract in that case did not contain any representation or implied warranty as to underground conditions. It said:\nRather, we think, the present case comes within a familiar principle of contract law which is succinctly stated in the italicized portion of the following quotation from Judge Brandéis’ opinion in United States v. Spearin, 248 U.S. 132, 136, 63 L. Ed. 166, 39 S. Ct. 59:\n“Where one agrees to do, for a fixed sum, a thing possible to be performed, he will not be excused or become entitled to additional compensation, because unforeseen difficulties are encountered [citing cases]. Thus one who undertakes to erect a structure upon a particular site, assumes ordinarily the risk of subsidence of the soil [citing cases]. But if the contractor is bound to build according to plans and specifications prepared by the owner, the contractor will not be responsible for the consequences of defects in the plans and specifications [citing cases].”\nRespondents inspected the area prior to bidding and knew it to be of hardpan; yet, they did not contract for such a possibility. They assumed the risk of the difficulty encountered in handshaping to fit the barrel of the pipe into a hardpan trench. See, Restatement, Contracts § 456; and 6 Corbin, Contracts § 1333, p. 365 (1962). Nevertheless, respondents argued that, upon hitting hardpan, hand-shaping the trench bottom became so impracticable as to be impossible; that they went to appellant’s inspector and engineer for permission to use bedding gravel, which was denied. Also, the consensus of all expert witnessed was that some bedding material (as pea gravel) was required for proper installation of these syphon lines, and that hand-shaping the trench was not an adequate method under the circumstances. Be that as it may, respondents agreed to follow the specifications provided by appellant; as long as they did so, they would not be liable for any disastrous consequences.\nEven assuming that it was physically impossible to hand-shape the trench bottom, respondents would only be discharged from nonperformance or poor workmanship (due to the impossibility) by following the specifications. The legal effect of impossibility would not relieve respondents from the onus of guaranteeing any method or plan of installation other than in the contract specification as that rule is stated in Kenney v. Abraham, supra.\nConfronted with the refusal of their oral requests to use bedding material in the trench, respondents had the following courses of procedure: (1) to obtain written permission to use bedding gravel when hardpan was encountered; or (2) to attempt to use bedding gravel as an extra. The only other alternative would have been to proceed as directed by the contract. Section 7 provided, “need for interpretations should be brought to the attention of the Engineer in writing. . . . All interpretations . . . shall be in writing.” (Italics ours.) Section 9 provided, “If the Contractor, in the course of the work, finds any discrepancy between the drawings and the physical conditions of the locality ... it shall be his duty to inform the Engineer immediately in writing, and the Engineer shall promptly verify the same. Any work done after such discovery, until authorized, will be done at the Contractor’s risk.” (Italics ours.)\nInstead of proceeding by any of these methods, respondents ignored the contract in the presence of hardpan; the cushion course or mounding method was used. Alternatively, assuming the contract specifications did not require handshaping of the trench bottom, respondents adopted the cushion course or mounding method on their own initiative. In so doing, they assumed full responsibility for their course of action. Kenney v. Abraham, 199 Wash. 167, 90 P.2d 713 (1939).\nNevertheless, respondents argued that the inspectors and engineer, not only in charge of the project but also in interpreting the contract and in authorizing extras, knew that respondents were using the cushion course method (one inspector described the work as excellent) without any objection thereto. Therefore, appellant is precluded from now objecting. This court, however, in Hurley v. Kiona-Benton School Dist. No. 27, 124 Wash. 537, 215 Pac. 21 (1923), has answered this argument. It was held that the clause giving the architect or engineer final power to determine or interpret provisions of a contract does not confer power on the engineer to modify the contract and accept a different specification. Otherwise, there would be no need of the written contract. Accord, DeHoney v. Gjarde, 134 Wash. 647, 236 Pac. 290 (1925).\nRespondents further asserted the trial court’s determination and judgment upon conflicting evidence is decisive and the appellate court cannot substitute its findings in lieu of those of the trial court. This court is bound by such findings if supported by substantial evidence. Delegan v. White, 59 Wn.2d 510, 368 P.2d 682 (1962).\nWe are of the considered opinion that the overwhelming evidence on both sides did not support that part of finding of fact No. 4 italicized above.. The respondents deliberately did not follow the specifications and contract in the installation of the syphon lines. The breaks were caused solely and entirely by the manner of their installation. This was the sole responsibility of the respondents, once they determined to ignore the express terms of the contract. This disregard caused the syphon lines to break and the respondents were responsible for such cause.\nThe judgment is reversed. The cause is remanded to enter a judgment for respondents in the sum of $19,761.08 which the appellant has admitted as the balance due on the original contract. The appellant is allowed its costs on appeal.\nHill, Finley, Ott, and Hamilton, JJ., concur.\nJudge Langenbach is serving as a judge pro tempore of the Supreme Court pursuant to Art. 4, § 2(a) (amendment 38), state constitution."", ""type"": ""majority"", ""author"": ""Langenbach, J.""}], ""attorneys"": [""Evan E. Inslee (of Johnson, Jonson & Inslee), for appellant."", ""Allen, DeGarmo & Leedy, by Gerald DeGarmo, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 37739.\nDepartment One.\nFebruary 3, 1966.]\nValley Construction Co., et al., Respondents, v. Lake Hills Sewer District, Appellant.\nEvan E. Inslee (of Johnson, Jonson & Inslee), for appellant.\nAllen, DeGarmo & Leedy, by Gerald DeGarmo, for respondent.\nReported in 410 P.2d 796.""}, ""cites_to"": [{""cite"": ""410 P.2d 796"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""368 P.2d 682"", ""year"": 1962, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""59 Wn.2d 510"", ""year"": 1962, ""case_ids"": [1028255], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/59/0510-01""], ""opinion_index"": 0}, {""cite"": ""236 Pac. 290"", ""year"": 1925, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""134 Wash. 647"", ""year"": 1925, ""case_ids"": [782330], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/134/0647-01""], ""opinion_index"": 0}, {""cite"": ""215 Pac. 21"", ""year"": 1923, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""124 Wash. 537"", ""year"": 1923, ""case_ids"": [766357], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/124/0537-01""], ""opinion_index"": 0}, {""cite"": ""248 U.S. 132"", ""weight"": 3, ""case_ids"": [3691559], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""page"": ""136""}], ""case_paths"": [""/us/248/0132-01""], ""opinion_index"": 0}, {""cite"": ""116 P.2d 280"", ""year"": 1941, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""9 Wn.2d 666"", ""year"": 1941, ""case_ids"": [5300084], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""676""}], ""case_paths"": [""/wash-2d/9/0666-01""], ""opinion_index"": 0}, {""cite"": ""213 Pac. 10"", ""year"": 1923, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""123 Wash. 630"", ""year"": 1923, ""case_ids"": [762284], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""pin_cites"": [{""page"": ""634""}], ""case_paths"": [""/wash/123/0630-01""], ""opinion_index"": 0}, {""cite"": ""194 N.E.2d 665"", ""year"": 1963, ""category"": ""reporters:state_regional"", ""reporter"": ""N.E.2d"", ""opinion_index"": 0}, {""cite"": ""44 Ill. App. 2d 336"", ""year"": 1963, ""case_ids"": [5243057], ""category"": ""reporters:state"", ""reporter"": ""Ill. App. 2d"", ""pin_cites"": [{""page"": ""340""}], ""case_paths"": [""/ill-app-2d/44/0336-01""], ""opinion_index"": 0}, {""cite"": ""90 P.2d 713"", ""year"": 1939, ""weight"": 2, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""199 Wash. 167"", ""year"": 1939, ""weight"": 2, ""case_ids"": [483450], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""pin_cites"": [{""page"": ""170""}], ""case_paths"": [""/wash/199/0167-01""], ""opinion_index"": 0}, {""cite"": ""88 A.L.R. 798"", ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R."", ""opinion_index"": 0}], ""citations"": [{""cite"": ""67 Wash. 2d 910"", ""type"": ""official""}], ""file_name"": ""0910-01"", ""last_page"": ""919"", ""first_page"": ""910"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T19:59:22.592870+00:00"", ""decision_date"": ""1966-02-03"", ""docket_number"": ""No. 37739"", ""last_page_order"": 937, ""first_page_order"": 928, ""name_abbreviation"": ""Valley Construction Co. v. 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+1064021,"{""id"": 1064021, ""name"": ""The State of Washington, on the Relation of Slade Gorton, Appellant, v. The Port of Walla Walla et al., Respondents"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""2343818a236758d7849d1e5908ea085f3a2d9911f8ffeabeb671db88ab066dff"", ""simhash"": ""1:9afdab7a214c9c60"", ""pagerank"": {""raw"": 0.00000007872904367311302, ""percentile"": 0.45989611749565323}, ""char_count"": 16957, ""word_count"": 2786, ""cardinality"": 784, ""ocr_confidence"": 0.663}, ""casebody"": {""judges"": [], ""parties"": [""The State of Washington, on the Relation of Slade Gorton, Appellant, v. The Port of Walla Walla et al., Respondents.""], ""opinions"": [{""text"": ""Utter, J.\nThis case involves the questioned legality of an expenditure by the Port of Walla Walla which was used to acquire a parcel of land. The State Auditor, pursuant to his statutory mandate to examine the financial affairs of every public office and officer, conducted an examination of the actions of the Port of Walla Walla and challenged the legality of this expenditure. The Attorney General, pursuant to RCW 43.09.260, then instituted this legal action. Trial to the court was held, judgment was entered for the Port of Walla Walla and title to the questioned property was quieted in the port.\nThe Attorney General’s assignments of error involve three basic issues: (1) Whether there is evidence in the record to support the trial court’s findings that the port did not make a gift or loan of its money or credit in violation of article 8, section 7 of the Washington State Constitution and whether the expenditure for the parcel of land was authorized by present statutory authority governing port districts; (2) whether article 8, section 8 of the Washington State Constitution and RCW 53.36.120, which require the adoption of specific budget items prior to expenditures for industrial development, were violated by the port’s acquisition of a parcel of land; and (3) whether RCW 53.20.010, requiring amendment of a comprehensive plan prior to expenditures for improvements, was violated by the port’s acquisition of a particular parcel of land. We find substantial evidence to support the trial court’s findings of fact and hold that, under the existing statutory authority, the port district acted properly.\nThe transactions in the case involve the Port of Walla Walla; Sun-Glo Producers, Inc., a Washington corporation involved in farming operations; Atlantic Richfield Hanford Company, Inc. (ARCHO); Columbia Limited Partnership, a general land-owning partnership; Mr. and Mrs. Louis Jaussaud, owners of a sheep ranch in Walla Walla County; and a partnership known as Wolf, Wolf, Forbes and Roope, owners of a wheat ranch in Walla Walla County.\nOn May 25, 1967, Sun-Glo took an option to purchase the entire Jaussaud ranch. The option involved an immediate payment of $10,000 with an additional payment of $10,000 on August 15, which payment would extend the option to purchase until January 1, 1968. At that time a downpayment of $80,000 was required to exercise the option. SunGlo did make the first two $10,000 payments but failed to exercise the option to purchase on January 1,1968.\nShortly after the Sun-Glo option was obtained, the Port of Walla Walla received an option from Sun-Glo covering approximately 250 acres of the Jaussaud ranch. On the day the option was obtained, ARCHO was granted an option by the port to purchase 250 acres of the property optioned by the port. On December 13, 1967, the Port of Walla Walla amended the terms of their option with ARCHO, agreeing to sell their property for $65,000. On December 20, 1967, the port paid $147,337.16 into escrow to assert its option to purchase from Sun-Glo. On the same day, ARCHO paid $64,500 into escrow by means of a check made out to the port asserting its option from the port. Before title could be transferred, however, on December 22, 1967, an independent transaction occurred between the Jaussauds and Wolf, Wolf, Forbes and Roope. In this transaction, the Jaussauds deeded that portion of their land which was covered by the option to the Port of Walla Walla to the Wolf group and took title to land owned by them in exchange. The Wolf group then executed deeds to parcels of land to the Port of Walla Walla (Parcel A) and to ARCHO (Parcel B). The remaining land of the Jaussauds was conveyed to Columbia Limited Partnership on December 28,1967.\nThe contention of the state is that the port made a gift or loan of its money or credit based upon what it asserts to be the conclusively established fact that the Port of Walla Walla advanced $80,000 to complete the downpayment to the Jaussauds and that it contributed $32,137.16 toward the total amount received by the Jaussauds for Parcel B, the parcel purchased by ARCHO.\nThe state’s contention is premised upon certain correspondence exchanged between representatives of the port and a potential user of Parcel A, purchased by the port. It contends the true value of the parcel purchased by ARCHO was $97,137.16 and inasmuch as ARCHO paid only $65,000 for the parcel, the difference was to be found in the amount the port paid for its parcel which was not reflected in the true value of that land.\nAs in all factual disputes, however, there are at least two sides. The trial court specifically found in finding of fact No. 9 that “the purchase price paid by the Port of Walla Walla for Parcel A ... is and was a fair and reasonable price; that the purchase price paid by Atlantic Rich-field Hanford Co. for Parcel B ... is and was a fair and reasonable price.”\nNone of the options from Jaussaud to Sun-Glo Producers, Inc. to the Port of Walla Walla or the option from the port to ARCHO were found to have been exercised, and the court instead found that the port and ARCHO purchased their property on December 29, 1967, directly from the Wolf group.\nThere is testimony in the record which substantiates the theory of the state but the trier of fact need not and did not accept this evidence as evidence of value. Plancich v. Williamson, 57 Wn.2d 367, 370-73, 357 P.2d 693, 92 A.L.R.2d 559 (1960). An examination of the documentary evidence submitted by the state could well have sustained findings of fact favorable to the state’s contentions. The trial court, however, on conflicting testimony, did not agree with the theory presented by the state and there is substantial evidence in the record to support the findings of the trial court. Hernandez v. Western Farmers Ass’n, 76 Wn.2d 422, 425, 456 P.2d 1020 (1969); Kuster v. Gould Nat’l Batteries, Inc., 71 Wn.2d 474, 476, 429 P.2d 220 (1967); Johnson v. Ramstad, 68 Wn.2d 971, 413 P.2d 348 (1966).\nWithout going at length into the supporting testimony substantiating the trial court findings, the record supports the trial court’s conclusion that the Jaussauds-Sun-Glo option was never exercised, and that the conditions and figures for the property involved, therefore, had no relevance to the final purchase price and were rendered meaningless. As stated by the trial court judge in his oral opinion, with the disappearance of the earlier options there was “a whole new ball game.” The record does not compel a conclusion that the Port of Walla Walla, in acquiring Parcel A, paid more for the land than its actual fair market value.\nNo testimony by the owners of the property supporting the state’s valuation of the property was obtained. Cunningham v. Tieton, 60 Wn.2d 434, 374 P.2d 375 (1962). The acquisition by ARCHO of property adjoining that purchased by the port with a preceding commitment to build a cattle feeding and processing plant valued at between six and seven million dollars could well have, in addition to other testimony before the court, justified the price paid by the port for the parcel of land. The burden of proof, however, was not on the port to justify its purchase price, but rather on the state to establish that the port did not receive value for the price paid for the land. Emerick v. Bush, 36 Wn.2d 759, 762-63, 220 P.2d 340 (1950). The trial court not only found the state failed to meet its burden of proof, but affirmatively found that, without relying on guess, speculation, or conjecture, the port did receive value for the land. See Stevens v. King County, 36 Wn.2d 738, 220 P.2d 318 (1950). There is substantial evidence in the record to support this finding, and there was, therefore, no gift or loan of the port’s money or credit in violation of article 8, section 7 of the constitution.\nAppellant next contends the port was required to amend its comprehensive plan prior to the acquisition of Parcel A. This contention is premised on their interpretation of the scope of RCW 53.20.010:\nAdoption of harbor improvement plan. It shall be the duty of the port commission of any port district, before creating any improvements hereunder, to adopt a comprehensive scheme of harbor improvement in such port district, after a public hearing thereon . . . and no expenditure for the carrying on of- any harbor improvements shall be made by said port commission . . . unless and until such comprehensive scheme of harbor improvement has been so officially adopted by the port commission.\nIt is the state’s contention that the port’s acquisition of Parcel A was ultra vires and void because the purchase was made without its inclusion in the comprehensive plan prior to the transaction, and the subsequent ratification by the port did not correct the error.\nWe believe the purchase of unimproved land is not a “harbor improvement” within the meaning of chapter 53.20 and ports are authorized to acquire land for cash without any comprehensive plan under RCW 53.08.010. That statute provides:\nAcquisition of property—Levy of assessments. A port district may acquire by purchase, for cash ... all lands, property, property rights, leases, or easements necessary for its purposes . . .\nRCW 53.08.040 provides:\nImprovement of lands for industrial and commercial purposes—Providing sewer and water utilities—Providing pollution control facilities. A district may improve its lands by dredging, filling, bulkheading, providing waterways or otherwise developing such lands for sale or lease for industrial and commercial purposes.\nChapter 53.08 thereby distinguishes, in its own terms, between the purchase of land and the developing of land for sale or lease for industrial or commercial purposes. The two concepts are not synonymous or interchangeable.\nThe cases cited by appellant, with one exception, do not deal with an interpretation of RCW 53.08.010. In Port of Everett v. Everett Improvement Co., 124 Wash. 486, 214 P. 1064 (1923), the port commissioners authorized acquisition of certain real property, within their district, by condemnation. A comprehensive plan had been adopted prior to the resolution authorizing the condemnation, but that comprehensive plan was extremely general in nature and did not contain a map or detailed description of the intended projects. The resolution only declared that the port commission proposed to exercise at some indeterminate time in the future the general powers the statute conferred on the port district, and then described the land of Everett Improvement Company as being necessary for that plan. The court stated, at page 493:\nit may be seriously questioned whether the legislature can grant to a municipal corporation the power to acquire by condemnation property which the municipality desires merely because it believes that at some time in the future it may have use for it . . . it is impossible for the court or anyone to know whether all or what particular part of the property here sought to be condemned is necessary for the use of the port district, and the right of condemnation must fail for this reason.\nThis case is not in point. It was apparent that the acquisition of the raw land in the Everett case was by condemnation, not purchase, and was part of a general scheme of specific harbor improvements of the type contemplated in RCW 53.20.010.\nThe legislature has clearly stated in RCW 53.20.010 that if harbor improvements are to be created, a comprehensive plan must first be adopted. However, the language of the statute indicates it is anticipated by use of the word “improvements” that some construction or physical work be done in addition to the acquisition of property. RCW 53.20.030 provides: “No improvements shall be acquired or constructed, by the port district, unless such improvements shall, when completed, be the property of such port district . . .” The use of the term “when completed” in this subsection of the chapter, we believe, clarifies the intent of the legislature that harbor improvements relate to something more than the acquisition of raw land. Such an interpretation of the statutory language gives effect to all the language used (Danley v. Cooper, 62 Wn.2d 179, 381 P.2d 747 (1963)), providing for harmonious construction of all the státutory provisions. Hansen v. Harris, 123 Wash. 109, 212 P. 171 (1923). The testimony does not disclose the Port of Walla Walla intended to do more than acquire land. It was, therefore, unnecessary to have the port adopt a comprehensive plan prior to its purchase under the provisions of RCW 53.08.010.\nAppellant’s final argument is that article 8, section 8 of the Washington State Constitution and RCW 53.36.120, requiring adoption of specific budget items prior to expenditures for industrial development, were violated by the port’s acquisition of Parcel A. Article 8, section 8 provides:\nThe use of public funds by port districts in such manner as may be prescribed by the legislature for industrial development or trade promotion and promotional hosting shall be deemed a public use for a public purpose, and shall not be deemed a gift within the provisions of section 7 of this Article.\nThis constitutional provision was enacted in 1966 by the voters subsequent to a decision by this court in Hogue v. Port of Seattle, 54 Wn.2d 799, 837, 341 P.2d 171 (1959), which held the industrial development acts unconstitutional insofar as they “purport to authorize the condemnation of such land for a private purpose, to wit, the development and sale thereof to private entities for use as industrial sites.”\nSubsequent to the passage of the constitutional amendment, RCW 53.36.120 was passed, which provides:\nUnder the authority of Article VIII, section 8, of the state Constitution, port district expenditures for industrial development, trade promotion or promotional hosting shall be pursuant to specific budget items as approved by the port commission at the annual public hearings on the port district budget.\nAppellant urges inasmuch as the Port of Walla Walla’s budget for 1967 did not provide for funds for the purchase of Parcel A, the respondent port did not comply with the requirements of RCW 53.36.120 and article 8, section 8 of the Washington State Constitution, and consequently the purchase of Parcel A is void. The port contends, first, that its purchase of the land was pursuant to RCW 53.08.010 which authorizes the port to acquire land for cash and second, that the acquisition of the land was not for “industrial development” which would bring it within the express terms of RCW 53.36.120. We agree.\nThe trial court did not affirmatively find the purchase of the land was for “industrial development” and specifically refused to enter plaintiffs’ proposed finding of fact No. 13 that: “The Port of Walla Walla was purchasing Parcel A under its presumed authority to make such expenditures for industrial development.” We have examined the record and cannot say the testimony establishes, as a matter of law, the expenditure was for industrial development. On the contrary, there is testimony both from the president of the commissioners of the Walla Walla Port District, at the time the transactions occurred, and their attorney that there were several purposes for which the land was purchased, among them being use of the property as a pumping station site for irrigated farming or as a potential reservoir site.\nRCW 53.35.010 governs the budgeting requirements for the port in purchases of this nature and requires that:\nOn or before the 15th day of September of each year each port commission shall prepare a preliminary budget of the port district for the ensuing fiscal year showing the estimated expenditures and the anticipated available funds from which all expenditures are to be paid.\nThese requirements were met. The record reveals there was an estimated expenditure in the 1967 budget for land acquisition and that, although it was less than the sum expended by the port for Parcel A, there were sufficient funds in the accounts of the port to honor this expenditure which was paid by the port treasurer. There is no requirement under this statute for a specific budget item as required under RCW 53.36.120.\nJudgment affirmed.\nHale, C.J., Finley, Rosellini, Hunter, Hamilton, Stafford, and Wright, JJ., concur.\nPetition for rehearing denied May 18, 1973."", ""type"": ""majority"", ""author"": ""Utter, J.""}], ""attorneys"": ["". Slade Gorton, Attorney General, and Rodney Carrier, Assistant, for appellant."", ""Williams & Golden, W. E. Evenson, and Robert J. Williams, for respondent Port of Walla Walla."", ""• Leavy, Taber, Schultz & Bergdahl, by D. E. Taber, for respondent Atlantic Richfield Hanford Company, Inc."", ""Rex M. Walker (of Davis, Wright, Todd, Riese & Jones), for respondents Loney, Coates and Nowogroski."", ""Minnick & Hahner, for respondents Wolf, Forbes and Roope.""], ""corrections"": """", ""head_matter"": ""[No. 42394.\nEn Banc.\nFebruary 1, 1973.]\nThe State of Washington, on the Relation of Slade Gorton, Appellant, v. The Port of Walla Walla et al., Respondents.\n. Slade Gorton, Attorney General, and Rodney Carrier, Assistant, for appellant.\nWilliams & Golden, W. E. Evenson, and Robert J. Williams, for respondent Port of Walla Walla.\n• Leavy, Taber, Schultz & Bergdahl, by D. E. Taber, for respondent Atlantic Richfield Hanford Company, Inc.\nRex M. Walker (of Davis, Wright, Todd, Riese & Jones), for respondents Loney, Coates and Nowogroski.\nMinnick & Hahner, for respondents Wolf, Forbes and Roope.""}, ""cites_to"": [{""cite"": ""341 P.2d 171"", ""year"": 1959, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""54 Wn.2d 799"", ""year"": 1959, ""case_ids"": [1013639], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""837""}], ""case_paths"": [""/wash-2d/54/0799-01""], ""opinion_index"": 0}, {""cite"": ""212 P. 171"", ""year"": 1923, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""123 Wash. 109"", ""year"": 1923, ""case_ids"": [762356], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/123/0109-01""], ""opinion_index"": 0}, {""cite"": ""381 P.2d 747"", ""year"": 1963, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""62 Wn.2d 179"", ""year"": 1963, ""case_ids"": [1036853], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/62/0179-01""], ""opinion_index"": 0}, {""cite"": ""214 P. 1064"", ""year"": 1923, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""124 Wash. 486"", ""year"": 1923, ""case_ids"": [766327], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/124/0486-01""], ""opinion_index"": 0}, {""cite"": ""220 P.2d 318"", ""year"": 1950, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""36 Wn.2d 738"", ""year"": 1950, ""case_ids"": [4938756], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/36/0738-01""], ""opinion_index"": 0}, {""cite"": ""220 P.2d 340"", ""year"": 1950, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""36 Wn.2d 759"", ""year"": 1950, ""case_ids"": [4938285], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""762-63""}], ""case_paths"": [""/wash-2d/36/0759-01""], ""opinion_index"": 0}, {""cite"": ""374 P.2d 375"", ""year"": 1962, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""60 Wn.2d 434"", ""year"": 1962, ""case_ids"": [1031587], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/60/0434-01""], ""opinion_index"": 0}, {""cite"": ""413 P.2d 348"", ""year"": 1966, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""68 Wn.2d 971"", ""year"": 1966, ""case_ids"": [1052737, 1052876], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/68/0971-02"", ""/wash-2d/68/0971-01""], ""opinion_index"": 0}, {""cite"": ""429 P.2d 220"", ""year"": 1967, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""71 Wn.2d 474"", ""year"": 1967, ""case_ids"": [1095280], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""476""}], ""case_paths"": [""/wash-2d/71/0474-01""], ""opinion_index"": 0}, {""cite"": ""456 P.2d 1020"", ""year"": 1969, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""76 Wn.2d 422"", ""year"": 1969, ""case_ids"": [1080067], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""425""}], ""case_paths"": [""/wash-2d/76/0422-01""], ""opinion_index"": 0}, {""cite"": ""92 A.L.R.2d 559"", ""year"": 1960, ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R. 2d"", ""opinion_index"": 0}, {""cite"": ""357 P.2d 693"", ""year"": 1960, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""57 Wn.2d 367"", ""year"": 1960, ""case_ids"": [1023896], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""370-73""}], ""case_paths"": [""/wash-2d/57/0367-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""81 Wash. 2d 872"", ""type"": ""official""}], ""file_name"": ""0872-01"", ""last_page"": ""880"", ""first_page"": ""872"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T19:42:57.140087+00:00"", ""decision_date"": ""1973-02-01"", ""docket_number"": ""No. 42394"", ""last_page_order"": 912, ""first_page_order"": 904, ""name_abbreviation"": ""State ex rel. Gorton v. Port of Walla Walla""}","[0.00014167665,0.0012562689,0.01987861,0.058468234,0.034495667,0.007319614,-0.017602544,-0.03440699,0.012769604,0.021932978,0.09494437,0.00035355656,-0.016405394,0.0092151025,0.024785448,0.022952773,0.05459597,-0.016848784,-0.028524695,-0.011993674,0.02305623,0.020735826,-0.036535256,-0.025332294,-0.026204292,-0.029322796,-0.027224086,0.004012671,-0.015651632,-0.009141204,0.0133534,-0.02349962,0.026145173,0.008128799,-0.0647348,0.016213259,0.007988392,-0.030120894,-0.0021338097,-0.052053872,0.01613936,0.021622606,-0.015607294,0.008431781,0.017750341,0.02063237,-0.034495667,0.02098708,-0.044634495,0.015267363,-0.014358415,0.004408026,0.018297188,-0.057670135,-0.025361853,0.026071275,-0.031037232,0.0073861224,0.0042269756,-0.031864893,0.0550098,-0.019464778,-0.0016433107,0.016287157,-0.06916869,-0.0010077864,0.019331763,0.03597363,0.03263343,0.016006345,0.010693066,0.010330965,0.048831914,-0.01251835,-0.021755623,-0.001323701,0.038131457,0.007349173,-0.041382976,0.009739779,-0.023883888,0.027697034,-0.023632636,0.03352021,-0.0076706302,-0.012259707,-0.035412006,0.025406191,-0.029854862,0.008919509,0.011550284,0.03162842,0.029751405,0.023706533,0.010338354,-0.017100038,-0.037392475,0.0035489597,0.044693615,0.008867781,0.010552659,-0.049186625,-0.008040121,0.0066545303,0.052319907,0.032603875,0.032485638,0.05651732,0.035323326,-0.010271846,0.008572188,0.020381115,-0.034259193,0.08016474,0.0071459534,-0.04076223,-0.08430304,-0.013198214,-0.012171029,0.037008204,-0.013922416,0.0067616827,-0.027800493,-0.045964662,0.07354346,-0.053531837,0.0005607024,0.0037226204,0.017439969,-0.029825302,0.022952773,0.018844035,-0.02998788,-0.030135674,-0.06585805,0.018784916,-0.005701244,0.0014068364,-0.04096915,-0.0038353151,0.030948555,0.040171046,-0.0038279253,-0.032426517,-0.021696504,0.016789665,0.02468199,0.010641336,0.010220117,0.025273176,-0.005346533,0.010596998,0.015163905,-0.01780946,0.021652164,-0.076322034,0.022435484,0.03035737,-0.032929026,0.002935605,-0.058882065,0.0014798109,0.017277393,0.024829786,-0.0018345221,0.039520744,0.030623402,-0.004156772,-0.050221197,-0.008143579,-0.021105317,-0.005468465,-0.027238866,-0.0043008737,-0.04011193,-0.043895513,0.00806968,-0.004008976,0.058852505,-0.052792855,0.0076928,-0.005390872,0.00041960305,-0.019228304,-0.0055238884,0.013050417,-0.0062739546,0.024785448,0.0046814494,0.035825834,0.055364512,-0.015873328,0.04011193,-0.016715767,-0.035530243,0.0032053331,0.013176044,0.061424162,0.015311701,0.015178685,0.0029263676,-0.004330433,-0.006994462,0.03626922,-0.07360258,0.016760105,0.017691223,0.026559003,-0.0039535523,-0.062547415,0.03313594,-0.021386132,-0.003757722,0.026514664,-0.018637119,-0.05184696,-0.04247667,-0.0051396177,-0.0315693,0.030135674,0.030948555,0.05459597,-0.0046740593,-0.00850568,0.012607028,0.06591717,-0.026189512,0.008121409,0.012304045,-0.011284251,0.01738085,0.028450796,-0.052319907,-0.041146502,-0.006092904,-0.06461656,-0.00040690182,-0.0028894185,-0.03925471,0.05045767,-0.021238334,-0.0023481145,0.07253844,-0.019243084,-0.02586436,0.013582484,-0.018903153,-0.049157064,0.027238866,0.02140091,-0.0114911655,0.020809725,-0.008756934,0.026189512,-0.046585407,-0.019627355,-0.025258396,-0.019834269,-0.03680129,-0.011461606,0.0069057844,-0.020927962,-0.051048856,-0.006336768,-0.0039757215,-0.0046814494,0.08873693,-0.030978113,-0.006477175,0.0062998193,-0.0395503,0.03960942,0.032485638,0.030800758,-0.041944604,-0.021652164,-0.0036099257,-0.028613372,0.019169185,0.015082617,0.007330699,0.027992629,-0.014927431,0.06508951,0.007186597,0.0063219885,0.051048856,0.0035766715,-0.0063958867,0.0008004096,0.033076823,-0.019597795,0.013309061,-0.016272377,0.026514664,0.016730547,0.000113733906,-0.019730812,0.035825834,0.047472186,0.049009267,0.008941679,0.0025845885,-0.016050683,0.003920298,0.013693332,0.013759839,-0.0033937735,-0.011816318,-0.0077519184,0.024770668,-0.0074156816,-0.05533495,-0.039993692,0.0018446831,-0.018459763,0.051226214,0.02021854,-0.033431534,-0.011890216,0.0057677524,-0.00847612,0.015577734,0.020676708,-0.02793351,0.0041900263,0.029677507,-0.026825037,-0.012296656,0.017720781,-0.028110866,0.023292704,0.023470059,-0.033076823,-0.04318609,0.0043045687,0.0029097404,-0.0013357095,0.050901063,-0.026765918,-0.03526421,-0.041057825,0.02788917,0.0125774685,-0.010390083,-0.01581421,0.014055433,-0.023277923,0.044161547,0.028288221,-0.010611777,0.019331763,-0.02261284,0.02383955,-0.013951975,-0.01934654,0.017499087,-0.035145972,0.0020321996,0.039343387,-0.041767247,0.027697034,-0.0028598593,0.017188715,-0.018903153,0.019080509,-0.025406191,0.009259441,0.010234897,-0.0043636872,0.042594906,-0.019627355,-0.0027748763,0.01417367,-0.02265718,-0.011158624,-0.008017952,0.03677173,0.005217211,0.010427033,0.02669202,-0.037924543,-0.038752202,-1.2867231e-05,0.035530243,-0.009828457,-0.0017209037,0.009577204,-0.050309874,-0.023204027,0.043126974,0.0108852,-0.04407287,-0.007109004,-0.009488526,-6.8298075e-05,0.025805242,0.020484574,0.041826367,0.004936398,-0.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+1076409,"{""id"": 1076409, ""name"": ""Maynard Investment Co., Inc., Appellant, v. Marshall McCann et al., Respondents"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""334e48399a8d8fdcfdcf0b16c78e402f51cef0ee3eea8ad2e052f85737cd469c"", ""simhash"": ""1:70fec63f75be49b5"", ""pagerank"": {""raw"": 0.0000008112177131140806, ""percentile"": 0.9742328606802945}, ""char_count"": 26789, ""word_count"": 4597, ""cardinality"": 1136, ""ocr_confidence"": 0.616}, ""casebody"": {""judges"": [], ""parties"": [""Maynard Investment Co., Inc., Appellant, v. Marshall McCann et al., Respondents.""], ""opinions"": [{""text"": ""Rosellini, J.\nThis appeal involves a question as to the rights and duties of a drawee, a payor, and a transferor of checks negotiated without the endorsement of the payees.\nThe plaintiff is the drawer of one of the checks in question and is assignee of the drawer of the other check, seeking recovery of the moneys represented by the checks. At the conclusion of the plaintiff’s case, a challenge to the sufficiency of the evidence was sustained, findings of fact and conclusions of law were entered, and the cause dismissed. The plaintiff appeals, challenging the right of the court to enter findings and conclusions, challenging certain findings,- and assigning error to the dismissal.\nThe plaintiff is the owner of a building in Seattle in which the “Round the Clock” restaurant is housed as a tenant. The defendant Marshall McCann is a building contractor doing business as E. M. Company, who entered into a contract with the plaintiff to remodel the front of the restaurant.\nThe plaintiff had a cost-sharing agreement on this project with the restaurant owner, Clark’s Restaurant Enterprise. The first progress estimate under the building contract was $11,345.03. In payment thereof, the plaintiff issued its check for $10,000 payable to E. M. Company, drawn on the defendant Peoples National Bank of Washington, and Clark’s Restaurant issued its check for $1,345.03, payable to E. M. Company, drawn on the defendant The National Bank of Commerce. Both checks were delivered to Mr. McCann personally on September 24, 1964. On the same day, Mr. McCann delivered the checks to defendant William E. Legg, but without endorsement of any kind. Mr. Legg immediately deposited the checks in a “William E. Legg Special Account” in the Ballard Branch of The National Bank of Commerce, where the total amount was held intact until after October 9,1964.\nThe funds were later transferred by Mr. Legg to the checking account of E. M. Company at the Ballard Branch of Peoples National Bank. The entire proceeds from the two checks in issue were drawn from this latter account by Mr. Legg (an authorized signatory) and used to pay creditors of E. M. Company. However, not all of these funds went to creditors on the restaurant project. As a result the plaintiff was faced with lien claims. The plaintiff received full credit on the construction contract for the amount of the two checks.\nIt is important to understand the relationship which existed between Mr. McCann 'and Mr. Legg during this time. Prior to the date of this restaurant project, Mr. McCann had bid two other jobs but did not have sufficient bonding capacity to meet the contract terms. Mr. Legg signed as guarantor on Mr. McCann’s performance bonds for these two jobs. Financial difficulties arose causing the bonding company to intercede and control the application of Mr. McCann’s funds. The bonding company asked Mr. Legg to furnish funds under his guarantee and he deposited $28,000 of his money into the E. M. Company checking account at the Ballard Branch of Peoples National Bank. This account was the only business account of Mr. McCann. Upon deposit of these funds, the bonding company withdrew from its participation and Mr. Legg began to assert some control.\nThe bank’s signature card on the E. M. Company checking account in Ballard Branch of Peoples National Bank, dated September 10, 1964, authorized Mr. Legg to draw checks thereon alone and further authorized him to endorse checks for E. M. Company.\nOn September 11, 1964, a meeting was held to discuss Mr. McCann’s financial plight. In attendance were Mr. McCann, his accountant and his lawyer; Mr. Legg and his accountant. They were concerned, among other matters, that funds in E. M. Company account might be tied up by creditors. The William E. Legg Special Account, into which the two checks in issue were deposited, was created.\nOn September 16, 1964, Mr. McCann and Mr. Legg executed an agreement under the terms of which Mr. McCann assigned to Mr. Legg the net receivables from various jobs including the Round the Clock restaurant project. On October 9, 1964, this agreement was amended to “release William E. Legg from any obligation to apply any of the proceeds from the accounts and contracts receivable assigned by Marshall P. McCann to Wiliam E. Legg to the payment of any bills attributable to the job generating the funds being applied.” It was after the signing of this amendatory agreement and the specific assignment of the restaurant contract moneys that Mr. Legg transferred the entire proceeds of the two checks into the E. M. Company account and then disbursed the funds to creditors of Mr. McCann.\nThe plaintiff’s challenge to the right of the court to enter findings of fact and conclusions of law is not well taken. Upon a challenge to the sufficiency of the evidence at the end of a plaintiff’s case in a nonjury trial, the court may rule either as a matter of law without weighing the evidence or weigh the evidence and enter findings and conclusions based thereon. N. Fiorito Co. v. State, 69 Wn.2d 616, 419 P.2d 586 (1966). It is clear that the court did weigh the evidence and properly entered findings of fact and conclusions of law.\nThe findings of fact challenged by the plaintiff relate to the authority of Mr. Legg to negotiate or transfer the checks without Mr. McCann’s endorsement; the understanding that Mr. Legg would create a special account in the Ballard Branch of The National Bank of Commerce; that all moneys from the two checks were transferred to the E. M. Company account in the Ballard Branch of Peoples National Bank and from there used to pay creditors of Mr. McCann; and that such disbursement was with the approval of Mr. McCann. Although Mr. McCann at one point categorically denied the authority of Mr. Legg, there is ample, substantial and independent evidence to support these findings and they will not be disturbed on appeal.\nThe gravamen of the plaintiff’s position on this appeal is that the defendant banks violated their duty to it by honoring and paying checks without obtaining the endorsement of the payee. It cites 10 Am. Jur. 2d Banks §§ 539, 555 (1963); 5A Michie on Banks and Banking, § 181, at 448 (1950), and cases typified by American Nat’l Bank v. First Nat’l Bank, 130 Colo. 557, 277 P.2d 951 (1954). However, compliance with this admitted duty of a drawee bank or a paying bank may be fulfilled without the payee’s endorsement. True, a bank honoring or paying a negotiable instrument without the payee’s endorsement assumes the burden of proving that the payment was in fact authorized by the payee. As was recognized in Coplin v. Maryland Trust Co., 222 Md. 119, 122, 159 A.2d 356 (1960):\nIt has long been held that, despite the almost universal custom of requiring a payee to indorse a check before payment, a bank is protected if it pays without indorsement, as long as the payee actually receives the money ordered by the drawer to be paid.\nThere is conclusive evidence that all of the funds represented by these two checks were paid to the creditors of the payee, as the payee and transferee had agreed. The cause against the National Bank of Commerce was properly dismissed.\nAs to the defendants L egg, we are of the opinion that RCW 9.54.080 compels a different result. At the original hearing before a department of this court, the question of the above statute was raised sua sponte by the court. The court was informed that the issue had not been raised in the trial court and thus it was contended that it could not be considered in the Supreme Court. On rehearing en banc, the issue was argued.\nNormally the rule is that an issue or theory not presented to the trial court will not be considered by the Supreme Court for the first time on appeal. However, this rule is not inexorable and has its limitations.\nIn Morrill v. Title Guar. & Sur. Co., 94 Wash. 258, 162 P. 360, 163 P. 733 (1917), it was held that where the facts are before the Supreme Court, it is not necessary to remand with permission to make a permissible amendment of a cross-complaint but judgment may be given “as the justice of the case requires,” under Rem. Code § 406. In Holzer v. Rhodes, 24 Wn.2d 184, 163 P.2d 811, 172 A.L.R. 1173 (1945), it was held that, as a general rule, questions not raised in the court below will not be considered on appeal; however, this rule does not apply when the question raised affects the right to maintain the action. In Wright v. Corbin, 190 Wash. 260, 67 P.2d 868 (1937), it was held that the question of illegality of the contract sued on may be raised at any time, when the fact of its illegality has been made to appear.\nIn 5 Am. Jur. 2d Appeal and Error §§ 548-49, 551 (1962), it is said:\nThe ordinary rule that errors not raised below will not be considered on appeal has been treated as subject to an exception where the matter raised for the first time on appeal was of such a character as to render the judgment of the lower court void, as where the court had no jurisdiction of the subject matter. The principle that an objection not taken in the trial court is not available on appeal or review has also been held inapplicable where the record discloses a combination of gross irregularities, including the filing of pleadings in violation of rules of court, the granting of relief upon fatally defective pleadings, and the granting of relief in a second order which has already been granted in a former order.\nThe general rule has also been denied application where the question raised first on appeal relates to the foundation of the rights of the parties, as where the effect of the application of the rule would be to make the rights of the parties depend upon a statute which the court is judicially bound to know does not govern the case. Where a new trial is ordered, the appellate court may consider questions not technically before it which will arise on a new trial, especially where they may be decisive. Questions necessarily involved in issues raised and litigated in the trial court are open for consideration on appeal or review, even though they were not specifically raised below.\nA reviewing court may consider questions raised for the first time on appeal if necessary to serve the ends of substantial justice or prevent the denial of fundamental rights. This rule is peculiarly applicable in criminal cases and especially in capital cases. So, in a case involving deprivation of life or liberty, the court will notice errors appearing upon the record which deprived the accused of substantial means of enjoying a fair and impartial trial, although no exceptions were preserved, or the question is imperfectly presented. However, this exception will not be applied where the failure or refusal to raise the issue below was conscious and intentional, and some courts have expressly declined to recognize any such exception even in criminal cases.\nEven though the matter was not raised below, the courts have frequently recognized that error may be considered for the first time on appeal where the matter in question affects the public interest. For example, the court may consider, although raised for the first time on appeal, questions as to the right of one of the parties to waive compliance with the provisions of a mandatory statute. When the question is of such a nature that the present welfare of the people at large, or a substantial portion thereof, is involved, a departure from the general xule is warranted and the court is authorized in its discretion to direct its attention to the general welfare, rather than the interests of the parties to the immediate cause.\n(Footnotes omitted.)\nThe exception to the rule is a salutary one. Courts are created to ascertain the facts in a controversy and to determine the rights of the parties according to justice. Courts should not be confined by the issues framed or theories advanced by the parties if the parties ignore the mandate of a statute or an established precedent. A case brought before this court should be governed by the applicable law even though the attorneys representing the parties are unable or unwilling to argue it.\nThe failure to apply the funds generated by the Round the Clock restaurant project for the materials and labor furnished to the restaurant resulted in the plaintiff’s property being subject to lien claims. The agreement of Mr. McCann and Mr. Legg was contrary to the statute and against the public policy of the state.\nThe payment of the moneys generated by the Round the Clock restaurant project to other creditors constituted a conversion, if not a crime.\nRCW 9.54.080 states as follows:\nEvery person having entered into a contract to supply any labor or materials for the value or price of which any lien might lawfully be filed upon the property of another, who shall receive the full price or consideration thereof, or the amount of any account stated thereon, shall be deemed within the meaning of RCW 9.54.010(3), to receive the same as the agent of the party with whom such contract was made, his successor or assign, for the purpose of paying all claims for labor and materials supplied.\nRCW 9.54.010 states, in part:\nEvery person who, with intent to deprive or defraud the owner thereof—\n(3) Having any property in his possession, custody or control, as bailee, ... or a person authorized by agreement or by competent authority to take or hold such possession, custody or control, . . . shall secrete, withhold or appropriate the same ... to the use of any person other than the true owner or person entitled thereto; . . .\nSteals such property and shall be guilty of larceny.\nIt would appear from the record the defendant William E. Legg actually did not know of the existence of the statute. If he had known of it, it is doubtful that he would have entered into such an arrangement. Nevertheless, every person is presumed to know the law and is bound thereby, and even though his actions may not have been taken with any actual knowledge that he was misappropriating funds held in trust by him, he cannot retain the advantage he receives from violating the statute.\nThe purpose of the statute is to protect the owner of property which may be subject to a valid lien. Brower Co. v. Noise Control of Seattle, Inc., 66 Wn.2d 204, 401 P.2d 860 (1965).\nThe statute is an articulation of exemplary and fundamental justice. It recognizes that moneys paid for the services of one person should not be used to pay claims of another. It demonstrates that one should not “rob Peter to pay Paul.” It is intended to prevent the injustice of an owner who has paid for material and services being compelled under the lien statute to pay twice.\nThe fact that the plaintiff was given a bookkeeping credit on his account is immaterial. The failure to use the funds to pay claims of labor and materialmen was a violation of the statute (RCW 9.54.010) — in other words, a conversion of funds which the defendant Legg was obliged to pay out only to creditors of the plaintiff.\nSo long as any claims of the labor and materialmen were outstanding, the defendant Legg had no right to use any of the money received from the plaintiff to pay claims of others. To the extent that he did so, he converted these funds. The defendants Legg must be held liable to the plaintiff for this conversion of funds held in trust for his benefit. The plaintiff having shown that he paid the contract price, the burden is properly upon the defendants to show what portion of the funds was used according to the directive of the state.\nWe affirm the dismissal as to the National Bank of Commerce, but remand the cause as to the defendants Legg to the trial court to ascertain the amount of money that was diverted from the plaintiff’s creditors who furnished labor and materials for the construction of the Round the Clock restaurant building. The trial court is directed to enter judgment for the plaintiff accordingly.\nHunter, C. J., Finley, Weaver, and Hale, JJ., concur.\nHamilton, J., concurs in the result.\nA complete accounting of Mr. McCann’s funds in the hands of Mr. Legg was rendered in a separate action. King County Civil Cause No. 637769."", ""type"": ""majority"", ""author"": ""Rosellini, J.""}, {""text"": ""Neill, J.\n(dissenting in part) — I am in disagreement with the majority opinion regarding defendant Legg and would affirm as to all parties. My difference in view is two-fold: first, in raising the issue of the applicability of RCW 9.54.080 and, second, in the construction given that statute.\nThis case was tried, briefed and argued solely on the theory of the missing endorsements. During oral argument before a department of this court, a question was raised sua sponte from the bench as to the applicability of RCW 9.54.080. Counsel only cursorily responded. The justices in the department were not in accord as to this new theory; so a rehearing en banc was ordered. At the en banc hearing, but slight attention was paid to this issue and only counsel tor respondents filed a brief on the point. The issue appears to be a matter of first impression in this state and could be of great concern to the construction and financing industries. Nevertheless this court has, on its own, raised and decided that issue without benefit of adequate briefing and full argument. Such procedure is not in keeping with our established principles.\nThe general rule is that an issue or theory not presented to the trial court will not be considered by this court for •the first time on appeal. Matthias v. Lehn & Fink Prods. Corp., 70 Wn.2d 541, 424 P.2d 284 (1967); Ledgering v. State, 63 Wn.2d 94, 385 P.2d 522 (1963); State ex rel. York v. Board of County Comm’rs, 28 Wn.2d 891, 184 P.2d 577, 172 A.L.R. 1001 (1947). There are recognized exceptions to this rule, e.g., matters going to jurisdiction, rights to maintain the action, illegality, invasion of constitutional rights, and lack of a claim for relief. See Capper v. Callahan, 39 Wn.2d 882, 887, 239 P.2d 541 (1952); State v. Lampshire, 74 Wn.2d 888, 447 P.2d 727 (1968); Galvin v. State Tax Comm’n, 56 Wn.2d 738, 355 P.2d 362 (1960).\nHowever, we have consistently held that matters relating to the substance of plaintiff’s case, whether raised by plaintiff or defendant, may not be considered for the first time on appeal even though such consideration might result in the creation or destruction of plaintiff’s cause of action. See Farrell v. Score, 67 Wn.2d 957, 411 P.2d 146 (1966); Magerstaedt v. Eric Co., 64 Wn.2d 298, 391 P.2d 533 (1964); Pedersen v. Immanuel Lutheran Church, 57 Wn.2d 576, 358 P.2d 549 (1961). Even when the record indicates a possible noncompliance with statutes, we have refused to consider an issue or theory not presented to the trial court. Sims v. Horton, 43 Wn.2d 907, 264 P.2d 879 (1953). See also Bellevue School Dist. 405 v. Lee, 70 Wn.2d 947, 425 P.2d 902 (1967). The reason for this view is well illustrated by the instant case. A matter of great importance to property owners, construction contractors, laborers, materialmen and financial institutions, namely, the interpretation and application of statutes on an issue of first impression, should not be raised by this court and decided without benefit of briefs and argument and without the fact finding process and prior attention of the trial court.\nThe cases cited by the majority do not justify its sua sponte interjection of a new theory of action into the case. Morrill v. Title Guar. & Sur. Co., 94 Wash. 258, 162 P. 360, 163 P. 733 (1917), involved a purely mechanical assessment of damages under a statute. There was no attempt to change the theory of action on appeal; nor was the question of damages raised by us. Damages, in mistaken measure, had been requested at trial. Morrill merely stands for the proposition that a remand is not necessary to determine damages when both the proper measure and the mandatory amount are specified by statute. It is not authority for interposing, without so much as invitation by the parties, a totally different theory than that on which the action has proceeded.\nThe majority also cites Holzer v. Rhodes, 24 Wn.2d 184, 163 P.2d 811, 172 A.L.R. 1173 (1945). There we observed that the general rule against considering on appeal questions not raised in the trial court does not apply when the question raised affects the right to maintain the action. In that appeal, it was asserted for the first time that a statutory prerequisite to an action questioning the validity of a tax sale and deed had not been fulfilled. We refused to consider that assertion, noting that the action had been brought on a different theory than that to which the statute applied. Holzer demonstrates a refusal by this court to inject into a case a different theory than that on which the parties have proceeded. A true reading of that case shows that we are willing to consider for the, first time on appeal procedural prerequisites to the theory of action asserted, but are not willing to posit new theories of action in cases appealed to us. Thus, Holzer is authority against, rather than in support of, the majority rationale.\nThe majority also cites Wright v. Corbin, 190 Wash. 260, 67 P.2d 868 (1937), to the effect that, in a suit on a contract, the illegality of that contract may be raised at any time in the proceedings. This is correct as a general statement. But in its application we must bear in mind the difference between an illegal contract and a contract used illegally. As is aptly stated in People v. Brophy, 49 Cal. App. 2d 15, 30, 120 P.2d 946 (1942):\nThe law is clear and decisive on the question of the enforceability of a contract even though one of the parties thereto has knowledge of an intended purpose of the other party, by means of the contract, or the performance thereof, to violate some law or public policy of the state. The rule in that regard is thus stated in 53 A.L.R. 1364 at page 1366:\n“The rule, according to the great weight of authority, is to the effect that a contract legal in itself is not rendered unenforceable by the mere fact that one of the parties thereto has knowledge of an intended purpose of the other party thereto, by means of the contract or subject-matter thereof, to violate some law or public policy of some state; . . .”\nThus, unless the contract itself is illegal, Wright v. Corbin does not operate. It is my view that the assignment agreement was not in and of itself an illegal contract. It was merely the legal means by which Mr. McCann effected an illegal act. There is no support here for the majority’s initiative.\nTo proceed then to my second objection. This court, having seen fit to reverse the trial court on a theory completely outside the record, construes RCW 9.54.080 as being applicable to the assignee, Mr. Legg. I am not convinced that such interpretation is in accord with legislative intent.\nThe construction placed by the court on RCW 9.54.010 and 9.54.080 places the assignee of funds from a contractor under the obligation to apply those funds to lienors of the project creating the funds, to the exclusion of his own or other claims. Under such an interpretation, a financing-agency could not secure loans to a contractor by an assignment of monies: payable to the contractor on a construction project.\nThat interpretation has already been rejected by this court, at least impliedly, in Globe Elec. Co. v. Union Leasehold Co., 166 Wash. 45, 6 P.2d 394 (1931). That case was an action to foreclose a materialman’s lien. The owners argued’ that the materialman was party to a wrongful diversion by the contractor of funds paid to him by the owners. We-noted that the materialman had, indeed, taken trade acceptances from the contractor for materials supplied on-prior jobs, and that he knew the contractor would be likely to pay off these trade acceptances with money received from the owners on the present job. We also noted that the-owners had made no effort to protect themselves from the possibility that the contractor would misapply the funds and had paid the money to the contractor without reservation or attempt to control his disposition thereof. We affirmed the foreclosure of the materialman’s lien. In that case, the facts of which are quite similar to the case now before us, we did not extend the criminal liability under the statute to those who receive the funds diverted. We refused to so extend the statute even though the issue was raised and argued by the parties.\nThe fallacy of the majority’s position is in its reading of the term “agent” in the statute. It is the contractor (Mr. McCann) who is the statutory agent within RCW 9.54.080 and who is proscribed from a diversion of funds. Relating RCW 9.54.080 to the facts of this case, the statute states:\nEvery person having entered into a contract to supply any labor or materials [McCann] for . . . which any lien might lawfully be filed upon the property of another [Maynard], who [McCann] shall receive the full price . . . shall be deemed within the meaning of . . . [larceny statute], to receive the same as the agent [Mc-Cann] of the party with whom such contract was made [Maynard], . . . for the purpose of paying all claims for labor and materials supplied.\nThe trial court found, and plaintiff affirms, that Mr. Legg had no business dealings whatsoever with the owners. Obviously, then, Mr. Legg was not a person who had “entered into a contract to supply labor and materials” and is not the statutory agent to whom the proscription is addressed.\nNeither the fact that Mr. McCann may have violated the statute (see State v. Williams, 141 Wash. 148, 251 P. 155 (1926)), nor the fact that a purpose of the statute is protection of the owner requires the extension of liability to those dealing with him. See discussion in Annot., 55 A.L.R.2d 481 (1957); Brower Co. v. Noise Control of Seattle, Inc., 66 Wn.2d 204, 401 P.2d 860 (1965). The criminal liability imposed by the statute extends to those enumerated in its terms and no others. Mr. Legg is not a person so enumerated.\nAccordingly, I dissent from that portion of the majority opinion which injects the applicability of RCW 9.54.080 and applies that statute to Mr. Legg. I would affirm as to all parties.\nDonworth, J. Pro Tern., concurs with Neill, J.\nApril 24,1970. Petition for rehearing denied.\nContract-Violation of Statute, Annot., 55 A.L.R.2d 481 (1957), contains discussion of this issue."", ""type"": ""dissent"", ""author"": ""Neill, J.""}], ""attorneys"": [""Jerry T. Haggarty, for appellant."", ""Erik Froberg, for respondents Legg."", ""McCord, Moen, Sayre, Hall & Rolfe, John R. Martin, Jr., and Charles Sayre, for respondent The National Bank of Commerce."", ""Macbride & Sax and D. Gordon Willhite, for respondent Peoples National Bank of Washington.""], ""corrections"": """", ""head_matter"": ""[No. 39676.\nEn Banc.\nFebruary 19, 1970.]\nMaynard Investment Co., Inc., Appellant, v. Marshall McCann et al., Respondents.\nJerry T. Haggarty, for appellant.\nErik Froberg, for respondents Legg.\nMcCord, Moen, Sayre, Hall & Rolfe, John R. Martin, Jr., and Charles Sayre, for respondent The National Bank of Commerce.\nMacbride & Sax and D. Gordon Willhite, for respondent Peoples National Bank of Washington.\nReported in 465 P.2d 657.""}, ""cites_to"": [{""cite"": ""465 P.2d 657"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""401 P.2d 860"", ""year"": 1965, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""66 Wn.2d 204"", ""year"": 1965, ""case_ids"": [1045458], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/66/0204-01""], ""opinion_index"": 0}, {""cite"": ""67 P.2d 868"", ""year"": 1937, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""190 Wash. 260"", ""year"": 1937, ""case_ids"": [1281151], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/190/0260-01""], ""opinion_index"": 0}, {""cite"": ""172 A.L.R. 1173"", ""year"": 1945, ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R."", ""opinion_index"": 0}, {""cite"": ""163 P.2d 811"", ""year"": 1945, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""24 Wn.2d 184"", ""year"": 1945, ""case_ids"": [2537913], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/24/0184-01""], ""opinion_index"": 0}, {""cite"": ""163 P. 733"", ""year"": 1917, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""162 P. 360"", ""year"": 1917, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""94 Wash. 258"", ""year"": 1917, ""case_ids"": [627693], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/94/0258-01""], ""opinion_index"": 0}, {""cite"": ""159 A.2d 356"", ""year"": 1960, ""category"": ""reporters:state_regional"", ""reporter"": ""A.2d"", ""opinion_index"": 0}, {""cite"": ""222 Md. 119"", ""year"": 1960, ""case_ids"": [1963283], ""category"": ""reporters:state"", ""reporter"": ""Md."", ""pin_cites"": [{""page"": ""122""}], ""case_paths"": [""/md/222/0119-01""], ""opinion_index"": 0}, {""cite"": ""130 Colo. 557"", ""year"": 1954, ""weight"": 2, ""case_ids"": [1941920], ""category"": ""reporters:state"", ""reporter"": ""Colo."", ""case_paths"": [""/colo/130/0557-01""], ""opinion_index"": 0}, {""cite"": ""419 P.2d 586"", ""year"": 1966, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""69 Wn.2d 616"", ""year"": 1966, ""case_ids"": [1057120], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/69/0616-01""], ""opinion_index"": 0}, {""cite"": ""55 A.L.R.2d 481"", ""year"": 1957, ""weight"": 2, ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R. 2d"", ""opinion_index"": 1}, {""cite"": ""251 P. 155"", ""year"": 1926, ""case_ids"": [2412656], ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""case_paths"": [""/mont/77/0422-01""], ""opinion_index"": 1}, {""cite"": ""141 Wash. 148"", ""year"": 1926, ""case_ids"": [786413], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/141/0148-01""], ""opinion_index"": 1}, {""cite"": ""6 P.2d 394"", ""year"": 1931, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 1}, {""cite"": ""166 Wash. 45"", ""year"": 1931, ""case_ids"": [848088], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/166/0045-01""], ""opinion_index"": 1}, {""cite"": ""53 A.L.R. 1364"", ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R."", ""opinion_index"": 1}, {""cite"": ""120 P.2d 946"", ""year"": 1942, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 1}, {""cite"": ""49 Cal. App. 2d 15"", ""year"": 1942, ""case_ids"": [4572984], ""category"": ""reporters:state"", ""reporter"": ""Cal. 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+1080065,"{""id"": 1080065, ""name"": ""Lindbrook Construction, Inc., Respondent, v. Mukilteo School District No. 6, Appellant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""b5edb9cfa3c798d34cc0eb283882e4bb1657211ec157c280cad3f47052b0b7cb"", ""simhash"": ""1:7fc1c103a2800f7f"", ""pagerank"": {""raw"": 0.0000001279937374920687, ""percentile"": 0.6172651378516663}, ""char_count"": 22454, ""word_count"": 3760, ""cardinality"": 943, ""ocr_confidence"": 0.641}, ""casebody"": {""judges"": [], ""parties"": [""Lindbrook Construction, Inc., Respondent, v. Mukilteo School District No. 6, Appellant.""], ""opinions"": [{""text"": ""Hill, J.\nThere are on this appeal 10 assignments of error; 4 relate to claimed errors in the findings of fact made by the trial court; 5 relate to a failure to make, findings proposed by the defendant-appellant; and 1 relates to the trial court’s conclusion of law No. 2:\nThat judgment should be entered in favor of the plaintiff and against the defendant in the sum of $42,834.20 together with plaintiff’s taxable costs.\nThe findings of fact give a succinct statement of what the controversy is all about. The plaintiff is a construction company; the defendant is a school district. Findings of fact Nos. 3 to 8 inclusive are as follows:\nThat on or about the 17th day of July, 1963, plaintiff submitted to defendant its bid for the grading and drainage work at the site of the Lake Stickney Elementary School, Mukilteo, Snohomish County, Washington. That defendant furnished Specifications, Drawings and other contract documents to plaintiff for use in the preparation of its bid.\n(Finding of fact No. 3)\nThat the specifications, drawings and other contract documents furnished plaintiff by defendant showed the work to be performed and made specific representations with respect to the conditions to be encountered, the source and amount of cut and fill, the depth of required excavation and that the fill material required would be available from areas of proposed cuts. That plaintiff reasonably relied upon said representations in the preparation and submission of its bid.\n(Finding of fact No. 4)\nThat plaintiff was awarded the contract for said work upon its lump sum' bid óf $33,617.00 and proceeded with the performance of the work as directed by thé defendant through its authorized agents. That in the performance of the work plaintiff encountered unanticipated conditions at substantial variance with the conditions represented. by the contract documents necessitating extra work as'íóllows:\n(a) Extensive shortage of fill material from areas of proposed cuts requiring plaintiff to open and utilize a borrow pit operation;\n(b) Extra excavation, fill and select fill in the building area;\n(c) Extra excavation and fill in the south parking area;\n(d) Extra excavation, fill and gravel for the interceptor ditch; and\n(e) Extra excavation and fill in the drainfield. That the said extra work required plaintiff to obtain and utilize additional and heavier equipment, caused the work to extend into the fall and winter months resulting in increased weather and moisture problems and caused plaintiff to remain on the job for more than double the time which would have been required to complete the work as .originally represented by the contract documents.\n(Finding of fact No. 5)\nThat plaintiff gave notice to defendant of such changed conditions within a reasonable time after they were first observed and claimed an equitable adjustment for the extra work involved. That at all times defendant had knowledge of the conditions encountered and the extra work performed by plaintiff and defendant directed plaintiff to proceed with the said extra work.\n(Finding of fact No. 6)\nThat the extra work plaintiff was required to perform by reason of the changed conditions and defendant’s directions as hereinabove set forth was and is of the reasonable value of $39,355.09. That in addition thereto defendant has withheld from plaintiff on the basic contract price the sum of $3,479.11 which amount is due, owing and unpaid.\n(Finding of fact No. 7)\nThat defendant has waived any claim for liquidated damages against plaintiff by its actions in directing the extra work, making payments during the alleged delay and leading plaintiff to believe that no liquidated damages would be assessed.\n(Finding of fact No. 8)\nAs these findings indicate, on a contract for $33,617 the extras, as found by the trial court, amounted to $39,355.09. This seems extraordinary, but the School District, rather than questioning the cost figures of the contractor and presenting any of its own, urged that what the contractor was claiming to be extra work because of changed conditions was actually within the contract.\nThe findings go directly to the heart of the controversy and, contrary to the contention of the School District, find that in the performance of the work the contractor encountered unanticipated conditions at substantial variance with the conditions represented in the contract documents, which necessitated extra work; that the contractor gave notice of such changed conditions and claimed an equitable adjustment for the extra work; and that the School District at all times had knowledge of the changed conditions and directed the plaintiff to proceed with the extra work.\nAlthough the School District assigns error to four of these findings (4, 5, 6 and 7) there is substantial (though conflicting) evidence to sustain them. These findings bring the case within our holding Bignold v. King County, 65 Wn.2d 817, 399 P.2d 611 (1965). The conclusion of law (quoted on page 540) to which error is assigned necessarily follows from the findings made.\nThe School District strenuously urges that Articles 25 and 26 of the contract preclude any recovery. Article 25, in part, provides:\nShould conditions encountered below the surface of the ground be at variance with the conditions indicated by the drawings and specifications the contract sum shall be equitably adjusted upon claim by either party made within a reasonable time after the first observance of the conditions.\nArticle 26 provides:\nIf the Contractor claims that any instructions by drawings or otherwise involve extra cost under this contract, he shall give the Architect written notice thereof within a reasonable time after the receipt of such instructions, and in any event before proceeding to execute the work, and the procedure shall then be as provided for changes in the work. No such claim shall be valid unless so made.\nIt is the School District’s position that there was no variance, but if it be assumed that conditions were at variance with the drawings and specifications, that no written notice having been given before proceeding to do the extra work, there can be no recovery.\nThe trial court held squarely notice in writing had been waived, saying:\nIt is clear to this Court that the architect knew of this work, that he directed that it proceed, and at such time he indicated he did not feel that such was an extra; so I do not feel the failure to give written notice set forth in the contract would apply. The fact he was never informed of the actual extra, in my opinion, would not have added anything. I feel failure of notice had been waived in the manner he handled such orders.\nBignold v. King County, supra, supports the trial court in that position. See also American Sheet Metal Works, Inc. v. Haynes, 67 Wn.2d 153, 407 P.2d 429 (1965).\nThe School District’s attack on that holding, formalized in Finding No. 6 is that there is no testimony that the School District (i.e., the School Directors) knew that extra work was being done.\nThere is no contention that the architect did not have full and complete knowledge of the conditions which developed in the course of this contract. He is apparently the only person connected with the School District with whom the contractor had any significant contacts. He was the one who told the contractor what to do, and what not to do. It strains credulity to believe that he failed to keep the School District authorities advised of what was happening. When this action against the district came on for trial, the architect was the sole witness presented by the district. At the trial level no one testified that there was any breakdown in communications between the architect and the School District. It is only on appeal that this inference is urged.\nFindings of fact made by the trial court which are supported by substantial evidence will not be disturbed on appeal. Nielson v. King County, 72 Wn.2d 720, 724, 435 P.2d 664 (1967). For a.statement of the reasons for that oft-repeated rule see Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570, 343 P.2d 183 (1959).\nThe contractor’s right to recover under the circumstances of this case is clear. Bignold v. King County, supra; Kieburtz v. Seattle, 84 Wash. 196, 146 P. 400 (1915).\nAnother contention made by the appellant School District is that if anybody has been injured it is the subcontractor (West Brothers Construction, Inc.) which actually did the work and should recover the damages. This apparent concern for the subcontractor seems a little hyper-technical. The only party with whom the School District had any contractual relations is maintaining the action. In the absence of proof that the prime contractor has been released from its liability to its subcontractor, the former is entitled to bring suit for equitable adjustment of the contract price for extra work performed by the latter. Kaiser Indus. Corp. v. United States, 340 F.2d 322 (Ct. C1. 1965); Garod Radio Corp. v. United States, 307 F.2d 945 (Ct. C1. 1962).\nThe judgment is affirmed.\nHunter, C. J., Finley, Weaver, and Rosellini, JJ., concur.\nThe trial court, in announcing its judgment, said: “It is my opinion that plaintiff should recover for the extra work involved. The amount seems rather high and in fact I indicated such on Friday. However, there is no evidence to dispute such amount, so the Court will have to accept such amount correct.” The difference between the extras in the sum of $39,355.09 as found by the trial court, and the judgment for $42,834.20 is the sum of $3,479.11 concededly due the plaintiff."", ""type"": ""majority"", ""author"": ""Hill, J.""}, {""text"": ""Neill, J.\n(dissenting) — I dissent for reasons which are briefly discussed in the majority opinion, but which are not substantiated by the record. There is here involved a basic agency issue of importance to public bodies engaged in public works contracts. ,\nThe facts giving rise to this litigation are adequately set forth in the majority-opinion. These facts show that the defendant district awarded a public work-contract to plaintiff to perform certain site preparation work at a lump sum price of $33,617. This contract was awarded pursuant to an invitation to bid as required by statute. RCW 28.58.135. During ,the course of performance of the contract, plaintiff was required by defendant district’s architect to do certain excavation and filling which plaintiff contends constituted “extra” under the terms of the contract. Defendant’s architect at all times contended this work.was within the original contract and plaintiff was not entitled to compensation as a charge of “extra” under the contract. The trial court resolved this dispute in favor of plaintiff and entered judgment against the district for an amount which is $39,355.09 above the contract price.\nThe majority holds Bignold v. King County, 65 Wn.2d 817, 399 P.2d 611 (1965), to be determinative, but I believe there is a vital distinction between the facts in Bignold and the instant case. In Bignold, the county was aware of the work and claim of the contractor. We stated at 822:\nAnother finding was that the contractor “gave timely notice of the subsurface conditions on the job site.” In addition thereto, the appellant became immediately aware of the changed conditions as soon as they developed and ordered the contractor to perform the changes and extra work involved on these three items. Under such conditions, the county cannot defeat recovery by a contractor even if no written notice was given.\n(Citations omitted.)\nHere, there is no testimony or evidence that the defendant district received any notice or claim prior to performance of the claimed “extra” nor is there any evidence that the defendant district was aware of the dispute, the claim of plaintiff, or of any potential liability beyond its written contract. Error is assigned to the finding by the trial court\nThat plaintiff gave notice to defendant of such changed conditions within a reasonable time after they were first observed and claimed an equitable adjustment, for the extra'work involved.. That at all times defendant had knowledge of the conditions encountered .and the extra work performed by plaintiff and defendant directed plaintiff to proceed with the said extra work.\nFinding of Fact No. 6.\nIn my reading of the record, I fail to find support for a finding that the district received notice of plaintiff’s claim, had knowledge of the condition encountered, or of the extra work unless notice to and knowledge of the architect is imputed to the district. In order for such knowledge of the architect to be chargeable to the district, though not actually communicated to it, the information must relate to some matter within the scope of the architect’s authority. See American Fidelity & Cas. Co. v. Backstrom, 47 Wn.2d 77, 287 P.2d 124 (1955). Therefore, we must examine the authority of the architect as agent of the school district. The trial court’s finding of fact No. 6 must stand or fall on the scope of that authority.\nIt is well established that an architect is not a general agent of his employer, and he has no implied authority to make a new contract for his employer or alter or modify an existing one. Valley Constr. Co. v. Lake Hills Sewer Dist., 67 Wn.2d 910, 410 P.2d 796 (1966); DeHoney v. Gjarde, 134 Wash. 647, 236 P. 290 (1925); Hurley v. Kiona-Benton School Dist. 27, 124 Wash. 537, 215 P. 21 (1923); Stimson Mill Co. v. Feigenson Eng’r Co., 100 Wash. 172, 170 P. 573 (1918); Schanen-Blair Co. Marble & Granite Works v. Sisters of Charity of the House of Providence, 77 Wash. 256, 137 P. 468 (1914).\nGenerally, the authority of an architect is established in the contract between the owner and the contractor, although any expression of assent by the owner to the contractor can serve to create, limit, or enlarge the authority. The only evidence as to the architect’s authority to speak or act for the district is contained in the contract between plaintiff and the defendant district. The only provisions of the contract pertaining to this issue are:\nArticle 9. The Architect’s Status. — The Architect shall have general supervision and direction of the work. He is the agent of the District only to the extent provided in the Contract Documents. He has authority to stop work whenever such stoppage may be necessary to insure the proper execution of the Contract.\nArticle 25. Changes in the Work. — The District, without invalidating the Contract, may order extra work or make changes by altering, adding to or deducting from the work, the Contract Sum being adjusted accordingly. All such work shall be executed under the conditions of the original contract except that any claim for extension of time caused thereby shall be adjusted at the time of ordering such change.\nIn giving instructions, the Architect shall have authority to make minor changes in the work, not involving extra cost, and not inconsistent with the purposes of the building, but otherwise, except in an emergency endangering life or property, no extra work or change shall be made unless in pursuance of a written order from the District signed or counter-signed by the Architect, or a written order from the Architect stating that the District has authorized the work or change, and no claim for an addition to the contract sum shall be valid unless so ordered.\nThe value of any such extra work or change shall be determined in one or more of the following ways:\n(a) By estimate and acceptance in a lump sum.\n(b) By unit prices named in the contract or subsequently agreed upon.\n(c) By cost and percentage or by cost and a fixed fee.\nIf none of the above methods is agreed upon, the Contractor, provided he receives an order as above, shall proceed with the work. In such case and also under case (c), he shall keep and present in such form as the Architect may direct, a correct account of the cost, together with vouchers. In any case, the Architect shall certify to the amount, including reasonable allowance for overhead and profit, due the Contractor. Pending final determination of value, payments on account of changes shall be made on the Architect’s certificate.\nShould conditions encountered below the surface of the ground be at variance with the conditions indicated by the drawings and specifications the contract sum shall be equitably adjusted upon claim by either party made within a reasonable time after the first observance of the conditions.\nArticle 26. Claims for Extras. — If the Contractor claims that any instructions by drawings or otherwise involve extra cost under this contract, he shall give the Architect written notice thereof within a reasonable time alter the receipt of such instructions, and in any event before proceeding to execute the work, and the procedure shall then be as provided for changes in the work. No such claim shall be valid unless so. made.\n(Italics ours.)\nIt is clear that plaintiff was told by the contract terms that the architect was not authorized to act for the district in committing any cost increases and it is apparent that the changes have increased the costs of the district by over 100 per cent. A public body operates within rather stringent budget restrictions and must be given the opportunity to voice approval or disapproval of changes in the contract which will affect the funds. Thus we find that the contract requires notice to the district and approval by the district before it is obligated for changes in the contract. The school board is responsible for the financial management of the district. We need not decide as to the validity of a delegation of this management authority and responsibility as such delegation is a matter which is not before us. The board has expressly told plaintiff that the architect has no such authority.\nIt has been stated that the requirements of notice to the owner of claimed changes or “extras” has; four purposes: (1) to keep the owner informed as to his costs; (2) to protect the owner from having to pay for work he does not want; (3) to insure that the work has been ordered; (4) to constitute evidence that the work, is, in fact, extra. 47 Calif. L. Rev. 645, 654 (1959), '\nThese purposes are particularly important to a public body. The requirement of' a writing as to such claim may be waived, as the court found to be á fact herein,\""but notice and the opportunity of the school board to decicle whether it is to commit funds over and above the. contract price is essential. Of course, the limited (express) authority of the architect can be enlarged by the usual rule relating to apparent and- incidental authority and there can be instances wherein the conduct of the board could estop it from denying authority of its architect, but such expansion of thq architect’s authority is not claimed or shown by the plaintiff.\nThe only testimony in the record relating to this issue appears in the testimony of Norval Lindelof, president of plaintiff corporation:\nQ. Do you know whether or not the school district was ever notified of this fact, that the hardpan was lower than indicated on the plans? A. Yes, there was a member of the school board used to stop by. Q. How many times did he stop by? A. When I was there, he seemed to stop at the first part of the job every night or every other night the times I was there. Q. Did you ever notify him of the fact that the elevations shown on the diagram were different than those found at the site? Did you ever talk with him? A. Well, yes, I talked with him but not after we started this. Q. No, after you realized there was a shortage. A. I never talked to him. In fact, he wasn’t involved. We dealt with the architect; he’s their representative. Q. And you never made any attempt to contact the school board, did you? A. No.\nThus, if plaintiff is to prevail it must show that the architect was, in some manner, authorized to bind the district. The record is clear, however, that the architect in fact had no such authority.\nIn spite of this lack of authority, the majority apparently justifies its conclusion by emphasis on the concluding paragraph of article 25, supra, which permits either party to claim an equitable adjustment of the contract price if conditions below the surface of the ground vary with those indicated in the contract specifications. The majority reads that paragraph as being independent of the remainder of article 25, and thus construes the operative effect of the agreement as follows: Should the contractor believe the subsurface condition to be at variance with the representation made during the bid stage, he need only so notify the architect, proceed with the work under the alleged changed condition, and then seek quantum meruit recovery for his additional labor.\nIf such interpretation is correct, then we have sprung a trap on the unwary public administrator. Articles 9, 25 and 26 of the contract quite explicitly limit the authority of the architect and spell out the procedure by which changes in the contract can be made. These provisions spell out protection to the district, as is their unmistakable intent, from incurring increased costs without its knowledge or consent.\nI fail to see any distinction between changes in the performance of the contract by the contractor which arise due to a change in conditions and changes in performance occasioned by alteration in the plans, specifications, or scope of the work. In either case, there is an alteration of the original contract with a corresponding alteration in costs. The underscored portions of articles 25 and 26 must be read together and the concluding paragraph of article 25 should be construed in harmony therewith. It is quite clear from a reading of the entire contract that the district intended that it be given notice of any proposed changes so that it would have an opportunity to evaluate the possible alternatives and elect the most desirable solution in terms of time, economy, and effect on the total project.\nSince no notice was given to the district, and the architect was not authorized to waive the requirement of notice, I would reverse the judgment.\nHamilton, Hale, and McGovern, JJ., concur with Neill, J."", ""type"": ""dissent"", ""author"": ""Neill, J.""}], ""attorneys"": [""Robert E. Schillberg, Donald E. Priest, Merle E. Wilcox, and Elmer Johnson, for appellant."", ""Short, Cressman & Cable and William L. Hintze, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 39335.\nEn Banc.\nAugust 21, 1969.]\nLindbrook Construction, Inc., Respondent, v. Mukilteo School District No. 6, Appellant.\nRobert E. Schillberg, Donald E. Priest, Merle E. Wilcox, and Elmer Johnson, for appellant.\nShort, Cressman & Cable and William L. Hintze, for respondent.\nReported in 458 P.2d 1.""}, ""cites_to"": [{""cite"": ""458 P.2d 1"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""307 F.2d 945"", ""year"": 1962, ""case_ids"": [204869], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""case_paths"": [""/f2d/307/0945-01""], ""opinion_index"": 0}, {""cite"": ""340 F.2d 322"", ""year"": 1965, ""case_ids"": [881489], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""case_paths"": [""/f2d/340/0322-01""], ""opinion_index"": 0}, {""cite"": ""146 P. 400"", ""year"": 1915, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""84 Wash. 196"", ""year"": 1915, ""case_ids"": [598889], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/84/0196-01""], ""opinion_index"": 0}, {""cite"": ""343 P.2d 183"", ""year"": 1959, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""54 Wn.2d 570"", ""year"": 1959, ""case_ids"": [1013576], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/54/0570-01""], ""opinion_index"": 0}, {""cite"": ""435 P.2d 664"", ""year"": 1967, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""72 Wn.2d 720"", ""year"": 1967, ""case_ids"": [1091232], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""724""}], ""case_paths"": [""/wash-2d/72/0720-01""], ""opinion_index"": 0}, {""cite"": ""407 P.2d 429"", ""year"": 1965, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""67 Wn.2d 153"", ""year"": 1965, ""case_ids"": [1048308], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/67/0153-01""], ""opinion_index"": 0}, {""cite"": ""399 P.2d 611"", ""year"": 1965, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""65 Wn.2d 817"", ""year"": 1965, ""case_ids"": [1966237], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/65/0817-01""], ""opinion_index"": 0}, {""cite"": ""47 Calif. L. Rev. 645"", ""year"": 1959, ""category"": ""journals:journal"", ""reporter"": ""Calif. L. 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Mukilteo School District No. 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+1095193,"{""id"": 1095193, ""name"": ""Carrie Thomas, Respondent, v. Housing Authority of the City of Bremerton, Appellant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""ef64570210a5daef08674658da854019fca9a103a1b1175ad61899b0f2783de7"", ""simhash"": ""1:f1d3bc51437a8e06"", ""pagerank"": {""raw"": 0.00000021057695284947042, ""percentile"": 0.7624712869360337}, ""char_count"": 24251, ""word_count"": 3992, ""cardinality"": 1216, ""ocr_confidence"": 0.634}, ""casebody"": {""judges"": [], ""parties"": [""Carrie Thomas, Respondent, v. Housing Authority of the City of Bremerton, Appellant.""], ""opinions"": [{""text"": ""Finley, C. J.\nOne morning, Carrie Thomas, then age 18 months — now the minor plaintiff in this lawsuit — was playing in the low-rent, 1-bedroom apartment which her parents leased from the defendant public housing authority. Her mother was not feeling well and was taking a nap in the bedroom. Carrie’s 17-year-old uncle, Floyd Grubs, was engaged in washing and rinsing dishes in a mixture of hot and cold water. Suddenly Carrie screamed. Her young uncle rushed into the bathroom. He found the child standing beside a small pool of water which had overflowed from the washbasin. Her nightgown was soaking wet on the left side. Water so hot it approached boiling temperature filled the basin. The hot-water faucet handle was too hot to touch. Apparently Carrie had climbed up, turned on the faucet, and fallen into the washbasin after it had filled with water. The entire left side of her body was severely scalded. Second and third degree burns and permanent injuries resulted.\nCarrie Thomas and her parents had moved into their low-rent apartment unit some 4 months before the accident. It was one of 582 living units in the project known as West Park, operated by the defendant public housing authority. The Thomases’ written lease with defendant contained, inter alia, the following provisions:\nLiability — The Management shall not be responsible for loss or damage to property, nor injury to persons, occuring [sic] in or about the demised premises, by reason of any existing or future condition, defect, matter or thing in said demised premises or the property of which the premises are a part, nor for the acts, omissions or negligence of other persons or Tenants in and about the said property. The Tenant agrees to indemnify and save the Management, its representatives and employees harmless from all claims and liability for damage to property or injuries to persons occuring [sic] in or about the demised premises\nTenant’s Responsibilities\nb. Entry — The Management may enter the premises during all reasonable time for inspection or repairs, or to remove signs, alterations or additions placed on the premises without permission.\nc. Damage — The tenant shall notify the Management immediately of necessary repairs or of damage to buildings or fixtures.\nThe heating appliance which furnished hot water for the Thomases’ apartment was about 22 years old at the time of the accident. A small plate or cover on the side of the water heater bore a legend reading “remove plate for adjustment.” Underneath the cover was a set screw which in effect operated as a lever to adjust the thermostat and the temperature of the water from extreme “hot” to extreme “cold” or some intermediate point. At the time plaintiff suffered her injuries, the mechanism was set all the way to the “hot” position. Even if the mechanism had been set at a lower or colder temperature reading, nevertheless, the water temperature actually produced could have been extremely hot. This is because the set screw could be unscrewed, moved, and reset to vary and to make the entire temperature range either higher or lower. Testimony introduced at the trial was capable of supporting a jury finding that no one checked the position of the set screw or the temperature range of the water before Carrie and her parents moved into the apartment, nor while they resided there. Three times during the period in which the Thomases resided in the apartment, defendant’s maintenance man serviced the water heater at the Thomases’ request. The servicing consisted of cleaning out soot, adjusting the air on the burner, and, on one occasion, relighting the pilot light; but it did not entail checking or changing the thermostat adjustment.\nThe water heater in question was tested after the accident. On the hottest setting, it produced water ranging from 180 to 208 degrees fahrenheit. On six arbitrarily chosen lower settings, it produced lower ranges of temperature down to 122 to 126 degrees on the lowest setting, with the one exception that it once produced water of 200 degrees on the middle setting after the burner was left on overnight. Expert testimony produced at the trial tended to show that, based on the distortion of a plastic toothbrush which had been in the washbasin, the water which scalded Carrie was approximately 200 degrees fahrenheit, or hotter.\nThis lawsuit was instituted by her guardian ad litem alleging that her injuries were proximately caused by the negligence of the defendant-appellant public housing authority. The jury returned a verdict for the plaintiff upon which judgment was entered, and the defendant appeals contending it is entitled to a judgment of dismissal as a matter of law. Defendant-appellant’s three assignments of error raise three questions which we will now discuss:\nFirst, the defendant housing authority maintains that it was under no duty to prevent the injuries posed in plaintiff’s complaint; i.e., it is not chargeable with negligence because the occurrence of the accident was not reasonably foreseeable. Anderson v. Reeder, 42 Wn.2d 45, 253 P.2d 423 (1953), and Fritsche v. Seattle, 10 Wn.2d 357, 116 P.2d 562 (1941), stand for the unquestioned proposition that when an accident occurs which is not reasonably foreseeable and which, according to common experience, is not likely to happen, a defendant is not chargeable with negligence. However, for a defendant to be held liable for maintaining a dangerous condition, proof as to foreseeability of the particular manner or nature of the occurrence is not necessary. It is sufficient if the general type of danger is reasonably foreseeable. Fleming v. Seattle, 45 Wn.2d 477, 275 P.2d 904 (1954).\nThe defendant’s maintenance superintendent admitted on the witness stand that water even as hot as 180 degrees fahrenheit was dangerously hot. The fact that he considered it dangerous clearly implies that he could foresee that people could be exposed to it long enough to cause injury. This seems particularly pertinent in view of the well known fact that many small children were living in the low-rent public housing project.\nAs indicated hereinbefore, there was substantial evidénce produced at the trial to support a jury determination that the water which scalded Carrie was 200 degrees fahrenheit, or hotter. There was also evidence that the defendant’s maintenance employees knew that the hot water from this type of hot water tank could and did reach 200 degrees, and hotter, when the thermostat was out of adjustment or the lever was on the highest setting. It should reasonably have been known to the defendant’s agents that exposure to water of that heat even momentarily could cause serious injuries. Tending to support a conclusion that the injuries suffered by the plaintiff were a foreseeable consequence of the overly hot water is our decision in Kidwell v. School Dist. No. 300, 53 Wn.2d 672, 335 P. 2d 805 (1959). Therein, this court held that an injury to a child which occurred in the moving of a precariously balanced, high upright piano in a school activities room was sufficiently foreseeable to sustain liability.\nWe find further support for concluding that the injuries were reasonably foreseeable in a case involving a somewhat analogous factual pattern. In Thompson v. Paseo Manor South, Inc., 331 S.W.2d 1 (Mo. App. 1959), a 22-month-old child fell from her bed and came into contact with uninsulated and unprotected heating pipes which caused injuries for which suit was brought against the landlord. In reversing a judgment for the defendant landlord, the court, 331 S.W.2d at 6-7, made the following observation in regard to foreseeability:\nIt may be conceded that this child falling from its bed and becoming entangled in the pipes and receiving the injuries complained of was an unusual occurrence. But the landlord knew that the child occupied the apartment, and no doubt knew of children occupying other similar apartments. It is not the unusual manner of receiving injuries that determines liability, but whether the defendant could have reasonably anticipated that a child would receive injuries from the pipes. In Hammontree v. Edison Bros. Stores, Inc., Mo. App., 270 S.W.2d 117, 126, it is said: “Relating to those dangers to be reasonably anticipated — if there is some probability or likelihood, not a mere possibility, of harm sufficiently serious that ordinary men would take precautions to avoid it, then the failure to do so is negligence. While the likelihood of a future happening is the test of a duty to anticipate, this does not mean the chances in favor of the happening must exceed those against it. The test is not the balance of probabilities, but of the existence of some probability of sufficient moment to induce the reasonable mind to take the precautions which would avoid it.” (Italics ours.)\nWe think that the evidentiary pattern of the instant case meets the test or standard for establishing liability, i.e., the overly hot water posed a danger to tenants and children of tenants of the housing project which was sufficiently foreseeable to support a determination of liability. See also Housinq Authority of Birmingham v. Morris, 244 Ala. 557, 14 So. 2d 527 (1943).\nNext, the defendant maintains that assuming the water was excessively hot, it is not liable under applicable landlord-tenant law. The defendant cites such cases as Flannery v. Nelson, 59 Wn.2d 120, 366 P.2d 329 (1961), and Mesher v. Osborne, 75 Wash. 439, 134 Pac. 1092 (1913), for the proposition that a landlord is not liable for an obvious or patent defect, and is only liable for an obscure or latent defect, if he has actual knowledge of it. Conceding this to be a fair statement of the law of Washington and of some other states, nevertheless in many other jurisdictions, actual knowledge of the landlord is not required as the basis of liability if he has knowledge of facts which would lead a reasonable man to suspect the defect actually exists.\nAssuming our landlord and tenant law to be as indicated above, we are convinced the evidence in this case shows an obscure or latent defect or dangerous condition existed. Dr. Botimer testified that, in his opinion, if the water had been 140 degrees fahrenheit instead of 200 degrees, Carrie would not have suffered severe second and third degree burns on the entire left side of her body nor lost three fingers as she did, i.e., her injuries, if any, would have been very minor. From the testimony of various witnesses, the jury could have found that there is no way for the average person to tell the difference between water of 140 degrees fahrenheit and water heated to 200 degrees fahrenheit without using a high range thermometer, which the average person does not have and would not think of using. The verdict indicates a jury determination that the hot water heater or its condition at the time constituted an obscure or latent dangerous condition. A sufficient basis was laid relating to the issue involved, and the question was properly submitted to the jury for its determination. Howard v. Washington Water Power Co., 75 Wash. 255, 134 Pac. 927 (1913).\nThere is some dispute about the extent or the character of the knowledge of the defect necessary to render the defendant liable under existing law. The plaintiff points out that the type of water heater involved was installed throughout the housing project, and emphasizes evidence showing that the maintenance men of the defendant knew that this type of water heater could produce dangerously hot water. It is further emphasized that tenants sometimes unwittingly altered the temperature range of the heaters and that the projects’ hot water faucets thus on occasion produced not only water too hot for safe domestic use but even live steam. Plaintiff then cites Carusi v. Schulmerick, 98 F.2d 605 (D.C. Cir. 1938), wherein the landlord’s agents knew of a latent defect in a particular type of window installed throughout an apartment building. The court seems to have held such knowledge was sufficient to render the landlord liable when, because of its dangerous condition, one such window fell and injured the plaintiff.\nContrariwise, the defendant cites Daulton v. Williams, 81 Cal. App. 2d 70, 183 P.2d 325 (1947). We do not find that case to be apposite. The court in Daulton specifically stated that the defect involved was a patent one.\nIn any event, we do not find it necessary to decide whether the defendant possessed the requisite knowledge solely on the basis of its knowledge as to the dangerous condition inherent in this type of water heater.\nThere was testimony that Floyd Grubs, while living in the Thomases’ apartment, had complained to defendant’s maintenance man that the water in the apartment was too hot. This was a month or two before the accident and at a time when the maintenance man was cleaning the water heater in question. Neither Grubs nor the Thomases had reason to know how hot too hot was, but the defendant’s maintenance personnel had good reason to know that too hot could be dangerously hot. There was sufficient evidence presented for the jury to conclude that the defendant had actual knowledge of the defect or dangerous conditions. See Howard v. Washington Power Co., supra.\nBeing aware of the danger, the defendant at the very least could have taken the following simple and economically feasible precautions: (1) check the temperature of the water produced by each water heater in the course of the regular between-tenants inspection of the apartments, and (2) advise all tenants, particularly new ones on their entry, to be careful regarding the hot water in the apartments and especially not to change the screw setting on the thermostat since this could cause the water to be heated to a dangerously hot temperature. Defendant took none of these steps in regard to the Thomases or the water heater in their apartment. Having failed to discharge its responsibility, the defendant must bear the consequences.\nThe defendant’s third argument is that the provision of the lease, quoted above, which relates to liability is effective to release it from liability for Carrie’s injuries. In support of the validity of this exculpatory clause, the defendant cites this court’s decisions in Magerstaedt v. Eric Co., 64 Wn.2d 298, 391 P.2d 533 (1964); Griffiths v. Henry Broder ick, Inc., 27 Wn.2d 901, 182 P.2d 18, 175 A.L.R. 1 (1947); and Broderson v. Rainier Nat’l Park Co., 187 Wash. 399, 60 P.2d 234 (1936). In the Griffiths case, the court held that an agreement by which a private apartment house owner held the manager harmless from liability for injuries resulting from any cause, including its own negligence, was not contrary to public policy. Because of the difference in the character and relationship of the parties to the agreement in Griffiths, that case is not determinative of the issue here presented.\nNeither is the Broderson case apposite, since there the issue concerned the validity of a release of liability clause whereby the defendant, which rented winter sports equipment, protected itself against liability to those patrons who voluntarily chose to participate in dangerous winter sports. We note, however, that the opinion in Broderson, 187 Wash, at 404, contains the following language:\nConsidering the question whether the waiver was void as against public policy, it is a well-recognized rule that corporations engaged in the performance of public duties, as for instance, common carriers, and, generally, those engaged in the operation of public utilities, cannot by contract relieve themselves of liability for negligence in the performance of their duty to the public or the measure of care they owe their patrons under the law. Hartford Fire Ins. Co. v. Chicago M. & S.P.R. Co., 175 U.S. 91, 20 S. Ct. 33; Railroad Co. v. Lockwood, 84 U.S. 357.\nIn the Magerstaedt decision, there is language which supports the validity of a lease provision relieving the corporate lessor from liability to the lessee of a restaurant for certain causes, although the exculpatory clause was not the basis of the decision in that case. The landlord-tenant relationship in that case, however, was quite different than in the instant matter.\nThe Laws of 1939, ch. 23, now codified as RCW 35.82, created the defendant public housing authority and enabled it to build and operate the West Park project in which the Thomases lived. It is noteworthy that RCW 35.82.010 reads in part as follows:\nFinding and declaration of necessity. It is 'hereby declared: (1) that there exist in the state insanitary or unsafe dwelling accommodations and that persons of low income are forced to reside in such insanitary or unsafe accommodations; that within the state there is a shortage of safe or sanitary dwelling accommodations available at rents which persons of low income can afford and that such persons are forced to occupy overcrowded and congested dwelling accommodations; . . . (2) that these areas in the state cannot be cleared, nor can the shortage of safe and sanitary dwellings for persons of low income be relieved, through the operation of private enterprise, and that the construction of housing projects for persons of low income (as herein defined) would therefore not be competitive with private enterprise; (3) that the clearance, replanning and reconstruction of the areas in which insanitary or unsafe housing conditions exist and the providing of safe and sanitary dwelling accommodations for persons of low income are public uses and purposes for which public money may be spent and private property acquired and are governmental functions of state concern; ....\nThe definition of “housing project,” as found in RCW 35.82.020, contains the following language:\n(9) “Housing project” shall mean any work or undertaking: . . . (b) to provide decent, safe and sanitary urban or rural dwellings, apartments or other living accommodations for persons of low income; ....\nFrom this expression of the legislature, the conclusion is inescapable that two of the primary objectives in creating public housing authorities such as the defendant are: (1) to provide safe and sanitary housing, and (2) to make such housing available to persons of low income who otherwise would be forced to reside in unsanitary and unsafe housing.\nPublic housing such as that provided by the defendant is only available to “persons of low income,” in other words, those who the legislature has determined are unable to obtain safe and sanitary housing elsewhere. The situation presents a classic example of unequal bargaining power. Dean Prosser analyzes the problem and the applicable law as follows:\nIt is quite possible for the parties expressly to agree that the defendant is under no obligation of care for the benefit of the plaintiff, and shall not be liable for the consequences of conduct which would otherwise be negligence. There is no public policy which prevents the parties from contracting as they see fit. Thus one who accepts a gratuitous pass on a railway train, or enters into a lease or some other relation, may agree that there shall be no responsibility for negligence.\nThe courts have refused to uphold such agreements, however, where one party is at such obvious disadvantage in bargaining power that the effect of the contract is to put him at the mercy of the other’s negligence. Prosser, Torts § 55, at 305-06 (2d ed. 1955). (Italics ours.)\nWe think that the instant matter, in which the Thomases had to sign the defendant’s standard lease form in order to acquire housing at West Park, is an example of an obvious disadvantage in bargaining power which would have the effect, if the exculpatory provision were upheld, of putting the tenants at the mercy of the defendant housing authority’s negligence. This would be contrary to the public policy inherent in the basic legislation and authorization relative to low rent public housing.\nIn support of its position on the validity of the exculpatory provision in the lease, the defendant also cites Manius v. Housing Authority of Pittsburgh, 350 Pa. 512, 39 A.2d 614 (1944). The Manius case did uphold a release clause in a lease between a tenant and a public housing authority against a challenge that it was void as against public policy. The Pennsylvania court did not give much consideration to the argument, however, and dismissed it rather summarily in a brief paragraph.\nIn Housing Authority of Birmingham v. Morris, 244 Ala. 557, 14 So.2d 527 (1943), the Supreme Court of Alabama held that a disclaimer of liability by a housing authority is not effective to insulate it from liability to its tenants for its own negligence. Curiously enough, the Morris case also involved a plaintiff who was scalded by hot water, the injury being caused by the defendant’s negligent maintenance of a hot water heater. On rehearing, the court unanimously adhered to its prior opinion and concluded that the housing authority could not be allowed to “create and maintain a trap to inflict personal injury upon its tenants.” 14 So.2d at 535. The careful and exhaustive analysis of the Alabama court was based in part on consideration of the statutes which authorized and created the housing authority. These statutes, which the court quoted at length and which are very similar to those of this state found in RCW 35.82, emphasized that the purpose of the housing projects was to provide safe and sanitary housing for persons of low income. We believe the Morris decision is better and more carefully reasoned than that in Manius.\nWe conclude that it is against the public policy of this state, as expressed by the legislature, to allow a public housing authority, created to provide safe and sanitary housing for persons of low income, to exempt itself by prearrangement or contract from liability to its tenants for its own negligence.\nThe judgment is affirmed.\nDonworth, Rosellini, and Hamilton, JJ., and Barnett, J. Pro Tern., concur.\nSee, e.g., Wagner v. Kepler, 411 Ill. 368, 104 N.E.2d 231 (1951); Harrill v. Sinclair Ref. Co., 225 N.C. 421, 35 S.E.2d 240 (1945); Murphy v. Barlow Realty Co., 214 Minn. 64, 7 N.W.2d 684 (1943); Hines v. Wilcox, 96 Tenn. 148, 33 S.W. 914 (1896); Cutter v. Hamlen, 147 Mass. 471, 18 N.E. 397 (1888); and other cases and authorities cited in 2 Harper & James, Torts § 27.16, at 1509, nn. 16 and 17 (1956). Dean Prosser considers the requirement of actual knowledge to be the minority view. Prosser, Torts § 80, at 467 (2d ed. 1955). In the view of the Restatement (Second), Torts § 358 (1) (1965), liability attaches if “the lessor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to expect that the lessee will not discover the condition or realize the risk.” (Italics ours.)\nIt is also clear that the legislature had no intention of shielding housing authorities such as the defendant from suit, RCW 35.82.070 provides in part:\n2 Powers of authority. An authority shall constitute a public body corporate and politic, exercising public and essential governmental functions, and having all the powers necessary or convenient to carry out and effectuate the purposes and provisions of this chapter, including the following powers in addition to others herein granted: (1) To sue and be sued; ....\nAnother case in. which an exculpatory clause in a lease with a public housing authority was before an appellate court is Harper v Vallejo Housing Authority, 104 Cal. App. 2d 621, 232 P.2d 262 (1951). In that case, the court affirmed a judgment for the minor plaintiff in spite of the release provision in the lease. The court was not called upon to determine the validity of the provision, however, as the suit was only for the child’s injuries and the court determined the release to be ineffective to contract away the minor plaintiff’s rights."", ""type"": ""majority"", ""author"": ""Finley, C. J.""}], ""attorneys"": [""Hullin, Ehrlichman, Carroll & Roberts, Jack E. Hullin, and Helen Graham Greear, for appellant."", ""Kahin, Horswill, Keller, Rohrback, Waldo & Moren, Harold Far dal, Greenwood, Shiers & Kruse, and Frank A. Shiers, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 38561.\nDepartment Two.\nApril 13, 1967.]\nCarrie Thomas, Respondent, v. Housing Authority of the City of Bremerton, Appellant.\nHullin, Ehrlichman, Carroll & Roberts, Jack E. Hullin, and Helen Graham Greear, for appellant.\nKahin, Horswill, Keller, Rohrback, Waldo & Moren, Harold Far dal, Greenwood, Shiers & Kruse, and Frank A. Shiers, for respondent.\nReported in 426 P.2d 836.""}, ""cites_to"": [{""cite"": ""426 P.2d 836"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""232 P.2d 262"", ""year"": 1951, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""104 Cal. App. 2d 621"", ""year"": 1951, ""case_ids"": [2263883], ""category"": ""reporters:state"", ""reporter"": ""Cal. 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+1099461,"{""id"": 1099461, ""name"": ""Louis P. Esmieu, et al, Petitioners, v. Jack Hsieh, et al, Respondents"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""a3060065871686a4a028a2f705c126f3a4de65bfd930e70ee90391bca1b46e15"", ""simhash"": ""1:911744be27691dd9"", ""pagerank"": {""raw"": 0.000000245373966406108, ""percentile"": 0.8043046138983393}, ""char_count"": 8281, ""word_count"": 1355, ""cardinality"": 534, ""ocr_confidence"": 0.829}, ""casebody"": {""judges"": [""Utter, C.J., and Rosellini, Stafford, Wright, Brachtenbach, Horowitz, Hicks, and Williams, JJ., concur.""], ""parties"": [""Louis P. Esmieu, et al, Petitioners, v. Jack Hsieh, et al, Respondents.""], ""opinions"": [{""text"": ""Dolliver, J.\nThis is the second of three cases involving the same parties and the same property. This case, Esmieu II, comes to us on a petition to review a decision of the Court of Appeals. Esmieu v. Hsieh, 20 Wn. App. 455, 580 P.2d 1105 (1978). See also Esmieu v. Schrag (Esmieu I), 88 Wn.2d 490, 563 P.2d 203 (1977).\nEsmieus, both as individuals and through a family trust, own over 15,700 acres of agricultural land. They desired to generate more family income by diversifying their holdings and executed two agreements with Jack Hsieh. The first, executed in December 1973, was to exchange about 9,000 acres (Tract A) for other real estate which Hsieh would provide. The second agreement (Agreement), at issue in this case, executed in March 1974, consisted of a lease and option to exchange. It provided for plaintiffs to lease another 6,700 acres (Tracts B and C) to Hsieh for about 20 years, with rent increases upon specific occurrences, and further provided Hsieh with an option to purchase these tracts by exchanging other real estate with specified values. Hsieh, by securing water permits and performing other necessary tasks, was to provide irrigation for the leased land. Esmieus were required to cooperate fully in this endeavor. Provision was also made for a 60-day notice of claimed default, and for termination of the lease if default should remain uncured.\nTracts A, B and C were already subject to leases to Charles Maiden. The Agreement required Esmieus to negotiate promptly for termination of the leases and to bear all expenses in order that Hsieh could take possession of the land as soon as possible. Hsieh negotiated directly with Maiden for a partial termination of the Maiden leases and agreed to bear some of the costs himself in order to facilitate termination. He delivered the termination agreement to the Esmieus' attorney for their signatures. The signed termination agreement was never returned to him; in fact, Hsieh did not even know it had been signed until just before trial. The trial court found that the failure of the Esmieus to deliver the signed Maiden lease termination to Hsieh constituted a breach of the Agreement; the Court of Appeals found that Hsieh could not enter the property to fulfill the requirements for obtaining water permits because of the Esmieus' failure to complete the termination of Maiden's lease. The Esmieus claim that the signed release was placed in escrow and that Hsieh voluntarily and independently abandoned his efforts to obtain water permits. The permit applications were eventually canceled in April 1975.\nHsieh paid the rent installment of October 1, 1974. Due to uneasiness arising from Esmieus' procrastination, the January 1, 1975, rent payment was made to Esmieus' attorney, conditioned upon their faithful performance of their Agreement obligations. Esmieus gave notice of default for nonpayment of rent and failure to provide irrigation to the property. After 60 days, they took the position that the Agreement was terminated because the alleged defaults remained uncured. In June 1975, they leased Tract A to International Pelleting Company (IPC) for 40 years, despite a provision in the Agreement which prohibited an assignment of any interest in Tracts A, B and C without Hsieh's consent.\nThereafter, the Esmieus brought this action to quiet title; Hsieh counterclaimed for specific performance of the Agreement and damages. The trial court denied Esmieus' claims and ordered specific performance. The trial court found that Hsieh's obligation to pay rent after January 1, 1975, had been suspended because of the Esmieus' lack of cooperation as required by the Agreement and by \""their inter-family agreement to actively block or thwart Dr. Hsieh's performance\"". The court ordered the return to Hsieh of $22,500 which had been paid into the court registry as rental payments during the litigation period.\nTwo major issues are before us. The first pertains to the Esmieus' claim that their covenant to cooperate in obtaining water permits is independent of Hsieh's covenant to pay rent and secure the permits. They assert that, even if their failure to terminate the Maiden lease is found to be a breach of the Agreement, they were still entitled to cancel the lease and receive a judgment quieting their title.\nIn 1909, we held that courts must look to an agreement as a whole to determine whether covenants are mutual and dependent or independent. Toellner v. McGinnis, 55 Wash. 430, 104 P. 641 (1909). The trial court found, and the evidence supports the finding, that Hsieh had an overall development plan for all of the property involved in the agreements between the parties. The land was virtually worthless without irrigation. The intent of the parties was that Hsieh develop the property after irrigation was provided but irrigation could not be provided until water permits were granted. Hsieh's duty to obtain the permits was necessarily dependent upon Esmieus' promise to cooperate in securing those permits. Similarly, Hsieh's covenant to pay rent was dependent upon Esmieus' covenant to secure termination of Maiden's leasehold. The Esmieus' frustration of the basic purpose of the Agreement excused Hsieh's duty to make unconditional rental payments. Kneeland Inv. Co. v. Aldrich, 63 Wash. 609, 116 P. 264 (1911); Toellner v. McGinnis, supra.\nThe second issue concerns the 40-year lease of Tract A to IPC. The final paragraph of the Agreement reads:\nThis Lease and Option Agreement shall inure to the benefit of and is binding upon the heirs, executors, administrators, personal representatives and assigns of each of the parties signatory hereto; Provided, Esmieus shall not, jointly or severally assign any interest in the lands described upon Annexes \""A\"", \""B\"" or \""C\"", without written consent of Hsiehs or Court Order.\nBoth the trial court and the Court of Appeals found the IPC lease to be a breach of the Agreement and ordered the Esmieus to negotiate a termination of that lease. The Esmieus contend the \""no assignment\"" clause did not prohibit a lease and even if it did the clause is violative of public policy.\nPlaintiffs call our attention to a number of cases involving prohibitions against assignment or subleasing. Coulos v. Desimone, 34 Wn.2d 87, 208 P.2d 105 (1949); Willenbrock v. Latulippe, 125 Wash. 168, 215 P. 330 (1923); Burns v. Dufresne, 67 Wash. 158, 121 P. 46 (1912). These cases are concerned with the ability of a tenant to sublease the property or assign the lease. None of them deals with the right of a landlord to lease to a third party the very property which is the subject of an agreement between the landlord and tenant. However, each states that a no-assignment clause must be strictly construed. We agree, but hold that a strict construction not only of the no-assignment clause but of the entire Agreement shows beyond question that allowing the Esmieus to assign or lease Tract A was totally inconsistent with the intent of the parties and in the language of the trial court \""in direct violation of the terms and provisions of the Lease and Option to Exchange Real Estate\"".\nFinally, Esmieus urge that, since IPC was not joined in this action, the trial court could not order the cancellation of the IPC lease. But, as the Court of Appeals correctly observed, the trial court in no way violated the rights of IPC. Rather, the trial court recognized those rights and ordered that IPC's lease be bought out by the Esmieus.\nThe trial court, sitting in equity, reviewed the complex factual matters involved in this case and fashioned broad remedies to do substantial justice to the parties and put an end to the litigation. The trial court neither exceeded its authority nor abused its discretion. The judgment of the trial court and the decision of the Court of Appeals are affirmed.\nUtter, C.J., and Rosellini, Stafford, Wright, Brachtenbach, Horowitz, Hicks, and Williams, JJ., concur."", ""type"": ""majority"", ""author"": ""Dolliver, J.""}], ""attorneys"": [""LeSourd, Patten, Fleming & Hartung, Leon C. Misterek, Edwards, Wetherall & Barbieri, Malcolm L. Edwards, and Robert G. Austin, for petitioners."", ""Leavy, Taber, Schultz, Bergdahl & Sweeney, John G. Schultz, and Andrew C. Bohrnsen, for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 45753.\nEn Banc.\nAugust 23, 1979.]\nLouis P. Esmieu, et al, Petitioners, v. Jack Hsieh, et al, Respondents.\nLeSourd, Patten, Fleming & Hartung, Leon C. Misterek, Edwards, Wetherall & Barbieri, Malcolm L. Edwards, and Robert G. Austin, for petitioners.\nLeavy, Taber, Schultz, Bergdahl & Sweeney, John G. Schultz, and Andrew C. Bohrnsen, for respondents.""}, ""cites_to"": [{""cite"": ""121 P. 46"", ""year"": 1912, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""67 Wash. 158"", ""year"": 1912, ""case_ids"": [558730], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/67/0158-01""], ""opinion_index"": 0}, {""cite"": ""215 P. 330"", ""year"": 1923, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""125 Wash. 168"", ""year"": 1923, ""case_ids"": [763901], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/125/0168-01""], ""opinion_index"": 0}, {""cite"": ""208 P.2d 105"", ""year"": 1949, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""34 Wn.2d 87"", ""year"": 1949, ""case_ids"": [4912415], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/34/0087-01""], ""opinion_index"": 0}, {""cite"": ""116 P. 264"", ""year"": 1911, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""63 Wash. 609"", ""year"": 1911, ""case_ids"": [552606], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/63/0609-01""], ""opinion_index"": 0}, {""cite"": ""104 P. 641"", ""year"": 1909, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""55 Wash. 430"", ""year"": 1909, ""case_ids"": [1301640], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/55/0430-01""], ""opinion_index"": 0}, {""cite"": ""563 P.2d 203"", ""year"": 1977, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""88 Wn.2d 490"", ""year"": 1977, ""case_ids"": [1111245], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/88/0490-01""], ""opinion_index"": 0}, {""cite"": ""580 P.2d 1105"", ""year"": 1978, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""20 Wn. App. 455"", ""year"": 1978, ""case_ids"": [464745], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""case_paths"": [""/wash-app/20/0455-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""92 Wash. 2d 530"", ""type"": ""official""}], ""file_name"": ""0530-01"", ""last_page"": ""535"", ""first_page"": ""530"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T18:22:44.740078+00:00"", ""decision_date"": ""1979-08-23"", ""docket_number"": ""No. 45753"", ""last_page_order"": 563, ""first_page_order"": 558, ""name_abbreviation"": ""Esmieu v. 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+1111226,"{""id"": 1111226, ""name"": ""James J. Cherberg, et al, Petitioners, v. Peoples National Bank of Washington, Defendant, Joshua Green Corporation, Respondent"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""3ff457e48bd389f77d8e77d0aee27309c0ae638967f43089b51d6f9f04b80ca1"", ""simhash"": ""1:1f5b4503a99d87c5"", ""pagerank"": {""raw"": 0.00000045289986261636546, ""percentile"": 0.9238637078841276}, ""char_count"": 21966, ""word_count"": 3634, ""cardinality"": 1055, ""ocr_confidence"": 0.861}, ""casebody"": {""judges"": [""Wright, C.J., and Rosellini, Hamilton, Stafford, Brachtenbach, Horowitz, Dolliver, and Hicks, JJ., concur.""], ""parties"": [""James J. Cherberg, et al, Petitioners, v. Peoples National Bank of Washington, Defendant, Joshua Green Corporation, Respondent.""], ""opinions"": [{""text"": ""Utter, J.\nJames Cherberg and his wife brought a claim based in part upon the tort of intentional interference with business expectancies arising from the willful refusal of the Joshua Green Corporation, as their landlord, to perform duties owed them under a commercial lease. A jury verdict for $42,000 was entered in favor of the Cherbergs. The Court of Appeals in Cherberg v. Peoples Nat'l Bank, 15 Wn. App. 336, 549 P.2d 46 (1976), determined that, while on the facts presented an implied duty to repair certain exterior walls did exist, the trial court erred in declining to grant the landlord's motion for a directed verdict. It held that an action for intentional interference did not lie because one cannot, as a matter of law, be guilty of an intentional tort for interfering with one's own contract. We reverse that decision.\nIn 1967 the petitioners, James and Arlene Cherberg, leased a portion of the Lewis Building on Fifth Avenue in downtown Seattle and invested some $80,000 in the establishment and operation of a restaurant business at that location. The respondent, Joshua Green Corporation, acquired the Lewis Building in February of 1972, subject to the lease of the petitioners. In April of 1972, Peoples National Bank of Washington, the owner of the property abutting the Lewis Building on the south, commenced demolition of the existing buildings on its property for the purpose of constructing a high-rise office tower. The demolition work resulted in the exposure of the south wall of the Lewis Building. It was found to be structurally unsafe and in need of substantial repairs to satisfy requirements of the City of Seattle Building Department. The demised premises here at issue were located within the Lewis Building but did not abut the south wall.\nThe lease between the parties required the lessee to make necessary repairs to maintain the demised premises, excepting the outside walls and other structural components of the building, and reserved to the lessor the use of the roof and outside walls of the building. The lease does not contain an express covenant concerning the responsibility to maintain the structural components of the building.\nUpon learning of the problems with the south wall, the lessor contacted the Cherbergs directly and through its attorneys, indicating the Green Corporation would probably elect not to repair the wall and that the City might order the building closed. The Cherbergs responded that the lessor was obligated under the lease to make repairs and that they would suffer substantial damage should their tenancy be disrupted.\nThereafter, the lessor terminated the lease and informed the Cherbergs of its intention to post the building as unsafe. The Cherbergs closed their business for approximately 1 week. An independent consultant then informed the Cherbergs that repair of the wall was in fact feasible. Petitioners reopened their business when the Green Corporation failed to actually post the building and at that time reiterated their demands to the lessor. The bank, not wishing to be delayed further in its construction plans, eventually repaired the wall at its own expense (estimated at $30,000 to $50,000).\nThis action was brought against the bank and the Green Corporation, alleging breach of the lessor's duty to repair, negligent demolition by the bank, and, that the defendants had engaged in a conspiracy to destroy petitioners' business. Undisputed evidence was presented demonstrating that there were close ties between Joshua Green III, the Green Corporation, and Peoples National Bank of Washington. The evidence disclosed the Green Corporation viewed the Lewis Building as an adequately profitable investment under the circumstances existing at the time of purchase, but that it was the Corporation's desire to regain control of the premises as soon as possible in order to demolish the existing structure on the property and erect a new building which they felt might be more profitable. Demolition of the Lewis Building during the course of the new construction would have been of substantial economic benefit both to the Green Corporation and to the bank. In early 1972 both the bank and the Green Corpóration had requested the same agent to engage in efforts to negotiate a sale of petitioners' leasehold, in order that the Green Corporation might regain control of the premises.\nThe trial court, at the conclusion of testimony, dismissed the bank from the suit and also dismissed the negligence and conspiracy claims. Respondent's other motions pertinent to this appeal were denied. The jury was instructed that respondent was liable for damages caused by the failure to repair the outside wall. It further instructed the jury with regard to the elements of the tort of intentional interference with business expectations and that, if the jury concluded the defendant's actions were willful, damages for mental suffering, inconvenience, and discomfort would be compensable. The jury made a special finding of willful action and returned a verdict of $42,000. The only evidence of economic loss due to the temporary closure and attendant disruption of business was in the amount of $3,100.\nThe Court of Appeals held the lessor did have a duty to make repairs to the wall on the basis of a mandate so to do from competent government authority. However, it reversed and remanded, holding that the Green Corporation was entitled to a directed verdict on the claim of interference with business expectations and the assessment of damages for inconvenience, discomfort and mental distress.\nThe first issue is the rights and duties of the parties with regard to the unsafe condition of the south wall of the building. We agree with the holding of the Court of Appeals that an implied duty on the part of the lessor exists to make those repairs mandated by competent government authority where, as here, the appropriate authority determines that, in the interest of the public welfare, a defective condition of a building must be remedied. We also agree the evidence presented established that the refusal of the respondent to take action to fulfill this duty, within a reasonable time after notification from the City, breached an implied covenant of quiet enjoyment and resulted in an actionable constructive eviction. See Cherberg v. Peoples Nat'l Bank, supra at 343-45.\nIn addition, however, even absent a mandate from government authority, the lessor was under a duty to make the repairs here in question. The general rule is that a landlord has no duty to make repairs to the demised premises absent an express covenant requiring such action. Feigenbaum v. Brink, 66 Wn.2d 125, 401 P.2d 642 (1965); Conradi v. Arnold, 34 Wn.2d 730, 209 P.2d 491 (1949); Cordes v. Guy Inv. Co., 146 Wash. 143, 262 P. 131 (1927). While it is true this lease did not contain an express covenant abrogating this common-law rule, the area requiring repair was not a part of the demised premises but was an area of the building over which the landlord had expressly retained control.\nA landlord has a duty to maintain, control and preserve retained portions of the premises subject to a leasehold in a manner rendering the demised premises adequate for the tenant's use and safe for occupancy by both the tenant and his invitees. Geise v. Lee, 84 Wn.2d 866, 529 P.2d 1054 (1975); Feigenbaum v. Brink, supra; Washington Chocolate Co. v. Kent, 28 Wn.2d 448, 183 P.2d 514 (1947); Andrews v. McCutcheon, 17 Wn.2d 340, 135 P.2d 459 (1943); Le Vette v. Hardman Estate, 77 Wash. 320, 137 P. 454 (1914). Failure to fulfill this duty results in liability on the part of the lessor for injury caused thereby, Geise v. Lee, supra, and failure to fulfill this duty, by omission to repair, can in a proper case constitute an actionable constructive eviction. Washington Chocolate Co. v. Kent, supra. See generally Stoebuck, The Law Between Landlord and Tenant in Washington, 49 Wash. L. Rev. 291, 347-50 (1974).\nThe willful refusal to adequately maintain retained portions of a building so as to allow the tenant to enjoy the beneficial use of the demised portion of the building is a breach of an implied duty owed by the landlord to the tenant under Washington law. On these facts this breach of duty was sufficient to constitute an actionable constructive eviction, and provides a basis for the conclusion that the landlord was liable for any damages stemming from that breach, Washington Chocolate Co. v. Kent, supra, independent of any directive to repair issued by the City of Seattle.\nThe remaining question is whether a willful refusal on the part of a landlord to make repairs when under a duty so to do gives rise to an action in tort for intentional interference with the tenant's business expectancies with third parties. The Court of Appeals held the trial court erred in declining to grant the lessor's motion for a directed verdict on the issue of intentional interference with the lessees' business. The basis of this ruling was that the lessee should not be able to recover in tort for breach of a duty arising by virtue of a lease. The Court of Appeals also held that it was error to inform the jury it could award additional damages for inconvenience, discomfort and mental anguish if it found the lessor's actions were willful, because to do so would be to allow punitive or exemplary damages for breach of a lease.\nAs a general rule a tenant may not recover such additional damages solely on the basis of breach of such a duty. Barnes v. Bickle, 111 Wash. 133, 189 P. 998 (1920); see Stoebuck, supra at 350 n.271. On the other hand, damages for mental anguish are available upon proof of an intentional tort. See Hunsley v. Giard, 87 Wn.2d 424, 431, 553 P.2d 1096 (1976); Browning v. Slenderella Sys., 54 Wn.2d 440, 341 P.2d 859 (1959). Damages based upon discomfort and inconvenience are also available in such a situation. Carmody v. Trianon Co., 7 Wn.2d 226, 109 P.2d 560 (1941).\nThe question of whether a breach of a lease may under some circumstances also constitute a basis of liability in tort for intentional interference with business expectancies has apparently not been considered by this court. The elements of the tort of interference with business relationships are: (1) the existence of a valid contractual relationship or business expectancy; (2) knowledge of the relationship or expectancy on the part of the interferor; (3) intentional interference inducing or causing a breach or termination thereof; (4) resultant damage. Calbom v. Knudtzon, 65 Wn.2d 157, 396 P.2d 148 (1964). The existence of a valid enforceable contract is not necessary to the maintenance of the action and the possibility of a remedy in contract does not preclude it. F.D. Hill & Co. v. Wallerich, 67 Wn.2d 409, 407 P.2d 956 (1965).\nPetitioners argue evidence was presented on each of these elements sufficient to present a jury question as to liability for the tort at issue and that recovery in tort should not be denied simply because the tortious conduct may also be viewed as a breach of an implied duty under the lease. In an early case we concluded that a landlord may be held liable for the tort of interfering with his les-' see's business. Seidell v. Taylor, 86 Wash. 645, 151 P. 41 (1915). There the plaintiff maintained a bakery on premises leased from the defendant. The lessor entered the premises and instigated a \""public brawl\"" which did substantial damage to the lessee's business. The lessee was allowed recovery in tort for loss of goodwill. Though the acts of the lessor rather clearly also involved a breach of the covenant of quiet enjoyment, no mention is made in the court's opinion of the problem of allowing tort recovery for breach of a lease covenant.\nCases from other jurisdictions indicate that, in certain circumstances, a breach of contract or of a lease covenant may also give rise to liability in tort. See, e.g., Acadia, California, Ltd. v. Herbert, 54 Cal. 2d 328, 353 P.2d 294, 5 Cal. Rptr. 686 (i960)(Willful failure to supply water under a contract is both breach of contract and an intentional tort. Under the latter theory punitive damages are recoverable.); Urban v. Hartford Gas Co., 139 Conn. 301, 93 A.2d 292 (1952) (Unreasonable infliction of emotional distress arising from wrongful repossession compensable in tort.); Jones v. Kelly, 208 Cal. 251, 280 P. 942 (1929)(Act of lessor in willfully cutting off water supply to lessee constitutes constructive eviction and also states good cause of action in tort.). It appears to be the general view that, in those instances in which the conduct of the breaching party indicates a motive to destroy some interest of the adverse party, a tort action may lie and items of damage not available in contract actions will be allowed.\nIf the defendant acted merely as a contracting party (at legal liberty perhaps to breach its agreement upon payment of damage), that is one thing. But if the defendant went further, and acted with intent to inflict injury beyond that contemplated as a result of the mere breach of contract, I would hold that the contract does not grant the defaulter immunity from tort liability.\nSchisgall v. Fairchild Publications, Inc., 207 Misc. 224, 232, 137 N.Y.S.2d 312 (1955). See Peitzman v. Illmo, 141 F.2d 956 (8th Cir. 1944); Taylor v. Atchison, T. & S.F. Ry., 92 F. Supp. 968 (W.D. Mo. 1950); Wampler v. Palmerton, 250 Ore. 65, 439 P.2d 601 (1968).\nA separate line of cases, supportive of the Court of Appeals decision herein, holds that, though a breach of duty under a contract or lease necessarily interferes with the injured party's business relations with third parties, the injured party is limited to an action for breach of contract and may not recover in tort for business interference. Hein v. Chrysler Corp., 45 Wn.2d 586, 277 P.2d 708 (1954); Glazer v. Chandler, 414 Pa. 304, 200 A.2d 416 (1964). See N.A. Berwin & Co. v. American Safety Razor Corp., 108 N.Y.S.2d 677 (Sup. Ct. 1951); Sax v. Sommers, 108 N.Y.S.2d 467 (Sup. Ct. 1951). In Glazer, at page 308, the rule applicable to this group of cases is set forth as follows:\n[W]here, as in this case, the allegations and evidence only disclose that defendant breached his contracts with plaintiff and that as an incidental consequence thereof plaintiff's business r nation ^hips with third parties have been affected, an action lie., only in contract for defendant's breaches, and the consequential damages recoverable, if any, may be adjudicated only in that action.\nThe distinguishing feature between the two lines of cases would seem to be whether the interference with business relations was a mere incidental consequence of the breach or a motive or purpose therefor. We have held that, in some instances, intentional interference with a business expectancy may be \""privileged\"" and therefore not a basis for tort recovery. Calbom v. Knudtzon, supra; Scymanski v. Dufault, 80 Wn.2d 77, 491 P.2d 1050 (1971). A privilege to interfere may be established if the interferor's conduct is deemed justifiable, considering such factors as: the nature of the interferor's conduct; the character of the expectancy with which the conduct interferes; the relationship between the various parties; the interest sought to be advanced by the interferor; and the social desirability of protecting the expectancy or the interferor's freedom of action. Calbom v. Knudtzon, supra; Scymanski v. Dufault, supra. See also Restatement of Torts § 767 (1939).\nWhere the evidence supports the submission to the jury, as it does in this case, of an intentional breach of a lease covenant resulting from actions or motives not privileged on the basis of consideration of the factors above set forth, this can provide a basis for tort liability where it results in an interference with a valid business expectancy of another party to the lease agreement. Tort liability therefore can properly be imposed, as it is here, when the evidence adequately establishes the underlying motive for the intentional breach by the lessor was not the economic viability of the lessor's investment, in its present state, but rather was economic considerations outside the scope of the parties' obligations under their existing agreement.\nA party to a lease or contract should not be held liable in tort for a willful breach of an agreement which it is no longer economically feasible for the party to respect. As stated in the Schisgall case, a party is in such an instance at \""legal liberty\"" to breach the agreement upon payment of ordinary contract damages demonstrated to have resulted from the breach. But here, the record fails to indicate that the Lewis Building would not provide the lessor with a satisfactory return if the wall had been repaired by the lessor and the lessees' rights under the lease respected. There is, instead, evidence in the record from which the jury could have inferred the lessor used the condition of the wall as a means to oust the petitioners and gain possession of the leased premises in order that the lessor might put those premises to a different and perhaps considerably more profitable use. Proof of a breach based upon such a motive demonstrates a failure to make a good faith effort to meet obligations under the lease and may give rise to liability in tort.\nIn evaluating the evidence we must assess it in view of the lessor's challenge to the denial of a motion for directed verdict on the issue of intentional interference. See Cherberg v. Peoples Nat'l Bank, 15 Wn. App. 336, 347 n.2, 549 P.2d 46 (1976). In considering such a motion for directed verdict the court must view the evidence in the light most favorable to the nonmoving party and the motion should be granted, or the denial thereof reversed, only if it can be determined no evidence or reasonable inferences therefrom exist which would be sufficiently substantial to sustain a verdict for the nonmoving party. Shelby v. Keck, 85 Wn.2d 911, 541 P.2d 365 (1975); Hemmen v. Clark's Restaurant Enterprises, 72 Wn.2d 690, 434 P.2d 729 (1967); Browning v. Ward, 70 Wn.2d 45, 422 P.2d 12 (1966).\nAn examination of the testimony presented at trial when considered in a light most favorable to petitioners, indicates a number of facts from which an inference of a bad faith motive for breach might be drawn. The respondent's efforts to purchase petitioners' leasehold interest were halted almost immediately upon discovery of the structural defect in the wall. Some of respondent's conduct during negotiations could be argued to be an effort to intimidate the petitioners in such a way as to force abandonment of their position. The respondent's assertion that it would be posting the building as unsafe, followed by the failure to do so once the petitioners closed their business, coupled with the evidence that repair of the wall was feasible and was in fact accomplished at considerably lower cost than the lessor's original estimates, is also damaging to the lessor. The lessees could also argue that the respondent showed an unusual lack of concern for the effect of demolition and construction adjacent to and underneath the Lewis Building upon the petitioners' business, and failed to use its best efforts to minimize the disruption to the lessees' business.\nOur examination of the record indicates that evidence was presented to the jury sufficient to provide a basis for liability for the tort of intentional interference with business expectancies. The motion for a directed verdict on that issue was therefore properly denied. The record also contains testimony from several witnesses about the effect of respondent's conduct on the petitioners and the mental distress, inconvenience, and discomfort suffered by the petitioners as a result of that conduct. The damages awarded are not so disproportionate to the injuries proven as to be indicative of passion or prejudice and we will therefore not disturb the jury verdict. Rasor v. Retail Credit Co., 87 Wn.2d 516, 554 P.2d 1041 (1976); Workman v. Marshall, 68 Wn.2d 578, 414 P.2d 625 (1966).\nThe decision of the Court of Appeals is reversed and the judgment in favor of the petitioners reinstated. It is so ordered.\nWright, C.J., and Rosellini, Hamilton, Stafford, Brachtenbach, Horowitz, Dolliver, and Hicks, JJ., concur.\nPertinent lease covenants contained the following language:\n\""(5) Unless otherwise provided in this lease, Lessee, having ascertained the physical condition of said premises from a careful and complete inspection thereof, accepts said premises in present condition, and at Lessee's sole expense, shall promptly make all repairs and do all acts and things necessary or incidental thereto; provided, however, that Lessee's said obligation shall not extend to the foundations, structural bearing parts, roof and outside walls of the premises unless repairs thereto or work thereon be necessitated by Lessee's act or negligence.\n\""(16) Lessee shall allow Lessor and Agent free access to said premises at all reasonable times for purpose of inspecting of the same or of making repairs, additions or alterations to said premises or to the building in which said premises are located but this right shall not constitute or be construed as an agreement on the part of Lessor to make any repairs, which Lessee is required to make, or to make any additions or alterations to said premises.\n\"" (17) Unless otherwise provided in a rider to this lease, the use of the outside area of the walls and the roof of said premises or the building in which said premises are located, is reserved unto Lessor who shall have the right to utilize the same for any purposes desired including sign purposes;...\"""", ""type"": ""majority"", ""author"": ""Utter, J.""}], ""attorneys"": [""Olwell, Boyle & Hattrup, by Lee Olwell, for petitioners."", ""Macbride, Sax & Maclver, by D. Gordon Willhite, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 44287.\nEn Banc.\nJune 2, 1977.]\nJames J. Cherberg, et al, Petitioners, v. Peoples National Bank of Washington, Defendant, Joshua Green Corporation, Respondent.\nOlwell, Boyle & Hattrup, by Lee Olwell, for petitioners.\nMacbride, Sax & Maclver, by D. Gordon Willhite, for respondent.""}, ""cites_to"": [{""cite"": ""414 P.2d 625"", ""year"": 1966, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""68 Wn.2d 578"", ""year"": 1966, ""case_ids"": [1053031], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/68/0578-01""], ""opinion_index"": 0}, {""cite"": ""554 P.2d 1041"", ""year"": 1976, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""87 Wn.2d 516"", ""year"": 1976, ""case_ids"": [1113766], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/87/0516-01""], ""opinion_index"": 0}, {""cite"": ""422 P.2d 12"", ""year"": 1966, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""70 Wn.2d 45"", ""year"": 1966, ""case_ids"": [1060221], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/70/0045-01""], ""opinion_index"": 0}, {""cite"": ""434 P.2d 729"", ""year"": 1967, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""72 Wn.2d 690"", ""year"": 1967, ""case_ids"": [1091244], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/72/0690-01""], ""opinion_index"": 0}, {""cite"": ""541 P.2d 365"", ""year"": 1975, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""85 Wn.2d 911"", ""year"": 1975, ""case_ids"": [1120432], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/85/0911-01""], ""opinion_index"": 0}, {""cite"": ""491 P.2d 1050"", ""year"": 1971, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""80 Wn.2d 77"", ""year"": 1971, ""case_ids"": [1067128], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/80/0077-01""], ""opinion_index"": 0}, {""cite"": ""108 N.Y.S.2d 467"", ""year"": 1951, ""category"": ""reporters:state"", ""reporter"": ""N.Y.S.2d"", ""opinion_index"": 0}, {""cite"": ""108 N.Y.S.2d 677"", ""year"": 1951, ""category"": ""reporters:state"", ""reporter"": ""N.Y.S.2d"", ""opinion_index"": 0}, {""cite"": ""200 A.2d 416"", ""year"": 1964, ""category"": ""reporters:state_regional"", ""reporter"": ""A.2d"", ""opinion_index"": 0}, {""cite"": ""414 Pa. 304"", ""year"": 1964, ""case_ids"": [1890406], ""category"": ""reporters:state"", ""reporter"": ""Pa."", ""case_paths"": [""/pa/414/0304-01""], ""opinion_index"": 0}, {""cite"": ""277 P.2d 708"", ""year"": 1954, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""45 Wn.2d 586"", ""year"": 1954, ""case_ids"": [2425307], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/45/0586-01""], ""opinion_index"": 0}, {""cite"": ""250 Ore. 65"", ""year"": 1968, ""weight"": 2, ""case_ids"": [2091921], ""category"": ""reporters:state"", ""reporter"": ""Or."", ""case_paths"": [""/or/250/0065-01""], ""opinion_index"": 0}, {""cite"": ""92 F. Supp. 968"", ""year"": 1950, ""case_ids"": [290996], ""category"": ""reporters:federal"", ""reporter"": ""F. 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+1134151,"{""id"": 1134151, ""name"": ""The State of Washington, Respondent, v. Anthony Schwab, et al, Appellants"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""39a9992f228a4535b523e004dd3d6eaa7e86977309a7d95a2675865205ad68dc"", ""simhash"": ""1:00959f1e491976f2"", ""pagerank"": {""raw"": 0.00000020631888282476536, ""percentile"": 0.7568192199622449}, ""char_count"": 40639, ""word_count"": 6437, ""cardinality"": 1577, ""ocr_confidence"": 0.839}, ""casebody"": {""judges"": [], ""parties"": [""The State of Washington, Respondent, v. Anthony Schwab, et al, Appellants.""], ""opinions"": [{""text"": ""Andersen, J.\nFacts of Case\nAt issue in this case is whether violations of the Residential Landlord-Tenant Act of 1973 come under the Consumer Protection Act.\nThis case of first impression was certified to this court by the State of Washington Court of Appeals, Division One, at the request of the Attorney General. In making such request the Attorney General's office represented that it was \""important that the Attorney General establish whether Residential Landlord-Tenant Act violations indeed violate the Consumer Protection Act\"" and that \""because of the significant impact that a ruling on any issue adverse to the state would have, it is probable that legislative changes would need to be sought.\""\nThe defendants in this case are Anthony Schwab and his wife. For convenience, we will refer to Mr. Schwab as though he were the sole defendant. He bought a number of submarginal Seattle residential housing units at tax and lien foreclosure sales and thereafter rented them, usually for less than $150 per month. This litigation primarily concerns four of those units.\nThe defendant's management philosophy, as found by the trial court, was this: \""Defendant Schwab prepared rental agreements for his tenants to sign. These agreements generally provided that in exchange for low rent, the tenant was required to take the premises on an 'as is' basis and that defendant Schwab would not provide repairs or landlord services.\"" The defendant's business practices were somewhat informal, at best. For example, the rental agreements were handwritten, and the tenant in one of his units here involved paid no rent at all for the 3V2 years of his tenancy prior to the trial.\nTwo of the tenants complained to the Consumer and Business Fair Practices Division of the State Attorney General's office. Following an investigation, that office filed a Complaint for Injunctive and Additional Relief under the Consumer Protection Act in the Superior Court of the State of Washington for King County.\nFollowing a 4-day trial to the court, the court found as facts that the defendant had violated sections of the City of Seattle Housing Code, Seattle Municipal Code 22.200, and of the Residential Landlord-Tenant Act of 1973, RCW 59.18. At this point it should be observed parenthetically that the city housing code violations are, by reference in the landlord-tenant act, RCW 59.18.060(1), made violations of the landlord-tenant act and they are so considered herein. The trial court concluded that the defendant's acts were violations of the landlord-tenant act and of the Consumer Protection Act, RCW 19.86.020.\nActing pursuant to provisions of the Consumer Protection Act, the trial court awarded restitution in the sum of $125 to a tenant found to have made a security deposit that had not been returned and awarded judgment to the State against the defendant for $8,800 in civil penalties and $25,000 in attorneys' fees. Thus, the total judgment against the defendant was $33,925 plus costs. The defendant was also enjoined from further similar acts. In argument before this court the defendant states that he has since sold the houses involved.\nThe defendant appeals; the State cross-appeals alleging that the trial court abused its discretion in not awarding an additional $20,158.05 in attorneys' fees.\nOne question is dispositive of the various issues raised by the appeal and cross appeal.\nIssue\nAre residential tenancies subject to the provisions of the Consumer Protection Act?\nDecision\nConclusion. Residential landlord-tenant problems are within the express purview of the Residential Landlord-Tenant Act of 1973, RCW 59.18, and we perceive the Legislature's intent to clearly be that violations of that act do not also constitute violations of the Consumer Protection Act, RCW 19.86. We reverse the trial court.\nIn the interest of readability, the citations in this opinion have been placed in the margin wherever feasible.\nThe Consumer Protection Act, RCW 19.86, declares unlawful \""[ujnfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce\"". RCW 19.86.020. The authority of the Attorney General to proceed under the act is found in the following section thereof:\nThe attorney general may bring an action in the name of the state against any person to restrain and prevent the doing of any act herein prohibited or declared to be unlawful; and the prevailing party may, in the discretion of the court, recover the costs of said action including a reasonable attorney's fee.\nThe court may make such additional orders or judgments as may be necessary to restore to any person in interest any moneys or property, real or personal, which may have been acquired by means of any act herein prohibited or declared to be unlawful.\nRCW 19.86.080.\nAs this court held in the leading 1972 Consumer Protection Act case of State v. Reader's Digest Ass'n, 81 Wn.2d 259, 275, 501 P.2d 290 (1972), appeal dismissed, 411 U.S. 945, 36 L. Ed. 2d 406, 93 S. Ct. 1927 (1973):\nIn the final analysis, the interpretation of RCW 19.86.020 is left to the state courts. This enables us to arrive at the statute's meaning by the same \""gradual process of judicial inclusion and exclusion\"" used by the federal courts. . . . But in each case the question of what constitutes an \""unfair method of competition\"" or an \""unfair or deceptive act or practice\"" under RCW 19.86.020 is for us, rather than the federal courts, to determine.\nIn the more than a decade since that decision, this court and the other courts of this state have been engaged in that \""gradual process of judicial inclusion and exclusion\"". Since prevailing claimants in Consumer Protection Act cases are entitled to recover, in addition to actual damages, reasonable attorneys' fees and in some cases treble damages, there has been no dearth of litigation under the act.\nThe Legislature, which adopted the Consumer Protection Act in the first instance, has further facilitated this inclusion and exclusion process. It has done so by responding from time to time to problems in the marketplace by including certain designated activities within the ambit of the act. The Legislature has, for example, specifically placed within the scope of the Consumer Protection Act such widely diverse activities as charitable solicitations, chain distributor schemes, usurious contracts, camping clubs, unfair motor vehicle business practices, discriminatory practices, consumer leases, time share activities, land development, debt adjusting, hearing aid sales, embalming and funeral directing businesses and telephone equipment sales.\nAs will be looked at shortly, the Legislature has also considered, hut rejected, the inclusion of other activities within the act.\nBy inclusion of the foregoing activities within the act, not only is the Attorney General's office authorized to act in such matters, as it has in this case, but private litigants are likewise empowered to utilize the remedies provided them by the act.\nThere is a marked difference between the judicial and legislative processes of inclusion and exclusion of activities under the Consumer Protection Act. In the legislative process, the people engaged in the activity sought to be specifically included within the act have the full opportunity to be heard and to have their particular problems considered at legislative hearings. Furthermore, the merits of any such proposed inclusion are subject to debate and amendment in legislative committees and on the floor of the respective houses of the Legislature.\nThe judicial process, on the other hand, does not always provide equivalent opportunities. In the present case, for example, the State Attorney General's office represents the interests of the public (and indirectly the rights of the individual tenants), whereas the landlord appearing pro se represents himself in a case which potentially affects every person in the state who rents out or ever will rent out one or more dwelling units. Although the Legislature has mandated that the \""act shall be liberally construed that its beneficial purposes may be served\"", RCW 19.86.920, that is not to say that the judiciary should not give the most careful consideration to the \""process of judicial inclusion and exclusion\"" of activities under the act.\nThe Attorney General in this case, as suggested by some commentators in the past, urges this court to hold that the Consumer Protection Act, RCW 19.86, is available as a vehicle for enforcing tenants' rights as those rights are established by the Residential Landlord-Tenant Act of 1973, RCW 59.18. One recurring argument, as expressed in the Attorney General's brief herein, is that \""violations of statutes promulgated in the public interest constitute per se violations, thus creating in the state a power of enforcement in order that the beneficial purposes of the statutes are carried out.\"" Since all statutes are presumably promulgated by the Legislature in the public interest, this is tantamount to arguing that any violation of a statute is a per se violation of the public interest and that a Consumer Protection Act action can be brought thereon by either the Attorney General or a private party. This court rejected that precise argument in Haner v. Quincy Farm Chems., Inc., 97 Wn.2d 753, 761-63, 649 P.2d 828 (1982). As succinctly put in Sato v. Century 21 Ocean Shores Real Estate, 101 Wn.2d 599, 601, 681 P.2d 242 (1984), \""not every violation of a statute results in a per se consumer protection action.\""\nIt would serve no useful purpose to recite all of the Attorney General's arguments herein other than to note that in substantial part they track the above referenced law review commentators. With due consideration to those arguments, we nevertheless perceive the following three aspects of this matter to be determinative.\nFirst, nothing in the legislative history of the enactment of the Consumer Protection Act suggests that it was ever intended by the Legislature to be applied to the rental of residential housing. The Consumer Protection Act had as its genesis a study conducted by the Washington State Consumer Advisory Council, a 33-person committee appointed by the Governor and chaired by the State Attorney General. We have found nothing in the history of that committee's work, which was completed in I960, or in the 1961 legislative deliberations on the bill which became the Consumer Protection Act, which in any way suggests that the vast array of residential landlord-tenant problems were among the types of unfair, deceptive and fraudulent acts or practices that the Consumer Protection Act was intended to address.\nThis is not to suggest that this historical perspective is determinative of the coverage of the Consumer Protection Act in this case; it is not. The unfair practices and competition language of RCW 19.86.020 was intentionally drawn with a broad brush to cover a broad range of human inventiveness. The history of the act is, however, a relevant factor to be considered when confronted, as we are here, with an effort to include for the first time the residential landlord-tenant relationship within the 2V2-decade-old Consumer Protection Act aimed at abuses in \""trade\"" and \""commerce\"".\nSecond, the respective rights and duties of residential tenants and landlords are spelled out in great detail, and an array of specific remedies provided for violations thereof, in a single comprehensive enactment, the Residential Landlord-Tenant Act of 1973, RCW 59.18. Nothing in that enactment purports to give the Attorney General any enforcement authority for violations of it.\nExhaustive efforts on the part of concerned parties and legislators went into the drafting and enactment of the Residential Landlord-Tenant Act of 1973. This work included the following: unsuccessful efforts in pre-1973 legislative sessions to pass such a bill; negotiations extending over a 9-month period by an ad hoc citizens' committee under the auspices of the Joint Interim Judiciary Committee; the introduction in the 1973 legislative session of bills in both the House and the Senate; numerous committee hearings on the bills in both houses; and the fashioning of a compromise bill by a joint House-Senate committee that worked on the bills. In addition, before the bill finally passed the Legislature at the 1973 legislative session, there was considerable floor debate in both houses, including 2 full days of debate on the Senate floor. The consideration of the bill included numerous floor amendments in both houses, the adoption of some 22 amendments in the House and the adoption of about half of the 110 floor amendments considered by the Senate.\nThe Governor thereupon exercised his item veto on the bill 14 times. In due course, this court was heard from on the bill and in Washington Ass'n of Apartment Ass'ns, Inc. v. Evans, 88 Wn.2d 563, 564 P.2d 788 (1977), the item vetoes were declared invalid. The enactment thus became settled law in the form in which it passed the Legislature.\nIn sum, it is hard to perceive of a more thoroughly considered piece of legislation than the Residential Landlord-Tenant Act of 1973. The history of that enactment shows the care exercised by the Legislature in writing the act and in delineating the specific rights, duties, and remedies of both landlords and tenants. For this reason, along with the other reasons stated herein, we decline to now expand the coverage of that act by interpretation so as to include a Consumer Protection Act cause of action.\nAt this point it is appropriate to observe parenthetically that the tenants who were renting premises on an \""as is\"" basis here, in violation by the landlord of the Residential Landlord-Tenant Act of 1973, had the right to themselves proceed directly against the landlord and recover their actual damages as well as reasonable attorneys' fees under the protective provisions of that act.\nThird, the 1973 Legislature first considered, then rejected, an amendment to the Residential Landlord-Tenant Act of 1973 which by its express terms would have provided that violations \""of the provisions of this chapter shall be construed, for the purposes of application of the Consumer Protection Act, chapter 19.86 RCW, to constitute an unfair or deceptive act or practice or an unfair method of competition in the conduct of trade or commerce.\"" This amendment was considered on the floor of the Senate. Before the amendment was voted down, one senator questioned whether the Attorney General's office had sufficient staff to handle such a job, and another senator questioned the wisdom of opening the door to treble damages under the Consumer Protection Act when a double damages amendment had just been voted down. This demonstrates that the Senate was well aware of the effect of what it was doing when it turned down the amendment extending the Consumer Protection Act to violations of the Residential Landlord-Tenant Act of 1973; so too does the fact that this same Legislature enacted legislation expressly applying the Consumer Protection Act to other activities such as charitable solicitations and chain distribution schemes.\nIt is the duty of this court to ascertain and give effect to the intent and purposes of the Legislature as expressed in its enactments. This court has held that the Consumer Protection Act \""is not applicable and will not support a private action where there is a specific legislative declaration that the public does not have an interest in a particular subject matter.\"" Anhold v. Daniels, 94 Wn.2d 40, 43, 614 P.2d 184 (1980), citing Brown v. Charlton, 90 Wn.2d 362, 583 P.2d 1188 (1978) with approval. That same reasoning applies where the Legislature has otherwise clearly evinced its intent that designated activities not be covered by the Consumer Protection Act as in this case.\nBased on the foregoing three reasons, we perceive the intent of the Legislature to have been that residential landlord-tenant problems not be included within the Consumer Protection Act, RCW 19.86, either directly through that act or indirectly through means of the Residential Landlord-Tenant Act of 1973, RCW 59.18, and the per se doctrine. Neither the statutory direction to liberally construe the Consumer Protection Act nor the right to resort to remedies \""otherwise provided by law\"" as expressed in the Residential Landlord-Tenant Act of 1973, justify the judicial extension of a remedy at odds with a clearly demonstrated legislative intent to the contrary.\nThus, the trial court erred in holding as it did.\nIf, as argued by the Attorney General, it is important from a public policy standpoint for that office (and thereby for private litigants as well) to be empowered to proceed under the Consumer Protection Act for egregious violations of the Residential Landlord-Tenant Act of 1973, then the request for such authority should appropriately be addressed to the Legislature.\nReversed and dismissed.\nUtter, Brachtenbach, Dolliver, Dimmick, and Pearson, JJ., concur.\nFinding of fact 9.\nRCW 19.86.090; RCW 19.86.080.\nRCW 19.09.340.\nRCW 19.102.020.\nRCW 19.52.036.\nRCW 19.105.500.\nRCW 46.70.220.\nRCW 49.60.030(3).\nRCW 63.10.050.\nRCW 64.36.170.\nRCW 58.19.270.\nRCW 18.28.185.\nRCW 18.35.180.\nRCW 18.39.350.\nRCW 19.130.060.\nRCW 19.86.080.\nRCW 19.86.090.\nSeaboard Sur. Co. v. Ralph Williams' Northwest Chrysler Plymouth, Inc., 81 Wn.2d 740, 746, 504 P.2d 1139 (1973).\nComment, State v. Reader's Digest Association — A Knockout Punch to Unfair or Deceptive Acts or Practices in Washington?, 10 Gonz. L. Rev. 529, 540 (1975); Comment, Washington Tenant Remedies and the Consumer Protection Act, 10 Gonz. L. Rev. 559 (1975); Clarke, Washington's Implied Warranty of Habitability: Reform or Illusion?, 14 Gonz. L. Rev. 1, 46 (1978).\nOpening Brief of Respondent, at 23.\nRCW 19.86.080.\nRCW 19.86.090.\nSee Washington Consumer Advisory Council, Consumer Protection in the State of Washington (1960); Thirty-Fifth Biennial Report of the Attorney General, at 25-37 (1959-1960).\nLaws of 1961, ch. 216, p. 1956. See, e.g., Senate Journal, 37th Legislature (1961), at 285-86, 288-89, 1158-62; House Journal, 37th Legislature (1961), at 1185-92.\nSee O'Connell, Washington Consumer Protection Act — Enforcement Provisions and Policies, 36 Wash. L. Rev. 279, 280 (1961).\nClarke, Washington's Implied Warranty of Habitability: Reform or Illusion?, 14 Gonz. L. Rev. 1, 11-12 (1978).\nSee generally People for Envtl. Progress v. Leisz, 373 F. Supp. 589 (C.D. Cal. 1974).\nRCW 59.18.230(2)(a).\nRCW 59.18.230(3).\nSenate Journal, 43d Legislature, 1st Ex. Sess. (1973), at 1006.\nSenate Journal, 43d Legislature, 1st Ex. Sess. (1973), at 1006-08.\nLaws of 1973, 1st Ex. Sess., ch. 13, § 34; RCW 19.09.340.\nLaws of 1973, 1st Ex. Sess., ch. 33, § 2; RCW 19.102.020.\nSee Donovan v. Hotel, Motel & Restaurant Employees Local 19, 700 F.2d 539, 545 n.8 (9th Cir. 1983) and the cases cited therein. See also 2A C. Sands, Statutory Construction § 48.18, at 234 (4th ed. 1973).\nSee generally Haner v. Quincy Farm Chems., Inc., 97 Wn.2d 753, 760-63, 649 P.2d 828 (1982).\nRCW 19.86.920.\nRCW 59.18.090(2).\nSee Lightfoot v. MacDonald, 86 Wn.2d 331, 334-36, 544 P.2d 88 (1976); Anhold v. Daniels, 94 Wn.2d 40, 44-45, 614 P.2d 184 (1980)."", ""type"": ""majority"", ""author"": ""Andersen, J.""}, {""text"": ""Dore, J.\n(dissenting) — The public policy of this State of ensuring safe and sanitary rental housing, the broad enabling language of our Consumer Protection Act, RCW 19.86, and the interpretation given to federal law by numerous sister jurisdictions dealing with the same or similar matters, lead me to the unalterable conclusion that Washington residential landlord-tenant concerns are subject to the provisions of the Consumer Protection Act.\nResidential Landlord-Tenant Act of 1973\nAt common law, under the principle of caveat emptor, a landlord had no duty to provide habitable rental property, nor a duty to repair rental property. Lincoln v. Farnkoff, 26 Wn. App. 717, 719, 613 P.2d 1212 (1980). This legal position gave way to modern realities when this court afforded residential tenants the protection of an implied covenant of habitability. Foisy v. Wyman, 83 Wn.2d 22, 25-28, 515 P.2d 160 (1973). Following this lead, the Legislature enacted the Residential Landlord-Tenant Act of 1973 (Act). This Act modified the common law so as to require decent, safe and sanitary housing. It further added a covenant to repair to most residential rental agreements. Lincoln, at 719-20; O'Brien v. Detty, 19 Wn. App. 620, 621, 576 P.2d 1334, review denied, 90 Wn.2d 1020 (1978). The Act provides that any exemption from the statutory duties and obligations of tenant and landlord cannot \""violate the public policy of this state in favor of the ensuring safe, and sanitary housing\"" and that any such exemption must have the approval of either the local prosecutor's office, the \""consumer protection division of the attorney general's office\"", or the attorney for the tenant. RCW 59.18.360.\nAlthough the Residential Landlord-Tenant Act of 1973 imposes upon the landlord the duty to keep the premises fit for human habitation, its remedial provisions are significantly qualified. Most notable is the section which requires the tenant to be current in the payment of rent before exercising any of the remedies accorded him under the provisions of the Act. See RCW 59.18.080. Requiring a low-income tenant to be current in rent undoubtedly deprives many such tenants of the remedial provisions of the Act. See Clocksin, Washington's Residential Landlord-Tenant Act of 1973, 27 Wash. State Bar News No. 7, at 4, 27-28 (July 1973); Comment, Washington Tenant Remedies and the Consumer Protection Act, 10 Gonz. L. Rev. 559, 561-62 (1975). The protection afforded against retaliatory eviction for assertion of tenants' rights under the Act is circumscribed by a presumption that a landlord's termination is neither a reprisal nor retaliatory where the landlord serves notice to vacate for a tenant's breach of any obligation, including being in arrears in rent. The tenant's failure to overcome this presumption entitles the landlord to recover his costs, including attorney fees. See RCW 59.18.240, .250. Additionally, the right to terminate for constructive eviction is an illusory remedy where there is a serious housing shortage for low income tenants. If the tenant remains on the premises, he must await the repair process. In the event of judicial action, a court may grant damages or abatement of rent, but neither of these will restore the premises to a habitable state. See RCW 59.18.070, .090, .110. Although the Act does provide for attorney fees, an award is limited to instances of retaliatory action (RCW 59.18.250), recovery of deposits (RCW 59.18.280), wrongful exclusion from leasehold (RCW 59.18.290), and intentional termination of utilities (RCW 59.18.300). The Act does not provide attorney fees for breach of the duty to maintain habitable premises, nor are damages multiplied, except the tenant may recover up to two times the amount of a wrongfully held deposit. See RCW 59.18.280. As noted in Stoebuck, The Law Between Landlord and Tenant in Washington: Part I, 49 Wash. L. Rev. 291, 296 (1974), suits by tenants are generally economically not feasible when they rely on the remedial provisions of the Act:\nIt seems to be a fact of life that there seldom is enough at stake between a residential landlord and tenant to make litigation worth the cost, at any rate, at the appellate level. In view of the paucity of residential cases, one might wonder how heavy an impact the 1973 Residential Landlord-Tenant Act will have on life in the state.\nDespite these shortcomings, the majority finds that the comprehensive nature of the Act evidences an intent that the remedial provisions provided therein are all inclusive. The remedies set forth in the Residential Landlord-Tenant Act of 1973, however, are not exclusive. In addition to the specific remedies in the Act, specifically reserved is the right to resort to remedies otherwise provided by law. RCW 59.18.070, .090, .160, .170.\nConsumer Protection Act\nThe Consumer Protection Act is a particularly appropriate vehicle for enforcing the provisions of the residential landlord-tenant act where their violation affects the public interest of this state in ensuring safe and sanitary housing. The remedies which are available under the Consumer Protection Act are in addition to, and may be considered together with, any other available remedies. MacCormack v. Robins Constr., 11 Wn. App. 80, 82, 521 P.2d 761 (1974). See also State v. Ralph Williams' Northwest Chrysler Plymouth, Inc., 82 Wn.2d 265, 510 P.2d 233, 59 A.L.R.3d 1209 (1973). The Act's treble damages and attorney fees provisions are encouragement for low income tenants to seek redress under the Act. The injunctive provisions may be used to protect other tenants similarly situated.\nThe Consumer Protection Act declares unlawful \"" [ujnfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce . . .\"". RCW 19.86.020. These broad prohibitions are the equivalent of enabling acts which allow the Attorney General or private individuals to translate state public policy in the area of consumer protection into law. The purpose of the Consumer Protection Act is to \""complement the body of federal law governing restraints of trade, unfair competition and unfair, deceptive, and fraudulent acts or practices in order to protect the public and foster fair and honest competition.\"" RCW 19.86.920. At the same time, however, the Legislature made clear it does not wish to prohibit \""acts or practices which are reasonable in relation to the development and preservation of business or which are not injurious to the public interest.\"" RCW 19.86.920. In attempting to balance these two concerns, the Consumer Protection Act essentially copies the approach taken by the federal government in the Federal Trade Commission Act, 15 U.S.C. §§ 41-58 (1970), and further directs the courts to be guided by the interpretation given by the federal courts to the various federal statutes dealing with the same or similar matters. RCW 19.86.920.\nThis mandate received attention in State v. Reader's Digest Ass'n, 81 Wn.2d 259, 275, 501 P.2d 290 (1972), appeal dismissed, 411 U.S. 945, 36 L. Ed. 2d 406, 93 S. Ct. 1927 (1973):\nIn the final analysis, the interpretation of RCW 19.86.020 is left to the state courts. This enables us to arrive at the statute's meaning by the same \""gradual process of judicial inclusion and exclusion\"" used by the federal courts. . . . But in each case the question of what constitutes an \""unfair method of competition\"" or an \""unfair or deceptive act or practice\"" under RCW 19.86.020 is for us, rather than the federal courts, to determine.\nThe majority completely ignores this judicial inclusion and exclusion process by finding that a legislative failure to specifically include landlord-tenant concerns within the ambit of the Consumer Protection Act requires judicial exclusion. The majority apparently assumes that if the Legislature had intended applicability of the Consumer Protection Act to residential landlord-tenant concerns, it would have so provided in the Residential Landlord-Tenant Act of 1973.\nThis was not the intention of the Legislature. In addition to legislatively designated activities, there is an endless multitude of business activities which may be within the ambit of the Consumer Protection Act. See, e.g., Eastlake Constr. Co. v. Hess, 102 Wn.2d 30, 686 P.2d 465 (1984), building contractors; McRae v. Bolstad, 101 Wn.2d 161, 676 P.2d 496 (1984), real estate sales; Ulberg v. Seattle Bonded, Inc., 28 Wn. App. 762, 626 P.2d 522 (1981), collection agencies; Tallmadge v. Aurora Chrysler Plymouth, Inc., 25 Wn. App. 90, 605 P.2d 1275 (1979), automobile sales; Short v. Demopolis, 103 Wn.2d 52, 691 P.2d 163 (1984), law practice; Salois v. Mutual of Omaha Ins. Co., 90 Wn.2d 355, 581 P.2d 1349 (1978), insurance business.\nIn Salois, we noted that some statutes contain a specific mandate that commission of a prohibited act shall be a violation of the Consumer Protection Act. Although in that case there was no such connecting link between the insurance code and the Consumer Protection Act, we declared insurance a matter of public interest and the insurer's breach of the insurance code constituted an unfair trade practice. Salois, at 359; see also Rounds v. Union Bankers Ins. Co., 22 Wn. App. 613, 590 P.2d 1286 (1979).\nThis breadth of scope and the generality of the language of prohibition in the Consumer Protection Act result from the virtual impossibility of providing specific standards and definitions which would govern all unfair or deceptive practices. In drafting the Federal Trade Commission Act, Congress noted this situation:\nIt is impossible to frame definitions which embrace all unfair practices. There is no limit to human inventiveness in this field. Even if all known unfair practices were specifically defined and prohibited, it would be at once necessary to begin over again. If Congress were to adopt the method of definition, it would undertake an endless task. It is also practically impossible to define unfair practices so that the definition will fit business of every sort in every part of this country. Whether competition is unfair or not generally depends upon the surrounding circumstances of the particular case. What is harmful under certain circumstances may be beneficial under different circumstances.\nH.R. Conf. Rep. No. 1142, 63d Cong., 2d Sess. 19 (1914); see also The Washington Consumer Advisory Council, Consumer Protection in the State of Washington 42-43 (1960).\nThose jurisdictions which have consumer protection acts similarly patterned after federal statutes and which have had occasion to address landlord-tenant concerns, have unanimously held that landlord-tenant activities are within the ambit of their respective consumer protection acts.\nThe leading decision addressing this issue is Commonwealth v. Monumental Properties, Inc., 459 Pa. 450, 329 A.2d 812 (1974). In that case, the Supreme Court of Pennsylvania held that the leasing of residential housing was intended to fall within the purview of the Pennsylvania Consumer Protection Law. The court held that the remedial purposes behind the law mandated a liberal construction of the law's terms so that the prevention of unfair or deceptive trade practices might be accomplished. As support for its finding, the court cited similar language in section 5 of the Federal Trade Commission Act and court decisions under the federal statute which had applied section 5 to the leasing of property.\nWe have seen, however, that Congress chose not to delineate precisely the type of unfair and deceptive practices outlawed; rather, it gave the Commission a deliberately flexible standard. FTC v. Sperry & Hutchinson Co., [405 U.S. 233, 31 L. Ed. 2d 170, 92 S. Ct. 898 (1972)] 405 U.S. at 239-240, 92 S.Ct. at 903. It is altogether inconsistent with the congressional intent that section 5 be a broad, all-inclusive trade regulation statute, to imply an exception for leases. Moreover, the argument that no specific mention is made of leasing really cuts the other way, in view of Congress' explicitness when it desired to make an exception from the jurisdiction of section 5. See 15 U.S.C.A. § 45(a)(6) (1963).\nAlso, there are numerous cases under section 5 in which the Commission sought to enjoin unfair and deceptive methods in connection with the leasing of property. . . . Aside from judicial decisions, administrative proceedings initiated by the Commission have resulted in section 5 jurisdiction over leases. . . .\nNo support in the federal precursors of the Consumer Protection Law can be found for an exclusion for leasing from the Law's broad prohibition of unfair and deceptive practices in market transactions. On the other hand, the legislative history of, decisions interpreting, and FTC proceedings under section 5 of the FTC Act strongly counsel that the leasing of housing is covered by the Consumer Protection Law.\n(Footnotes and citations omitted.) Commonwealth, at 464-66.\nThe court also considered the statutory language which defined \""trade or commerce\"" and reviewed the defendants' contention that the lease of residential housing did not fall within the phrase's definition. An extensive review of modern case law in other jurisdictions, traditional common law conceptions of the nature of a lease, the pragmatic and functional approach of the Legislature when attempting to solve societal problems, and the consequences of a contrary finding all contributed to the court's holding that the term \""trade or commerce\"" includes the business of leasing housing services.\nWe cannot presume that the Legislature when attempting to control unfair and deceptive practices in the conduct of trade or commerce intended to be strictly bound by common-law formalisms. Rather the more natural inference is that the Legislature intended the Consumer Protection Law to be given a pragmatic reading — a reading consistent with modern day economic reality. That pragmatic reading dictates that purchasers of rental housing be treated as consumers and, therefore, within the class of persons sought to be protected by the Consumer Protection Law.\nCommonwealth, at 469-70. The court further held that to \""refuse to apply the Consumer Protection Law to the leasing of residential housing would needlessly insulate a great percentage of market transactions from the Law's salutary antifraud provisions. Only by exalting form over substance could such a course be pursued.\"" Commonwealth, at 478.\nFinally, the court analyzed the argument that residential leasing should be excluded from the Consumer Protection Law because it was not a designated activity within the ambit of the legislation. The court held that Pennsylvania has a \""deceptive trade practices\"" type statute which contains broad language prohibiting unfair or deceptive trade practices. The statute then proceeds to set out specific prohibited acts as well. The court recognized the ever-changing nature of fraudulent business practices and held that a reading of the statutes which limited prohibited conduct to only those specifically enumerated examples of unfair trade practices would thwart the legislative intendment. Commonwealth, at 479-80.\nIn McGrath v. Mishara, 386 Mass. 74, 434 N.E.2d 1215 (1982), the Supreme Court of Massachusetts held that the mere fact that statutes governing improper retention of rental security deposits and the chapter governing unfair or deceptive trade practices contain overlapping prohibitions and remedies did not establish legislative intent to preclude their concurrent application. The protection of the chapter governing the regulation of business for consumers' protection was held to extend to the landlord-tenant relationship.\nThe Supreme Court of Connecticut, under similar analysis, held that landlord violations of the Residential Landlord and Tenant Act amounted to unfair or deceptive acts or practices under the Connecticut Unfair Trade Practices Act. Conaway v. Prestia, 191 Conn. 484, 464 A.2d 847, 851-52 (1983).\nThe Illinois appellate court in People ex rel. Fahner v. Hedrich, 108 Ill. App. 3d 83, 438 N.E.2d 924 (1982) held that landlord violations of the Mobile Home Landlord and Tenant Act were subject to Attorney General actions for unfair or deceptive practices under the Consumer Fraud and Deceptive Business Practices Act. The court found support for its view in both federal law and the decisions of sister jurisdictions. Accord, People ex rel. Fahner v. Testa, 112 Ill. App. 3d 834, 445 N.E.2d 1249 (1983).\nCoverage of the Illinois Consumer Fraud and Deceptive Business Practices Act was extended to the residential landlord-tenant relationship in Carter v. Mueller, 120 Ill. App. 3d 314, 457 N.E.2d 1335 (1983); see also Love v. Pressley, 34 N.C. App. 503, 239 S.E.2d 574 (1978); Commonwealth v. DeCotis, 366 Mass. 234, 316 N.E.2d 748 (1974).\nThe only tenable argument for the majority's position is the Legislature's rejection of an amendment to the Residential Landlord-Tenant Act of 1973 which, as proposed, would have provided:\nAny violation of the provisions of this chapter shall be construed, for the purposes of application of the Consumer Protection Act, chapter 19.86 RCW, to constitute an unfair or deceptive act or practice or an unfair method of competition in the conduct of trade or commerce.\nSenate Journal, 43d Legislature (1973), at 1006. Rejection of this amendment, however, does not support the majority's finding that the Legislature evinced an intent that landlord-tenant concerns not be covered by the Consumer Protection Act. Generally the rejection of an amendment indicates that the Legislature does not intend the legislation to include the provisions embodied in the rejected amendment. 2A C. Sands, Statutory Construction § 48.18, at 341 (4th ed. 1973). The language of the proposed amendment would have provided that any violation of the Residential Landlord-Tenant Act of 1973 would constitute a violation of the Consumer Protection Act. The Legislature simply rejected a per se basis for application of the Consumer Protection Act to residential landlord-tenant concerns which do not affect the public interest. See, e.g., Haner v. Quincy Farm Chems., Inc., 97 Wn.2d 753, 762, 649 P.2d 828 (1982); Moolick v. Lawson, 33 Wn. App. 665, 655 P.2d 1185 (1982). The Legislature did not evince an intent to prohibit the Attorney General (or private litigants) from proceeding under the Consumer Protection Act for egregious violations of the Residential Landlord-Tenant Act of 1973 affecting the public interest of ensuring safe and sanitary housing. See Anhold v. Daniels, 94 Wn.2d 40, 46, 614 P.2d 184 (1980); Salois v. Mutual of Omaha Ins. Co., 90 Wn.2d 355, 581 P.2d 1349 (1978).\nThe Residential Landlord-Tenant Act of 1973 specifically reserves the right to resort to remedies otherwise provided by law. The Consumer Protection Act provides such an appropriate remedy for both the private litigant and Attorney General. Although the Attorney General is not granted express authority to proceed under the Residential Landlord-Tenant Act of 1973, his authority under the Consumer Protection Act is broadly defined.\nThe attorney general may bring an action in the name of the state against any person to restrain and prevent the doing of any act herein prohibited or declared to be unlawful; and the prevailing party may, in the discretion of the court, recover the costs of said action including a reasonable attorney's fee.\nThe court may make such additional orders or judgments as may be necessary to restore to any person in interest any moneys or property, real or personal, which may have been acquired by means of any act herein prohibited or declared to be unlawful.\nRCW 19.86.080.\nIn State v. Tacoma-Pierce Cy. Multiple Listing Serv., 95 Wn.2d 280, 622 P.2d 1190 (1980), we noted that the Attorney General lacked standing to enforce real estate brokers' and salesmen's statutes against boards of realtors but that such fact was of no significance in an action by the Attorney General against such boards for violations of the Consumer Protection Act.\nSimilarly, the Supreme Court of California in People v. McKale, 25 Cal. 3d 626, 602 P.2d 731, 159 Cal. Rptr. 811 (1979) held that the lack of express authorization of a district attorney to prosecute violations of the Mobilehome Parks Act did not preclude district attorney action pursuant to the Consumer Protection Act for activity which constituted'unfair or deceptive practices.\nConclusion\nI would hold that the Attorney General had authority to bring this action for violations of the Consumer Protection Act. Defendant Schwab's leasing of submarginal housing on an \""as is\"" basis and exempting himself from providing repairs or landlord services is unlawful and contrary to public policy of providing decent, safe and sanitary housing. This holding is in accord with the overwhelming weight of authority in both federal law and the decisions of sister jurisdictions and comports with both the purpose and intent of the Residential Landlord-Tenant Act of 1973 and the Consumer Protection Act.\nWilliams, C.J., concurs with Dore, J.\nReconsideration denied March 5, 1985."", ""type"": ""dissent"", ""author"": ""Dore, J.""}], ""attorneys"": [""Anthony Schwab, pro se."", ""Kenneth O. Eikenberry, Attorney General, John R. Ellis, Deputy, and Betsy R. Hollingsworth and Jon P. Ferguson, Assistants, for respondent.""], ""corrections"": """", ""head_matter"": ""No. 50756-2.\nEn Banc.\nJanuary 11, 1985.\nThe State of Washington, Respondent, v. Anthony Schwab, et al, Appellants.\nAnthony Schwab, pro se.\nKenneth O. Eikenberry, Attorney General, John R. Ellis, Deputy, and Betsy R. Hollingsworth and Jon P. Ferguson, Assistants, for respondent.""}, ""cites_to"": [{""cite"": ""544 P.2d 88"", ""year"": 1976, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""86 Wn.2d 331"", ""year"": 1976, ""case_ids"": [1117411], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""334-36""}], ""case_paths"": [""/wash-2d/86/0331-01""], ""opinion_index"": 0}, {""cite"": ""700 F.2d 539"", ""year"": 1983, ""case_ids"": [1844670], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""case_paths"": [""/f2d/700/0539-01""], ""opinion_index"": 0}, {""cite"": ""373 F. Supp. 589"", ""year"": 1974, ""case_ids"": [3405164], ""category"": ""reporters:federal"", ""reporter"": ""F. Supp."", ""case_paths"": [""/f-supp/373/0589-01""], ""opinion_index"": 0}, {""cite"": ""36 Wash. L. Rev. 279"", ""year"": 1961, ""category"": ""journals:journal"", ""reporter"": ""Wash. L. Rev."", ""pin_cites"": [{""page"": ""280""}], ""opinion_index"": 0}, {""cite"": ""14 Gonz. L. Rev. 1"", ""year"": 1978, ""weight"": 2, ""category"": ""journals:journal"", ""reporter"": ""Gonz. L. Rev."", ""pin_cites"": [{""page"": ""46""}, {""page"": ""11-12""}], ""opinion_index"": 0}, {""cite"": ""10 Gonz. L. Rev. 559"", ""year"": 1975, ""category"": ""journals:journal"", ""reporter"": ""Gonz. L. Rev."", ""opinion_index"": 0}, {""cite"": ""10 Gonz. L. Rev. 529"", ""year"": 1975, ""category"": ""journals:journal"", ""reporter"": ""Gonz. L. Rev."", ""pin_cites"": [{""page"": ""540""}], ""opinion_index"": 0}, {""cite"": ""504 P.2d 1139"", ""year"": 1973, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""81 Wn.2d 740"", ""year"": 1973, ""case_ids"": [1064050], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""746""}], ""case_paths"": [""/wash-2d/81/0740-01""], ""opinion_index"": 0}, {""cite"": ""583 P.2d 1188"", ""year"": 1978, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""90 Wn.2d 362"", ""year"": 1978, ""case_ids"": [1104395], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/90/0362-01""], ""opinion_index"": 0}, {""cite"": ""614 P.2d 184"", ""year"": 1980, ""weight"": 2, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""94 Wn.2d 40"", ""year"": 1980, ""weight"": 2, ""case_ids"": [1164057], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""43""}, {""page"": ""44-45""}], ""case_paths"": [""/wash-2d/94/0040-01""], ""opinion_index"": 0}, {""cite"": ""564 P.2d 788"", ""year"": 1977, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""88 Wn.2d 563"", ""year"": 1977, ""case_ids"": [1111233], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/88/0563-01""], ""opinion_index"": 0}, {""cite"": ""681 P.2d 242"", ""year"": 1984, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""101 Wn.2d 599"", ""year"": 1984, ""case_ids"": [1139533], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""601""}], ""case_paths"": [""/wash-2d/101/0599-01""], ""opinion_index"": 0}, {""cite"": ""649 P.2d 828"", ""year"": 1982, ""weight"": 2, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""97 Wn.2d 753"", ""year"": 1982, ""weight"": 2, ""case_ids"": [1154987], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""761-63""}, {""page"": ""760-63""}], ""case_paths"": [""/wash-2d/97/0753-01""], ""opinion_index"": 0}, {""cite"": ""93 S. Ct. 1927"", ""year"": 1973, ""category"": ""reporters:federal"", ""reporter"": ""S. Ct."", ""opinion_index"": 0}, {""cite"": ""36 L. Ed. 2d 406"", ""year"": 1973, ""category"": ""reporters:federal"", ""reporter"": ""L. Ed. 2d"", ""opinion_index"": 0}, {""cite"": ""411 U.S. 945"", ""year"": 1973, ""case_ids"": [9824, 10221, 10268, 10036, 10300], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/411/0945-04"", ""/us/411/0945-01"", ""/us/411/0945-02"", ""/us/411/0945-03"", ""/us/411/0945-05""], ""opinion_index"": 0}, {""cite"": ""501 P.2d 290"", ""year"": 1972, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""81 Wn.2d 259"", ""year"": 1972, ""case_ids"": [1064082], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""275""}], ""case_paths"": [""/wash-2d/81/0259-01""], ""opinion_index"": 0}, {""cite"": ""159 Cal. Rptr. 811"", ""year"": 1979, ""category"": ""reporters:state"", ""reporter"": ""Cal. Rptr."", ""opinion_index"": 1}, {""cite"": ""602 P.2d 731"", ""year"": 1979, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 1}, {""cite"": ""25 Cal. 3d 626"", ""year"": 1979, ""case_ids"": [2270585], ""category"": ""reporters:state"", ""reporter"": ""Cal. 3d"", ""case_paths"": [""/cal-3d/25/0626-01""], ""opinion_index"": 1}, {""cite"": ""622 P.2d 1190"", ""year"": 1980, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 1}, {""cite"": ""95 Wn.2d 280"", ""year"": 1980, ""case_ids"": [1161037], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/95/0280-01""], ""opinion_index"": 1}, {""cite"": ""655 P.2d 1185"", ""year"": 1982, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 1}, {""cite"": ""33 Wn. App. 665"", ""year"": 1982, ""case_ids"": [1819623], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""case_paths"": [""/wash-app/33/0665-01""], ""opinion_index"": 1}, {""cite"": ""316 N.E.2d 748"", ""year"": 1974, ""category"": ""reporters:state_regional"", ""reporter"": ""N.E.2d"", ""opinion_index"": 1}, {""cite"": ""366 Mass. 234"", ""year"": 1974, ""case_ids"": [314521], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/366/0234-01""], ""opinion_index"": 1}, {""cite"": ""239 S.E.2d 574"", ""year"": 1978, ""category"": ""reporters:state_regional"", ""reporter"": ""S.E.2d"", ""opinion_index"": 1}, {""cite"": ""34 N.C. App. 503"", ""year"": 1978, ""case_ids"": [8550169], ""category"": ""reporters:state"", ""reporter"": ""N.C. App."", ""case_paths"": [""/nc-app/34/0503-01""], ""opinion_index"": 1}, {""cite"": ""457 N.E.2d 1335"", ""year"": 1983, ""category"": ""reporters:state_regional"", ""reporter"": ""N.E.2d"", ""opinion_index"": 1}, {""cite"": ""120 Ill. App. 3d 314"", ""year"": 1983, ""case_ids"": [3594695], ""category"": ""reporters:state"", ""reporter"": ""Ill. App. 3d"", ""case_paths"": [""/ill-app-3d/120/0314-01""], ""opinion_index"": 1}, {""cite"": ""445 N.E.2d 1249"", ""year"": 1983, ""category"": ""reporters:state_regional"", ""reporter"": ""N.E.2d"", ""opinion_index"": 1}, {""cite"": ""112 Ill. App. 3d 834"", ""year"": 1983, ""case_ids"": [5432422], ""category"": ""reporters:state"", ""reporter"": ""Ill. App. 3d"", ""case_paths"": [""/ill-app-3d/112/0834-01""], ""opinion_index"": 1}, {""cite"": ""438 N.E.2d 924"", ""year"": 1982, ""category"": ""reporters:state_regional"", ""reporter"": ""N.E.2d"", ""opinion_index"": 1}, {""cite"": ""108 Ill. App. 3d 83"", ""year"": 1982, ""case_ids"": [3011515], ""category"": ""reporters:state"", ""reporter"": ""Ill. App. 3d"", ""case_paths"": [""/ill-app-3d/108/0083-01""], ""opinion_index"": 1}, {""cite"": ""464 A.2d 847"", ""year"": 1983, ""category"": ""reporters:state_regional"", ""reporter"": ""A.2d"", ""pin_cites"": [{""page"": ""851-52""}], ""opinion_index"": 1}, {""cite"": ""191 Conn. 484"", ""year"": 1983, ""case_ids"": [682780], ""category"": ""reporters:state"", ""reporter"": ""Conn."", ""case_paths"": [""/conn/191/0484-01""], ""opinion_index"": 1}, {""cite"": ""434 N.E.2d 1215"", ""year"": 1982, ""category"": ""reporters:state_regional"", ""reporter"": ""N.E.2d"", ""opinion_index"": 1}, {""cite"": ""386 Mass. 74"", ""year"": 1982, ""case_ids"": [906621], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/386/0074-01""], ""opinion_index"": 1}, {""cite"": ""15 U.S.C.A. § 45"", ""year"": 1963, ""category"": ""laws:leg_statute"", ""reporter"": ""U.S.C."", ""pin_cites"": [{""page"": ""(a)(6)""}], ""opinion_index"": 1}, {""cite"": ""405 U.S. 233"", ""year"": 1972, ""weight"": 5, ""case_ids"": [11722077], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""page"": ""239-240""}, {""page"": ""903""}], ""case_paths"": [""/us/405/0233-01""], ""opinion_index"": 1}, {""cite"": ""459 Pa. 450"", ""year"": 1974, ""weight"": 2, ""case_ids"": [481001], ""category"": ""reporters:state"", ""reporter"": ""Pa."", ""case_paths"": [""/pa/459/0450-01""], ""opinion_index"": 1}, {""cite"": ""590 P.2d 1286"", ""year"": 1979, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 1}, {""cite"": ""22 Wn. App. 613"", ""year"": 1979, ""case_ids"": [466994], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""case_paths"": [""/wash-app/22/0613-01""], ""opinion_index"": 1}, {""cite"": ""581 P.2d 1349"", ""year"": 1978, ""weight"": 2, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 1}, {""cite"": ""90 Wn.2d 355"", ""year"": 1978, ""weight"": 2, ""case_ids"": [1104390], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/90/0355-01""], ""opinion_index"": 1}, {""cite"": ""691 P.2d 163"", ""year"": 1984, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 1}, {""cite"": ""103 Wn.2d 52"", ""year"": 1984, ""case_ids"": [1134169], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/103/0052-01""], ""opinion_index"": 1}, {""cite"": ""605 P.2d 1275"", ""year"": 1979, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 1}, {""cite"": ""25 Wn. App. 90"", ""year"": 1979, ""case_ids"": [1845840], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""case_paths"": [""/wash-app/25/0090-01""], ""opinion_index"": 1}, {""cite"": ""626 P.2d 522"", ""year"": 1981, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 1}, {""cite"": ""28 Wn. App. 762"", ""year"": 1981, ""case_ids"": [1829355], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""case_paths"": [""/wash-app/28/0762-01""], ""opinion_index"": 1}, {""cite"": ""676 P.2d 496"", ""year"": 1984, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 1}, {""cite"": ""101 Wn.2d 161"", ""year"": 1984, ""case_ids"": [1139592], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/101/0161-01""], ""opinion_index"": 1}, {""cite"": ""686 P.2d 465"", ""year"": 1984, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 1}, {""cite"": ""102 Wn.2d 30"", ""year"": 1984, ""case_ids"": [1137175], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/102/0030-01""], ""opinion_index"": 1}, {""cite"": ""15 U.S.C. §§ 41-58"", ""year"": 1970, ""category"": ""laws:leg_statute"", ""reporter"": ""U.S.C."", ""opinion_index"": 1}, {""cite"": ""59 A.L.R.3d 1209"", ""year"": 1973, ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R. 3d"", ""opinion_index"": 1}, {""cite"": ""510 P.2d 233"", ""year"": 1973, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 1}, {""cite"": ""82 Wn.2d 265"", ""year"": 1973, ""case_ids"": [1130202], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/82/0265-01""], ""opinion_index"": 1}, {""cite"": ""521 P.2d 761"", ""year"": 1974, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 1}, {""cite"": ""11 Wn. App. 80"", ""year"": 1974, ""case_ids"": [1853726], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""82""}], ""case_paths"": [""/wash-app/11/0080-01""], ""opinion_index"": 1}, {""cite"": ""49 Wash. L. Rev. 291"", ""year"": 1974, ""category"": ""journals:journal"", ""reporter"": ""Wash. L. Rev."", ""pin_cites"": [{""page"": ""296""}], ""opinion_index"": 1}, {""cite"": ""90 Wn.2d 1020"", ""year"": 1978, ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""opinion_index"": 1}, {""cite"": ""576 P.2d 1334"", ""year"": 1978, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 1}, {""cite"": ""19 Wn. App. 620"", ""year"": 1978, ""case_ids"": [473788], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""621""}], ""case_paths"": [""/wash-app/19/0620-01""], ""opinion_index"": 1}, {""cite"": ""515 P.2d 160"", ""year"": 1973, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 1}, {""cite"": ""83 Wn.2d 22"", ""year"": 1973, ""case_ids"": [1127907], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""25-28""}], ""case_paths"": [""/wash-2d/83/0022-01""], ""opinion_index"": 1}, {""cite"": ""613 P.2d 1212"", ""year"": 1980, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 1}, {""cite"": ""26 Wn. App. 717"", ""year"": 1980, ""case_ids"": [1833910], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""719""}], ""case_paths"": [""/wash-app/26/0717-01""], ""opinion_index"": 1}, {""cite"": ""10 Gonz. L. Rev. 559"", ""year"": 1975, ""category"": ""journals:journal"", ""reporter"": ""Gonz. L. 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+1157308,"{""id"": 1157308, ""name"": ""Paul J. Santos, Jr, individually and as executor, & another vs. Chrysler Corporation & another"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""f9ea01bb502749dbe75f87781c130d80e24cd81c10ef06f135f7fbaeb445e86a"", ""simhash"": ""1:f93a62a088fd264c"", ""pagerank"": {""raw"": 0.00000024526904602475777, ""percentile"": 0.8042082762354099}, ""char_count"": 55738, ""word_count"": 8992, ""cardinality"": 1699, ""ocr_confidence"": 0.889}, ""casebody"": {""judges"": [], ""parties"": [""Paul J. Santos, Jr, individually and as executor, & another vs. Chrysler Corporation & another.""], ""opinions"": [{""text"": ""Abrams, J.\nThe wife and three children of the plaintiff, Paul J. Santos, Jr., were killed in an automobile accident. He sued the defendant Chrysler Corporation (Chrysler), the manufacturer of his 1986 Plymouth Voyager minivan, for negligence, breach of warranty of merchantability, and wrongful death. The plaintiff also sued Post Motors, Inc. (Post Motors), the retail seller, for negligence. Post Motors cross-claimed for indemnification from Chrysler. A jury returned special verdicts against Chrysler. The jury determined that Post Motors was not negligent. But see note 30, infra. The judge concluded that Post Motors was entitled to indemnity from Chrysler. Chrysler appeals, alleging error in the denial of its motions for a directed verdict, mistrial, judgment notwithstanding the verdict, and a new trial.\nChrysler challenges several of the judge’s evidentiary rulings. It also argues that the judge erred by permitting improper closing argument, by failing to eliminate the plaintiff’s wrongful death recoveries, and by entering the judgment retroactively. In addition, Chrysler appeals from the judgment for Post Motors on its cross claim for indemnity. We allowed Chrysler’s application for direct appellate review. We affirm the judgments against Chrysler in favor of the plaintiff. We remand the judgment against Chrysler in favor of Post Motors for the calculation of interest in accordance with Sterilite Corp. v. Continental Cas. Co., 397 Mass. 837 (1986).\n1. The trial. In February, 1990, the plaintiff was driving his 1986 Plymouth Voyager minivan in New Hampshire. The plaintiff, his wife, and their three children were returning to Belmont from a ski trip in Canada. The plaintiff applied the brakes after approaching traffic which was slowed behind a snow plow. The rear of the minivan slid to the right and the vehicle swerved into the oncoming lane, where it was hit broadside by a Ford Bronco. The plaintiff’s wife and three children died as a result of the accident. The plaintiff sustained personal injuries.\nThe plaintiff offered expert testimony to establish that the cause of the accident was premature rear wheel lockup. Rear wheel lockup occurs when a driver applies the brakes, the rear wheels lock before the front, causing the rear of the vehicle to skid. The plaintiff claimed that the rear wheel lockup was premature, meaning that it happened in circumstances in which an ordinary driver reasonably would not anticipate. The plaintiff alleged that premature rear wheel lockup was a design defect, which, in turn, was caused by one or more design defects that existed or could have occurred in the minivan’s brake system. Chrysler contended that the accident was caused by driver error in hazardous winter weather.\nA jury found that Chrysler was negligent, grossly negligent, and had violated the implied warranty of merchantability. The jury determined that Post Motors was not negligent. The jury also found the plaintiff to be ten per cent negligent. The jury awarded $12.8 million in compensatory damages for the wrongful deaths of the wife and children, the conscious pain and suffering of the wife, the wife’s lost future earnings, and the plaintiff’s personal injuries. The jury also awarded $15,705 in punitive damages.\nIn March, 1996, Chrysler filed motions for judgment notwithstanding the verdict, for a new trial, and to correct the judgment. The judge allowed in part the motion for judgment notwithstanding the verdict as to the award of lost future earnings of the wife. The other motions were denied. In June, 1997, the judge allowed the plaintiff’s motion for entry of separate and final judgment, retroactively entering judgment to September, 1996. In January, 1998, the judge entered a separate judgment for Post Motors on the indemnity claim.\n2. Evidentiary rulings, a. Other incident evidence. Chrysler argues that the judge erred by admitting, over its objection, the testimony of six Chrysler minivan owners regarding other incidents involving their own minivans as well as National Highway Transportation Safety Administration (NHTSA) vehicle owners’ questionnaires (VOQs) submitted by the six owners. The evidence was admitted for three purposes: to establish notice; to corroborate the alleged defect; and to refute evidence that the minivan was designed without safety hazards.\nEvidence of incidents similar to the plaintiffs is viewed with disfavor because the other incidents “may have been the consequence of idiosyncratic circumstances.” Read v. Mt. Tom Ski Area, Inc., 37 Mass. App. Ct. 901, 902 (1994). However, such evidence is admissible if the judge first determines that the jury could find a substantial similarity in circumstances. See Kromhout v. Commonwealth, 398 Mass. 687, 693 (1986). See also Simmons v. Monarch Mach. Tool Co., 413 Mass. 205, 214 (1992); Griffin v. General Motors Corp., 380 Mass. 362, 365-366 (1980); Robitaille v. Netoco Community Theatre of N. Attle-boro, Inc., 305 Mass. 265, 268 (1940). The judge also must determine that there is minimal danger of unfairness, confusion, and undue expenditure of time in the trial of collateral issues. See Kromhout, supra; Robitaille, supra. The admission of other incident evidence rests within the judge’s discretion. See id.\nChrysler points to several differences between the other incidents and the plaintiff’s accident, arguing that the judge erred in concluding that the jury could find the incidents were sufficiently similar to the plaintiff’s accident. Five of the six witnesses owned minivans of a different model year than the plaintiff’s minivan. Four of the six minivans had a shielded height sensing proportioning valve (HSPV), while the plaintiff s was unshielded. None of the other incidents occurred on snow or ice.\nWe conclude that, although they did not replicate the exact circumstances of the plaintiff’s accident, the other incidents could be found by the jury to be substantially similar. Each of the witnesses described the rear ends of their minivans skidding or swerving following hard application of the brakes. Although not all the witnesses specifically stated that their wheels “locked up,” the jury could infer the phenomenon from the words used by the witnesses. There was evidence that the braking system was essentially the same in all the minivans, regardless of whether the HSPVs were shielded or not. In addition, the plaintiff offered numerous additional reasons for premature rear wheel lockup, see note 5, supra, aside from contamination of the unshielded HSPV. All the witnesses testified to incidents on wet roads. Although there was evidence that the plaintiff’s accident occurred in snowy conditions, there was evidence that most of the snow had been cleared and the road was only wet. The differences between the other incidents and the plaintiff’s accident could be considered by the jury in terms of weight of the evidence. Wheeler v. John Deere Co., 862 F2d 1404, 1408 (10th Cir. 1988).\nChrysler next argues that substantial similarity between the other incidents and the plaintiff’s accident could not be established without expert testimony regarding the existence of the same defect, premature rear wheel lockup, in the witnesses’ minivans and the causative relationship between the defect and the incidents. In Chrysler’s view, the witnesses, because they were ordinary drivers, were not capable of identifying premature wheel rear lockup. Chrysler relies on United States v. General Motors Corp., 841 F.2d 400 (D.C. Cir. 1988), in which the court said that “consumers were not capable of discerning whether what they experienced was an incidence of premature rear-wheel lock-up.” Id. at 412.\nThe General Motors case is inapposite. There, the government brought an action under the National Traffic and Motor Vehicle Safety Act, alleging that General Motors vehicles had defective braking systems that caused premature rear wheel lockup. Id. at 401. The government “relied heavily” on other incident evidence, in the form of consumer complaints, to meet its burden of proving a defect. Id. at 406. The court held that the consumer complaints were insufficient to establish the existence of a defect. Id. at 411-412.\nHere, the plaintiff did not rely on the other incident evidence to prove the existence of a defect in Chrysler minivans. Evidence of a defect was introduced in the form of expert testimony. The other incident testimony was put in evidence to establish notice, to corroborate the alleged defect, and to refute evidence that the minivan was designed without safety hazards. The judge instructed the jurors that they could consider the evidence only for these purposes during the testimony and again in the charge. Thus, unlike the government in General Motors, the plaintiff did not rely on the other incident evidence to prove the defect. The jury could assess the similarity of the other incidents to the plaintiff’s accident based on the explanation of premature rear wheel lockup presented to them by the plaintiff’s expert. Further expert testimony identifying the defects in the witnesses’ minivans and the causes of their incidents was not required.\nb. Chrysler’s expert statistician. Chrysler argues that the judge erred by excluding the testimony of its expert. The expert analyzed the data contained in the NHTSA’s fatal accident reporting system (PARS), which records various data about fatal accidents. The expert would have testified that, if Chrysler minivans had a propensity toward premature rear wheel lockup, then they would be involved in more accidents and more fatal accidents. She concluded from her analysis of the EARS data that Chrysler minivans were no more prone than other vehicles to fatal accidents on wet, snowy, or icy roads due to skidding or loss of control. Chrysler offered the expert’s testimony to rebut the testimony of the other incident witnesses by showing that Chrysler minivans did not have a propensity to skid out of control due to rear wheel lockup.\nThe judge excluded the expert’s testimony because it was based on speculation, was not relevant, and because the danger of the jurors being misled exceeded the probative value of the expert’s opinion. We conclude that there was no abuse of discretion.\nThe judge could conclude that the factual foundation for the expert’s opinion was insufficient. From the PARS database, the expert could not tell whether the circumstances of the accidents reported matched the circumstances of the plaintiff’s accident. The PARS data did not contain any direct information on the use of brakes before or during the accidents, on any loss of control or skidding, or on the contribution of rear wheel lockup. The expert tried to isolate a comparable subset of data by making her own inferences regarding which accidents involved braking, skidding or rear wheel lockup. The expert, however, had no expertise in engineering or accident reconstruction. She said she used her common sense as a driver.\nGiven the infirmities in the data, the judge could conclude that the testimony was speculative. See Commonwealth v. Gomes, 403 Mass. 258, 274 (1988) (courts reluctant to admit statistical evidence where probabilities on which evidence depends are based on speculation); Commonwealth v. Neverson, 35 Mass. App. Ct. 913, 915 (1993) (judge properly excluded expert’s opinions that did not relate to expert’s field of expertise). All that the expert could conclude from her subset of data was that Chrysler minivans were no more prone to fatal accidents on wet, snowy, or icy roads than other vehicles. The plaintiff, however, never took the position that the defect he identified resulted in a disproportionate number of fatal accidents. The judge therefore also could conclude that the testimony was irrelevant and misleading.\nContrary to Chrysler’s suggestion, this conclusion does not run afoul of Kromhout v. Commonwealth, 398 Mass. 687 (1986). In Kromhout, the plaintiff brought a wrongful death action, claiming that a defect in a State highway caused the accident in which her husband was killed. Id. at 687, 688-689. We concluded that it was error for the judge to admit evidence that, over the course of six years, twenty-one accidents occurred in the same location, and that this number of incidents was significant. Id. at 692. We said that the error was exacerbated by the judge’s failure to admit the Commonwealth’s statistics on the average daily traffic volumes on the road in question. Id. at 693-694.\nChrysler never sought to admit statistics on the number of minivans in use at the time of the six witnesses’ incidents or the collective number of miles driven by all the minivans in service. The plaintiff never elicited expert testimony that the number of incidents reported by the six witnesses was significant. Moreover, as the judge stated in her ruling, had the expert been able to whittle down the EARS data to include only accidents that involved braking, skidding, or rear wheel lockup, the evidence would have been admitted. We conclude that the judge did not err or abuse her discretion by excluding the expert’s testimony.\nc. Recalls. Over Chrysler’s objection, the judge admitted evidence of recalls of minivans from the 1984 and 1985 model years. The purpose of the recalls was to install a shield over the HSPV. According to the recall letter, Chrysler determined that the shield was necessary because of the potential of a small stone’s becoming entrapped in the HSPV. Chrysler notified owners that a contaminated HSPV could increase stopping distances during hard braking when the vehicle was lightly loaded. The plaintiff introduced the evidence of recalls to show that Chrysler was on notice that the HSPV could not be relied on to prevent premature rear wheel lockup. Chrysler argues that the evidence should not have been admitted because it was irrelevant and unfairly prejudicial. We do not agree.\nWe have held that, if a defect that was the subject matter of a recall was present in the plaintiff’s vehicle at the time of the accident, evidence of the recall is admissible to show that the defect was present in the plaintiff’s vehicle when it left the hands of the manufacturer. See Carey v. General Motors Corp., 377 Mass. 736, 744 (1979). While the plaintiff offered such evidence on the issue of notice, not to show that the defect was present when it left Chrysler’s hands, we conclude that the same standard of admissibility applies, and that the plaintiff met the standard.\nChrysler argues that the evidence was irrelevant because the defect that was the subject matter of the recall letter was not present in the plaintiff’s minivan. The recall letter referred to the danger of a stone getting caught in the HSPV and increasing braking distances during light load operation. In contrast, the plaintiff alleged, as one theory of the accident, that snow was caught in his HSPV, causing premature rear wheel lockup under moderate load operation.\nThe jury could have concluded that the defect that was the subject matter of the recall existed in the plaintiff’s vehicle. There was evidence that Chrysler was concerned about snow contamination of the HSPV when it issued the recalls. The plaintiff offered expert testimony that snow was probably caught in his HSPV at the time of the accident. There was also evidence that Chrysler was concerned about premature rear wheel lockup in addition to increased braking distances.\nFrom all this evidence, the jury could conclude that Chrysler’s concerns that prompted the recall were broader than those set forth in the recall letter. The evidence suggested that Chrysler was concerned about snow contamination and rear wheel skid. The plaintiff presented evidence from which the jury could conclude that these conditions were present in his vehicle on the day of the accident. We conclude that the judge correctly admitted evidence of the recalls.\nd. Expert testimony criticizing the braking system. Chrysler challenges the testimony of two expert witnesses, over Chrysler’s objection, to numerous potential conditions which could interact with the design of the HSPV and lead to rear wheel lockup. See note 5, supra. According to Chrysler, the plaintiff was allowed to show alleged design defects in the braking system without regard to whether the defects were present in the vehicle on the day of the accident. Chrysler relies on Carey v. General Motors Corp., supra, to argue that the admission of “a litany of irrelevant defects caused substantial and unfair prejudice” and warrants a new trial. We disagree.\nThe expert testimony was offered to establish causation and to demonstrate that there was a design defect in the braking system. As to the design defect, the question was whether the braking system had a propensity to experience premature rear wheel lockup. If a propensity were found, the jury was then required to determine “whether this propensity, resulting from conscious design choices of the manufacturer, rendered the product unreasonably dangerous to its users.” Back v. Wickes Corp., 375 Mass. 633, 642 (1978). This raised a question whether the design of the braking system was “socially acceptable.” Id. The experts’ opinions about defects in the brake design that could cause premature rear wheel lockup under certain conditions was relevant to whether the product was unreasonably dangerous. The evidence was admissible.\nAs to causation, Chrysler argues that there was insufficient evidence to establish that the factors described by the expert witnesses, note 5, supra, actually, rather than potentially, caused the rear wheel lockup. The expert testimony was that the rear wheels locked, causing the vehicle to turn and enter the opposite lane of traffic. There was testimony that the rear skid was caused by any one of or a combination of the factors and design defects described, note 5, supra. From this testimony, the jury could conclude that there was a “greater likelihood or probability [that the accident was caused by premature rear wheel lockup and that the premature rear wheel lockup] was due to causes for which the defendant was responsible than from any other cause.” Carey, supra at 740. The infirmities in the testimony, suggested by Chrysler, go to the weight, not admissibility, of the testimony. See Stark v. Patalano, 30 Mass. App. Ct. 194, 200 (1991) (challenge to testimony that rear wheel lockup was caused by faulty proportioning valve was one of weight, rather than admissibility of evidence).\ne. Memorandum and testimony of retired Chrysler engineer. Chrysler argues that the judge should have excluded the testimony of Joseph Douglas as well as a memorandum he wrote. The plaintiff offered the evidence to further his theory that the premature rear wheel lockup he experienced was caused by the “increased efficiency” and rapid wear of his rear brake linings. See note 5, supra.\nDouglas was a braking engineer at Chrysler for more than twenty years before he retired in 1979. Shortly before he retired, Douglas wrote a memorandum entitled “Proposed 1981 Model Year 10[-inch] and 11 [-inch] Rear Brake Lining.” The memorandum reported the results of Douglas’s investigation of reports of rear brake “bum up” and rear wheel skid. Douglas collected data from leased vehicles, endurance vehicles, taxicabs, passenger vehicles, and station wagons — but not minivans, which had not yet been developed. He concluded that these Chrysler vehicles suffered from premature rear wheel skid after a short period of use. This tendency was accompanied by increased efficiency and rapid wear of the vehicles’ rear brake linings. The plaintiff states that he offered Douglas’s testimony and memorandum “to shed light on Chrysler’s knowledge of the potential dangers posed by its design of the minivan braking system and its longstanding failure to address them.”\nChrysler argues that Douglas’s memorandum and his testimony were irrelevant, inflammatory, and unfairly prejudicial. Douglas was not employed by Chrysler in the early 1980s when the minivan was developed. He played no role in the design of the minivan’s braking system. He was never employed in the department that developed the minivan. The linings used on the minivan’s rear drum brakes were of a different size and manufacturer than those Douglas tested. Chrysler also specifically contests the judge’s denial of its motion to strike Douglas’s testimony that he told his boss that “we were killing people.” We conclude that there was no error.\n“The general rule to be followed in this Commonwealth is that all relevant evidence is admissible unless within an exclusionary rule. Evidence is relevant if it renders the desired inference more probable than it would be without the evidence.” Poirier v. Plymouth, 374 Mass. 206, 210 (1978). If the evidential value may be overwhelmed by its prejudicial effect, admissibility is to be determined in the sound discretion of the judge. Green v. Richmond, 369 Mass. 47, 60 (1975).\nWe conclude that Douglas’s memorandum and testimony were relevant. They demonstrate a widespread tendency of Chrysler vehicles to experience rear wheel skid because of over-efficient rear brake linings. The plaintiff demonstrated that the brake linings in his minivan were excessively worn. The jury could draw the inference that Chrysler was aware of the tendency of the rear wheels of its vehicles to lockup prematurely due to over-efficient rear brake linings, in accordance with one of the plaintiff’s theories of the accident, and that this tendency was repeated in the minivan design. See note 5, supra.\nThe memorandum and testimony were not unfairly prejudicial. Chrysler argues that the evidence was prejudicial because, contrary to Douglas’s testimony, Chrysler subsequently tested vehicles for rear wheel skid. This goes to the weight of the evidence, not its admissibility. As for Douglas’s testimony that Chrysler was killing people, Chrysler objected to that statement arguing it was not responsive, not that it was inflammatory. Moreover, the witness implied that he made the statement after losing his temper. In its context, we do not view the statement as inflammatory. The judge was correct to admit Douglas’s testimony and memorandum.\n3. Closing argument. Chrysler next argues that the judge erred by permitting improper closing argument by the plaintiff. In Chrysler’s view, the plaintiff’s counsel criticized Chrysler for not presenting an expert to compare the Chrysler minivan with other vehicles, after persuading the judge to exclude the testimony of Chrysler’s expert. We disagree. Counsel could argue the absence of evidence that premature rear wheel lockup was a generic problem. Chrysler’s expert would not have testified otherwise. Her testimony would have been that Chrysler minivans are no more prone than other vehicles to fatal accidents.\nChrysler further contends that the plaintiff improperly argued that Chrysler destroyed the memorandum written by Joseph Douglas. The evidence showed that the only copy of the memorandum was found in Douglas’s files, and Chrysler admitted to routinely destroying documents. We conclude that counsel’s argument was a fair inference drawn from the evidence. See Commonwealth v. Kelly, 417 Mass. 266, 270 (1994).\nChrysler argues that the plaintiff’s counsel interjected his personal opinion regarding the veracity of the witnesses. We have set forth the challenged portions of the argument in the margin. We see no error in counsel’s argument that Joseph Douglas was courageous and that the six other incident witnesses were brave and conscientious. Counsel can comment on the courage and character of a witness so long as he does not argue, from personal knowledge, the witness’s credibility. See Commonwealth v. Lapointe, 402 Mass. 321, 331 (1988). These comments did not run afoul of that standard. We also conclude that it was permissible for counsel to argue that it was a he that Douglas was a disgruntled employee, and that he was appalled by suggestions that a witness was not at the scene of the accident. Although counsel should have tempered his language, he could challenge the credibility of Chrysler’s witnesses if his argument was supported by the evidence and the fair inferences therefrom. See Commonwealth v. Fitzgerald, 376 Mass. 402, 422 (1978). Counsel explained the evidence showing that Douglas was not disgruntled. Counsel also argued the forcefulness of the testimony of the witness to the accident. Counsel’s reaction to the plaintiff’s testimony also does not rise to the level of prejudicial error. We can safely rely on the jury to distinguish hyperbole. See Commonwealth v. Masello, 428 Mass. 446, 452-453 (1998). See also Commonwealth v. Bradshaw, 385 Mass. 244, 277 (1982) (“The jury could be expected to take both [parties’] arguments with a grain of salt”).\nIt was improper for counsel to suggest that Douglas’s testimony and the plaintiff’s statement to police were truthful, rather than arguing the credibility of their testimony. However, “[w]e review remarks alleged to be improper in the context of the entire argument, as well as in light of the evidence at trial and any instructions from the judge.” Commonwealth v. Pontes, 402 Mass. 311, 316 (1988). The plaintiff’s counsel did not say that he had personal knowledge of the veracity of the witnesses. The judge instructed the jury that closing arguments are not evidence and that “[i]f, at any time in the course of these events you heard an attorney express a personal belief in the credibility or believability of a witness, or in the merits or lack of merits of a particular claim, you should disregard it unless you as a collective body agree with that assessment . . . .” These instructions, which were echoed at the beginning of trial and before closing arguments, were sufficiently forceful to cure the error. Chrysler requested no additional instructions at the close of the charge.\nFinally, Chrysler takes issue with the plaintiff’s counsel’s references to his personal life experiences. These references were improper. See Commonwealth v. Marquetty, 416 Mass. 445, 451 (1993). However, as we discussed above, the judge instructed the jury that closing arguments are not evidence and that the attorneys’ personal beliefs should be disregarded. The judge also instructed that sympathy should not play a role in the jury’s deliberations. The judge has the discretion to decide whether any action must be taken in response to improper argument and what that action should be. Fialkow v. DeVoe Motors, Inc., 359 Mass. 569, 572 (1971). The judge was faced with two improper comments in the course of a lengthy trial and lengthy closing arguments. We conclude that the judge did not abuse her discretion in her handling of counsel’s improper comments. See Harlow v. Chin, 405 Mass. 697, 706 (1989). While we affirm the judgments, we do not condone this type of closing argument. We view with disfavor unnecessary and hyperbolic embellishments. Counsel should argue the facts and fair inferences from the facts. See Kelly, supra.\n4. Wrongful death recovery. The jury found that the plaintiff was ten per cent negligent, and that his negligence was a proximate cause of the deaths of his wife and children. The plaintiff is the sole beneficiary of their estates. See G. L. c. 229, § 1. Chrysler argues that the plaintiff, as a contributorily negligent sole beneficiary, is not entitled to recover under the Massachusetts wrongful death act, G. L. c. 229, §§ 1 et seq. We disagree.\nWe have held that comparative negligence is not a full or partial defense to a wrongful death action based on breach of warranty. See Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 353 (1983). The plaintiff proceeded on two theories: negligence and breach of warranty. See G. L. c. 229, § 2. In addition to finding that Chrysler was negligent, the jury also found that Chrysler violated its warranty, and that the plaintiff did not unreasonably use his minivan knowing of the defect. The verdict slip does not specify on which finding the jurors based the wrongful death awards. The wrongful death awards could have been based on the breach of warranty. Thus, there is no basis for ehminating the awards.\nEven if the jury based its verdict on the negligence claim, the plaintiff’s recovery would not be barred. Chrysler’s argument relies largely on Arnold v. Jacobs, 319 Mass. 130 (1946). In Arnold, the defendant caused his mother’s death through the negligent operation of a motor vehicle. Id. at 132. We held that he could not share in the sum paid by his insurer to the administrator of the decedent’s estate. Id. at 133. We conclude that Arnold is not applicable. Arnold was decided prior to the enactment of the comparative negligence statute. See G. L. c. 231, § 85, as appearing in St. 1973, c. 1123, § 1.\nChrysler, focusing on the part of the comparative negligence statute referring to “the amount of negligence attributable to the person for whose . . . death recovery is made,” argues that the statute allows for the comparative negligence of a decedent, but not a beneficiary, and thus Arnold controls. We disagree. The statute directs the judge to compare the negligence of “each plaintiff’.’ to the negligence of all the defendants. The statute further states that the “total of the plaintiff’s negligence” and the defendants’ negligence must be one hundred per cent. We therefore conclude that the Legislature intended for the statute to apply both to negligent decedents and negligent beneficiaries.\n5. Judgment nunc pro tune. Chrysler next argues that the judge should not have entered judgment nunc pro tune. The jury returned a verdict in favor of the plaintiff on February 16, 1996. On February 28, 1996, Post Motors filed a motion for a hearing on fees and costs and for entry of judgment on its cross claim against Chrysler. On March 1, 1996, Chrysler filed motions for a new trial and for judgment notwithstanding the verdict. The judge issued a decision on Chrysler’s posttrial motions on September 18, 1996. Final judgment did not enter, however, as Post Motors’s cross claim against Chrysler was pending.\nOn March 20, 1997, the plaintiff moved for entry of separate and final judgment with regard to his claims against Chrysler, pursuant to Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974). On June 11, 1997, Post Motors’s motion for entry of judgment on its cross claim was allowed. That order was amended, due to an error, on June 26, 1997. In the June 26 order, the judge also allowed the plaintiff’s motion for entry of separate and final judgment against Chrysler and ordered that final judgment be entered nunc pro tune, as of September 18, 1996, the date the court decided Chrysler’s posttrial motions. In effect, the order allowed postjudgment interest to be calculated from September 18, 1996, rather than from March 20, 1997.\nChrysler argues that the trial judge should not have entered judgment retroactive to September, 1996. According to Chrysler, the plaintiff could have, but did not, move for entry of final judgment pursuant to rule 54 (b) earlier. As this failure “to timely move” for an entry was not caused by court proceedings, the defendant argues that judgment should not have entered until the date the rule 54 (b) motion was allowed.\nTo protect parties from prejudice caused by delay in judicial deliberations or proceedings, G. L. c. 235, § 4, allows a judgment to be entered nunc pro tunc. Almedia Bus Lines, Inc. v. Department of Pub. Utils., 348 Mass. 331, 338 (1965). After Chrysler’s posttrial motions were decided, the plaintiff’s claims against the defendant ceased at the trial level. Had the judge not entered judgment nunc pro tune, the plaintiff would have been prejudiced by losing the benefit of the judgment against Chrysler while the court resolved the remaining dispute between Post Motors and Chrysler. Chrysler has cited no authority for the proposition, implicit in its argument, that the plaintiff was required to seek a rule 54 (b) judgment immediately after the posttrial motion in order to obtain the full benefit of the judgment. Thus, we conclude that Chrysler has failed to establish that the nunc pro tune order was an abuse of discretion.\n6. Indemnity. Chrysler also appeals from the judgment for Post Motors. Post Motors cross-claimed for indemnity. The judge determined that Post Motors was entitled to common-law indemnification. Chrysler argues that, if the judgment for the plaintiff is vacated, so too should be the judgment for Post Motors. Because we affirm the verdicts for the plaintiff, we need not address the issue. However, Post Motors raises two other issues related to the indemnification.\nPost Motors argues that the indemnity judgment entitles it not only to attorney’s fees and costs incurred during the trial, but also to attorney’s fees and costs incurred on appeal. Post Motors properly requested appellate attorney’s fees in its brief, see Yorke Mgt. v. Castro, 406 Mass. 17, 20 (1989), and we conclude it is entitled to them. “Indemnity . . . allows someone who is without fault, compelled by operation of law to defend himself against the wrongful act of another, to recover from the wrongdoer the entire amount of his loss, including reasonable attorney’s fees.” Elias v. Unisys Corp., 410 Mass. 479, 482 (1991).\nThe judge concluded that Post Motors was entitled to indemnity from Chrysler on the claim for breach of warranty because Post Motors’s liability “arose only from its derivative or vicarious relationship with Chrysler.” The judge stated that “Chrysler must indemnify Post Motors for all reasonable and necessary expenses incurred in Post Motors’ defense of this action.” The judge’s order is sufficiently broad to enable Post Motors to recover to the extent allowed by common-law indemnity. Post Motors is therefore entitled to compensation for the entire amount of its loss, including reasonable attorney’s fees. This guarantee “would ring hollow if it did not necessarily include a fee for the appeal.” Yorke, supra at 19 (holding that G. L. c. 93A’s provision for “a reasonable attorney’s fee” encompassed fees for the appeal).\nThe other issue raised by Post Motors pertains to the calculation of prejudgment interest. The judge awarded prejudgment interest as of the date of the filing of the plaintiff’s complaint. Post Motors contends that interest should be calculated on the basis of the dates on which the legal bills were paid, in accordance with Sterilite Corp. v. Continental Cas. Co., 397 Mass. 837 (1986). We agree, for the reasons set forth in that opinion. See id. at 841-842.\n7. Conclusion. The judgments against Chrysler in favor of the plaintiff are affirmed. The judgment against Chrysler in favor of Post Motors is remanded for entry of judgment that calculates interest consistent with Sterilite, supra. The issue of Post Motors’s request for attorney’s fees and costs on appeal is remanded to the Supreme Judicial Court for Suffolk County.\nSo ordered.\nLockup occurs when the braking force on a tire exceeds the limit of adhesion created by the friction between the tire and the road. See United States v. General Motors Corp., 841 F.2d 400, 405 (D.C. Cir. 1988).\nThere was expert testimony that the braking system had a propensity for premature rear wheel lockup caused by the following factors: the braking system had an insufficient margin of error and the break point was set improperly for surfaces with a low coefficient of friction; the braking system could not accommodate changes in efficiency of the braking system caused by changes in the linings, moisture, and temperature; the height sensing proportioning valve (HSPV) was exposed so that it could be dented or bent, and was located in an area where it was exposed to snow or stones; there was no shield to protect the HSPV from snow or stones; the sensing system was difficult to adjust and tolerance of the HSPV was such that a minor adjustment could cause a significant difference in brake pressure; the system was unable to maintain proper adjustment, and, although adjustments were needed, they were not required; changes in the suspension could affect the valve load reading, and the HSPV was located on one side, which could lead to a miscalculation of load; the location of the measuring movement was “questionable”; and brake modulation and the application rate of the brake pedal affected the stability of the system.\nThe jury noted on the verdict form that the award reflected the price the plaintiff had paid for the minivan.\nIt is undisputed that the plaintiff had to prove that Chrysler knew of the tendency of its minivan to experience premature rear wheel lockup. Although Chrysler presumably had access to the NHTSA VOQs filed by the six other incident witnesses, Chrysler did not concede notice of the defect. Indeed, Chrysler’s theory was that the accident was caused by driver error in hazardous weather.\nChrysler argues that the test is of substantial identity. The judge used the similarity standard. Chrysler has not set forth any meaningful differences between substantial identity and substantial similarity, and we see none.\nThe HSPV figured prominently in the case. To achieve the proper balance between the efficacy of the front and rear brakes, Chrysler elected to design the braking system with the HSPV. The purpose of the HSPV was to vary the amount of pressure going to the rear brakes, depending on the loading conditions of the minivan. The plaintiff claimed that the HSPV was unreliable, in part because its placement on the vehicle exposed it to contamination from external debris. The 1984 and 1985 models of the minivan were recalled so a shield could be installed on the HSPV. Minivans manufactured after the plaintiff’s also contained a shielded HSPV. One of the theories of the plaintiff’s case was that snow contamination interfered with the performance of the HSPV.\nThe witnesses offered the following descriptions: “skid[ded] and swerv[ed]”; “car did a 180 degree turn on flat road”; “it felt like my back brakes were locking up, and my rear end seemed to be starting to come over”; “The rear end locked, the rear brakes locked up, and the car started to come around”; “it skidded on me”; “[the rear] would skid”; “one of the wheels would lock up in the rear”; “[the vehicle would] fishtail when I would brake heavily”; “the rear end would move to the right”; “the back end broke away from the road and moved to the right”; “the vehicle swerv[ed] to the left”; “I skidded”; “the car was losing control and skidding.”\nSimilarly, the deficiencies in the other incident witnesses’ testimony alluded to by Chrysler could be considered by the jurors in their assessment of the weight of the evidence. Chrysler argues that the witnesses should not have been able to testify to incidents in which they were not driving or were not present. The jury could discount the testimony in relation to the testimony regarding the witnesses’ personal experiences with their vehicles.\nChrysler also argues that one of the witnesses should not have been permitted to testify to the “lemon law” action he brought against Chrysler and the settlement he obtained. The judge gave a strong limiting instruction on the jury’s use of this evidence. See Morea v. Cosco, Inc., 422 Mass. 601, 603-604 (1996).\nThe judge also stressed to the jurors that they could consider the evidence only if they first found the incidents to be substantially similar to the plaintiff’s accident.\nChrysler argues the other incident evidence was irrelevant and misleading because the plaintiff failed to establish the statistical significance of the incidents. In Chrysler’s view, evidence of other incidents of premature rear wheel lockup would tend to show a defect only if the brake lockup frequency exceeded that of other vehicles in the minivan’s class. We disagree. Statistical evidence is not required when the evidence is offered to show notice or in rebuttal. Even when offered to corroborate the existence of a defect, we have never required the proponent to offer statistical evidence. The plaintiff can show that a product presents an unreasonable risk of harm through other evidence, including expert testimony.\nChrysler also challenges the plaintiff’s counsel’s use of the other incident evidence in his opening statement and closing argument. We agree that it was improper for counsel to imply that the evidence showed that Chrysler minivans were involved in an excessive number of accidents. However, the judge instructed the jurors that they could not use the evidence for this purpose. “We assume that the jury followed the judge’s instructions.” Commonwealth v. Semedo, 422 Mass. 716, 724 (1996). Simon v. Solomon, 385 Mass. 91, 110 (1982).\nThe deposition of Chrysler’s brake testing engineer, which was read into the record, said that, when Chrysler tested the 1984 and 1985 minivans for the potential for stone contamination, “some evaluation was done as pertains to snow, ice or slush.” After the recall, Chrysler conducted additional testing with respect to the possibility that snow could interfere with the performance of the HSPV. Soon after the plaintiff’s minivan was manufactured in 1986 without a shield over the HSPV, Chrysler resumed installing shields. There was evidence that Chrysler’s decision to install the shields in 1986 “derive[d] directly from the 1984, 1985 testing.” In the 1990 version of the minivan’s owner’s manual, Chrysler referred to this shield as a “stone/snow shield” to “protect[] the valve . . . from ... the packing of snow and slush.”\nThe plaintiff’s expert testified that there was “a ninety percent chance” that snow was lodged in the HSPV on the day of the accident. The expert based his opinion on the fact that the plaintiff had been driving through snow and on the presence of snow on the vehicle.\nThe brake testing engineer testified that before he tested the 1984 and 1985 minivans for the need for an HSPV shield, he was told about an incident where a stone caught in a vehicle’s HSPV and caused rear wheel skid. He also testified that stones trapped in the HSPV could affect brake bias. A report following further testing of the HSPV states that there were “[ijnitial reports of early rear skid condition.” In addition, a Chrysler brake evaluation report observed “rear skid” in a “low speed stop.”\nThere was evidence that the plaintiff’s vehicle did not have an HSPV shield and that his HSPV was of the same basic design as that in the minivans recalled. The parties dispute whether the minivan was lightly loaded. Chrysler argues that it was heavily loaded because it carried five people and their luggage. The plaintiff characterizes the load as moderate because the minivan had the capacity to carry more people and more luggage. The question was a factual one, properly submitted to the jury. The parties do not dispute the application of severe braking in the plaintiff s accident.\nChrysler points to the following weaknesses in the expert testimony: one expert stated that a stone was not lodged in the unprotected HSPV; one expert testified that he had “no idea” whether the HSPV was misadjusted; one expert testified that he did not inspect the rear springs to see if they were worn; one expert stated he had “no information that would indicate” that the rear springs had deteriorated at the time of the accident; one expert testified that he had not analyzed the weight distribution of the people in the minivan at the time of the accident; and one expert agreed that the curve of the road was insignificant.\nDouglas testified that the tendency toward premature rear wheel skid “covered a whole bunch of vehicles.”\nThe plaintiff argues that Chrysler waived its rights by failing to include all its objections in its motion for a new trial. All Chrysler’s arguments were contained in its motion for a new trial.\nThe plaintiff’s counsel stated, in part: “Now, do you hear one shred of evidence about any other van company having trouble with rear wheel skid with their van? . . . No. Do you hear one shred of evidence about any other passenger car having problems with rear wheel skid? No. Don’t you think you would have heard it if this wasn’t the only vehicle having the problem? . . . Chrysler is not shy about hiring expert witnesses to testify in cases. They would have found somebody to tell you.”\nThe plaintiff’s counsel said that Joseph Douglas was “courageous” and that “Joseph Douglas speaks his mind. You get the truth.” He said that the six other incident witnesses were “very brave” and “conscientious people.” He described the plaintiff’s statement to the police as “a moment of utter truth.” He said that he “felt privileged” to see the plaintiff testify and that “[i]t was a spiritual experience for me to see him talk about his family.” He said that any contention that Douglas was a disgruntled employee was “a lie.” Finally, he said that he was “appalled at the overt suggestion that Ollie Langlois [according to the plaintiff a witness to the accident] wasn’t even at the scene of the accident.”\nChrysler also argues that the plaintiff’s counsel suggested the existence of additional evidence when he said, “I’m an ordinary lawyer doing my job, and I now know, just through the resources available to me, of a flood of complaints.” We disagree. This statement was made in connection with the seventy-five NHTSA complaints, the other incident testimony, and the expert testimony- Although strongly worded, counsel’s argument fairly characterized this evidence as a “flood of complaints.” When read in context, the argument was permissible.\nThe plaintiff’s counsel said: “With God’s help, when I’m on my deathbed, I’ll be secure in the knowledge my children are happy and healthy and are going to have a nice life, I’ll die a happy man.” Later, plaintiff’s counsel said: “Now, in the last twenty-two years I feel like the most beautiful word in the English language is Dad. I love that word. I’ve got a son away at college and when he calls me up and before he hangs up, he’ll say, ‘Love you, Dad.’ I think ‘I love you’ is the most beautiful sentence in the English language. And the pleasure I get from hearing that big, rugged kid say to me, ‘Love you, Dad.’ ”\nIn a footnote in its brief, Chrysler also complains of plaintiff’s counsel’s reference in closing argument to seventy-five consumer complaints to the National Highway Transportation Safety Administration (NHTSA) that were excluded by the judge. The judge overruled Chrysler’s objection, reasoning in part that, although the complaints themselves were excluded, the plaintiff’s expert referred to them in answering a question posed on cross-examination by Chrysler. Counsel could therefore use them in closing argument.\nChrysler is correct that experts cannot base their opinions on facts not in evidence if the facts are not admissible. See Vasallo v. Baxter Healthcare Corp., 428 Mass. 1, 16 (1998). However, the expert did not base his opinion solely on the excluded complaints. He testified that the complaints led him to investigate “rear wheel skid or faults with the height proportioning valve.” On direct examination, he testified that, to prepare himself to testify, he “reviewed the accident report that the police wrote, various depositions of Chrysler people, of people involved in the accident. I visited the site and made some measurements at the site. I reviewed some literature of complaints that were given to NHTSA .... I reviewed Federal Motor Vehicle Standard 105, which deals with hydraulic brakes for automobiles, and utility vehicles and trucks which have a slightly different requirement than automobiles. . . . I visited and inspected the vehicle, the parts that were left from it. I did testing of the height sensing proportioning valve to see if it was working properly or not. ... I reviewed literature by [the American Automobile Association] and other people about the vehicle, the performance of it. I read the maintenance manual.”\nChrysler does not argue that principles of comparative negligence require the plaintiff’s wrongful death recovery to be reduced, as was his recovery for his own personal injuries. We therefore do not address the issue.\nRule 54 (b) of the Massachusetts Rules of Civil Procedure, 365 Mass. 820 (1974), provides in part: “Where more than one claim for relief is presented in an action ... or when multiple parties are involved, the court may direct entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.”\nGeneral Laws c. 235, § 4, provides: “Every judgment or order of the supreme judicial, superior or land court shall bear date of the year, month and day when entered; but the court may order it to be entered as of an earlier day than that of entry.”\nChrysler filed a notice of appeal, relating to the plaintiff’s claims against Chrysler, on September 20, 1996. Thus, even Chrysler recognized that the dispute between those parties ended on that date.\nSuch action could have led to “piecemeal appeals.” Shawmut Community Bank, N.A. v. Zagami, 419 Mass. 220, 225 (1994) (“The requirement that all claims be adjudicated prior to entry of a judgment is to avoid piecemeal appeals”). Indeed, when the plaintiff did ask for judgment to be entered pursuant to rule 54 (b), Chrysler opposed the motion, arguing that “the interests of sound judicial administration are better served by continuing to keep together all of these claims, which were tried together and should be considered on appeal together.”\nPrior to submitting the case to the jury, the judge ruled that, because of the “vicarious relationship between Chrysler and Post Motors,” a jury finding against Chrysler on the breach of warranty count would result in the entry of a judgment against Post Motors.\nPost Motors represents that Chrysler and Post Motors agree that it was incorrect to calculate interest from the date of the filing of the plaintiff’s complaint. There is no evidence of this agreement in the record. Chrysler does not contest Post Motors’s argument in its brief."", ""type"": ""majority"", ""author"": ""Abrams, J.""}], ""attorneys"": [""Andrew J. McElaney, Jr. (Peter M. Durney with him) for Chrysler Corporation."", ""Cynthia J. Cohen (Leo V. Boyle & Samuel M. Furgang with her) for the plaintiff."", ""John J. Ryan, Jr. (Emily G. Coughlin with him) for Post Motors, Inc.""], ""corrections"": """", ""head_matter"": ""Paul J. Santos, Jr, individually and as executor, & another vs. Chrysler Corporation & another.\nSuffolk.\nMay 6, 1999.\nAugust 25, 1999.\nPresent: Wilkins, C.J., Abrams, Lynch, Greaney, Marshall, & Ireland, JJ.\nEvidence, Similar incidents, Judicial discretion, Expert opinion, Relevancy and materiality, Manufacturer’s recall letter, Credibility of witness. Negligence, Manufacturer of motor vehicle, Wrongful death, Design, Comparative. Motor Vehicle, Defect. Practice, Civil, Argument by counsel, Judgment. Witness, Credibility. Wrongful Death. Indemnity. Interest.\nAt the trial of an action brought against the manufacturer of a minivan for negligence, breach of warranty of merchantability, and wrongful death, there was no error in the judge admitting in evidence, with appropriate instructions to the jury, testimony of six other minivan owners regarding other substantially similar incidents involving their minivans to establish notice to the defendant, to corroborate the alleged defect testified to by the plaintiff’s expert, and to refute evidence that the minivan was designed without safety hazards. [202-205]\nAt the trial of an action brought against the manufacturer of a minivan, alleging negligence, breach of warranty of merchantability, and wrongful death, the judge did not err or abuse her discretion in excluding the testimony of a defense expert on the ground that the proffered evidence was speculative, irrelevant, and misleading. [205-207]\nAt the trial of an action for negligence, breach of warranty of merchantability, and wrongful death, brought against the manufacturer of a minivan, the judge did not err in admitting evidence of the manufacturer’s recalls of minivans to show that the manufacturer was on notice of the defect the plaintiff alleged to have caused his injuries. [207-208]\nAt the trial of an action for negligence, breach of warranty of merchantability, and wrongful death, brought against the manufacturer of a minivan, the judge did not err in admitting in evidence the plaintiff’s experts’ opinions about defects in the brake design that could cause premature rear wheel lockup under certain conditions, as that evidence was relevant to whether the product was unreasonably dangerous. [208-210]\nAt the trial of an action for negligence, breach of warranty of merchantability, and wrongful death, brought against the manufacturer of a minivan, the judge did not err in admitting in evidence testimony by a braking engineer formerly employed by the defendant and a memorandum the engineer had written, where the evidence was relevant to the defendant’s longstanding knowledge of potential dangers posed by the design of the brake system ultimately used in the minivan and the defendant’s failure to address them. [210-211]\nAt the trial of an action for negligence, breach of warranty of merchantability, and wrongful death, there was no error in plaintiff’s counsel’s closing arguments that were supported by the evidence and fair inferences drawn therefrom [211-213]; any harm arising from plaintiff’s counsel’s suggestion that certain witnesses’ testimony was truthful and counsel’s reference to his life experiences, two instances of improper comment in the course of a lengthy trial and lengthy closing arguments, was cured by the judge’s forceful instructions to the jury [213-214],\nThe plaintiff in an action alleging negligence, breach of warranty of merchantability, and wrongful death, who was also the sole beneficiary of the estates of the deceased and who was found by the jury to be ten per cent contributorily negligent, was not thereby precluded from recovery under the wrongful death act, where the wrongful death awards could have been supported by the jury’s finding of breach of warranty; moreover, even if the jury’s verdict was based on the negligence claim, the plaintiff’s recovery would not have been barred. [214-215]\nIn a civil action, the judge did not abuse her discretion in ordering the entry of a separate and final judgment nunc pro tune to the date of the denial of the defendant’s posttrial motions for a new trial and for judgment notwithstanding the verdict, where the order avoided prejudice to the plaintiff in the calculation of postjudgment interest during the period in which the judge had only the defendant’s indemnification disputes under consideration. [215-217]\nIn a civil action alleging breach of warranty of merchantability of a minivan, where the defendant seller was entitled to common-law indemnification from the defendant manufacturer, the judge correctly entered a judgment in favor of the seller on its claim for attorney’s fees and costs incurred at trial, and the seller was entitled to appellate attorney’s fees and costs as well [217-218]; and prejudgment interest on the seller’s indemnification claim was to be calculated from the dates on which the legal expenses were paid [218].\nCivil action commenced in the Superior Court Department on February 13, 1992.\nThe case was tried before Barbara J. Rouse, J.\nThe Supreme Judicial Court granted an application for direct appellate review.\nAndrew J. McElaney, Jr. (Peter M. Durney with him) for Chrysler Corporation.\nCynthia J. Cohen (Leo V. Boyle & Samuel M. Furgang with her) for the plaintiff.\nJohn J. Ryan, Jr. (Emily G. Coughlin with him) for Post Motors, Inc.\nOf the estate of Robin O. Santos.\nPaul J. Santos, Jr., administrator of the estates of Christina E., Paul C., and Peter R. Santos.\nPost Motors, Inc.""}, ""cites_to"": [{""cite"": ""419 Mass. 220"", ""year"": 1994, ""case_ids"": [823727], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""225"", ""parenthetical"": ""\""The requirement that all claims be adjudicated prior to entry of a judgment is to avoid piecemeal appeals\""""}], ""case_paths"": [""/mass/419/0220-01""], ""opinion_index"": 0}, {""cite"": ""428 Mass. 1"", ""year"": 1998, ""case_ids"": [651235], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""16""}], ""case_paths"": [""/mass/428/0001-01""], ""opinion_index"": 0}, {""cite"": ""385 Mass. 91"", ""year"": 1982, ""case_ids"": [900794], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""110""}], ""case_paths"": [""/mass/385/0091-01""], ""opinion_index"": 0}, {""cite"": ""422 Mass. 716"", ""year"": 1996, ""case_ids"": [890182], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""724""}], ""case_paths"": [""/mass/422/0716-01""], ""opinion_index"": 0}, {""cite"": ""422 Mass. 601"", ""year"": 1996, ""case_ids"": [890083], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""603-604""}], ""case_paths"": [""/mass/422/0601-01""], ""opinion_index"": 0}, {""cite"": ""410 Mass. 479"", ""year"": 1991, ""case_ids"": [3895752], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""482""}], ""case_paths"": [""/mass/410/0479-01""], ""opinion_index"": 0}, {""cite"": ""406 Mass. 17"", ""year"": 1989, ""case_ids"": [3884413], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""20""}], ""case_paths"": [""/mass/406/0017-01""], ""opinion_index"": 0}, {""cite"": ""348 Mass. 331"", ""year"": 1965, ""case_ids"": [522197], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""338""}], ""case_paths"": [""/mass/348/0331-01""], ""opinion_index"": 0}, {""cite"": ""365 Mass. 820"", ""year"": 1974, ""weight"": 2, ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""opinion_index"": 0}, {""cite"": ""319 Mass. 130"", ""year"": 1946, ""weight"": 3, ""case_ids"": [497420], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""132""}, {""page"": ""133""}], ""case_paths"": [""/mass/319/0130-01""], ""opinion_index"": 0}, {""cite"": ""388 Mass. 342"", ""year"": 1983, ""case_ids"": [911048], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""353""}], ""case_paths"": [""/mass/388/0342-01""], ""opinion_index"": 0}, {""cite"": ""405 Mass. 697"", ""year"": 1989, ""case_ids"": [3882189], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""706""}], ""case_paths"": [""/mass/405/0697-01""], ""opinion_index"": 0}, {""cite"": ""359 Mass. 569"", ""year"": 1971, ""case_ids"": [294552], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""572""}], ""case_paths"": [""/mass/359/0569-01""], ""opinion_index"": 0}, {""cite"": ""416 Mass. 445"", ""year"": 1993, ""case_ids"": [819107], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""451""}], ""case_paths"": [""/mass/416/0445-01""], ""opinion_index"": 0}, {""cite"": ""402 Mass. 311"", ""year"": 1988, ""case_ids"": [820790], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""316""}], ""case_paths"": [""/mass/402/0311-01""], ""opinion_index"": 0}, {""cite"": ""385 Mass. 244"", ""year"": 1982, ""case_ids"": [900792], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""277"", ""parenthetical"": ""\""The jury could be expected to take both [parties'] arguments with a grain of salt\""""}], ""case_paths"": [""/mass/385/0244-01""], ""opinion_index"": 0}, {""cite"": ""428 Mass. 446"", ""year"": 1998, ""case_ids"": [651291], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""452-453""}], ""case_paths"": [""/mass/428/0446-01""], ""opinion_index"": 0}, {""cite"": ""376 Mass. 402"", ""year"": 1978, ""case_ids"": [332026], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""422""}], ""case_paths"": [""/mass/376/0402-01""], ""opinion_index"": 0}, {""cite"": ""402 Mass. 321"", ""year"": 1988, ""case_ids"": [820886], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""331""}], ""case_paths"": [""/mass/402/0321-01""], ""opinion_index"": 0}, {""cite"": ""417 Mass. 266"", ""year"": 1994, ""weight"": 2, ""case_ids"": [482598], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""270""}], ""case_paths"": [""/mass/417/0266-01""], ""opinion_index"": 0}, {""cite"": ""369 Mass. 47"", ""year"": 1975, ""case_ids"": [309594], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""60""}], ""case_paths"": [""/mass/369/0047-01""], ""opinion_index"": 0}, {""cite"": ""374 Mass. 206"", ""year"": 1978, ""case_ids"": [3872303], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""210""}], ""case_paths"": [""/mass/374/0206-01""], ""opinion_index"": 0}, {""cite"": ""30 Mass. App. Ct. 194"", ""year"": 1991, ""case_ids"": [1418665], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""200"", ""parenthetical"": ""challenge to testimony that rear wheel lockup was caused by faulty proportioning valve was one of weight, rather than admissibility of evidence""}], ""case_paths"": [""/mass-app-ct/30/0194-01""], ""opinion_index"": 0}, {""cite"": ""375 Mass. 633"", ""year"": 1978, ""weight"": 2, ""case_ids"": [330421], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""642""}], ""case_paths"": [""/mass/375/0633-01""], ""opinion_index"": 0}, {""cite"": ""377 Mass. 736"", ""year"": 1979, ""weight"": 2, ""case_ids"": [334155], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""744""}, {""page"": ""740""}], ""case_paths"": [""/mass/377/0736-01""], ""opinion_index"": 0}, {""cite"": ""35 Mass. App. Ct. 913"", ""year"": 1993, ""case_ids"": [4016136], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""915"", ""parenthetical"": ""judge properly excluded expert's opinions that did not relate to expert's field of expertise""}], ""case_paths"": [""/mass-app-ct/35/0913-01""], ""opinion_index"": 0}, {""cite"": ""403 Mass. 258"", ""year"": 1988, ""case_ids"": [3880321], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""274"", ""parenthetical"": ""courts reluctant to admit statistical evidence where probabilities on which evidence depends are based on speculation""}], ""case_paths"": [""/mass/403/0258-01""], ""opinion_index"": 0}, {""cite"": ""841 F.2d 400"", ""year"": 1988, ""weight"": 6, ""case_ids"": [4333545, 4333875, 11296974, 11297031], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""412""}, {""page"": ""401""}, {""page"": ""406""}, {""page"": ""411-412""}, {""page"": ""405""}], ""case_paths"": [""/us-app-dc/268/0278-01"", ""/us-app-dc/268/0278-02"", ""/f2d/841/0400-01"", ""/f2d/841/0400-02""], ""opinion_index"": 0}, {""cite"": ""862 F2d 1404"", ""year"": 1988, ""case_ids"": [1825650], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""1408""}], ""case_paths"": [""/f2d/862/1404-01""], ""opinion_index"": 0}, {""cite"": ""305 Mass. 265"", ""year"": 1940, ""weight"": 3, ""case_ids"": [3837556], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""268""}], ""case_paths"": [""/mass/305/0265-01""], ""opinion_index"": 0}, {""cite"": ""380 Mass. 362"", ""year"": 1980, ""case_ids"": [478910], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""365-366""}], ""case_paths"": [""/mass/380/0362-01""], ""opinion_index"": 0}, {""cite"": ""413 Mass. 205"", ""year"": 1992, ""case_ids"": [3901378], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""214""}], ""case_paths"": [""/mass/413/0205-01""], ""opinion_index"": 0}, {""cite"": ""398 Mass. 687"", ""year"": 1986, ""weight"": 6, ""case_ids"": [877678], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""693""}, {""page"": ""687, 688-689""}, {""page"": ""692""}, {""page"": ""693-694""}], ""case_paths"": [""/mass/398/0687-01""], ""opinion_index"": 0}, {""cite"": ""37 Mass. App. Ct. 901"", ""year"": 1994, ""case_ids"": [4020348], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""902""}], ""case_paths"": [""/mass-app-ct/37/0901-01""], ""opinion_index"": 0}, {""cite"": ""397 Mass. 837"", ""year"": 1986, ""weight"": 3, ""case_ids"": [874710], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""841-842""}], ""case_paths"": [""/mass/397/0837-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""430 Mass. 198"", ""type"": ""official""}], ""file_name"": ""0198-01"", ""last_page"": ""218"", ""first_page"": ""198"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T17:36:25.643073+00:00"", ""decision_date"": ""1999-08-25"", ""docket_number"": """", ""last_page_order"": 244, ""first_page_order"": 224, ""name_abbreviation"": ""Santos v. Chrysler 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+1157399,"{""id"": 1157399, ""name"": ""Commonwealth vs. Albert D. Pike"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""cd37e5c0256e1866a978493d59e4fc48471455a2207790182c3b5eaddb2d1da8"", ""simhash"": ""1:dbc3875a912a5e9d"", ""pagerank"": {""raw"": 0.00000022064154654447084, ""percentile"": 0.775755266040607}, ""char_count"": 27149, ""word_count"": 4238, ""cardinality"": 1151, ""ocr_confidence"": 0.913}, ""casebody"": {""judges"": [], ""parties"": [""Commonwealth vs. Albert D. Pike.""], ""opinions"": [{""text"": ""Greaney, J.\nThe defendant, a psychiatrist, was convicted of multiple charges of unlawfully dispensing class B and C controlled substances, G. L. c. 94C, §§ 19, 32A, and 32B, and additional charges of filing false Medicaid claims, G. L. c. 118E, § 40. The defendant argues that the Commonwealth failed to present sufficient evidence to convict him of any of the charges. We reject the argument. We also reject the defendant’s contentions that the trial judge erred in admitting evidence, that the prosecutor’s closing argument contained remarks that were improper and prejudicial, and that he should be resentenced. Accordingly, we affirm the defendant’s convictions.\n1. We take up first the defendant’s argument that he was entitled to required findings of not guilty. In essence, the Commonwealth’s theory of the case was that the defendant was engaged in a drug diversion scheme whereby he unlawfully prescribed to his patients controlled substances (drugs) with a high street resale value. These patients would then either sell these drugs for illegal narcotics or take the prescription drugs to enhance their “high” of other illicit drugs. In either event, according to the Commonwealth, the defendant’s illegitimate prescription practices ensured that his patients would return for additional visits (and drugs), thereby maintaining or increasing the defendant’s billing to Medicaid. In support of this theory, the Commonwealth presented the following evidence in its case-in-chief.\nThe defendant, who was an approved Medicaid provider, worked as a psychiatrist at Mental Health Resources (MHR) in Leominster. Under his arrangement with MHR, the defendant received seventy per cent of the accounts receivable that he generated, and the remainder was applied toward MHR’s office overhead and expenses. The defendant later became unhappy with this arrangement and tried to renegotiate his share to eighty per cent because he felt he was entitled to more money.\nA portion of the defendant’s practice was devoted to treating Medicaid patients who suffered from drug or alcohol dependency, as well as various psychiatric problems. The Commonwealth introduced the defendant’s own handwritten office notes regarding his treatment of ten Medicaid patients that served as the basis of the indictments on which he was convicted. According to the defendant’s notes, most of these patients sought his assistance in overcoming their addictions to heroin or other substances. As “treatment” for the addictions, the defendant virtually always prescribed drugs such as methadone, Valium, clonidine, klonopin, or some combination thereof. Most of these substances were addictive and had a high resale value on the street. The defendant usually prescribed these drugs on a patient’s very first office visit based solely on the information the patient presented without any objective verification of the patient’s claims.\nThe Commonwealth presented well-credentialed expert medical witnesses who practiced in the fields of psychiatry, addiction treatment, and the psychopharmacology of addiction. These experts testified that the extremely high dosage levels and the frequency with which the defendant gave prescriptions to patients served no legitimate medical purpose. They also testified that the defendant’s prescription practices were not designed actually to treat the patients’ underlying problems, but, rather, further to exacerbate their problems by giving them addictive substances that enabled their habits. For instance, the defendant gave patients prescriptions that were supposed to last for a certain time period, but then refilled those prescriptions before that time had expired if the patients came in before their next scheduled visit. Patient M, to whom the defendant prescribed six different medications on the first visit, overdosed on these medications and went into a “stupor.” Patient M’s father told the defendant that he suspected his son (Patient M) was getting prescriptions from other doctors. Nevertheless, the defendant’s response to this information was to increase Patient M’s dosage of klonopin, the most habit-forming of the drugs prescribed to Patient M. The Commonwealth’s experts testified (with a basis in the evidence to support their testimony) that the defendant’s treatment of patients was well below an acceptable standard of care, so far “beyond the pale” to be “out of the ballpark,” and “medically unwarranted and dangerous.”\nThe defendant also prescribed methadone to his patients who claimed to be in “chronic pain” without performing any physical examination or tests to confirm these self-reports. Some of these methadone prescriptions were in such high doses, relative to the patients’ symptoms that the defendant was allegedly treating, that they served no legitimate medical purpose and were completely inconsistent with the manner in which drugs should be used in a legitimate treatment program. The defendant was also quick to give new prescriptions to his patients who claimed their prescriptions were lost or stolen, even though some of these patients had a history of being untruthful with the defendant.\nOn another occasion, Patient H came into the defendant’s office requesting a prescription for methadone. The defendant initially declined to give this prescription, but later did so when the patient returned to the office and assured the defendant that he found a pharmacy in Worcester that would fill a three-day supply of methadone. The defendant gave the patient the prescription despite noting that “this [was] unlikely in view of current law.” The defendant also continued to prescribe drugs to Patient H even after that patient reported to the defendant that he had given some of his prescribed Valium to his father.\nThe Commonwealth also presented the expert testimony of two law enforcement officers who possessed knowledge of the habits of drug addicts; the street value of the substances prescribed by the defendant; and the role Medicaid benefits played in diverting prescription drugs to an addict population. These experts described the general relationship in a drug diversion scheme between the drug prescribér, the addict, and the pharmacist. One of the experts testified that drug addicts frequently exchange information on where they can easily obtain prescription pharmaceuticals, including the names of doctors who will provide them with drugs of their choice. This expert explained that Medicaid would then pay the doctor for the office visit as well as the addict’s prescription, minus a de mini-mis copayment by the patient. The experts on drug diversion schemes had no direct connection to this particular case and did not offer any opinions directly relating to the defendant.\nFinally, there was evidence, discussed later in this opinion, that the defendant stated that he was “the local drug pusher.”\nWe evaluate the adequacy of the Commonwealth’s evidence under well-defined standards. We have recited the evidence in the light most favorable to the Commonwealth, as we must, and now inquire whether this evidence was sufficient to satisfy any rational trier of fact of the essential elements of the crimes beyond a reasonable doubt. See Commonwealth v. Woodward, 427 Mass. 659, 682 (1998); Commonwealth v. Cordle, 412 Mass. 172, 175 (1992). “The relevant question is whether the evidence would permit a jury to find guilt, not whether the evidence requires such a finding.” Commonwealth v. Brown, 401 Mass. 745, 747 (1988). Moreover, “[a] conviction may be properly based entirely on circumstantial evidence so long as that evidence establishes the defendant’s guilt beyond a reasonable doubt.” Commonwealth v. Martino, 412 Mass. 267, 272 (1992). Where the evidence is largely circumstantial, “it is not essential that the inferences drawn should be the only necessary inferences .... It is enough that [the inferences] be reasonable and possible.” Id., quoting Commonwealth v. Merrick, 255 Mass. 510, 514 (1926). If conflicting inferences are possible from the evidence, “it is for the jury to determine where the truth lies.” Commonwealth v. Wilborne, 382 Mass. 241, 245 (1981), quoting Commonwealth v. Amazeen, 375 Mass. 73, 81 (1978).\nThe crux of the defendant’s argument is that there was no “factual evidence” of his bad faith and lack of legitimate medical purpose in prescribing the drugs to his patients. Stated differently, he challenges the sufficiency of the evidence to prove the crucial intent elements of G. L. c. 94C, §§ 19, 32A, and 32B. A defendant’s intent is “not susceptible of proof by direct evidence, so resort is frequently made to proof by inference from all the facts and circumstances developed at trial.” Commonwealth v. Lombard, 419 Mass. 585, 589 (1995), quoting Commonwealth v. Casale, 381 Mass. 167, 173 (1980). The question whether the defendant acted in bad faith is a question of fact for the jury. See Commonwealth v. Miller, 361 Mass. 644, 656 & n.2 (1972).\nContrary to the defendant’s contentions, the Commonwealth presented “factual evidence” (in addition to expert testimony) from which the defendant’s guilty mind could be inferred beyond a reasonable doubt. The Commonwealth introduced the defendant’s handwritten notes regarding his treatment of his patients, the hospital records of some of the patients, the prescriptions written by the defendant, and a Medicaid database printout describing the defendant’s services, prescriptions, and amount paid for each patient visit. This evidence contained a plethora of underlying facts which (when considered in conjunction with the Commonwealth’s expert testimony and the admission made by the defendant) demonstrated that he had prescribed highly addictive drugs, often specifically requested by name by his patients, in short intervals and at dangerously high dosage levels in a manner which served no legitimate medical purpose in relation to the medical problems the patients presented. Moreover, contrary to acceptable medical practices, the defendant prescribed drugs for “chronic pain” without any supporting objective evidence that his patients suffered from this problem. Finally, the defendant continued to prescribe drugs to patients who made suspicious claims of lost, stolen, or destroyed prescriptions within days of being issued the original prescriptions.\nThe Commonwealth’s evidence, and the reasonable inferences that could be drawn from it, were sufficient to allow the jury to conclude beyond a reasonable doubt that the defendant acted in bad faith and for no legitimate medical purpose. We have previously upheld convictions based on somewhat similar evidence. See Commonwealth v. Comins, 371 Mass. 222, 232-233 (1976), cert, denied, 430 U.S. 946 (1977) (defendant prescribed drugs of choice to undercover officers in short intervals without conducting physical examination or taking medical history). See also Strasnick v. Board of Registration in Pharmacy, 408 Mass. 654, 662 (1990) (“The dispensing of additional medication within the time period that was covered by an earlier prescription may be used as evidence that the medication was not dispensed for a legitimate medical purpose”).\nWe also reject the defendant’s challenge to the sufficiency of the evidence regarding his convictions for false Medicaid claims under G. L. c. 118E, § 40. These convictions were based on the defendant’s having furnished prescriptions which he knew were illegal and would serve as the basis of claims for Medicaid payments. As the defendant acknowledges, his challenge to his convictions under G. L. c. 118E, § 40, essentially rises or falls on our conclusion on his predicate acts in issuing illegal prescriptions. Because we have concluded that his convictions of the latter must be affirmed, we likewise conclude that the evidence was sufficient to warrant findings by the jury beyond a reasonable doubt that the defendant wrongfully wrote prescriptions knowing that these prescriptions would later serve as the basis for unlawful Medicaid claims. The defendant’s motions for required findings of not guilty on these charges were likewise properly denied.\nThe judge also properly denied the defendant’s motion for required findings of not guilty on all the charges of which he was convicted at the close of all the evidence. The Commonwealth’s case did not deteriorate after the Commonwealth rested. Commonwealth v. Basch, 386 Mass. 620, 622 n.2 (1982). “Deterioration would occur not because the defendant contradicted the Commonwealth’s evidence (Commonwealth v. Walker, 401 Mass. 338, 343-344 [1987]), but because evidence for the Commonwealth necessary to warrant submission of the case to the jury is later shown to be incredible or conclusively incorrect.” Kater v. Commonwealth, 421 Mass. 17, 20 (1995), and cases cited.\nSeveral of the defendant’s patients, whose treatments were not the subject of the charges on which he was convicted, testified on his behalf and attested to his good character and reputation for truthfulness in the community. The defendant presented medical experts who testified that the defendant’s prescription practices were for legitimate medical purposes and within the acceptable standard of care for his profession. The defendant took the witness stand and defended his treatment plans with respect to the patients at issue. While this evidence contradicted, and tended to undermine, the potency of the Commonwealth’s case, it falls well short of demonstrating that the Commonwealth’s evidence was “conclusively incorrect.” Kater v. Commonwealth, supra at 20. See Commonwealth v. Zevitas, 418 Mass. 677, 680 (1994); Commonwealth v. Hastings, 22 Mass. App. Ct. 930, 931 (1986). The defendant’s evidence raised issues of credibility and weight which were appropriately submitted to the jury. See Commonwealth v. McGahee, 393 Mass. 743, 750 (1985).\nIn sum, considered as a whole, this is not a case that rested solely on a clash between medical experts over the appropriateness of the defendant’s prescription practices, thereby resulting in a record where the Commonwealth’s proof has been left either in a state of equipoise or a state of showing culpability only by a preponderance. The standard of proof for criminal liability was satisfied.\n2. We next take up the defendant’s arguments that the judge made several erroneous evidentiary rulings.\n(a) The judge, following a voir dire of one of the Commonwealth’s expert police witnesses, permitted expert testimony by police officers concerning the methods of operation of doctors and drug users in drug diversion operations. The defendant claims that this testimony was improperly admitted.\nThe admission of expert testimony rests in the broad discretion of the judge and will not be disturbed unless the exercise of that discretion constitutes an abuse of discretion or error of law. See Commonwealth v. Johnson, 410 Mass. 199, 202 (1991). See also Commonwealth v. Federico, 425 Mass. 844, 847 (1997), and cases cited. Expert testimony “is admissible whenever it will aid the jury in reaching a decision.” Simon v. Solomon, 385 Mass. 91, 105 (1982). Moreover, “a question calling for an opinion which is in the domain of the expert’s .professional knowledge is not necessarily to be excluded merely because the expert’s conclusion reaches or approaches the ultimate issue before the jury.” Commonwealth v. Colin C., 419 Mass. 54, 59 (1994).\nThe manner in which patients and doctors operate to divert medical prescriptions to third persons is not a subject matter within the common knowledge of the average juror. “Testimony about such operations, therefore, is helpful to the fact finders and is admissible [because] it is ‘more akin to a description of the modus operandi of [drug diverters] than a “profile” of a drug dealer.’ ” Commonwealth v. Robinson, 43 Mass. App. Ct. 257, 259-260 (1997), quoting Commonwealth v. Dennis, 33 Mass. App. Ct. 666, 669 (1992), S.C., 416 Mass. 1001 (1993). See Commonwealth v. Zwickert, 37 Mass. App. Ct. 364, 368 (1994). The judge was well within his broad discretion in admitting the testimony.\n(b) The defendant claims error in the introduction in evidence of the statement he made to a third party that, “I’m sure you’ve heard of me, I’m the local drug pusher.” The witness to whom the defendant made the statement indicated that the defendant laughed and stated that he was “only joking.” The witness also testified that she took the defendant’s comment to be a joke.\nThe defendant argues that the statement was made in jest, and, consequently, was not relevant to his “prescribing intent.” The defendant further contends that the prejudicial effect of this comment was outweighed by its lack of probative value. The judge, after careful consideration, had admitted the statement on the ground that it could be found by the jury to be an admission by the defendant, that its probative value outweighed its prejudicial effect, and that “it [was] not the auditor’s view of those words that [was] relevant in determining admissibility, although that [was] something the jury may consider.” This determination rests in the sound discretion of the judge and will be upheld absent palpable error. See Commonwealth v. Valentin, 420 Mass. 263, 270 (1995). See also Commonwealth v. Dunn, 407 Mass. 798, 807 (1990).\n“An admission in a criminal case is a statement by the accused, direct or implied, of facts pertinent to the issue, which although insufficient in itself to warrant a conviction tends in connection with proof of other facts to establish his guilt.” Commonwealth v. DiMonte, 427 Mass. 233, 243 (1998), quoting Commonwealth v. Lewin (No. 2), 407 Mass. 629, 631 (1990). As has been stated, in order to convict the defendant of illegally prescribing drugs, the Commonwealth had to show that he prescribed the drugs in bad faith and for no legitimate medical purpose. See Commonwealth v. Comins, supra at 232-233.\nThe defendant’s statement, even if made in a joking manner, had a bearing on his state of mind. The statement tends to show the defendant’s awareness that his prescription practices were for something other than a legitimate medical purpose. The context in which the statement was made was put before the jury, defense counsel had ample opportunity to cross-examine the witness about the statement, and the defendant had the opportunity (although he chose not to avail himself of it) to explain the statement when he testified. Whatever weight, if any, to be given the statement was for the jury to decide. The judge’s ruling was not in error.\n(c) The defendant suggests that it was error to allow the introduction of various hospital records, which he had not previously seen, relating to his patients. The defendant simply states without citation of authority or anything approaching argument that “[t]he problems with the admissions of the medical records include relevancy, hearsay, due process and confrontation [and] [t]here was no factual predicate showing that [he] should have known about these records.”\nThe contention, such as it is, has no merit. The hospital records complied with the requirements for admissibility set forth in G. L. c. 233, § 79. They provided the jury with relevant information which allowed them to evaluate the Commonwealth’s theory of prosecution and corroborated, at least in part, the conclusions arrived at by the Commonwealth’s medical experts. There was no abridgment of the defendant’s due process or confrontation rights.\n3. The defendant asserts that portions of the prosecutor’s closing argument were improper because they went beyond reasonable inferences that could be drawn from the evidence and constituted a prejudicial attempt to inflame the jury. The defendant takes issue with the prosecutor’s comments or implications that the case was about drug dealing; that the defendant’s “joke” about being a drug pusher was a “window into [his] soul” that showed his “reputation in the community where it mattered”; that the defendant prescribed the addictive drugs to his patients to ensure their return so he could continue to bill Medicaid; that the defendant knew how to “control” patients through his previous work experience at Bridgewater State Hospital; that Patient A participated in the illicit drug market; and that the defendant “did not believe that he would ever be brought to account for the terrible things which he did to these people.” The defendant did not object to any portion of the prosecutor’s closing argument.\nWe have reviewed the criticized comments in light of the prosecutor’s entire closing, the judge’s instruction to the jury that closing arguments were not evidence, and the evidence presented at trial. See Commonwealth v. Yesilciman, 406 Mass. 736, 746 (1990). We also recognize that a jury are capable of sorting out hyperbole and rhetoric in the closing arguments of lawyers and that a certain amount of both devices is usually present in all closing arguments. See Commonwealth v. Mar-quetty, 416 Mass. 445, 451 (1993). We conclude that the remarks were not improper.\n4. Finally, the defendant requests that we order the Superior Court to resentence him “in accord with physician crime standards” which, he claims, have been applied in comparable circumstances in Federal courts. The sentences imposed on the defendant were within the range for the crimes committed, and they were directed by the judge after his careful consideration of appropriate factors, including factors favorable to the defendant. There is no reason to order resentencing.\nJudgments affirmed.\nThe defendant moved for required findings of not guilty at the close of the Commonwealth’s case as well as at the close of all the evidence. We shall evaluate the sufficiency of the evidence at both stages of the trial. See Commonwealth v. Basch, 386 Mass. 620, 622 n.2 (1982); Commonwealth v. Kelley, 370 Mass. 147, 149-150 & n.l (1976).\nThese patients, none of whom testified at trial, were referred to throughout the trial by pseudonym, such as Patient A.\nOne of the defendant’s patients requested a one-month supply of Valium because the patient was supposedly going to Maine because his mother had died. The patient returned to the defendant’s office two days later and obtained another prescription for Valium because he claimed to have lost the previous prescription. The patient’s mother later called the defendant stating she was alive and lived in Lancaster. Despite the fact that the patient had obviously lied to him to obtain more drugs, the defendant nevertheless continued to prescribe Valium to this patient.\nIn claiming there was insufficient evidence of his bad faith, the defendant relies heavily on the generally undisputed facts that he took fairly detailed notes of his patients’ history and he spent the allotted time with each patient. However, these are only two factors in the total analysis and do not compel a contrary conclusion.\nWe do not suggest that in every instance the Commonwealth can prove a violation of G. L. c. 118E, § 40, by simply establishing a violation of G. L. c. 94C, §§ 19, 32A, or 32B. We simply hold that such a conclusion is warranted based on the facts and circumstances present in this case.\nWe reject the defendant’s characterization of this evidence as “profile” testimony. Testimony regarding a criminal profile relates to the typical attributes or characteristics “which are common to some or most individuals who commit particular crimes.” Commonwealth v. Day, 409 Mass. 719, 723 (1991). See Commonwealth v. Federico, 425 Mass. 844, 850 (1997). That is not the type of testimony given in this case, which was “more akin to a description of the modus operand! of” doctors and patients in a drug diversion scheme. Commonwealth v. Dennis, 33 Mass. App. Ct. 666, 669 (1992), S.C., 416 Mass. 1001 (1993).\nThe defendant also claims that these witnesses were not qualified to render expert opinions on these matters. The defendant did not make this argument to the judge. The record establishes that the police officers who testified as experts had ample training and experience on which to base their opinions.\nWe also reject the defendant’s claim that he was denied due process and the right of confrontation because the Commonwealth relied on treatment records rather than calling the ten patients as trial witnesses. The Commonwealth is not required to present any specific witness to prove its case. There is no indication that the Commonwealth “wilfully attempted to withhold or conceal significant evidence by refusing to call” any of the ten patients. Commonwealth v. Lo, 428 Mass. 45, 51 (1998). The defendant was not prevented from calling any of the ten patients to testify concerning matters that he complains may not have been contained in their treatment records. See Commonwealth v. Riley, 22 Mass. App. Ct. 698, 701 (1986)."", ""type"": ""majority"", ""author"": ""Greaney, J.""}], ""attorneys"": [""George C. Deptula for the defendant."", ""LaDonna J. Hatton, Assistant Attorney General (Peter Clark, Assistant Attorney General, with her) for the Commonwealth.""], ""corrections"": """", ""head_matter"": ""Commonwealth vs. Albert D. Pike.\nWorcester.\nSeptember 9, 1999.\nNovember 4, 1999.\nPresent: Marshall, C.J., Abrams, Lynch, Greaney, & Ireland, JJ.\nControlled, Substances. Doctor, Controlled substances. Witness, Expert. Evidence, Expert opinion, Admissions and confessions, Relevancy and materiality, Intent, Medical record. Practice, Criminal, Required finding, Admissions and confessions, Argument by prosecutor, Sentence.\nAt the trial of indictments alleging unlawful dispensing of class B and C controlled substances and filing of false Medicaid claims, the evidence, including reasonable inferences drawn therefrom, was sufficient to allow the jury to conclude beyond a reasonable doubt that the defendant physician had acted in bad faith and for no legitimate medical purpose in dispensing prescriptions [321-322], and that he wrongfully wrote the prescriptions knowing that they would serve as the basis for unlawful Medicaid claims [322-323]; further, the judge correctly denied the defendant’s motions for required findings of not guilty at the close of all the evidence [323-324],\nAt the trial of a physician on indictments alleging unlawful dispensing of class B and C controlled substances, the judge properly allowed expert testimony concerning methods of operation of doctors and drag users in illegal drag diversion operations. [324-325]\nIn a criminal case, an incriminating statement of the defendant was properly admitted in evidence as an admission, where, even if made in a joking manner, it reflected on the defendant’s state of mind. [325-326]\nHospital records that complied with the statutory requirements of G. L. c. 233, § 79, were properly admitted in evidence at a criminal trial where they were relevant to the Commonwealth’s theory of prosecution. [326] Remarks of the prosecutor in closing argument at a criminal trial were not improper. [326-327]\nIndictments found and returned in the Superior Court Department on December 5, 1995, and August 5, 1996, respectively. The cases were tried before James F. McHugh, III, J.\nThe Supreme Judicial Court granted an application for direct appellate review.\nGeorge C. Deptula for the defendant.\nLaDonna J. Hatton, Assistant Attorney General (Peter Clark, Assistant Attorney General, with her) for the Commonwealth.""}, ""cites_to"": [{""cite"": ""22 Mass. App. Ct. 930"", ""year"": 1986, ""case_ids"": [3988591], ""category"": ""reporters:state"", ""reporter"": ""Mass. 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+117626,"{""id"": 117626, ""name"": ""Husam H. Al-Ziab & another vs. George A. Mourgis & another"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""cf08bded63c092e74d02981b0fad124f90ea4ce7002b81f63dffaf3f9abe60e9"", ""simhash"": ""1:ed9e9e73693de30c"", ""pagerank"": {""raw"": 0.00000015094917556051144, ""percentile"": 0.6671379296630807}, ""char_count"": 13601, ""word_count"": 2293, ""cardinality"": 669, ""ocr_confidence"": 0.909}, ""casebody"": {""judges"": [], ""parties"": [""Husam H. Al-Ziab & another vs. George A. Mourgis & another.""], ""opinions"": [{""text"": ""Marshall, J.\nIn this case, we consider whether a violation of the lead paint statute, G. L. c. 111, §§ 190 et seq., without more, constitutes a violation of the statutory covenant of quiet enjoyment, G. L. c. 186, § 14. We conclude that it does not; proof of knowledge of the risk and of negligence on the part of a landlord at the least is a prerequisite to recovery under G. L. c. 186, § 14.\ni\nHussein Al-Ziab and Eugenia Al-Ziab (parents) brought suit on behalf of their twin children, Husam and Dina (plaintiffs) against George A. Mourgis and Maria Mourgis (landlords), alleging that the plaintiffs became ill as the result of poisoning from lead paint in their apartment. The first count of the complaint alleged a violation of the lead paint statute; the second count alleged a violation of the statutory covenant of quiet enjoyment.\nThe case was tried before a jury. There was evidence that the landlords purchased a three-family house in 1975. In 1986, the parents leased one of the apartments in the landlords’ building. The plaintiffs were bom in May, 1988. In August, 1989, it was discovered that the two children suffered from lead poisoning, and a subsequent inspection by the department of health and hospitals of Cambridge revealed that there was a dangerous level of lead in the apartment. After notifying the landlords, the Al-Ziab family moved out of the apartment temporarily, while the landlords arranged for removal of the lead paint by a professional. They moved back into the apartment after the deleading had been satisfactorily completed.\nPrior to trial the plaintiffs filed a motion in limine to exclude all evidence that the landlords were not aware of the presence of lead paint in the apartment. They argued that the landlords’ actual knowledge of the presence of lead paint was irrelevant because the lead paint statute imposes strict liability on landlords and, the plaintiffs claimed, any violation of that statute would necessarily constitute a violation of the quiet enjoyment statute. The trial judge agreed, and granted the motion in limine.\nConsistent with the judge’s ruling on that motion, the landlords were precluded from introducing any evidence of their lack of knowledge of lead paint in the apartment. The jury were instructed on the elements of a claim under the lead paint statute (count one) but, over the landlords’ objection, were not charged separately as to the quiet enjoyment statute (count two). In response to special questions, the jury found that lead paint on the premises was the proximate cause of the plaintiffs’ injuries, and awarded $25,000 in compensatory damages to Dina and $10,000 in compensatory damages to Husam.\nThe plaintiffs then moved for attorney’s fees pursuant to G. L. c. 186, § 14, repeating their claim that the violation of the lead paint statute constituted a violation of G. L. c. 186, § 14. The judge allowed the request and awarded attorney’s fees in the amount $63,705. Judgment was entered accordingly. On appeal, the landlords do not dispute that the apartment contained lead paint, or that the plaintiffs’ lead poisoning was proximately caused by the lead in the apartment; and they do not contest the amount of the attorney’s fees awarded to the plaintiffs. The only question is whether on this record the plaintiffs were entitled to recover attorney’s fees under G. L. c. 186, § 14. We transferred the case to this court on our own motion.\nII\nThe landlords argue that it was error for the trial judge to rule, as she did, that a violation of the lead paint statute, is necessarily a violation of G. L. c. 186, § 14. The judge’s decision in effect, they say, impermissibly holds them strictly liable for the payment of the plaintiffs’ attorney’s fees, an award that is not available under the lead paint statute itself. While we have interpreted the provisions of the quiet enjoyment statute on several occasions, see, e.g., Cruz Mgt. Co. v. Thomas, 417 Mass. 782, 788-790 (1994), and cases cited, we have not previously considered whether strict liability imposed under the lead paint statute (or any other statute regulating the conduct of landlords) without more constitutes a violation of G. L. c. 186, § 14.\nGeneral Laws c. 186, § 14, originally enacted in 1927, codified a tenant’s common law rights under the implied covenant of quiet enjoyment. St. 1927, c. 339, § 1. See Simon v. Solomon, 385 Mass. 91, 101-102 (1982). At common law, and as originally enacted by statute, the covenant of quiet enjoyment prohibited a landlord from wilful or intentional interference with a tenant’s quiet enjoyment of the leased premises. In 1973, the statute was rewritten and the requirement of intentional conduct was eliminated; landlords could now be held liable for “directly or indirectly” interfering with a tenant’s quiet enjoyment of the premises. St. 1973, c. 778, § 2.\nIn Simon v. Solomon, supra at 101, we interpreted the new statute and concluded with respect to civil liability it was not necessary for a tenant to show malicious intent to recover against a landlord; we said that the statute covered “at the least” the reckless conduct that had been shown in that case. Id. Twelve years later, in Cruz Mgt. Co. v. Thomas, supra, we rejected a claim that a violation of G. L. c. 186, § 14, could be imposed only if it were proved that a landlord was reckless in disregarding his tenant’s rights, and we concluded that negligent conduct, conduct involving “some degree of fault,” by a landlord could support the imposition of liability under § 14. Id. at 789. We noted that a landlord’s failure “to repair defects of which he has notice in leased premises is an omission which frequently has been deemed to violate § 14.” See Cruz, supra at 789, citing Simon v. Solomon, supra at 103 (failure to control floods in tenant’s apartment); Darmetko v. Boston Hous. Auth., 378 Mass. 758, 761 (1979) (failure to repair leaky roof); Dorgan v. Loukas, 19 Mass. App. Ct. 959, 960 (1985) (failure to bring apartment into habitable condition and keep it so). Today we make clear what was implicit in those rulings: to support the imposition of liability under the quiet enjoyment statute, there must be a showing of at least negligent conduct by a landlord and violation of the lead paint statute alone is not sufficient to prove such negligence. Stated differently, to obtain relief under § 14 for a claim of lead paint poisoning it must be demonstrated that the landlord had notice of or reason to know of the presence of lead and failed to take appropriate corrective measures.\nOur conclusion is consistent with our established analytical approach to cases interpreting the quiet enjoyment statute. In Simon, supra at 101, and again in Cruz, supra at 789, we observed that the “Legislature may have contemplated a balance between tenant protection and the legitimate interests of landlords, and therefore may have intended that some degree of fault or foreseeability should be a prerequisite to liability under § 14.” We have also said that § 14 imposes liability whenever the “ ‘natural and probable consequence’ of a landlord’s action was interruption of the tenant’s rights.” Simon v. Solomon, supra at 102, quoting Westland Hous. Corp. v. Scott, 312 Mass. 375, 381 (1942). In Cruz, we observed that the landlord had notice of the defects in the leased premises which it failed to repair, and that it was “wholly foreseeable” that the injury to the tenant would result from this failure to make the repairs. Indeed, in each case since the 1973 statutory revision in which we have recognized a breach of the covenant of quiet enjoyment, there was evidence that the landlord failed to act reasonably in the circumstances concerning a problem known to the landlord, and the natural and probable consequences of such failure caused the interference with the tenant’s quiet enjoyment of the premises. See, e.g., Cruz, supra at 790; Doe v. New Bedford Hous. Auth., 417 Mass. 273, 285-288 (1994); Darmetko v. Boston Hous. Auth., 378 Mass. 758, 761 (1979).\nOur decision also interprets the quiet enjoyment statute in harmony with the comprehensive program of lead paint poisoning prevention and control. General Laws c. 111, §§ 190-199, inserted by St. 1971, c. 1081, § 1, and substantially amended in 1988 and 1994 (see St. 1987, c. 773, § 6-9; St. 1993, c. 482, §§ 3-18., imposes strict liability on landlords for damages caused by poisoning from lead paint, and provides for treble damages if a landlord has been notified of the presence of lead paint and fails to correct it as provided by the statute. G. L. c. 111, § 199. See Bencosme v. Kokoras, 400 Mass. 40, 43-44 (1987). Significantly, the statute makes no provision for the payment of attorney’s fees; had the Legislature intended that attorney’s fees be awarded to a tenant who proves a violation of the lead paint statute it could readily have done so. Were we to accept the plaintiffs’ argument, all landlords held strictly liable under the lead paint statute would necessarily be required to pay the attorney’s fees of the tenant. That result is inconsistent with the statutory scheme; the plaintiffs cannot obtain indirectly what the statute fails to provide directly.\nMoreover, the lead paint statute was enacted many years after the enactment of the quiet enjoyment statute. We must presume that at that time the Legislature was aware of the quiet enjoyment statute and its express provision for the award of attorney’s fees. See St. 1927, c. 339, § 1; St. 1971, c. 1081, § 1; Hadley v. Amherst, 372 Mass. 46, 51 (1977). Yet the lead paint statute makes no reference to G. L. c. 186, § 14, and its statutory remedy for the attorney’s fees, although it does contain references to other statutory landlord-tenant remedies. See, e.g., § 198, making available remedies for enforcement of the State sanitary code, and § 199A, making it a violation under both that section and c. 186, § 18, to evict a family with a child under the age of six to avoid deleading. Where the Legislature has declined to provide that a violation of the lead poisoning statute is also a violation of the quiet enjoyment statute, we are not inclined to do so.\nThe award of attorney’s fees under G. L. c. 186, §. 14, is vacated. At trial the plaintiffs expressly elected not to have their claim under G. L. c. 186, § 14, submitted to the jury. Accordingly, the case is remanded to the Superior Court for entry of a new judgment on count two of the complaint in favor of the landlords.\nSo ordered.\nSome of the evidence nevertheless suggested that the landlords were in fact not aware of the presence of lead in the apartment. For example, the landlords lived on the premises themselves for approximately ten years, and raised their own children there; no children of any other tenants in the premises had suffered lead poisoning; and the landlords had received no complaints from the parents regarding peeling paint or any other condition that might suggest the presence of lead paint in the apartment.\nThis was consistent with the plaintiffs’ position that the only breach of the quiet enjoyment statute that they were claiming was the breach of the lead paint statute.\nBecause the calculation of damages would have been the same under both counts of the complaint, the plaintiffs did not seek a duplicative award of damages -mder G. L. c. 186, § 14. A final judgment for compensatory damages in the amount of $35,000, with interest, was entered on March 15, 1995. After the judgment was amended to make a correction in the calculation of interest, the landlords satisfied the judgment in full.\nWe also observed that G. L. c. 186, § 14, permits landlords to provide in lease contracts that they are not liable for conditions resulting from natural causes beyond their control and that this provision “suggests that liability was not intended to be absolute.” Simon v. Solomon, 385 Mass. 91, 101 n.6 (1982).\nIn Doe v. New Bedford Hous. Auth., 417 Mass. 273, 287 (1994), we vacated the summary judgment entered for the landlord on a claim of violation of G. L. c. 186, § 14, because “the record suggests that the [landlord] stood idle, despite continued requests and complaints by the tenants . . . and stood idle when there were certain [corrective] measures that it could have taken relatively easily” (emphasis added)."", ""type"": ""majority"", ""author"": ""Marshall, J.""}], ""attorneys"": [""Kevin Hensley for the defendants."", ""Edmund P. Daley for the plaintiffs."", ""Robert C. Tommasino, Gerald T. Anglin, Cameron F. Kerry, Donna M. Evans, Seni M. Adio & William C. Miles, for the Massachusetts Property Insurance Underwriters Association, amicus curiae, submitted a brief.""], ""corrections"": """", ""head_matter"": ""Husam H. Al-Ziab & another vs. George A. Mourgis & another.\nMiddlesex.\nFebruary 3, 1997.\nMay 8, 1997.\nPresent: Wilkins, C.J., Lynch, O’Connor, Fried, & Marshall, JJ.\nLead Poisoning. Landlord and Tenant, Quiet enjoyment. Practice, Civil, Attorney’s fees. Negligence, One owning or controlling real estate.\nA landlord’s violation of the lead paint statute, G. L. c. 111, §§ 190 et seq., does not, without a showing of at least negligent conduct by the landlord, constitute a violation of the statutory covenant of quiet enjoyment, G. L. c. 186, § 14, for purposes of an award of attorney’s fees. [849-852]\nCivil action commenced in the Superior Court Department on October 23, 1989.\nThe case was tried before Judith A. Cowin, J.\nThe Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.\nKevin Hensley for the defendants.\nEdmund P. Daley for the plaintiffs.\nRobert C. Tommasino, Gerald T. Anglin, Cameron F. Kerry, Donna M. Evans, Seni M. Adio & William C. Miles, for the Massachusetts Property Insurance Underwriters Association, amicus curiae, submitted a brief.\nDina H. Al-Ziab. The plaintiffs are minors, and this action has been brought on their behalf by their parents, Hussein Al-Ziab and Eugenia AlZiab.\nMaria Mourgis.""}, ""cites_to"": [{""cite"": ""372 Mass. 46"", ""year"": 1977, ""case_ids"": [4030257], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""51""}], ""case_paths"": [""/mass/372/0046-01""], ""opinion_index"": 0}, {""cite"": ""400 Mass. 40"", ""year"": 1987, ""case_ids"": [880031], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""43-44""}], ""case_paths"": [""/mass/400/0040-01""], ""opinion_index"": 0}, {""cite"": ""417 Mass. 273"", ""year"": 1994, ""weight"": 2, ""case_ids"": [482606], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""285-288""}, {""page"": ""287""}], ""case_paths"": [""/mass/417/0273-01""], ""opinion_index"": 0}, {""cite"": ""312 Mass. 375"", ""year"": 1942, ""case_ids"": [483045], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""381""}], ""case_paths"": [""/mass/312/0375-01""], ""opinion_index"": 0}, {""cite"": ""19 Mass. App. Ct. 959"", ""year"": 1985, ""case_ids"": [5745021], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""960"", ""parenthetical"": ""failure to bring apartment into habitable condition and keep it so""}], ""case_paths"": [""/mass-app-ct/19/0959-01""], ""opinion_index"": 0}, {""cite"": ""378 Mass. 758"", ""year"": 1979, ""weight"": 2, ""case_ids"": [337383], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""761"", ""parenthetical"": ""failure to repair leaky roof""}, {""page"": ""761""}], ""case_paths"": [""/mass/378/0758-01""], ""opinion_index"": 0}, {""cite"": ""385 Mass. 91"", ""year"": 1982, ""weight"": 7, ""case_ids"": [900794], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""101-102""}, {""page"": ""101""}, {""page"": ""103"", ""parenthetical"": ""failure to control floods in tenant's apartment""}, {""page"": ""101""}, {""page"": ""102""}], ""case_paths"": [""/mass/385/0091-01""], ""opinion_index"": 0}, {""cite"": ""417 Mass. 782"", ""year"": 1994, ""weight"": 3, ""case_ids"": [482588], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""788-790""}, {""page"": ""789""}], ""case_paths"": [""/mass/417/0782-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""424 Mass. 847"", ""type"": ""official""}], ""file_name"": ""0847-01"", ""last_page"": ""852"", ""first_page"": ""847"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T17:32:33.616439+00:00"", ""decision_date"": ""1997-05-08"", ""docket_number"": """", ""last_page_order"": 872, ""first_page_order"": 867, ""name_abbreviation"": ""Al-Ziab v. 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+1178212,"{""id"": 1178212, ""name"": ""Taygeta Corporation vs. Varian Associates, Inc."", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""f792bd5c0ecf2707643d6de57587789c51969c4c6ebd1cee41f97dc153a8c1ed"", ""simhash"": ""1:bcff3fb1c33c02d8"", ""pagerank"": {""raw"": 0.0000005496358833119636, ""percentile"": 0.9461115300544549}, ""char_count"": 38646, ""word_count"": 6256, ""cardinality"": 1362, ""ocr_confidence"": 0.843}, ""casebody"": {""judges"": [], ""parties"": [""Taygeta Corporation vs. Varian Associates, Inc.""], ""opinions"": [{""text"": ""Spina, J.\nTaygeta Corporation (Taygeta), the owner of real property at 31 Tozer Road in Beverly (site), filed a complaint against Varian Associates, Inc. (Varian), the former owner of real property in Beverly located to the northeast of the site (Varian property), to recover damages for groundwater contamination at the site caused by Varian. A Superior Court judge denied Taygeta’s motion for summary judgment, granted Varian’s motion for summary judgment, and dismissed Tayge-ta’s action as barred by the statute of limitations. We granted Taygeta’s application for direct appellate review. The issues now before us are whether the judge (1) misconstrued the discovery rule and therefore erred in concluding that Taygeta’s property damage and negligence claims were barred by the statute of limitations; (2) erred in ignoring disputed issues of fact as to when Taygeta reasonably should have known that it had been injured by Varian and in failing to submit such factual issues to a jury; and (3) erred in concluding that Taygeta could not recover on a nuisance claim where groundwater contamination at the site constituted an ongoing harm. We vacate the grant of summary judgment in Varian’s favor and remand the case to the Superior Court for further proceedings consistent with this opinion.\n1. Background. Varian purchased the Varian property in 1959 from Bomac Laboratories, Inc. (Bomac). Both entities were in the business of manufacturing electronic equipment, processes that involved the use of industrial chemicals. From approximately 1950 until 1973, employees of Bomac and Varian discharged thousands of gallons of untreated waste chemicals, including volatile organic compounds (VOCs), onto the ground of the Varian property and into a stream running through the property. In 1970, the predecessor in interest to Taygeta purchased the site from Varian and subsequently constructed on it the Bass River Tennis Club.\nIn 1985, Varian removed an underground storage tank from its property and found traces of waste acetone in tibe surrounding soil. The Department of Environmental Quality Engineering (department) determined that a release of hazardous material had occurred, and that it was governed by the Massachusetts Oil and Hazardous Material Release Prevention Act, G. L. c. 21E. After being directed to investigate and assess the source, nature, and extent of the contamination, Varian installed monitoring wells and discovered the presence of VOCs in its groundwater. Varian retained Clean Harbors Environmental Services, Inc. (Clean Harbors), to assist with further assessment and possible remediation activities.\nIn January, 1987, the department placed the Varian property on its list of confirmed disposal sites and locations to be investigated. Between 1987 and 1989, Clean Harbors prepared and filed with the department several reports concerning the nature and extent of contamination on the Varian property, including the presence of VOCs in the groundwater and the southwest direction of the flow. Clean Harbors recommended the construction of a treatment system to remove and destroy the VOCs dissolved in the groundwater. The treatment system became operational in May, 1992.\nBeginning around that same time, Taygeta contacted representatives of GZA GeoEnvironmental, Inc. (GZA), about “environmental conditions” at the site and about the potential cost of a contamination assessment. On January 19, 1993, Taygeta met with GZA to discuss preparation of a bid to conduct such an assessment in conjunction with Taygeta’s possible plans to refinance the property. By letter dated April 28, 1993, Taygeta retained GZA to perform some preliminary assessment work at the site. On May 18, 1993, GZA drilled monitoring wells and collected soil and groundwater samples. On June 10, 1993, GZA transmitted the lab analysis of those samples to Taygeta. GZA’s data indicated the presence of elevated concentrations of VOCs in the groundwater below the site and the flow of such groundwater in a southerly direction.\nTaygeta filed its complaint on September 30, 1996. Count I of the complaint asserted a claim of property damage pursuant to G. L. c. 21E, § 5. Count II of the complaint asserted a claim of negligence in that Varian had released the hazardous material, had allowed it to migrate to the site, and had failed to act expeditiously to remediate known contamination. Count III of the complaint asserted a claim of nuisance. Taygeta alleged that the value of the site had been diminished as a result of the migration of hazardous material from the Varian property to the site and demanded a jury trial. Pursuant to a tolling agreement between the parties, the complaint was considered, for statute of limitations purposes, to have been filed by May 24, 1996. The applicable statutory limitations period was three years, both under G. L. c. 260, § 2A (provision governing tort actions), and G. L. c. 21E, § 11A (4) (provision governing civil actions under G. L. c. 21E). Thus, Taygeta’s claims would be time barred if •its causes of action accrued prior to May 24, 1993, unless the statute of limitations was tolled by some other statutory or common-law provision.\nPursuant to Mass. R. Civ. P. 16, 365 Mass. 762 (1974), a Superior Court judge bifurcated the case with the damages component to be tried first, followed by the liability component. Varían filed a motion for summary judgment based on its contention that Taygeta’s claims were time barred. The motion was denied. The damages component of the case was then tried to a jury who returned a verdict for Taygeta and awarded it damages of $2,300,000. The judge allowed Varían’s motion for a new trial subject to a remittitur of the damages to $1,300,000, to which Taygeta agreed.\nVarían filed a renewed motion for summary judgment which was also denied. The judge concluded that there existed an issue of fact as to the timing of actionable contamination that was sufficient to warrant submission of the statute of limitations question to a jury. Subsequently, by order pursuant to Mass. R. Civ. P. 56 (d), 365 Mass. 824 (1974), the judge specified, as un-controverted facts, that Taygeta was aware, or reasonably should have been aware, that it had suffered actionable harm at the hands of Varían as of March 3, 1993, and that no actions by Varían had misled Taygeta into believing that it had not been harmed as of that date. The judge specified that a controversy did exist as to the actual date on which Taygeta suffered actionable harm to the site.\nTaygeta and Varían then filed cross motions for summary judgment. The judge first concluded that, because Taygeta had effectively, if not expressly, conceded that actionable contamination of the site occurred no later than March 3, 1993, Taygeta’s claim pursuant to G. L. c. 21E was barred by the statute of limitations. With respect to Taygeta’s nuisance claim, the judge concluded that Varian had done nothing to perpetuate the contamination and that the ongoing migration of VOCs to the site was not an abatable condition. Rather, the ongoing contamination was a product of previously terminated tortious conduct and, thus, was not a continuing nuisance. Accordingly, the Superior Court judge granted Varian’s motion for summary judgment and dismissed Taygeta’s complaint.\n2. Property damage claim pursuant to G. L. c. 21E. Taygeta first contends that its cause of action did not accrue until it had knowledge of its actual harm and the likely cause. Taygeta argues that, because subsurface groundwater contamination is not an observable condition, it had no evidence of such contamination at the site until June 10, 1993, the date when Taygeta received groundwater sampling results from GZA. Taygeta asserts that this would be the date on which its cause of action accrued and the statute of limitations began to run. Because Taygeta’s complaint was deemed filed by May 24, 1996 (pursuant to the tolling agreement), its lawsuit was therefore not barred by the statute of limitations. Taygeta contends that the Superior Court judge erroneously imposed on it a duty to investigate possible injury on the basis of mere suspicion of potential harm, not knowledge of actual harm. Moreover, it asserts that mere knowledge that the Varian property was contaminated should not have obligated Taygeta to undertake a costly drilling and sampling program at the site, particularly where Varian already had a statutory obligation to assess and remediate contamination migrating from its own property.\nThe property damage claim brought by Taygeta, as well as the statute of limitations applicable thereto, is governed by the comprehensive statutory scheme of G. L. c. 21E. General Laws c. 21E sets forth the legal obligations of owners, operators, and other responsible persons for investigating and addressing contamination at a “site.” See G. L. c. 21E, §§ 5, 7, 8, 9. The primary purpose of G. L. c. 21E is “to improve the Commonwealth’s capability to respond to environmental contamination and to recover response costs from persons responsible for the contamination.” Guaranty-First Trust Co. v. Textron, Inc., 416 Mass. 332, 335 (1993). See St. 1983, c. 7, emergency preamble. A second significant purpose of G. L. c. 21E is to enable private persons “to obtain a certain measure of compensation for loss resulting from environmental damage.” Guaranty-First Trust Co. v. Textron, Inc., supra at 335. See G. L. c. 21E, §§ 4, 5. Simply put, G. L. c. 2 IE was drafted in a comprehensive fashion to compel the prompt and efficient cleanup of hazardous material and to ensure that costs and damages are borne by the appropriate responsible parties. To that end, the department has promulgated extensive regulations, known collectively as the Massachusetts Contingency Plan (MCP), for purposes of implementing, administering, and enforcing G. L. c. 21E. See G. L. c. 21E, § 3; 310 Code Mass. Regs. §§ 40.0000 (1999).\nPursuant to G. L. c. 21E, § 7, “[a]ny owner or operator of a site . . . and any person otherwise described in paragraph (a) of section 5 . . . who holds title to or possession of a site ... as soon as he has knowledge of a release or threat of release of oil or hazardous material, shall immediately notify the department thereof.” The MCP sets forth notification requirements and procedures, and it specifies the threshold quantities and concentrations of hazardous material at which reporting to the department is required. See 310 Code Mass. Regs. §§ 40.0300 (1999). Following the removal of an underground storage tank from the Varian property and the discovery of waste acetone in the surrounding soil, Varian properly notified the department of the hazardous material release.\nOnce notification has occurred, a property owner or other responsible person is subject to a five-phase assessment and remediation process set forth in the MCP. Phase I consists of preliminary response actions and risk reduction measures, including a limited investigation and evaluation of the contaminated site and a remediation of sudden releases, imminent hazards, and other time-critical conditions. See 310 Code Mass. Regs. §§ 40.0400 (1995). Preliminary response actions may be sufficient for complete evaluation or remediation of localized or uncomplicated releases and threats of release at some sites. See 310 Code Mass. Regs. § 40.0403(3) (1995). Where that is not the case, the property owner or other responsible person must proceed with the subsequent phases of the assessment and remediation process described in the MCP. See 310 Code Mass. Regs. §§ 40.0800 (1995).\nFor purposes of the present case, the key phase is Phase II, a comprehensive site assessment to collect, develop, and evaluate the following information: (1) the source, nature, extent, and potential impacts of the release of hazardous material; (2) the risk of harm to health, safety, public welfare, and the environment posed by the disposal site; and (3) the need for remedial actions. See 310 Code Mass. Regs. § 40.0833 (1993). A Phase II report shall be submitted to the department at the conclusion of the comprehensive site assessment and shall include, inter aha, a characterization of the sources, nature, and vertical and horizontal extent of contamination at the disposal site, and the identification and characterization of all potential human and environmental receptors that could be affected by hazardous material at or migrating from such site. See 310 Code Mass. Regs. § 40.0835(4)(f), (g) (1995).\nThe clear import of this statutory and regulatory scheme is that the burdens of notification, investigation, assessment, and remediation fall squarely on the owner, operator, or responsible person whose property is the source of potential contamination, not on other landowners whose property may be affected by such contamination. In accordance with the obligations imposed by the MCP, Varian has proceeded with preliminary response actions (Phase I) and a comprehensive site assessment (Phase II). It appears that Varian completed a draft Phase II comprehensive site assessment report in June, 2000.\nWith the comprehensive framework of G. L. c. 21E and the MCP in mind, as well as the purposes for which they were promulgated, we now consider whether Taygeta’s claim for property damage is barred by the applicable statute of limitations. General Laws c. 21E includes its own statute of limitations which is as follows:\n“Actions by persons other than the commonwealth to recover for damage to real or personal property shall be commenced within three years after the date that the person seeking recovery first suffers the damage or within three years after the date the person seeking recovery of such damage discovers or reasonably should have discovered that the person against whom the action is being brought is a person hable pursuant to this chapter for the release or threat of release that caused the damage, whichever is later.”\nG. L. c. 21E, § 11A (4). The point of contention between the parties is when Taygeta discovered or reasonably should have discovered that it had been harmed by Varían. The statutory language provides that the clock starts running on the statute of limitations when a plaintiff discovers or reasonably should have discovered (1) the damage, and (2) the cause of the damage, i.e., the person liable under G. L. c. 21E for the release or threat of release of hazardous material. This interpretation of G. L. c. 21E, § 11A (4), is consistent with the discovery rule commonly followed in Massachusetts courts in negligence cases. See One Wheeler Rd. Assocs. v. Foxboro Co., 843 F. Supp. 792, 797-798 (D. Mass. 1994) (noting that, prior to 1992, G. L. c. 21E had no specified statute of limitations and concluding that under common law of Massachusetts, cause of action created by G. L. c. 21E, § 5, accrued when plaintiff discovered or reasonably should have discovered that contamination had caused damage to value of property and that defendant had caused damage).\nIt is a settled rule of statutory construction that “[a] statute is not to be interpreted as effecting a material change in or a repeal of the common law unless the intent to do so is clearly expressed.” Riley v. Davison Constr. Co., 381 Mass. 432, 438 (1980), quoting Pineo v. White, 320 Mass. 487, 491 (1946). See Guaranty-First Trust Co. v. Textron, Inc., supra at 336. Although G. L. c. 21E, § 11A (4), incorporates a discovery rule similar to the common law, it departs from the common law in its requirement that a plaintiff also have reason to know that a landowner is hable under G. L. c. 21E. Thus, § 11A (4) must be considered in the context of the over-all statutory scheme and the regulations set forth in the MCR See Weaver v. Commonwealth, 387 Mass. 43, 50 (1982) (tolling provisions of G. L. c. 260 do not apply to cause of action brought under statute that includes its own statute of limitations). Cf. Commonwealth v. Forte, 423 Mass. 672, 674 (1996) (common-law double jeopardy principles not applicable where criminal penalties that might be imposed are authorized by statute and prison discipline already imposed was based on regulation authorized by statute).\nA plaintiff who brings a cause of action for property damage under G. L. c. 2IE has no duty to investigate whether its property may have been contaminated by another. Rather, it is the owner or operator of a site from which there has been a release of hazardous material, or other person who caused or is legally responsible for such a release, that must investigate, assess, and delineate the geographic scope of the contamination, including its possible migration from the point of origin. See 310 Code Mass. Regs. §§ 40.0483, 40.0830 (1995). Generally speaking, it is not until this process provides definitive information that hazardous material has migrated from its original site and contaminated other properties, and the owners of such other properties receive actual knowledge of their own contamination, that they will have discovered their damages and the cause thereof. At that point, the statute of limitations begins to run. An interpretation of the statute of limitations that imposes on plaintiffs an obligation to investigate their property in advance of a defendant’s completion of the requisite assessment would be contrary to the statutory and regulatory scheme. Put another way, even a plaintiff who has concerns that a known release on neighboring property may have migrated onto the plaintiff’s property may reasonably rely on the defendant to complete the steps required under G. L. c. 2 IE and the MCP. There is nothing unreasonable in a plaintiff’s decision not to go forward with an assessment duplicating the work that the defendant is already obligated to perform.\nWe recognize that there will be instances, prior to completion of a comprehensive site assessment, when a person seeking recovery for property damage “reasonably should have discovered” that the person against whom the action is being brought is a person hable under G. L. c. 21E for the release of hazardous material that caused the damage. Some forms of environmental contamination may be obvious, such as through sight, smell, or taste, and sometimes there is no uncertainty as to its source. Similarly, a property owner may acquire actual knowledge of damage from the release of hazardous material where such owner, as in the present case, undertakes testing of its own property and learns of the existence of contamination that only could have emanated from one source. Once a property owner acquires such actual knowledge, the statute of limitations begins to run, even though the person hable under G. L. c. 21E may not have completed its own assessment of the contamination in accordance with the MCP.\nBy its nature, subsurface groundwater contamination is inherently unknowable in the absence of environmental testing. To establish its presence, consultants must drill monitoring wells, collect samples, and analyze the data. In the present case, Varían discovered waste acetone in the soil of its own property, notified the department of the hazardous material release, and had started to proceed with the multiphase assessment and remediation process set forth in the MCP. Notwithstanding Varían’s ongoing actions, Taygeta ultimately undertook its own testing of the site, at least in part for potential refinancing purposes. As a result, Taygeta gained actual knowledge of groundwater contamination at the site when it received completed test results from GZA on June 10, 1993. The contamination was similar to that detected in groundwater samples collected from monitoring wells on the Varían property. Thus, June 10, 1993, is the date on which Taygeta’s cause of action accrued and the statute of limitations began to run. That Taygeta may have harbored suspicions prior to that date did not trigger a duty to conduct an independent investigation, and Taygeta was not under any obligation to undertake its investigation at some earlier point in time. Because Taygeta’s complaint was deemed filed by May 24, 1996, its cause of action for property damage is not barred by the three-year statute of limitations set forth in G. L. c. 2 IE, § 11A (4). The Superior Court judge erred in granting summary judgment to Varían with respect to Taygeta’s claim under G. L. c. 21E, § 5.\n3. Negligence claim. Taygeta’s common-law claim of negligence requires a different, but related, analysis from that given its property damage claim under the statutory and regulatory framework of G. L. c. 21E and the MCP. General Laws c. 260, § 2A, states that, “[ejxcept as otherwise provided, actions of tort . . . shall be commenced only within three years next after the cause of action accrues.” When a cause of action accrues has not been defined by statute but has been the subject of judicial interpretation in this Commonwealth. See Riley v. Presnell, 409 Mass. 239, 243 (1991). Ordinarily, actions in tort accrue at the time the plaintiff is injured. See Joseph A. Fortin Constr., Inc. v. Massachusetts Hous. Fin. Agency, 392 Mass. 440, 442 (1984). The unfairness of such a rule, however, has been recognized in actions where the wrong is “inherently unknowable.” See Mohr v. Commonwealth, 421 Mass. 147, 155-156 (1995); Olsen v. Bell Tel. Labs., Inc., 388 Mass. 171, 175 (1983). Thus, we have developed a so-called “discovery rule” that tolls the statute of limitations until a plaintiff knows, or reasonably should have known, that it has been harmed or may have been harmed by the defendant’s conduct. See Mohr v. Commonwealth, supra at 156; Riley v. Presnell, supra at 240; Bowen v. Eli Lilly & Co., 408 Mass. 204, 205-206 (1990). The plaintiff need not know the full extent of its injury for a cause of action to accrue and for the statute of limitations to begin running. See Olsen v. Bell Tel. Labs., Inc., supra.\nIn most instances, the question when a plaintiff knew or should have known of its cause of action is one of fact that will be decided by the trier of fact. See Riley v. Presnell, supra at 240, 247-248, and cases cited. See also Lindsay v. Romano, 427 Mass. 771, 774 (1998). The appropriate standard to be applied when assessing knowledge or notice is that of a “reasonable person in the plaintiff’s position.” Riley v. Presnell, supra at 245. See Bowen v. Eli Lilly & Co., supra at 208, 210.\nBetween early 1990 and early 1993, information was coming to light that several properties on Tozer Road were contaminated with VOCs, the source of which appeared to be the Varian property. At the same time, Varian was representing to the department that the hazardous material dissolved in its groundwater was contained in a localized area and that remedial response actions had been undertaken in an expeditious manner. Furthermore, until the investigation of the Varian property, conducted pursuant to G. L. c. 21E, had been completed, Varian could not reach a conclusion as to whether there was any link between its own contamination and that alleged to be present at other properties in the neighborhood. In April, 1993, Varian continued to assert publicly that it did not know the boundaries of its contamination and had no definite date as to when its environmental studies would be completed. In its Public Involvement Plan dated May 18, 1993, Varian stated that public concerns about the nature and extent of contamination on the Varian property, as well as the assessment of off-site hazardous material, would be addressed once it began Phases II and III of the assessment and remediation process set forth in the MCP.\nVarian’s comprehensive responsibilities under G. L. c. 21E and the . MCP, and the corresponding lack of any obligation on Taygeta’s part thereunder to conduct an independent investigation, necessarily influence the analysis of what Taygeta “reasonably” should have known. The summary judgment materials herein raise a genuine issue of material fact as to whether a reasonable person in Taygeta’s position knew, or reasonably should have known, that it had been harmed or may have been harmed by Varian prior to May 24, 1993. Such a disputed issue of fact should be resolved by a jury. The jury’s decision, in turn, will determine whether Taygeta’s cause of action is barred by the three-year statute of limitations set forth in G. L. c. 260, § 2A. We conclude that the Superior Court judge erred in granting summary judgment to Varian on Taygeta’s claim of negligence.\n4. Nuisance claim. Taygeta contends that the disposal of hazardous material onto the Varian property created a nuisance because VOCs continue to migrate to the site and contaminate the groundwater. Taygeta further claims that Varian has failed to remediate such migration. It asserts that, because the contamination is ongoing, there is an invasion of its property rights from day to day. Consequently, Taygeta argues that each invasion of its rights gives rise to a separate cause of action, and that its lawsuit is timely for any damages arising from the contamination that occurred within the statute of limitations period.\nThe purpose of a private nuisance action is to obtain a remedy for interference with the use and enjoyment of property. See Connerty v. Metropolitan Dist. Comm’n, 398 Mass. 140, 147 (1986) . See also D.B. Dobbs, Torts § 463, at 1321 (2000). “A private nuisance is actionable when a property owner creates, permits, or maintains a condition or activity on [its] property that causes a substantial and unreasonable interference with the use and enjoyment of the property of another” (emphasis omitted). Doe v. New Bedford Hous. Auth., 417 Mass. 273, 288 (1994), quoting Asiala v. Fitchburg, 24 Mass. App. Ct. 13, 17 (1987). Cf. Morash & Sons v. Commonwealth, 363 Mass. 612, 619 (1973) (Commonwealth not immune from liability where it creates Or maintains private nuisance that causes injury to real property of another). An action for a continuing nuisance allows a plaintiff whose claim otherwise would be untimely to sue where its property rights are invaded from time to time because of repeated or recurring wrongs, resulting in new harm to the property on each occasion. See Carpenter v. Texaco, Inc., 419 Mass. 581, 583 (1995). See also Sixty-Eight Devonshire, Inc. v. Shapiro, 348 Mass. 177, 183-184 (1964) (damage to plaintiff’s building caused by recurring discharge of water from defective gutter on defendant’s building was continuing nuisance such that cause of action not barred by statute of limitations); Asiala v. Fitchburg, supra at 16-17, 19 (inadequately constructed retaining wall resulted in excess lateral earth pressure which, over years, caused plaintiff’s house to develop structural problems; cause of action not barred by statute of limitations). A continuing trespass can cause temporary harm, permanent harm, or both. See Church v. General Elec. Co., 138 F. Supp. 2d 169, 175-176 (D. Mass. 2001), citing Walker Drug Co. v. La Sal Oil Co., 972 P.2d 1238, 1246 n.9 (Utah 1998).\nIn Carpenter v. Texaco, Inc., supra at 583, this court stated that “a continuing trespass or nuisance must be based on recurring tortious or unlawful conduct and is not established by the continuation of harm caused by previous but terminated tortious or unlawful conduct.” The plaintiffs in those cases asserted claims for nuisance based on the continued presence of gasoline on their properties caused by earlier leakage from an underground tank on the defendants’ property. This court rejected the plaintiffs’ argument that the presence of gasoline on their properties was a continuing nuisance because the defendants’ tortious conduct and the seepage had ended after the offending underground storage tank was removed, more than six years before the plaintiffs filed their complaints. Id. at 582-583. We pointed out that the plaintiffs’ claims were essentially for a single encroachment that had resulted in permanent harm. Id. at 583. Their claims, therefore, were barred by a three-year statute of limitations. Significantly, however, we noted that if the seepage of gasoline onto the plaintiffs’ properties had occurred within three years of the commencement of the plaintiffs’ actions, it would have presented a different case. Id. at 583 n.5. See Restatement (Second) of Torts § 834 comment e, at ISO-151 (1979) (“[I]f the activity has resulted in the creation of a physical condition that is of itself harmful after the activity that created it has ceased, a person who carried on the activity that created the condition ... is subject to the liability for a nuisance, for the continuing harm. . . . This is true even though he is no longer in a position to abate the condition and to stop the harm”). Cf. Church v. General Elec. Co., supra. Taygeta’s nuisance claim is based on the continuing seepage of pollutants that is still occurring within the statute of limitations. This presents the precise fact pattern that we distinguished in Carpenter v. Texaco, Inc., supra at 583 n.5.\nVarían ceased its practice of dumping hazardous material on its property in the early 1970s. However, the remaining presence of that hazardous material on the Varían property is an ongoing source of groundwater contamination that continues to flow unabated onto the site. In light of this ongoing seepage, a condition caused and maintained by Varían, we conclude that Taygeta has stated a claim for a continuing nuisance that is not barred by the three-year statute of limitations.\n5. Conclusion. The judgment is vacated, and the matter is remanded to the Superior Court for further proceedings consistent with this opinion.\nSo ordered.\nWe acknowledge the amicus briefs filed by the Attorney General on behalf of the Commonwealth, the Wenham Lake Watershed Association, Associated Industries of Massachusetts and the New England Legal Foundation.\nThe purchaser was Connolly Brothers, Inc., a family-owned business that subsequently formed Taygeta Corporation for the purpose of holding and operating certain properties previously owned by Connolly Brothers, Inc., including the site.\nThe Department of Environmental Protection is the successor agency to the Department of Environmental Quality Engineering. See St. 1989, c. 240, § 101.\nGeneral Laws c. 21E, § 5 (a), provides, in pertinent part: “Except as otherwise provided in this section, (1) the owner or operator of . . .a site from or at which there is or has been a release or threat of release of oil or hazardous material; (2) any person who at the time of storage or disposal of any hazardous material owned or operated any site at or upon which such hazardous material was stored or disposed of and from which there is or has been a release or threat of release of hazardous material .• . . and (5) any person who otherwise caused or is legally responsible for a release or threat of release of oil or hazardous material from a . . . site, shall be hable, without regard to fault . . . (iii) to any person for damage to his real or personal property incurred or suffered as a result of such release or threat of release\nThe judge reasoned that Taygeta was on “inquiry notice” by January 19, 1993, that it had a contamination problem sufficient to warrant testing. Subsequent events revealed that forty-three days passed from the time testing was ordered (April 28, 1993) until the time the test results were actually reported to Taygeta (June 10, 1993). If groundwater testing had been ordered on January 19, 1993, the results would have been reported to Taygeta within forty-three days of that date, or by March 3, 1993. The judge stated that the January 19, 1993, inquiry notice date was generously late in light of the evidence submitted.\nThe judge noted in his memorandum of decision that the parties did not address Taygeta’s negligence claim in either their memoranda or their oral arguments. To the extent that such claim remained in the case, the judge stated that his rulings pertaining to the G. L. c. 21E claim and the nuisance claim were equally applicable to the negligence claim.\nThe standard of review for a grant of summary judgment is whether, viewing the facts in the light most favorable to the nonmoving party, there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974). See Attorney Gen. v. Bailey, 386 Mass. 367, 370-371, cert. denied sub nom. Bailey v. Bellotti, 459 U.S. 970 (1982). “An order granting or denying summary judgment will be upheld if the trial judge ruled on undisputed material facts and his ruling was correct as a matter of law.” Commonwealth v. One 1987 Mercury Cougar Auto., 413 Mass. 534, 536 (1992).\nA “[s]ite” is defined as “any . . . place or area where oil or hazardous material has been deposited, stored, disposed of or placed, or otherwise come to be located.” G. L. c. 21E, § 2. See 310 Code Mass. Regs. § 40.0006 (1995).\nGeneral Laws c. 21E does not define what constitutes “knowledge” of a release of hazardous material that triggers a duty to notify the department. However, the MCP defines “[k]nowledge” as “actual knowledge” or “knowledge a person acting in a reasonably prudent and intelligent manner would have, but for that person’s willful, knowing or negligent avoidance of learning about the fact or facts in question.” 310 Code Mass. Regs. § 40.0006 (1999).\nA “[disposal site”is defined as any “place or area, excluding ambient air or surface water, where uncontrolled oil or hazardous material has come to be located as a result of any spilling, leaking, pouring, abandoning, emitting, emptying, discharging, injecting, escaping, leaching, dumping, discarding or otherwise disposing of such oil or hazardous material.” G. L. c. 21E, § 2. See 310 Code Mass. Regs. § 40.0006 (1995).\nOn March 2, 1992, the Varian property was designated by the department as a public involvement plan site. See G. L. c. 21E, § 14; 310 Code Mass. Regs. § 40.1404 (1995). Such a designation required Varian to prepare a plan that identified specific activities that would be undertaken to address public concerns about contamination at the disposal site. See 310 Code Mass. Regs. § 40.1405 (1995). A final public involvement plan for the Varian property was submitted to the department on May 18, 1993.\nFollowing completion of the Phase II comprehensive site assessment, Varian will proceed with the remaining phases of the assessment and remediation process set forth in the MCP; Phase DI — identification and selection of comprehensive remedial action alternatives; Phase IV — implementation of the selected remedial action alternative; and Phase V — operation, maintenance, or monitoring of the disposal site. See 310 Code Mass. Regs. § 40.0810 (1995).\nWhile Taygeta had the financial resources to perform its own testing of the site for environmental contamination, many victims of contamination will not have such resources. Although G. L. c. 21E, § 4, allows for the recovery of investigative expenses as response costs, this provision does not assist those property owners who do not have the financial resources to afford testing in the first instance.\nIn light of this conclusion, we need not consider whether Taygeta’s fraudulent concealment and equitable estoppel arguments involve disputed issues of fact that also must be resolved by a jury.\nIn contrast to a private nuisance action, “[a] nuisance is public when it interferes with the exercise of a public right by directly encroaching on public property or by causing a common injury.” Connerty v. Metropolitan Dist. Comm’n, 398 Mass. 140, 148 (1986). Taygeta has not alleged a public nuisance herein."", ""type"": ""majority"", ""author"": ""Spina, J.""}], ""attorneys"": [""Eric W. Wodlinger (H. Hamilton Hackney, III, with him) for the plaintiff."", ""Seth D. Jaffe for the defendant."", ""The following submitted briefs for amici curiae:"", ""Cynthia L. Amara, R. Robert Popeo, Jeffrey R. Porter, & Andrew N. Nathanson for Associated Industries of Massachusetts & another."", ""Thomas F. Reilly, Attorney General, Sc James R. Milkey, Assistant Attorney General, for the Commonwealth."", ""Jan Richard Schlichtmann for Wenham Lake Watershed Association.""], ""corrections"": """", ""head_matter"": ""Taygeta Corporation vs. Varian Associates, Inc.\nEssex.\nNovember 5, 2001. -\nMarch 7, 2002.\nPresent: Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.\nLimitations, Statute of. Hazardous Materials. Massachusetts Oil and Hazardous Material Release Prevention Act. Water. Statute, Construction. Negligence, Hazardous substance. Nuisance.\nA property damage claim pursuant to the Massachusetts Hazardous Material Release Prevention Act, G. L. c. 21E, arising from subsurface groundwater contamination of the plaintiff’s property, that was deemed filed by May 24, 1996, was not barred by the three-year statute of limitations set forth in G. L. c. 21E, § 11A (4), where the plaintiffs cause of action accrued and the statute of limitations began to run on June 10, 1993, the day the plaintiff gained actual knowledge of the groundwater contamination at its site when groundwater sampling results were received. [222-228]\nIn an action on a common-law claim of negligence arising from subsurface groundwater contamination of the plaintiff’s property, the Superior Court judge erred in granting summary judgment to the defendant, the former owner of nearby property from which the contamination flowed, where a genuine issue of material fact existed as to whether a reasonable person in the plaintiff’s position knew, or reasonably should have known, that it had been harmed by the defendant, and where such a disputed issue of fact should have been resolved by a jury, whose decision, in turn, would have determined whether the plaintiff’s cause of action was barred by the three-year statute of limitations set forth in G. L. c. 260, § 2A. [228-230]\nA claim for a continuing private nuisance that was not barred by the three-year statute of limitations set forth in G. L. c. 260, § 2A, was stated by the plaintiff whose property was contaminated by subsurface water containing hazardous material coming from nearby property formerly owned by the defendant, where, although the defendant ceased its practice of dumping hazardous material on its property in the early 1970’s, the remaining presence of that material on the property was an ongoing source of groundwater contamination that continued to flow unabated onto the plaintiff’s site. [230-232]\nCivil action commenced in the Superior Court Department on September 30, 1996.\nThe case was heard by Howard J. Whitehead, J., on motions for summary judgment.\nThe Supreme Judicial Court granted an application for direct appellate review.\nEric W. Wodlinger (H. Hamilton Hackney, III, with him) for the plaintiff.\nSeth D. Jaffe for the defendant.\nThe following submitted briefs for amici curiae:\nCynthia L. Amara, R. Robert Popeo, Jeffrey R. Porter, & Andrew N. Nathanson for Associated Industries of Massachusetts & another.\nThomas F. Reilly, Attorney General, Sc James R. Milkey, Assistant Attorney General, for the Commonwealth.\nJan Richard Schlichtmann for Wenham Lake Watershed Association.""}, ""cites_to"": [{""cite"": ""413 Mass. 534"", ""year"": 1992, ""case_ids"": [3900995], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""536""}], ""case_paths"": [""/mass/413/0534-01""], ""opinion_index"": 0}, {""cite"": ""459 U.S. 970"", ""year"": 1982, ""case_ids"": [6441632, 6441728, 6441829, 6442061, 6441168, 6441362, 6441459, 6441267, 6440978, 6441079, 6441949, 6441535], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/459/0970-08"", ""/us/459/0970-09"", ""/us/459/0970-10"", ""/us/459/0970-12"", ""/us/459/0970-03"", ""/us/459/0970-05"", ""/us/459/0970-06"", ""/us/459/0970-04"", ""/us/459/0970-01"", ""/us/459/0970-02"", ""/us/459/0970-11"", ""/us/459/0970-07""], ""opinion_index"": 0}, {""cite"": ""386 Mass. 367"", ""year"": 1982, ""case_ids"": [906561], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""370-371""}], ""case_paths"": [""/mass/386/0367-01""], ""opinion_index"": 0}, {""cite"": ""972 P.2d 1238"", ""year"": 1998, ""case_ids"": [11642784], ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""case_paths"": [""/p2d/972/1238-01""], ""opinion_index"": 0}, {""cite"": ""138 F. Supp. 2d 169"", ""year"": 2001, ""case_ids"": [11101787], ""category"": ""reporters:federal"", ""reporter"": ""F. Supp. 2d"", ""pin_cites"": [{""page"": ""175-176""}], ""case_paths"": [""/f-supp-2d/138/0169-01""], ""opinion_index"": 0}, {""cite"": ""348 Mass. 177"", ""year"": 1964, ""case_ids"": [522109], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""183-184"", ""parenthetical"": ""damage to plaintiff's building caused by recurring discharge of water from defective gutter on defendant's building was continuing nuisance such that cause of action not barred by statute of limitations""}], ""case_paths"": [""/mass/348/0177-01""], ""opinion_index"": 0}, {""cite"": ""419 Mass. 581"", ""year"": 1995, ""case_ids"": [823695], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""583""}], ""case_paths"": [""/mass/419/0581-01""], ""opinion_index"": 0}, {""cite"": ""363 Mass. 612"", ""year"": 1973, ""case_ids"": [288157], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""619"", ""parenthetical"": ""Commonwealth not immune from liability where it creates Or maintains private nuisance that causes injury to real property of another""}], ""case_paths"": [""/mass/363/0612-01""], ""opinion_index"": 0}, {""cite"": ""24 Mass. App. Ct. 13"", ""year"": 1987, ""weight"": 2, ""case_ids"": [3992823], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""17""}, {""page"": ""16-17, 19"", ""parenthetical"": ""inadequately constructed retaining wall resulted in excess lateral earth pressure which, over years, caused plaintiff's house to develop structural problems; cause of action not barred by statute of limitations""}], ""case_paths"": [""/mass-app-ct/24/0013-01""], ""opinion_index"": 0}, {""cite"": ""417 Mass. 273"", ""year"": 1994, ""case_ids"": [482606], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""288""}], ""case_paths"": [""/mass/417/0273-01""], ""opinion_index"": 0}, {""cite"": ""398 Mass. 140"", ""year"": 1986, ""weight"": 2, ""case_ids"": [877628], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""147""}, {""page"": ""148""}], ""case_paths"": [""/mass/398/0140-01""], ""opinion_index"": 0}, {""cite"": ""427 Mass. 771"", ""year"": 1998, ""case_ids"": [310272], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""774""}], ""case_paths"": [""/mass/427/0771-01""], ""opinion_index"": 0}, {""cite"": ""408 Mass. 204"", ""year"": 1990, ""case_ids"": [3890281], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""205-206""}], ""case_paths"": [""/mass/408/0204-01""], ""opinion_index"": 0}, {""cite"": ""388 Mass. 171"", ""year"": 1983, ""case_ids"": [911008], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""175""}], ""case_paths"": [""/mass/388/0171-01""], ""opinion_index"": 0}, {""cite"": ""421 Mass. 147"", ""year"": 1995, ""case_ids"": [861467], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""155-156""}], ""case_paths"": [""/mass/421/0147-01""], ""opinion_index"": 0}, {""cite"": ""392 Mass. 440"", ""year"": 1984, ""case_ids"": [3874923], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""442""}], ""case_paths"": [""/mass/392/0440-01""], ""opinion_index"": 0}, {""cite"": ""409 Mass. 239"", ""year"": 1991, ""weight"": 4, ""case_ids"": [3893795], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""243""}, {""page"": ""240""}, {""page"": ""240, 247-248""}, {""page"": ""245""}], ""case_paths"": [""/mass/409/0239-01""], ""opinion_index"": 0}, {""cite"": ""423 Mass. 672"", ""year"": 1996, ""case_ids"": [1027930], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""674"", ""parenthetical"": ""common-law double jeopardy principles not applicable where criminal penalties that might be imposed are authorized by statute and prison discipline already imposed was based on regulation authorized by statute""}], ""case_paths"": [""/mass/423/0672-01""], ""opinion_index"": 0}, {""cite"": ""387 Mass. 43"", ""year"": 1982, ""case_ids"": [908863], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""50"", ""parenthetical"": ""tolling provisions of G. L. c. 260 do not apply to cause of action brought under statute that includes its own statute of limitations""}], ""case_paths"": [""/mass/387/0043-01""], ""opinion_index"": 0}, {""cite"": ""320 Mass. 487"", ""year"": 1946, ""case_ids"": [498129], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""491""}], ""case_paths"": [""/mass/320/0487-01""], ""opinion_index"": 0}, {""cite"": ""381 Mass. 432"", ""year"": 1980, ""case_ids"": [816131], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""438""}], ""case_paths"": [""/mass/381/0432-01""], ""opinion_index"": 0}, {""cite"": ""843 F. Supp. 792"", ""year"": 1994, ""case_ids"": [3842406], ""category"": ""reporters:federal"", ""reporter"": ""F. Supp."", ""pin_cites"": [{""page"": ""797-798""}], ""case_paths"": [""/f-supp/843/0792-01""], ""opinion_index"": 0}, {""cite"": ""416 Mass. 332"", ""year"": 1993, ""weight"": 3, ""case_ids"": [819103], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""335""}, {""page"": ""335""}, {""page"": ""336""}], ""case_paths"": [""/mass/416/0332-01""], ""opinion_index"": 0}, {""cite"": ""365 Mass. 824"", ""year"": 1974, ""weight"": 2, ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""opinion_index"": 0}, {""cite"": ""365 Mass. 762"", ""year"": 1974, ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""opinion_index"": 0}], ""citations"": [{""cite"": ""436 Mass. 217"", ""type"": ""official""}], ""file_name"": ""0217-01"", ""last_page"": ""232"", ""first_page"": ""217"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T17:40:28.990437+00:00"", ""decision_date"": ""2002-03-07"", ""docket_number"": """", ""last_page_order"": 248, ""first_page_order"": 233, ""name_abbreviation"": ""Taygeta Corp. v. Varian Associates, 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+121878,"{""id"": 121878, ""name"": ""Cheryl Tinder, Appellant, v. Nordstrom, Inc., Respondent"", ""court"": {""id"": 8985, ""name"": ""Washington Court of Appeals"", ""name_abbreviation"": ""Wash. Ct. App.""}, ""analysis"": {""sha256"": ""61011a9e98087f56c28a6c208da0c45acb032b73674c3df7d7f88e759e5eefbf"", ""simhash"": ""1:3c456a38c89f4593"", ""pagerank"": {""raw"": 0.0000001176417686959848, ""percentile"": 0.5876164981047157}, ""char_count"": 19757, ""word_count"": 3251, ""cardinality"": 985, ""ocr_confidence"": 0.737}, ""casebody"": {""judges"": [], ""parties"": [""Cheryl Tinder, Appellant, v. Nordstrom, Inc., Respondent.""], ""opinions"": [{""text"": ""Baker, C.J.\nThe doctrine of res ipsa loquitur is applied in exceptional cases, when supported by the facts of the case and the demands of justice. Res ipsa loquitur is a method of proof, not a separate and additional form of negligence. A plaintiff that successfully establishes the elements of res ipsa loquitur is entitled to an inference of negligence. Because such a plaintiff is, in effect, spared the necessity of establishing a complete prima facie case of negligence against the defendant, the doctrine is to be used sparingly.\nCheryl Tinder has failed to allege or prove facts warranting application of res ipsa loquitur against Nordstrom, Inc. We affirm summary judgment dismissal of Tinder’s personal injury claim against Nordstrom.\nFACTS\nTinder was shopping at Nordstrom with her two daughters, ages four and seven. She bought a considerable number of items, enough to be \""loaded” with packages. Tinder boarded the down escalator with her hands full of packages, her youngest daughter ahead of her, the older behind. Tinder was not holding the handrail when the escalator came to a sudden stop.\nApart from the sudden stop, nothing indicated that something was wrong with the escalator. Prior to the stop, her youngest daughter got off the escalator and looked up at Tinder, waiting for her to come down. Tinder’s alleged injuries occurred when she reached across with her right hand and grabbed the opposite handrail to stop herself from falling.\nA regular maintenance examination was performed on the escalator six days before the incident. After the incident, a maintenance specialist examined the escalator and did not find any malfunctions.\nWarning signs are placed at the top of all the escalators at Nordstrom, including the one Tinder was riding. The signs warn customers to \""attend to children” and to \""hold handrails.” Tinder does not specifically recall seeing the warning sign at the top of the escalator; however, she knew from experience that escalator riders are warned to hold the handrail and to watch their children. At the bottom of the escalator there is an emergency switch that stops the escalator.\nI\nIn a summary judgment motion, the moving party bears the initial burden of showing the absence of an issue of material fact. If the moving party is a defendant, this burden may be met by pointing out that there is an absence of evidence in support of the nonmoving party’s case. If this initial showing is met, then the plaintiff must present evidence sufficient to raise a material question of fact regarding the essential elements of its claim. This court reviews an order of summary judgment de novo, considering the facts in the light most favorable to the nonmoving party.\nNordstrom, as the moving party, introduced evidence that it was not negligent; evidence establishing regular maintenance of the escalator, as well as the service report made after the incident that found no malfunction. Nordstrom therefore met its burden of pointing to an absence of evidence in support of Tinder’s case, and the burden shifted to Tinder to make a prima facie showing of the essential elements of her negligence claim.\nII\nTinder argues that she is entitled to the inference of negligence established by res ipsa loquitur. Whether res ipsa loquitur is applicable is a question of law. The doctrine recognizes that an injurious occurrence may be of such a nature \""that the occurrence is of itself sufficient to establish prima facie the fact of negligence on the part of the defendant, without further or direct proof thereof.”\nIn deciding whether the doctrine applies, the court is to examine whether a \""reasonable inference of negligence” exists. Whether or not the circumstances of an occurrence are sufficient to support this \""reasonable inference of negligence” can only be determined in the context of each case. For the doctrine to apply, it must be established that:\n(1) the accident or occurrence producing the injury is of a kind which ordinarily does not happen in the absence of someone’s negligence, (2) the injuries are caused by an agency or instrumentality within the exclusive control of the defendant, and (3) the injury-causing accident or occurrence is not due to any voluntary action or contribution on the part of the plaintiff. []\nIf the elements of res ipsa loquitur are not satisfied, no presumption of negligence can be maintained. Res ipsa loquitur is ordinarily sparingly applied, \""in peculiar and exceptional cases, and only where the facts and the demands of justice make its application essential.”\nThe first element of the res ipsa loquitur formulation is met if, in the abstract, there is a \""reasonable probability” that the incident would not have occurred in the absence of negligence. The mere occurrence of an accident and an injury does not necessarily infer negligence.\nThe courts have described three types of situations which do not normally occur absent negligence: \""(1) the act causing injury is palpably negligent, such as leaving foreign objects in a patient; (2) when general experience teaches that the result would not be expected without negligence; (3) when proof by experts in an exotic field creates an inference that negligence caused the injuries.”\nWhile Tinder was riding the escalator it stopped suddenly and abruptly, without any noises or motions that would indicate an obvious malfunction. Nordstrom provided for regular maintenance of the escalator, and it had been recently serviced. Mechanical devices, like escalators and elevators, can wear out or break without negligence. Examination of the escalator the day after the sudden stop revealed no evidence of a malfunction, and the stop remains an unexplained event.\nThe sudden stop of the escalator in this case was not the type of unusual situation which normally does not occur in the absence of negligence. There was no palpably negligent act, common experience does not suggest that escalators only make sudden stops when there has been negligence, and there was no expert testimony offered to establish the inference that negligence caused Tinder’s injuries. The evidence presented is insufficient to establish the first element necessary for the application of res ipsa loquitur.\nIn Otis Elevator Co. v. Chambliss a Florida court concluded that the plaintiff totally failed to carry its burden of showing by appropriate evidence that negligence was the probable cause of an escalator’s sudden stop. Defense witnesses testified that \""several factors, none of which implicated negligent maintenance, can cause the escalator to stop during normal operations.” One factor considered by the court was the presence of safety switches that could manually be operated to shut down the escalator in emergencies. Since factors other than Nordstrom’s negligence could have caused the escalator to suddenly stop, res ipsa loquitur does not apply.\nTo conclude that the sudden, unexplained stop of an escalator is the type of occurrence that does not ordinarily occur in the absence of negligence, and to permit an inference of negligence based on such an event, would in effect make Nordstrom the insurer of all who use the escalator. We decline to adopt such a rule.\nWe turn now to a discussion of the second and third elements of res ipsa loquitur. In Marshall the court noted that with the advent of comparative fault, the third element, the absence of the plaintiffs contribution in causing the accident, is generally merged into the second element, the defendant’s exclusive control over the instrumentality causing the injury. These elements are therefore analyzed together.\nThe inference of negligence gained by res ipsa loquitur must be such that the defendant would be responsible for any negligence connected with it. Exclusive control does not mean actual physical control, but rather refers to the responsibility for the proper and efficient functioning of the instrumentality that caused the injury. However, exclusive control is not established merely by showing that the defendant has a superior ability to investigate and possibly determine causation.\nThe facts do not justify an inference of negligence against Nordstrom. Nordstrom is not an insurer of the safety of its customers who choose to ride an escalator under circumstances similar to the facts of this case. Tinder is not entitled to the inference of negligence that is provided by the application of res ipsa loquitur.\nIll\nIn her complaint, Tinder claimed negligence against Nordstrom based on the following theories: (1) the duty owed by a business to its invitees, (2) the duty owed as operator of an escalator, a common carrier, and (3) general negligence. Tinder alleges that Nordstrom was negligent in either selling her more goods than she could safely manage on the escalator, or in not assisting her when she could not manage the escalator because of the number of her purchases.\nTinder argues that an escalator owner/operator cannot ignore the unique circumstances of escalator users in fulfilling its nondelegable duty to its passengers. A common carrier owes the highest degree of care to its passengers, \""commensurate with the practical operation of its conveyance at the time and place in question” and \""consistent with the practical operation of its business.” This standard of care has been applied to escalator operators. This duty, however, does not make a common carrier an insurer of its passengers’ safety.\nTinder argues that a store’s duty as a common carrier is commensurate with knowledge of its customers’ age, size and physical conditions. In Brown a group of elderly women had regularly attended luncheons at the store for approximately six years. Brown presented evidence of prior accident reports made to the store involving elderly passengers in its elevators. The court found that these facts raised a question of whether the store should have reasonably anticipated that an accident might occur, and whether it was therefore obligated to take precautionary measures.\nBrown is distinguishable, and does not support Tinder’s argument. Tinder has not established that a prior history exists creating a duty on the part of Nordstrom to anticipate accidents like that which Tinder alleges caused her injuries. Furthermore, Nordstrom took precautionary measures by posting warning signs for escalator use, providing for regular maintenance and providing an alternate means of travel through the store via elevators. The high degree of care Nordstrom owes to customers using its escalators does not extend as far as alleged by Tinder.\nWe decline to hold that the question of Nordstrom’s duty in this case presents a question of fact. Because Tinder failed to make out a prima facie case of negligence against Nordstrom by alleging specific, nonconclusory facts, summary judgment was proper.\nAffirmed.\nColeman and Becker, JJ., concur.\nYoung v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989).\nYoung, 112 Wn.2d at 225 n.1 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. CT. 2548, 91 L. Ed. 2d 265 (1986)).\nYoung, 112 Wn.2d at 225.\nYoung, 112 Wn.2d at 225-26.\nYoung, 112 Wn.2d at 225 and n.1.\nZukowsky v. Brown, 79 Wn.2d 586, 592, 488 P.2d 269 (1971); see also Marshall v. Western Air Lines, Inc., 62 Wn. App. 251, 259, 813 P.2d 1269, review denied, 118 Wn.2d 1002 (1991).\nMorner v. Union Pac. R.R. Co., 31 Wn.2d 282, 291, 196 P.2d 744 (1948).\nMarshall, 62 Wn. App. at 259 (citing W. Page Keeton et al., Prosser & Keeton on The Law of Torts, Res Ipsa Loquitor § 40, at 261 (5th ed. 1984)).\nZukowsky, 79 Wn.2d at 594; Nopson v. City of Seattle, 33 Wn.2d 772, 785, 207 P.2d 674 (1949) (\""Whether or not the doctrine is applicable in a specific instance depends upon the peculiar facts and circumstances of the individual case.”) (quoting McClellan v. Schwartz, 97 Wash. 417, 420-21, 166 P. 783 (1917)).\nZukowsky, 79 Wn.2d at 593 (quoting Horner v. Northern Pac. Beneficial Ass’n Hosps., Inc., 62 Wn.2d 351, 359, 382 P.2d 518 (1963)).\nHughes v. King County, 42 Wn. App. 776, 784, 714 P.2d 316, review denied, 106 Wn.2d 1006 (1986); see Swanson v. Brigham, 18 Wn. App. 647, 650, 571 P.2d 217 (1977) (trial court warranted in holding that the doctrine did not apply in the absence of one of the necessary elements).\nMorner, 31 Wn.2d at 293.\nMarshall, 62 Wn. App. at 259 (quoting Calabretta v. National Airlines, Inc., 528 F. Supp. 32, 35 (E.D.N.Y. 1981) (concluding that ear damage associated with an airplane flight ordinarily does not occur absent negligence).\nLas v. Yellow Front Stores, Inc., 66 Wn. App. 196, 201-02, 831 P.2d 744 (1992).\nHughes, 42 Wn. App. at 783.\nSee Adams v. Western Host, Inc., 55 Wn. App. 601, 606, 779 P.2d 281 (1989). In Adams the plaintiff was injured when stepping from an elevator that had misleveled. The elevator had received regular maintenance. Adams, 55 Wn. App. at 603-04. The elevator serviceman stated that the sole cause of the misleveling was a broken shunt, and that there is no way to anticipate when metal fatigue will cause such a break. Adams, 55 Wn. App. at 603. In opposition to the elevator company’s motion for summary judgment, the plaintiff submitted the declaration of an electrical engineer to the effect that the most likely reasons for an elevator to mislevel are preventable by proper maintenance. Adams, 55 Wn. App. at 604. The court concluded \""[t]his is not a case of an unexplained accident of the type where res ipsa loquitur has been applied.” The court continued: \""This is not a case where the malfunction is so unusual that we can say it does not ordinarily occur in the absence of negligence. Elevators are mechanical devices of some complexity. Materials can wear out or break without negligence being involved.” Adams, 55 Wn. App. at 606. The court held that res ipsa loquitur was not applicable. Adams, 55 Wn. App. at 606. In Adams the court relied on the fact that the elevator company had produced substantial evidence to explain how the misleveling occurred without negligence on its part. Adams, 55 Wn. App. at 607.\nSee Hughes, 42 Wn. App. at 783.\n511 So. 2d 412 (Fla. App. 1987).\nOtis Elevator, 511 So. 2d at 414. But cf. Barretta v. Otis Elevator Co., 41 Conn. App. 856, 677 A.2d 979, 981, review granted, 682 A.2d 997 (1996) (\""Ordinarily, an escalator does not suddenly stop while people are riding on it unless someone has been negligent.”).\nOtis Elevator, 511 So. 2d at 413.\nOtis Elevator, 511 So. 2d at 413.\nSee Brown v. Crescent Stores, Inc., 54 Wn. App. 861, 866, 776 P.2d 705 (1989) (\""Were we to apply the doctrine here, operating elevators without creating an inference of negligence would be impossible.”); see also Ellis v. Sears Roebuck & Co., 193 Ga. App. 797, 388 S.E.2d 920, 921 (1989) (finding that because mechanical devices, like escalators, sometimes get out of working order without negligence on the part of anyone, the trial court properly directed a verdict in favor of the defendant escalator company).\nMarshall, 62 Wn. App. at 261. Prosser and Keeton claim that the advent of comparative fault should logically eliminate the element of the absence of the plaintiff’s contribution to the accident from the doctrine, unless the plaintiff’s negligence appears to be the sole proximate cause of the event. W. Page Keeton et ax,., Prosser & Keeton on The Law of Torts, Res Ipsa Loquitur § 39, at 254 (5th ed. 1984).\nSee Zukouisky, 79 Wn.2d at 595.\nUnited Mut. Sav. Bank v. Riebli, 55 Wn.2d 816, 821, 350 P.2d 651 (1960). Nordstrom does not argue that the element of exclusive control is absent because it contracted with another company for the maintenance of the escalator, as Tinder claims.\nHouck v. University of Wash., 60 Wn. App. 189, 194, 803 P.2d 47, review denied, 116 Wn.2d 1028 (1991) (elevator).\nRathvon v. Columbia Pac. Airlines, 30 Wn. App. 193, 202, 633 P.2d 122 (1981), review denied, 96 Wn.2d 1025 (1982) (airplane).\nSee Dabroe v. Rhodes Co, 64 Wn.2d 431, 433, 392 P.2d 317 (1964).\nRathvon, 30 Wn. App. at 202 (citing Kaiser v. Suburban Transp. Sys., 65 Wn.2d. 461, 468, 398 P.2d 14, 401 P.2d 350 (1965)). Tinder’s argument that lack of actual knowledge of the passenger’s condition does not relieve a common carrier from liability also fails for this same reason. Tinder notes that: \""While such an actual knowledge requirement may be understandable in a situation involving attended common carrier facilities, it cannot apply to unattended, self-service facilities.” Houck, 60 Wn. App. at 197-98. Houck involved injuries sustained when an intoxicated college student fell after jumping from an elevator that stopped between floors. Houck, 60 Wn. App. at 191. Nordstrom had a duty to use \""the highest degree of care consistent with the practical operation of its escalator.” Houck, 60 Wn. App. at 196 (citing Dabroe, 64 Wn.2d at 434-35). Extending this duty to overloaded customers who know the potential hazards of riding escalators without holding the handrail would be to establish Nordstrom as an insurer of all similarly situated customers who choose to ride the escalator. The common carrier duty does not extend that far. See Rathvon, 30 Wn. App. at 202.\nSee Brown, 54 Wn. App. at 868.\nBrown, 54 Wn. App. at 863.\nBrown, 54 Wn. App. at 868-69.\nBrown, 54 Wn. App. at 869.\nThe record contains the declaration of a Nordstrom employee who worked major sales events for a few years at both the downtown and Northgate stores. She remembered the escalators not working on more than a couple of occasions. This evidence simply does not equate the relevance of the accident reports relied on by the Brown court. Furthermore, as pointed out by Nordstrom at oral argument, physical conditions, such as being elderly or intoxicated, are readily distinguishable from a temporary, self-controlled condition such as being overloaded with packages while shopping.\nTinder also argues that in common carrier operation, if an extraordinary event occurs, a presumption of liability exists, and that summary judgment was improper because Nordstrom did not meet its initial burden to rebut this presumption. See Hedges v. Chicago, Milwaukee, St. Paul & Pac. R.R. Co., 61 Wn.2d 418, 379 P.2d 199 (1963) (supporting a presumption of negligence against defendant train company). This argument is faulty, and appears to confuse the application of common carrier liability with res ipsa loquitur. Furthermore, this court has held, in an airplane case, that no such presumption of liability exists against common carriers. The court cited with approval 8 Am. Jub. 2d, Aviation § 118, at 747-48 (1963): \""Apart from the doctrine of res ipsa loquitur, negligence will not be presumed or inferred from the mere occurrence of an airplane accident, or from the fact of injury, and this principle is not altered by the fact that the defendant is a common carrier of passengers. The mere fact of a plane accident or of injury to a passenger is not sufficient to raise a presumption that the carrier was negligent.” Rathvon, 30 Wn. App. at 204. Rathvon calls into question the precedential value of Hedges. See Rathvon, 30 Wn. App. at 202-04.\nSee Adams, 55 Wn. App. at 607. We conclude that there is no specific factual support for Tinder’s argument that without negligence on the part of Nordstrom, her injuries would not have occurred. This explains why Tinder’s case necessarily boils down to an argument that res ipsa loquitur should apply. Because we hold that the doctrine does not apply under these facts, the trial court did not err in summarily dismissing her personal injury claim against Nordstrom."", ""type"": ""majority"", ""author"": ""Baker, C.J.""}], ""attorneys"": [""Roy G. Brewer, for appellant."", ""D. Michael Reilly, Todd L. Nunn, and Lane Powell Spears Lubersky, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 37078-2-I.\nDivision One.\nJanuary 27, 1997.]\nCheryl Tinder, Appellant, v. Nordstrom, Inc., Respondent.\nRoy G. Brewer, for appellant.\nD. Michael Reilly, Todd L. Nunn, and Lane Powell Spears Lubersky, for respondent.""}, ""cites_to"": [{""cite"": ""379 P.2d 199"", ""year"": 1963, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""pin_cites"": [{""parenthetical"": ""supporting a presumption of negligence against defendant train company""}], ""opinion_index"": 0}, {""cite"": ""61 Wn.2d 418"", ""year"": 1963, ""case_ids"": [1034615], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""parenthetical"": ""supporting a presumption of negligence against defendant train company""}], ""case_paths"": [""/wash-2d/61/0418-01""], ""opinion_index"": 0}, {""cite"": ""401 P.2d 350"", ""year"": 1965, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""398 P.2d 14"", ""year"": 1965, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""392 P.2d 317"", ""year"": 1964, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""64 Wn.2d 431"", ""year"": 1964, ""case_ids"": [1043087], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""433""}], ""case_paths"": [""/wash-2d/64/0431-01""], ""opinion_index"": 0}, {""cite"": ""96 Wn.2d 1025"", ""year"": 1982, ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""parenthetical"": ""airplane""}], ""opinion_index"": 0}, {""cite"": ""633 P.2d 122"", ""year"": 1981, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""30 Wn. App. 193"", ""year"": 1981, ""weight"": 5, ""case_ids"": [1826875], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""202""}, {""page"": ""202""}, {""page"": ""204""}, {""page"": ""202-04""}], ""case_paths"": [""/wash-app/30/0193-01""], ""opinion_index"": 0}, {""cite"": ""116 Wn.2d 1028"", ""year"": 1991, ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""parenthetical"": ""elevator""}], ""opinion_index"": 0}, {""cite"": ""803 P.2d 47"", ""year"": 1991, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""pin_cites"": [{""parenthetical"": ""elevator""}], ""opinion_index"": 0}, {""cite"": ""60 Wn. App. 189"", ""year"": 1991, ""weight"": 4, ""case_ids"": [1719218], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""194"", ""parenthetical"": ""elevator""}, {""page"": ""197-98""}, {""page"": ""191""}], ""case_paths"": [""/wash-app/60/0189-01""], ""opinion_index"": 0}, {""cite"": ""350 P.2d 651"", ""year"": 1960, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""55 Wn.2d 816"", ""year"": 1960, ""case_ids"": [1017660], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""821""}], ""case_paths"": [""/wash-2d/55/0816-01""], ""opinion_index"": 0}, {""cite"": ""193 Ga. App. 797"", ""year"": 1989, ""weight"": 2, ""case_ids"": [656117], ""category"": ""reporters:state"", ""reporter"": ""Ga. App."", ""pin_cites"": [{""parenthetical"": ""finding that because mechanical devices, like escalators, sometimes get out of working order without negligence on the part of anyone, the trial court properly directed a verdict in favor of the defendant escalator company""}, {""page"": ""921"", ""parenthetical"": ""finding that because mechanical devices, like escalators, sometimes get out of working order without negligence on the part of anyone, the trial court properly directed a verdict in favor of the defendant escalator company""}], ""case_paths"": [""/ga-app/193/0797-01""], ""opinion_index"": 0}, {""cite"": ""776 P.2d 705"", ""year"": 1989, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""pin_cites"": [{""parenthetical"": ""\""Were we to apply the doctrine here, operating elevators without creating an inference of negligence would be impossible.\""""}], ""opinion_index"": 0}, {""cite"": ""54 Wn. App. 861"", ""year"": 1989, ""weight"": 5, ""case_ids"": [1761899], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""866"", ""parenthetical"": ""\""Were we to apply the doctrine here, operating elevators without creating an inference of negligence would be impossible.\""""}, {""page"": ""868""}, {""page"": ""863""}, {""page"": ""868-69""}, {""page"": ""869""}], ""case_paths"": [""/wash-app/54/0861-01""], ""opinion_index"": 0}, {""cite"": ""682 A.2d 997"", ""year"": 1996, ""category"": ""reporters:state_regional"", ""reporter"": ""A.2d"", ""pin_cites"": [{""parenthetical"": ""\""Ordinarily, an escalator does not suddenly stop while people are riding on it unless someone has been negligent.\""""}], ""opinion_index"": 0}, {""cite"": ""677 A.2d 979"", ""year"": 1996, ""category"": ""reporters:state_regional"", ""reporter"": ""A.2d"", ""pin_cites"": [{""page"": ""981"", ""parenthetical"": ""\""Ordinarily, an escalator does not suddenly stop while people are riding on it unless someone has been negligent.\""""}], ""opinion_index"": 0}, {""cite"": ""41 Conn. App. 856"", ""year"": 1996, ""case_ids"": [124776], ""category"": ""reporters:state"", ""reporter"": ""Conn. App."", ""pin_cites"": [{""parenthetical"": ""\""Ordinarily, an escalator does not suddenly stop while people are riding on it unless someone has been negligent.\""""}], ""case_paths"": [""/conn-app/41/0856-01""], ""opinion_index"": 0}, {""cite"": ""511 So. 2d 412"", ""year"": 1987, ""weight"": 4, ""case_ids"": [7554083], ""category"": ""reporters:state_regional"", ""reporter"": ""So. 2d"", ""pin_cites"": [{""page"": ""414""}, {""page"": ""413""}, {""page"": ""413""}], ""case_paths"": [""/so2d/511/0412-01""], ""opinion_index"": 0}, {""cite"": ""779 P.2d 281"", ""year"": 1989, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""55 Wn. App. 601"", ""year"": 1989, ""weight"": 8, ""case_ids"": [8848285], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""606""}, {""page"": ""603-04""}, {""page"": ""603""}, {""page"": ""604""}, {""page"": ""606""}, {""page"": ""606""}, {""page"": ""607""}, {""page"": ""607""}], ""case_paths"": [""/wash-app/55/0601-01""], ""opinion_index"": 0}, {""cite"": ""831 P.2d 744"", ""year"": 1992, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""66 Wn. App. 196"", ""year"": 1992, ""case_ids"": [1703131], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""201-02""}], ""case_paths"": [""/wash-app/66/0196-01""], ""opinion_index"": 0}, {""cite"": ""528 F. Supp. 32"", ""year"": 1981, ""case_ids"": [5638914], ""category"": ""reporters:federal"", ""reporter"": ""F. 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+12451909,"{""id"": 12451909, ""name"": ""Commonwealth vs. Richard George"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""5a638d04db0d5413bbd15ffc8371ed20452cbbabc7bdf7b8d3406d9e2d14f5cd"", ""simhash"": ""1:91b6e6ae9efe4aee"", ""pagerank"": {""raw"": 0.00000011581136323116765, ""percentile"": 0.5834177977171642}, ""char_count"": 29544, ""word_count"": 4571, ""cardinality"": 1162, ""ocr_confidence"": 0.937}, ""casebody"": {""judges"": [""Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.""], ""parties"": [""Commonwealth vs. Richard George.""], ""opinions"": [{""text"": ""Hines, J.\nAfter a jury trial in the Superior Court, the defendant, Richard George, was determined to be a sexually dangerous person (SDP) pursuant to G. L. c. 123A. In accordance with the statute, the judge committed the defendant to the Massachusetts Treatment Center (treatment center) for an indeterminate period of from one day to life. The defendant hied a timely appeal challenging the commitment on the grounds that (1) a diagnosis of antisocial personality disorder (ASPD) is a constitutionally inadequate basis for commitment as an SDP; and (2) the judge erroneously admitted expert opinion testimony on the likelihood of reoffense and the results of the Static-99R risk assessment tool. We allowed the defendant’s application for direct appellate review to clarify the relevance of an ASPD diagnosis in the sexual dangerousness calculus.\nWe conclude that an ASPD diagnosis is a sufficient predicate for sexual dangerousness so long as other evidence establishes a nexus between that condition and the factors warranting confinement to a secure facility. Also, we discern no error in the judge’s evidentiary rulings requiring reversal. Therefore, we affirm the judgment and order for the defendant’s civil commitment to the treatment center as an SDP.\nBackground. 1. Pretried proceedings. In October, 2013, the Commonwealth filed a petition pursuant to G. L. c. 123A, § 12, seeking an adjudication that the defendant is an SDP. In April, 2014, a Superior Court judge found probable cause to believe that the defendant is an SDP and committed him to the treatment center for examination and diagnosis. Two qualified examiners submitted reports, opining that the defendant is an SDP within the meaning of G. L. c. 123A, § 1. The trial on the Commonwealth’s petition commenced in September, 2015.\n2. The trial. Through records admitted at trial pursuant to G. L. c. 123A, § 14 (c), and the testimony of the two qualified examiners, the Commonwealth presented evidence from which the jury could have found beyond a reasonable doubt the statutory elements necessary for the defendant’s commitment as an SDP. This evidence detailed the defendant’s prior convictions of sexual offenses and included expert opinion testimony on two issues: (1) whether the defendant suffered from a mental abnormality or personality disorder that predisposes him to commit sexual of-tenses; and (2) whether the defendant likely would reoffend because of that mental condition if not confined to a secure facility. The defendant offered no evidence at trial.\nThe jury could have found the following facts. The defendant was convicted of two different sexual offenses as defined in G. L. c. 123A, § 1. In 1978, when the defendant was seventeen years of age, he sexually assaulted a nine year old girl. After first going down a bike path with the victim’s eleven year old sister, the defendant asked the victim if she too wanted to go down the bike path. As they went down the path, the defendant pushed the victim down to the ground, got on top of her, and, over the victim’s clothing, fondled her breasts and genital area.\nAfter the victim began to scream for her sister, the defendant let her get up from the ground and warned if she told anyone, she would be killed. Thereafter, the defendant was charged and convicted of indecent assault and battery on a child under the age of fourteen. Following conviction, the defendant was sentenced to a term of probation for three years.\nApproximately twelve years later, the defendant was convicted of aggravated rape and rape. The convictions stemmed from the rape of a forty-nine year old woman, who was the mother of a woman the defendant had dated previously. The defendant went to the victim’s home and asked to speak with her daughter, who was not home. Following a conversation with the victim, the defendant asked if he could use her restroom. He reported to the victim that the toilet was not functioning. When the victim went to investigate, the defendant attacked her. Putting his hands around her throat, the defendant pulled the victim down to the floor and sexually assaulted her vaginally and anally. After sexually assaulting the victim, the defendant physically assaulted her with an iron and a knife. The victim sustained a broken jaw, a fractured skull, and a cut on her neck.\nBased on the sexual and physical assault, the defendant was convicted of several rape charges, including one count of aggravated rape and two counts of rape. As a result of the aggravated rape conviction, the judge sentenced the defendant to imprisonment for a term of from fifteen to twenty-five years.\nAt trial, the Commonwealth presented evidence from the two qualified examiners, Gregg A. Belle, Ph.D., and Dr. Katrin Rouse-Weir, Ed.D. Both qualified examiners interviewed and diagnosed the defendant with ASPD, and agreed that this particular mental condition constituted a personality disorder as defined by G. L. c. 123 A, § 1. In support of the diagnosis, the examiners considered a range of factors, including the defendant’s disciplinary history while incarcerated, his history of sex offender treatment, and statements the defendant made in other evaluations regarding his sexual offenses. Dr. Belle characterized the defendant’s incarceration and disciplinary history as “somewhat difficult.” Specifically, the defendant received approximately fifty-three disciplinary reports alleging violations of prison mies, some of which resulted from threatening and sexually explicit statements the defendant allegedly made to female staff. Another disciplinary report resulted from an incident where the defendant masturbated in front of a female correctional officer. The defendant’s sexually threatening and explicit behavior was a factor in his transfer to a higher security facility.\nAlthough the defendant participated in sex offender treatment, he was terminated from the treatment program on several occasions. He was terminated on one occasion because of sexually explicit letters he wrote to female staff. The defendant also made sexually threatening statements regarding his plans on release, warning that he was going to commit a rape when he was released from prison and identifying the female staff member that he planned to rape. In 2006, the defendant was again terminated from the treatment program for engaging in consensual oral sex with a wheelchair bound inmate.\nConsidering the defendant’s criminal sexual history together with the nature of the numerous violations of institutional rules, Belle explained that this conduct exemplified “one of the hallmark traits of an antisocial personality disorder.” Belle also concluded that the defendant has demonstrated, “over a period of time, a persistent pattern . . . [of] an inability to control his sexual impulses.” According to Belle, the defendant’s continued engagement in a “pervasive pattern” of sexually threatening behavior while incarcerated “speak[s] to the statutorily defined personality disorder” that he characterized as ASPD. Similarly, Dr. Rouse-Weir noted that the statements made to female staff “involved sexual aggression, which is relevant . . . with regard to his risk.” Rouse-Weir went on to note that the defendant’s aggression, irritability, lack of remorse, and lack of regard for the rights of others had “a sexual element.” She added that the continued demonstration of aggression with sexualized elements directed toward female staff exclusively was a “chronic characteristic associated with [his ASPD].”\nBelle and Rouse-Weir also opined on the significance of the defendant’s score on the Static-99R risk assessment tool. The Static-99R risk analysis completed by Belle yielded a score of four, which Belle opined translated to a “moderate-high” risk to sexually reoffend. Belle also explained that a score of four corresponded to an eleven per cent risk that the defendant would reoffend sexually over a five-year period. Rouse-Weir, on the other hand, opined that the defendant’s Static-99R risk analysis yielded a score of six, which falls within the “high-risk category” as defined by the Static-99R.\nDiscussion. The defendant challenges the commitment, arguing that commitment as an SDP based on an ASPD diagnosis violates substantive due process and that the erroneous admission of expert opinion testimony on the likelihood of reoffense and the scores on the Static-99R predicting a “moderate high” or “high” risk of reoffense usurped the jury’s role as fact finder. We address both arguments in turn.\n1 .Antisocial personality disorder. Raising the issue for the first time on appeal, the defendant claims that commitment as an SDP based on an ASPD diagnosis as the predicate mental condition violates substantive due process. Borrowing from the United States Supreme Court’s analysis of a civil commitment statute in Kansas v. Crane, 534 U.S. 407 (2002), the defendant contends that the use of the ASPD diagnosis sweeps too broadly, permitting what amounts to unconstitutional preventive detention. As the argument goes, the ASPD diagnosis fails to distinguish “the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.” Id. at 413. We reject the defendant’s argument as it misapprehends the evidentiary weight to be accorded to an ASPD diagnosis in the sexual dangerousness calculus.\nThe definition of an SDP in G. L. c. 123A, § 1, makes it abundantly clear that an ASPD diagnosis, standing alone, does not justify commitment as an SDP An SDP is defined as any person “who has been . . . convicted of ... a sexual offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in sexual offenses if not confined to a secure facility.” A “personality disorder” is defined as “a congenital or acquired physical or mental condition that results in a general lack of power to control sexual impulses.” Id. Although we have not been called on to parse the definition of “personality disorder,” the Appeals Court has correctly recognized ASPD as a type of personality disorder that, in conjunction with other relevant evidence, may justify commitment as an SDP. See, e.g., Souza, petitioner, 87 Mass. App. Ct. 162, 169 (2015) (noting that ASPD diagnosis is “adequate to satisfy the definitional requirements of an SDP in G. L. c. 123A, § 1”); Commonwealth v. Husband, 82 Mass. App. Ct. 1, 5 (2012) (same); Commonwealth v. Mazzarino, 81 Mass. App. Ct. 358, 369 (2012) (commitment based on ASPD diagnosis “combined with other evidence” suggesting ASPD made respondent likely to reoffend sexually if not confined does not violate due process protections under Fourteenth Amendment to United States Constitution or art. 12 of Massachusetts Declaration of Rights).\nAccordingly, a “personality disorder” as defined in G. L. c. 123A, § 1, is relevant to the sexual dangerousness calculus only if the “condition . . . results in a general lack of power to control sexual impulses.” Contrary to the defendant’s assertion, our law does not permit the indefinite and indiscriminate commitment of persons solely because of an ASPD diagnosis. The diagnosis requires an individualized review, and it is relevant only if it is predictive of a lack of control over the proclivity for criminal conduct and the conduct is likely to be sexual in nature. Not all offenders diagnosed as having ASPD can be so categorized. Instead, our cases have held true to the underlying statutory purpose to subject only those persons who because of a prescribed mental condition cannot control their impulses to commit a sexual crime to the possibility of civil commitment as an SDP.\nHere, two qualified examiners opined that the defendant suffered from ASPD and determined that because of this condition the defendant was likely to engage in sexual offenses if not confined in a secure facility. The qualified examiners did not base their opinion on this diagnosis alone. Rather, they also relied on evidence, separate and apart from the defendant’s criminal history, suggesting that ASPD made the defendant “likely to engage in sexual offenses” if not civilly committed. G. L. c. 123A, § 1. Belle predicated his conclusion that the defendant lacked the ability to control his sexual impulses not only on the defendant’s criminal history, but also on his incarceration history. Belle noted that he considered behaviors in which the defendant has engaged as constituting a “persistent pattern in which he has shown an inability to control his sexual impulses.” While incarcerated, the defendant had a history of making “physically threatening,” “sexually assaulting,” and sexually explicit statements directed toward female staff members, including threatening to break a woman’s leg and threatening to rape another.\nSimilarly, Rouse-Weir based her conclusion on the defendant’s criminal history as well as his incarceration history, including his participation in sex offender treatment programs, and his disciplinary history. Rouse-Weir noted that the defendant participated in, but failed to successfully complete, sex offender treatment, and received fifty-three disciplinary reports and associated sanctions. With respect to disciplinary reports, Rouse-Weir, like Belle, pointed out that during the initial period of the defendant’s incarceration, his disciplinary reports related to the use of threatening language and sexually aggressive statements toward female staff, which sometimes resulted in the defendant being transferred to higher security facilities.\nBoth Belle and Rouse-Weir conceded that ASPD affects a large percentage of the ordinary prison population, and that the disorder tends to “burn out or mitigate” once an individual reaches his forties. However, Rouse-Weir explained that unlike other individuals diagnosed with ASPD, the defendant’s lack of remorse and his lack of regard for others’ rights “ha[d] a sexual element.” Moreover, although Belle determined that the defendant did not meet the criteria for a paraphilic disorder, a factor highly relevant to the SDP calculus, Rouse-Weir opined that the defendant showed “a deviant sexual interest.” This “deviant sexual interest,” combined with the defendant’s ASPD, where it resulted in an inability to control sexual impulses, was a sufficient predicate for sexual dangerousness.\n2. Qualified examiner testimony. Prior to trial, the defendant filed motions in limine to exclude expert opinion testimony regarding his likelihood of reoffense and to preclude the admission of “subjective, value judgment labels” for the scores derived from the Static-99R. Both motions were denied. He argues on appeal that the judge erred in denying the motions because the qualified examiner testimony on both issues improperly invaded the province of the jury.\na. Expert testimony regarding likelihood of reoffense. To commit a person as an SDP, the jury must determine that the person has been “convicted of a sexual offense, suffers from a mental abnormality or personality disorder that renders him a menace to the health and safety of others, and is likely to engage in sexual offenses if not confined.” Commonwealth v. Fay, 467 Mass. 574, 580, cert. denied, 135 S. Ct. 150 (2014), citing G. L. c. 123A, §§ 1, 14. The defendant correctly concedes that our law allows for expert opinion testimony to “touch on an ultimate issue of the case [where] that testimony aids the jury in reaching a decision.” Commonwealth v. MacDonald, 459 Mass. 148, 163 (2011). See Mass. G. Evid. § 704 (2017). Nevertheless, he contends that the qualified examiners’ testimony was improper because it would not aid the jury in determining whether the mental abnormality or personality disorder is likely to cause the individual to reoffend unless confined. We disagree.\nA qualified examiner’s opinion testimony is “the essential basis for a finding of sexual dangerousness.” Green, petitioner, 475 Mass. 624, 630 (2016). In an SDP trial, the jury’s task involves assessing the risk of reoffending, which in turn involves a complex balance of factors, including “the seriousness of the threatened harm, the relative certainty of the anticipated harm, and the possibility of successful intervention to prevent that harm.” Commonwealth v. Boucher, 438 Mass. 274, 276 (2002). “Because the trier of fact in G. L. c. 123A proceedings must decide ‘[w]hether a person suffers from a mental abnormality or personality defect, as well as the predictive behavioral question of the likelihood that a person suffering from such a condition will commit a sexual offense,’ and because these are ‘matters beyond the range of ordinary experience,’ expert evidence is required in order to commit a person to the treatment center or to keep a person confined there.” Johnstone, petitioner, 453 Mass. 544, 549-550 (2009), quoting Commonwealth v. Dube, 59 Mass. App. Ct. 476, 483 n.12 (2003). See Commonwealth v. Bruno, 432 Mass. 489, 511 (2000).\nThus, the expert’s role in opining on the ultimate issue to be decided by the jury is settled in our jurisprudence. The judge did not err in admitting qualified examiner testimony on the ultimate issue. Indeed, given the centrality of expert opinion testimony to the SDP adjudication, it would have been an error of law for the trial judge to exclude that testimony.\nb. Static-99R risk category labels. The defendant argues that the admission of the qualified examiners’ testimony categorizing his Static-99R score as “moderate-high” and “high” also invaded the jury’s province and, thus, constituted error. He contends that the Static-99R categories represent a “wholly subjective” assessment and create a risk that the jury will shift responsibility for determining the likelihood of reoffense to the qualified examiners. We conclude that the risk categories lack probative value in the sexual dangerousness calculus and should not be admitted at trial.\nThe Static-99R measures ten static risk factors that have been shown to increase one’s risk for sexual recidivism, and adjusts the numerical score upward or downward depending on risk factors that the qualified examiner determines are significant in the particular individual’s case. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 636 n.33 (2011). Each numeric score corresponds to a percentage reflecting the risk of sexual reoffense and a risk category label (“low,” “low-moderate,” “moderate-high,” and “high”). See Hanson, Babchishin, Helmus, Thornton, & Phenix, Communicating the Results of Criterion Referenced Prediction Measures: Risk Categories for the Static-99R and Static-2002R Sexual Offender Risk Assessment Tools, 29 Psychological Assessment 582, 584 (2017).\nAs a threshold matter, the Static-99R is itself a limited tool; it estimates only the “the relative risk of sexual recidivism based on commonly available demographic and criminal history information.” Id. It does not identify the likelihood of sexual recidivism for a specific individual. As Belle explained in his testimony, the Static-99R results were not specific to the defendant, and “[o]ne of the cautions about the Static-99R is that it is looking at groups of individuals that may or may not be similar to [the defendant].”\nWhile the combination of the Static-99R raw score and the corresponding percentage reflecting the risk of sexual reoffense provide “precise, numeric estimates of recidivism risk,” the category labels do not. Id. at 583. The test’s developers have acknowledged that the meaning of risk category labels is often unclear. “There is only a loose association in natural language between verbal labels for likelihood [e.g., ‘low,’ ‘low-moderate,’ ‘moderate-high,’ and ‘high’] . . . and numeric probabilities.” Id. Further, test developers have conceded that the lack of clarity is exacerbated by the absence of accepted standards or metrics connecting the risk category labels to “specific meanings, such as recidivism rates, psychological features, or expected treatment needs.” Id. Consequently, “substantial variation” exists among sex offenders ascribed identical risk category labels. Id.\nGiven this view of the risk category labels by the experts who develop and use them, we are not persuaded that such testimony aids the jury in determining sexual dangerousness. Cf. Simon v. Solomon, 385 Mass. 91, 105 (1982) (“expert testimony on matters within the witness’s field of expertise is admissible whenever it will aid the jury in reaching a decision”). Accordingly, we conclude that the admission of qualified examiners’ testimony characterizing the defendant’s Static-99R score as “moderate-high” or “high” was error.\nThe defendant filed a pretrial motion to exclude the Static-99R risk category labels, which the judge denied. Thus, we must determine whether the improper admission of Static-99R risk category labels was nonprejudicial, that is “whether ‘the error did not influence the jury, or had but very slight effect.“ Commonwealth v. Christian, 430 Mass. 552, 563 (2000), quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). See Commonwealth v. Grady, 474 Mass. 715, 718, 721 (2016). We conclude that the erroneous admission of testimony regarding the Static-99R risk category labels does not warrant reversal.\nThe expert testimony regarding the defendant’s Static-99R risk category was appropriately limited; it was presented as only one of many factors in the SDP calculus. For example, Rouse-Weir explained that the Static-99R is an actuarial tool only, and that examiners have agreed to use the actuarial instrument “in a limited fashion.” Also as explained to the jury, the qualified examiners considered several “dynamic factors,” which the Static-99R test does not take into account. For example, Belle and Rouse-Weir considered matters such as substance abuse history, “deviant sexual interests,” “cognitive distortions,” and “intimacy deficits,” all of which are relevant to sexual dangerousness. In addition, the qualified examiners included in the sexual dangerousness calculus the defendant’s family history, educational and work background, incarceration records, treatment history, and release plans. Given the limited nature of the use of the Static-99R in the qualified examiners’ over-all risk assessment analysis of the defendant, we conclude that the admission of testimony regarding the risk category labels was non-prejudicial.\nRecognizing that our holding as to risk category labels modifies the manner in which the Static-99R may be used in SDP proceedings, we take this opportunity to clarify that our holding is limited. Both the Static-99R score and the corresponding percentage reflecting the risk of sexual offense in qualified examiners’ testimony continue to be admissible. Our holding makes inadmissible the risk category labels only, as the risk category labels, unlike the Static-99R score and the corresponding percentage reflecting the risk of sexual reoffense, provide little aid to the jury in rendering its decision.\nConclusion. Under G. L. c. 123A, an ASPD diagnosis is adequate to satisfy the definitional requirements of an SDP where the Commonwealth also proves that, as a result of the ASPD, the individual is likely to engage in sexual offenses if not confined, and in this case there was no error requiring reversal. Therefore, we affirm the judgment and order for the defendant’s civil commitment as an SDP.\nSo ordered.\n“A qualified examiner is either (1) a physician who is licensed by the Commonwealth and certified or eligible to be certified in psychiatry by the American Board of Psychiatry and Neurology; or (2) a psychologist who is licensed by the Commonwealth. In all cases, a qualified examiner is designated as such by the Department of Correction and has at least two years of experience with diagnosis or treatment of sexually aggressive offenders.” Green, petitioner, 475 Mass. 624, 625 n.3 (2016), citing & L. c. 123A, § 1.\nThe Static-99R is an actuarial tool, designed to predict the recidivism risk of sexual offenses in adult male sex offenders who have been convicted of at least one sexual offense. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 636 n.33 (2011). Initially developed in 1999, the Static-99 has since been revised and renamed “Static-99R.”\nAlthough the defendant raised this argument in a motion in limine, defense counsel withdrew the motion prior to the start of trial. Also, the defendant did not object to the antisocial personality disorder (ASPD) diagnosis at trial or move for a directed verdict. Thus, the issue is waived. However, we address the issue to determine whether the admission of the evidence created a substantial risk of a miscarriage of justice. See Commonwealth v. Fay, 467 Mass. 574, 583 n.9, cert denied, 135 S. Ct. 150 (2014).\nThe Commonwealth does not contend that the defendant suffered from a “mental abnormality.”\nThe defendant urges this court to follow the reasoning in Matter of State of N.Y. v. Donald DD, 24 N.Y.3d 174, 190 (2014) (ASPD diagnosis alone absent diagnosis of any other “condition, disease or disorder alleged to constitute a mental abnormality” is insufficient to meet test set out by Supreme Court in Kansas v. Crane, 534 U.S. 407, 413 [2002]). However, we are not persuaded by the court’s analysis, which, as the dissent in that case points out, concludes that because ASPD does not, in every case, predispose the individual to commit sex crimes, the diagnosis can never satisfy the definitional requirements of the statute. Id. at 194 (Graffeo, J., dissenting). As we conclude here, G. L. c. 123A requires a determination on a case-by-case basis whether in a given case the ASPD diagnosis meets the definition of an SDP\nOn cross-examination. Belle affirmed ASPD is prevalent in fifty to seventy per cent of the general prison population. Similarly, the United States Supreme Court has noted that an estimated forty to sixty per cent of the male prison population is diagnosable with ASPD. See Crane, 534 U.S. at 412, citing Moran, The Epidemiology of Antisocial Personality Disorder, 34 Soc. Psychiatry & Psychiatric Epidemiology 231, 234 (1999).\nA paraphilic disorder is characterized as recurrent, intense sexually arousing fantasies, sexual urges, or behaviors generally involving (1) nonhuman objects, (2) the suffering or humiliation of oneself or one’s partner, or (3) children or other nonconsenting persons that occur over a period of at least six months. Paraphilic disorders, as defined in the Diagnostic and Statistical Manual of Mental Disorders, include, but are not limited to, exhibitionistic disorder, fetishistic disorder, and pedophilic disorder.\nTo resolve the shortcomings of the Static-99R risk category labels, test developers have created new risk category labels. We take no position on the admissibility of those labels. See Hanson, Babchishin, Helmus, Thornton, & Phenix, Communicating the Results of Criterion Referenced Prediction Measures: Risk Categories for the Static-99R and Static-2002R Sexual Offender Risk Assessment Tools, 29 Psychological Assessment 582, 592 (2017) (new risk categories “have sufficiently improved conceptual coherence and have sufficient empirical support to replace the original categories”).\nDynamic risk factors are “more fluid” and can change over time."", ""type"": ""majority"", ""author"": ""Hines, J.""}], ""attorneys"": [""David B. Hirsch for the defendant."", ""Nathaniel R. Beaudoin, Assistant District Attorney, for the Commonwealth.""], ""corrections"": """", ""head_matter"": ""Commonwealth vs. Richard George.\nWorcester.\nDecember 8, 2016.\nJune 21, 2017.\nPresent: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.\nSex Offender. Constitutional Law. Sex offender. Due Process of Law. Sex offender. Substantive rights. Evidence. Sex offender. Expert opinion. Relevancy and materiality. Witness. Expert.\nThis court concluded that, at a proceeding to determine if an individual is a sexually dangerous person pursuant to G. L. c. 123A, a diagnosis of antisocial personality disorder is a sufficient predicate for a finding of sexual dangerousness so long as other evidence establishes a nexus between that condition and the factors warranting the individual’s confinement to a secure facility. [335-338]\nAt the trial of a petition filed by the Commonwealth pursuant to G. L. c. 123A, § 12, seeking commitment of the defendant as a sexually dangerous person, although the judge did not err in admitting the testimony of two qualified examiners on the defendant’s likelihood of reoffense [338-339], the judge did err in admitting their testimony regarding the defendant’s risk category labels on the Static-99R risk assessment tool (i.e., that the defendant had a “moderate high” or “high” risk of reoffense), where such testimony does not aid the jury in determining sexual dangerousness, in that the meaning of the labels is often unclear, there is an absence of accepted standards or metrics connecting the labels to specific meanings, and substantial variation exists among sex offenders ascribed identical labels [339-341]; however, given the limited nature of the use of the Static-99R in the qualified examiners’ over-all risk assessment analysis of the defendant, the error was nonprejudicial and did not require reversal [341-342],\nCivil action commenced in the Superior Court Department on October 11, 2013.\nThe case was tried before Beverly J. Cannone, J.\nThe Supreme Judicial Court granted an application for direct appellate review.\nDavid B. Hirsch for the defendant.\nNathaniel R. Beaudoin, Assistant District Attorney, for the Commonwealth.""}, ""cites_to"": [{""cite"": ""135 S. Ct. 150"", ""year"": 2014, ""weight"": 2, ""case_ids"": [12588168, 12588169, 12588170, 12588171, 12588172, 12588173], ""category"": ""reporters:federal"", ""reporter"": ""S. Ct."", ""case_paths"": [""/s-ct/135/0150-01"", ""/s-ct/135/0150-02"", ""/s-ct/135/0150-03"", ""/s-ct/135/0150-04"", ""/s-ct/135/0150-05"", ""/s-ct/135/0150-06""], ""opinion_index"": 0}, {""cite"": ""24 N.Y.3d 174"", ""year"": 2014, ""case_ids"": [4004708], ""category"": ""reporters:state"", ""reporter"": ""N.Y.3d"", ""pin_cites"": [{""page"": ""190"", ""parenthetical"": ""ASPD diagnosis alone absent diagnosis of any other \""condition, disease or disorder alleged to constitute a mental abnormality\"" is insufficient to meet test set out by Supreme Court in Kansas v. 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+12453192,"{""id"": 12453192, ""name"": ""Jonathan Deegan et al., Appellants, v. Windermere Real Estate/Center-Isle, Inc., et al., Respondents"", ""court"": {""id"": 8985, ""name"": ""Washington Court of Appeals"", ""name_abbreviation"": ""Wash. Ct. App.""}, ""analysis"": {""sha256"": ""acc8610e1c4aefa53458705d333c9ff4ad6521ef3f0f39cfc8741d67b375a2ee"", ""simhash"": ""1:098cbed231f995d1"", ""pagerank"": {""raw"": 0.00000004357577154540725, ""percentile"": 0.27393141453420644}, ""char_count"": 30244, ""word_count"": 4926, ""cardinality"": 1433, ""ocr_confidence"": 0.889}, ""casebody"": {""judges"": [""Dwyer and Leach, JJ., concur.""], ""parties"": [""Jonathan Deegan et al., Appellants, v. Windermere Real Estate/Center-Isle, Inc., et al., Respondents.""], ""opinions"": [{""text"": ""Verellen, C.J.\n¶1 When Jonathan Deegan and Alice O’Grady purchased their Whidbey Island homes, Winder-mere Real Estate/Center-Isle and RE/MAX Acorn (listing agents) provided Deegan and O’Grady limited warnings of airport noise, but not the extensive warnings required by Island County Code (ICC) 9.44.050.\n¶2 Deegan and O’Grady filed a class action complaint under the Consumer Protection Act (CPA), ch. 19.86 RCW, alleging the listing agents engaged in unfair or deceptive acts by omitting the detailed warnings required by ICC 9.44.050. The trial court granted the listing agents’ CR 12(b)(6) motion to dismiss, concluding Deegan and O’Grady had a legal duty to inquire and the statute of limitations had run on Deegan’s claim.\n¶3 Because the listing agents do not establish that Dee-gan and O’Grady had a duty to inquire and hypothetical facts, together with the applicable presumption of reliance, support the CPA claim, we conclude the trial court erred in dismissing the CPA claim under CR 12(b)(6).\n¶4 Additionally, because Deegan’s complaint does not resolve when he knew or reasonably should have known the basis for his cause of action, the trial court erred when it concluded his claim is barred by the statute of limitations.\n¶5 Therefore, we reverse and remand for further proceedings.\nFACTS\n¶6 Jonathan Deegan purchased a home on Whidbey Island in Island County in 2006. The listing agent was RE/MAX Acorn. Alice O’Grady purchased her home in 2011. The listing agent was Windermere Center-Isle.\n¶7 Naval Air Station Whidbey Island consists of a seaplane base and Ault Field. In 1992, the Island County Board of Commissioners (County Board) enacted ICC 9.44.050, requiring sellers and their agents to provide buyers with specific warnings about aircraft noise. The legislative purpose focuses on the health, safety, and welfare of citizens:\nThe Board of County Commissioners of Island County has considered, among other things, the character of the operations conducted and proposed to be conducted at airports within Island County, the current uses of surrounding property and the uses for which it is adaptable; the Board of County Commissioners finds:\nA. There exist airports within Island County whose operations may impact the health, safety and general welfare of the citizens of Island County.\nB. The purpose of this chapter is to protect the public health, safety and general welfare by providing for the full disclosure of the noise associated with the operation of aircraft from the existing airports.[]\nThe ICC 9.44.050 disclosure statement provides:\nNo person shall sell, lease, or offer for sale or lease any property within an airport environs mapped impacted area[ ] unless the prospective buyer or lessee has been given notice substantially as follows: TO: The property at_is located within airport environs mapped impacted area. There are currently five (5) active airport facilities in Island County. The Oak Harbor Airpark, the South Whidbey Airpark, and the Camano Airpark are general aviation facilities and are identified on the attached map. Ault Field and OLF [(Naval Outlying Field)] Coupeville are tactical military jet aircraft facilities and are also identified on the attached map. Both Ault Field and OLF Coupeville are used for field carrier landing practice (FCLP) purposes. Practice sessions are routinely scheduled during day and night periods.\nProperty in the vicinity of Ault Field and OLF Coupeville will routinely experience significant jet aircraft noise. As a result airport noise zones have been identified in the immediate area of Ault Field and OLF Coupeville. Jet aircraft noise is not, however, confined to the boundaries of these zones.\nAdditionally, the noise generated by the single flyover of a military jet may exceed the average noise level depicted by the airport noise zones and may exceed 100 DBA.[]\nMore specific information regarding airport operation and aircraft noise can be obtained by calling the Community Planning Liaison Office at [Naval Air Station] Whidbey Island and the Island County Planning and Community Development Department.\n¶8 ICC 9.44.060 states, “The obligation to comply with the provisions of this chapter [is] upon the property owner and their agents.” In 1993, the County Board passed a second ordinance, the “Noise Level Reduction Ordinance” (NLRO). The NLRO is part of the building code and contains noise abatement requirements that apply to any new construction in the affected areas. The NLRO also includes a map with two noise zones. The NLRO disclosure warns potential builders about construction restrictions and requirements in the zoned areas. The NLRO’s disclosure statement, ICC 14.01B.100, provides:\nNo person shall sell, lease, or offer for sale or lease any property within an airport noise zone 2 or 3 unless the prospective buyer or lessee has been given notice substantially as follows: To:\nThe Property at_\nis located within Airport Noise Zone 2 or 3 impacted area. Persons on the premises may be exposed to a significant noise level as a result of airport operations. Island County has placed certain restrictions of construction of property within airport noise zones. Before purchasing or leasing the above property, you should consult the Island County Noise Level Reduction Ordinance to determine the restrictions which have been placed on the subject property, if any.\n¶9 In 2005, the navy began phasing out EA-6B Prowler jets, replacing them with the EA-18G Growler. “Over the following several years,” community complaints about the jet noise increased. Most complaints cited the increase in the frequency of flights, late night and early morning flights, and the increased noise from low flying Growlers.\n¶10 A citizens’ group commissioned a 2013 auditory study. According to Deegan and O’Grady, the noise levels “exceed the levels at which significant adverse health effects have been reported in the scientific literature.”\n¶11 David Wechner, the Island County director of planning and community development, investigated and sent a memorandum to the County Board on December 17, 2013. Wechner noted that frequently used form 22W did not include the language required by ICC 9.44.050. Form 22W also did not include the airport environs map showing locations of the aircraft facilities and the impacted areas.\n¶12 When Deegan and O’Grady purchased their homes, they received form 22W, containing “a generic airport notice indicating a significant noise level as a result of airport operations,” but not the more extensive disclosures required by ICC 9.44.050.\n¶13 On November 14, 2014, Deegan and O’Grady sued the listing agents, alleging their failure to disclose material facts violated Washington’s CPA. Deegan and O’Grady specifically alleged the omitted information would have impacted their decisions to purchase their homes and their obligations to disclose in any future sale would reduce their proceeds.\n¶14 The listing agents moved to dismiss under CR 12(b)(6). The trial court granted that motion and concluded the statute of limitations barred Deegan’s claim.\n¶15 Deegan and O’Grady appeal.\nANALYSIS\n¶16 We review a CR 12(b)(6) dismissal de novo. CR 12(b)(6) dismissal is proper where “ ‘it appears beyond doubt that the plaintiff can prove no set of facts, consistent with the complaint, which would entitle the plaintiff to relief.’ ” “We regard the plaintiff’s allegations in the complaint as true, and consider hypothetical facts outside the record.” “[A]ny hypothetical situation conceivably raised by the complaint defeats a [CR] 12(b)(6) motion if it is legally sufficient to support plaintiff’s claim.” Because de novo review is based on the complaint and hypothetical facts, findings of fact by the trial court are superfluous.\nI. CPA Claim\n¶17 Deegan and O’Grady contend their complaint states a viable CPA claim. The CPA was adopted to protect the public from unfair or deceptive acts or practices in trade or commerce and is to be liberally construed. The CPA significantly differs from traditional common law standards of fraud and misrepresentation. It “replaces the now largely discarded standard of caveat emptor with a standard of fair and honest dealing.”\n¶18 To prevail on a CPA claim, a plaintiff must show that the defendant engaged in an unfair or deceptive act or practice that occurred in trade or commerce, that affected the public interest, and that injured the plaintiff’s business or property, and that there is a causal link between the unfair or deceptive act and the injury suffered. “An unfair or deceptive act or practice need not be intended to deceive—it need only have ‘the capacity to deceive a substantial portion of the public.’ ” A “ ‘[k] nowing failure to reveal something of material importance is “deceptive” within the CPA.’ ”\n¶19 Causation under the CPA is a factual question to be decided by the trier of fact. “[W]here a defendant has engaged in an unfair or deceptive act or practice, and there has been an affirmative misrepresentation of fact, our case law establishes that there must be some demonstration of a causal link between the misrepresentation and the plaintiff’s injury.” The plaintiff must establish that but for the defendant’s affirmative misrepresentation, the plaintiff would not have suffered an injury. Reliance is one way to establish this causal link.\n¶20 But causation is different for omissions of material fact. This court recognized in Schnall v. AT&T Wireless Services, Inc. that a CPA claim based on an omission of material fact puts the person seeking relief “in the impossible position of proving a negative; that is, that they believed the opposite of the omitted fact when they made their purchase.” In view of similar problematic burdens, Washington courts have adopted a rebuttable presumption of reliance for omissions of material fact in franchise fraud and securities fraud cases. “While the Washington Supreme Court has never affirmed a presumption of reliance in consumer fraud cases involving material omissions, it has acknowledged that reliance is ‘virtually impossible to prove’ in cases involving nondisclosure of material facts.” Federal cases discussing the CPA acknowledge a rebuttable presumption of reliance for material omissions.\n¶21 Relying heavily on Douglas v. Visser, the listing agents argue that Deegan and O’Grady’s complaint did not satisfy the “deceptive practice” element of a CPA claim, and that once Deegan and O’Grady were put on notice of “significant” aircraft noise by form 22W, they had a duty to make further inquiry.\n¶22 In Douglas, an inspector performed an inspection after the Douglases had already made an offer on a house. The inspector reported rot and decay near the roof line, caulking that suggested a previous roof leak in the area, water damaged exterior siding, and rot beneath the house. The Douglases received the report but did not discuss it with the inspector. They sent the Vissers additional questions. The Vissers did not answer. The Douglases purchased the home without further discussion. After purchasing the house, the Douglases noticed significant issues with the home, including mold and defects that would cost more to repair than to rebuild.\n¶23 The Douglases sued the Vissers for fraudulent concealment, negligent misrepresentation, breach of real estate agent’s duties, breach of contract, and violation of the CPA. After a bench trial, the trial court made findings of fact and entered judgment for the Douglases. This court held:\nBecause the Douglases were on notice of the defect and had a duty to make further inquiry, it cannot be said that the defect was unknown to the Douglases, that it could not have been discovered by a reasonable inspection, that the Douglases justifiably relied on the Vissers’ misrepresentations, or that the Vissers committed an unfair or deceptive act that caused the Douglases’ injury.[]\n¶24 As to their non-CPA claims, this court reasoned the Douglases were on notice of defects and had a duty to make further inquiry because the inspector’s report identified rot and decay near the roof line, an area of rotted sill plate, and sistered floor joists. This court observed that “[o]nce a buyer discovers evidence of a defect, they are on notice and have a duty to make further inquiries. They cannot succeed when the extent of the defect is greater than anticipated, even when it is magnitudes greater.”\n¶25 The listing agents here argue Douglas imposes a duty of inquiry on Deegan and O’Grady for purposes of the CPA and supports the CR 12(b)(6) dismissal. We disagree.\n¶26 First, in Douglas, the trial court made its findings based on evidence presented at a bench trial, but here, we engage in de novo review of the CR 12(b)(6) dismissal on the pleadings and consistent hypothetical facts. The trial court’s “findings” that Deegan and O’Grady had notice of a defect and that they “reasonably should have become aware of the frequency and loudness of the airport operations no later than a few months after [they] took ownership” are superfluous and have no bearing on our de novo review.\n¶27 Second, the references in Douglas to notice, knowledge of a defect, duty to make further inquiry, and justified reliance addressed the fraudulent concealment, breach of real estate agent’s duties, and negligent misrepresentation claims. The Douglases’ CPA claim failed because they did not show that the Vissers committed an unfair or deceptive act “that caused the Douglases’ injury.” Specifically, the duty to inquire as applied in Douglas is based on fraudulent concealment case law that defects are not actionable if they are apparent or would be disclosed by a careful, reasonable inspection. The listing agents provide no compelling authority that the CPA imposes such a duty to inquire. Douglas does not stand for the proposition that the CPA imposes a duty of inquiry.\n¶28 Third, the alleged unfair or deceptive act here is an omission of the material facts identified in ICC 9.44.050. The listing agents suggest that form 22W alerted the buyers to the issue of airplane noise, that “Washington has not abandoned caveat emptor in real estate,” and that “ [t] his is not a failure to disclose case.” But the CPA does reject caveat emptor. And the capacity to deceive here arises from the omission of the material facts set forth in ICC 9.44.050. “ ‘Even accurate information may be deceptive if there is a representation, omission or practice that is likely to mislead.’ ” The disclosures required by ICC 9.44.050 are of material importance. The complaint alleges a deceptive omission of material facts, and hypothetical facts support such a claim.\n¶29 Fourth, because causation under the CPA for omission of material facts includes a rebuttable presumption of reliance, we must consider hypothetical facts consistent with such a rebuttable presumption. We conclude that hypothetical facts consistent with Deegan and O’Grady’s complaint establish an omission of material facts. The presumption of reliance allows the CPA claim to go forward based on the theory that the omission caused harm.\n¶30 Fifth, the listing agents argue Deegan and O’Grady cannot establish the public interest element of a CPA claim. In essence, they argue (1) the seller disclosure statute, RCW 64.06.020, requires that the seller of real property provide certain information “at a minimum,” RCW 64.06.020(1); (2) any disclosure imposed by the county is therefore governed by chapter 64.06 RCW; (3) RCW 64.06-.060 explicitly states that “the practices covered by this chapter are not matters vitally affecting the public interest for the purpose of applying the [CPA] ”; and (4) therefore, the lack of any public interest declared by RCW 64.06.060 precludes this CPA claim. But their premise fails. A person may bring an independent CPA claim for a seller’s omission of material fact in a real estate transaction that is unrelated to the disclosures required by the seller disclosure statute. The omission alleged here is independent of, and unrelated to, the requirements of the seller disclosure statute. The listing agents do not provide compelling authority that the disclosure mandated by ICC 9.44.050 is subject to or preempted by chapter 64.06 RCW. In this setting, the disclosure requirements of RCW 64.06.020 do not preclude a CPA claim for unfair or deceptive omissions of material facts regarding the volume, intensity, frequency, and timing of military jet noise.\n¶31 Finally, the listing agents do not offer compelling authority to support their other arguments. The alleged omission of material information as required by ICC 9.44.050 has the capacity to deceive. The complaint does not purport to allege a per se CPA violation. ICC 9.44.050 does not purport to legislate CPA liability and is not beyond the authority of the county. ICC 9.44.060’s provision that the ordinance is not intended to benefit any particular persons does not preclude a CPA claim for a deceptive failure to disclose material facts. And judicial notice of public documents allowed on CR 12(b)(6) review does not extend to nondocumentary general information asserted to be well known in the community.\n¶32 Therefore, viewing the alleged omissions of material fact and consistent hypothetical facts, we hold that the complaint adequately alleges an unfair or deceptive act or practice in trade or commerce affecting public interest. The listing agents do not establish a duty of inquiry. And, in view of the rebuttable presumption of reliance applicable to an omission of material fact, there are adequate allegations that the omissions caused Deegan and O’Grady harm. The trial court erred in dismissing Deegan and O’Grady’s CPA claims under CR 12(b)(6).\nII. Statute of Limitations\n¶33 Alternatively, RE/MAX argues, even if Deegan made a prima facie case under the CPA, the statute of limitations barred his claim.\n¶34 A plaintiff must bring a CPA claim for damages within four years after the cause of action accrues. Generally, a claim accrues “when the party has the right to apply to a court for relief.” A party has the right to apply to a court for relief when it “ ‘can establish each element of the action.’ ”\n¶35 The discovery rule of accrual applies where “ ‘injured parties do not, or cannot, know they have been injured.’ ” Under the discovery rule, “ ‘a cause of action accrues when the plaintiff, through the exercise of due diligence, knew or should have known the basis for the cause of action.’ ”\n¶36 RE/MAX contends Deegan’s claim lapsed because the predicate facts were public knowledge and, therefore, the action accrued when he purchased in 2006. RE/MAX cites Shepard v. Holmes, where Division Three of this court held the purchaser had constructive notice of a consolidation deed and, thus, her misrepresentation and CPA claims accrued at the time of purchase. The court reasoned that because the consolidation deed affected title to the property, the plaintiff was on constructive notice of the existence of the consolidation deed when she purchased her property in July 2007, not when she decided to sell in 2011.\n¶37 Unlike Shepard, the question here is when Deegan had knowledge of the omitted disclosures required under ICC 9.44.050. Washington law generally presumes that people know the applicable laws. But that doctrine is not applied to frustrate the purpose of the discovery rule. Where knowledge of the law itself is critical to learning of an omission of material fact, the discovery rule operates to toll the statute of limitations until a plaintiff knows or reasonably should have learned about the omitted material facts.\n¶38 As alleged in the complaint, it is unresolved when Deegan, through due diligence, knew or should have known the basis for his CPA cause of action.\n¶39 Therefore, we reverse and remand for further proceedings.\nDwyer and Leach, JJ., concur.\nBecause this is an appeal from a trial court order dismissing claims under CR 12(b)(6), we focus on the facts as alleged in the complaint.\nICC 9.44.010.\nICC 9.44.030 (“DBA means the unit of corrected noise level measured in accordance with the ‘A-weighting scale’ which replicates the response characteristics of the ear.’’).\nIsland County Ordinance PLG-054-93 (Oct. 11, 1993) (effective Jan. 14, 1994). Amendments in 2002 did not alter the required disclosures.\nClerk’s Papers (CP) at 75.\nCP at 75-76.\nCP at 69 (form 22W was copyrighted by the Northwest Multiple Listing Service in 2001).\nSee CP at 88. The listing agents began using an updated version of form 22W in January 2014, after Deegan and O’Grady purchased their homes.\nCP at 2 (“However, it did disclose that (i) the subject property was within an Airport Noise Zone 2 or 3 impacted area; (ii) persons on the premises may be exposed to significant noise level as a result of airport operations!;] and (iii) before purchasing the property, the buyer should consult the Island County Noise Level Reduction! ] Ordinance.’’).\nCP at 82 (class certification is not at issue in this appeal).\nFutureSelect Portfolio Mgmt., Inc. v. Tremont Grp. Holdings, Inc., 175 Wn. App. 840, 865-66, 309 P.3d 555 (2013), aff’d, 180 Wn.2d 954, 331 P.3d 29 (2014).\nId. at 865 (internal quotation marks omitted) (quoting Lawson v. State, 107 Wn.2d 444, 448, 730 P.2d 1308 (1986)).\nId.\nHalvorson v. Dahl, 89 Wn.2d 673, 674, 574 P.2d 1190 (1978).\nFriends of N. Spokane County Parks v. Spokane County, 184 Wn. App. 105, 124 n.2, 336 P.3d 632 (2014) (findings of fact on CR 12(b)(6) ruling are “superfluous”); see CR 52(a)(5)(B) (findings of fact are not necessary for decisions on motions under CR 12).\nIndoor Billboard/Wash., Inc. v. Integra Telecom of Wash., Inc., 162 Wn.2d 59, 73, 170 P.3d 10 (2007).\n25 David K. DeWolf, Keller W. Allen & Darlene Barrier Caruso, Washington Practice: Contract Law and Practice § 18:310.00, at 629 (3d ed. 2014); see Testo v. Russ Dunmire Oldsmobile, Inc., 16 Wn. App. 39, 51, 554 P.2d 349 (1976) (as with other trade law developments, the CPA is intended to “eliminate the ‘gamesmanship’ formerly attendant to the tradition of caveat emptor’’).\nIndoor Billboard/Wash., 162 Wn.2d at 74.\nId. at 74-75 (quoting Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 785, 719 P.2d 531 (1986)).\nId. at 75 (alteration in original) (quoting Robinson v. Avis Rent A Car Sys., Inc., 106 Wn. App. 104, 116, 22 P.3d 818 (2001)).\nId. at 83.\nId. (emphasis added); see Schnall v. AT&T Wireless Servs., Inc., 171 Wn.2d 260, 278, 259 P.3d 129 (2011) (“but for’’proximate causation applies to a CPA claim “based on an affirmative misrepresentation’’).\nIndoor Billboard/Wash., 162 Wn.2d at 84.\nSchnall, 171 Wn.2d at 280 (emphasizing that reliance is not necessarily essential to establishing causation under the CPA); see also Panag v. Farmers Ins. Co. of Wash., 166 Wn.2d 27, 59 n.15, 204 P.3d 885 (2009) (questioning whether proof of reliance is necessary to establish causation).\n139 Wn. App. 280, 291, 161 P.3d 395 (2007), aff’d in part, rev’d in part on other grounds, 171 Wn.2d 260; see also Panag, 166 Wn.2d at 59 n.15 (acknowledging Oregon case law that proof of reliance is “not necessary where deceptive act involves material omission’’).\nMorris v. Int’l Yogurt Co., 107 Wn.2d 314, 328, 729 P.2d 33 (1986) (franchise fraud omission to disclose material fact).\nGuarino v. Interactive Objects, Inc., 122 Wn. App. 95, 119, 86 P.3d 1175 (2004) (securities fraud omission to disclose material fact).\nBlough v. Shea Homes, Inc., No. 2:12-cv-01493 RSM, 2014 WL 3694231, at *13, 2014 U.S. Dist. LEXIS 100600, at *38 (W.D. Wash. July 23, 2014) (court order) (quoting Morris, 107 Wn.2d at 328).\nKelley v. Microsoft Corp., 395 F. App’x 431, 433 (9th Cir. 2010) (“[W]e affirm the district court’s denial of certification ... on the theory that the . . . class is entitled to a presumption of reliance.’’); see also Kelley v. Microsoft Corp., No. C07-0475MJP, 2009 WL 973368, at *7, 2009 U.S. Dist. LEXIS 35590, at *18-21 (W.D. Wash. Apr. 10, 2009) (court order) (discussing Washington case law consistent with rebuttable presumption of reliance in CPA omissions of material fact), aff’d in part, rev’d in part, 395 F. App’x 431; Blough, 2014 WL 3694231, at *13, 2014 U.S. Dist. LEXIS 100600, at *39 (recognizing rebuttable presumption of reliance for CPA omission to disclose); Grays Harbor Adventist Christian Sch. v. Carrier Corp., 242 F.R.D. 568, 573 (W.D. Wash. 2007) (applied rebuttable presumption of reliance in consumer protection context). See generally Jennifer Rust Murray, Proving Cause in Fact under Washington’s Consumer Protection Act: The Case for a Rebuttable Presumption of Reliance, 80 Wash. L. Rev. 245 (2005).\n173 Wn. App. 823, 295 P.3d 800 (2013).\nResp’ts’ Br. at 7, 10.\nDouglas, 173 Wn. App. at 826.\nId.\nId.\nId.\nId. at 827-28.\nId. at 828.\nId. at 829.\nId. at 834 (emphasis added).\nId. at 831-32.\nId. at 832.\nCP at 2 (Finding of Fact 5).\nDouglas, 173 Wn. App. at 834.\nId. (emphasis added).\nId. at 830-35 (discussing Puget Sound Service Corp. v. Dalarna Management Corp., 51 Wn. App. 209, 210, 752 P.2d 1353 (1988), Sloan v. Thompson, 128 Wn. App. 776, 781, 115 P.3d 1009 (2005), and Alejandre v. Bull, 159 Wn.2d 674, 689, 153 P.3d 864 (2007)).\nThe listing agents rely on Klein v. Washington Mutual Bank, where the court cited Federal Trade Commission provisions for an unfairness claim as support for the notion that “[c]urrent federal law suggests a ‘practice is unfair [if it] causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits.’ ” 176 Wn.2d 771, 787, 295 P.3d 1179 (2013) (second alteration in original) (quoting 15 U.S.C. § 45(n)). But even considering such dicta, the “not reasonably avoidable’’ federal statutory provision has no application to deceptiveness claims. Fed. Trade Comm’n v. Cantkier, 767 F. Supp. 2d 147, 152 (D.D.C. 2011). The other cases cited by the listing agents do not support a duty to investigate. See Mellon v. Reg’l Tr. Servs. Corp., 182 Wn. App. 476, 489-90, 334 P.3d 1120 (2014) (relying on Klem for one, but not the only, meaning of “ ‘unfair’ act or practice’’); Davis v. HSBC Bank Nev., NA, 691 F.3d 1152, 1168-70 (9th Cir. 2012) (discussing unfairness prong of California unfair competition law as applied to injury that may have been avoided if consumer had considered advertisement that “ ‘other restrictions may apply’ ’’ and had completed application process).\nResp’ts’ Br. at 23.\nBain v. Metro. Mortg. Grp., Inc., 175 Wn.2d 83, 115, 285 P.3d 34 (2012) (emphasis added) (internal quotation marks omitted) (quoting State v. Kaiser, 161 Wn. App. 705, 719, 254 P.3d 850 (2011)).\nUnlike Douglas, 173 Wn. App. at 833, where the predominant act or practice was an affirmative concealment, here the alleged deceptive act or practice was an omission of material facts, triggering the rebuttable presumption of reliance.\nIn a private contract setting, the public interest element may include consideration of the following nondispositive factors: (1) whether the alleged acts were committed in the course of defendant’s business, (2) whether the acts were part of a pattern or generalized course of conduct, (3) whether repeated acts committed prior to the act involved plaintiff, (4) whether there is a real and substantial potential for repetition of defendant’s conduct after the act involving plaintiff, and (5) if the act complained of involved a single transaction, whether many consumers were affected or likely to be affected by it. Rush v. Blackburn, 190 Wn. App. 945, 968, 361 P.3d 217 (2015) (quoting Hangman Ridge, 105 Wn.2d at 790).\nResp’ts’ Br. at 26-28.\nSee Svendsen v. Stock, 143 Wn.2d 546, 557-60, 23 P.3d 455 (2001) (RCW 64.06.070 did not extinguish a buyer’s common law or statutory cause of action. Prior to enactment of chapter 64.06 RCW, real estate agents were subject to CPA liability for not disclosing known material defects. RCW 64.06.070 preserves an independent cause of action under the CPA against a seller when fraudulent concealment is not connected to the seller disclosure statute. An agent’s failure to disclose can be sufficient to establish the public interest requirement of the CPA.).\nSee, e.g., Jackson v. Quality Loan Serv. Corp., 186 Wn. App. 838, 844-45, 347 P.3d 487 (“allegations in a complaint on specific documents’’ but not attached to the complaint may be considered on a CR 12(b)(6) motion), review denied, 184 Wn.2d 1011 (2015).\nRCW 19.86.120.\n1000 Va. Ltd. P’ship v. Vertecs Corp., 158 Wn.2d 566, 575, 146 P.3d 423 (2006).\nShepard v. Holmes, 185 Wn. App. 730, 739, 345 P.3d 786 (2014) (quoting Hudson v. Condon, 101 Wn. App. 866, 874, 6 P.3d 615 (2000)).\nId. (quoting In re Estates of Hibbard, 118 Wn.2d 737, 744-45, 826 P.2d 690 (1992)).\nId. (quoting Green v. Am. Pharm. Co., 86 Wn. App. 63, 66, 935 P.2d 652 (1997), aff’d, 136 Wn.2d 87, 960 P.2d 912 (1998)).\n185 Wn. App. 730, 736-38, 345 P.3d 786 (2014).\nId. at 734-35, 740-42.\nSee Hutson v. Wenatchee Fed. Sav. & Loan Ass’n, 22 Wn. App. 91, 98, 588 P.2d 1192 (1978) (“The presumption that people know the law most frequently applies to criminal cases; it is more properly stated that one may not escape criminal liability by claiming ignorance of the law.’’).\nSee Samuelson v. Cmty. Coll. Dist. No. 2, 75 Wn. App. 340, 346-47, 877 P.2d 734 (1994) (presumption that people know the law and are thus charged with the contents of all regulations does not operate to defeat the discovery rule; it is for the trier of fact to determine the point when individuals through due diligence should have discovered their legal eligibility for government benefits and their tort claims for such benefits accrued)."", ""type"": ""majority"", ""author"": ""Verellen, C.J.""}], ""attorneys"": [""Beth E. Terrell and Mary B. Reiten (of Terrell Marshall Law Group PLLC)\\ Samuel J. Strauss (of Turrke & Strauss LLP); and Michael D. Daudt (of Daudt Law PLLC) (Craig Briskin, of counsel), for appellants."", ""Jason T. Dennett, Christopher I. Brain, and James M. Bulthuis (of Tousley Brain Stephens PLLC)\\ and Lars E. Neste (of Demco Law Firm PS), for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 74353-8-I.\nDivision One.\nFebruary 21, 2017.]\nJonathan Deegan et al., Appellants, v. Windermere Real Estate/Center-Isle, Inc., et al., Respondents.\nBeth E. Terrell and Mary B. Reiten (of Terrell Marshall Law Group PLLC)\\ Samuel J. Strauss (of Turrke & Strauss LLP); and Michael D. Daudt (of Daudt Law PLLC) (Craig Briskin, of counsel), for appellants.\nJason T. Dennett, Christopher I. Brain, and James M. Bulthuis (of Tousley Brain Stephens PLLC)\\ and Lars E. Neste (of Demco Law Firm PS), for respondents.""}, ""cites_to"": [{""cite"": ""877 P.2d 734"", ""year"": 1994, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""75 Wn. App. 340"", ""year"": 1994, ""case_ids"": [11974433], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""346-47""}], ""case_paths"": [""/wash-app/75/0340-01""], ""opinion_index"": 0}, {""cite"": ""588 P.2d 1192"", ""year"": 1978, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""pin_cites"": [{""parenthetical"": ""\""The presumption that people know the law most frequently applies to criminal cases; it is more properly stated that one may not escape criminal liability by claiming ignorance of the law.''""}], ""opinion_index"": 0}, {""cite"": ""22 Wn. App. 91"", ""year"": 1978, ""case_ids"": [467195], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""98"", ""parenthetical"": ""\""The presumption that people know the law most frequently applies to criminal cases; it is more properly stated that one may not escape criminal liability by claiming ignorance of the law.''""}], ""case_paths"": [""/wash-app/22/0091-01""], ""opinion_index"": 0}, {""cite"": ""960 P.2d 912"", ""year"": 1998, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""136 Wn.2d 87"", ""year"": 1998, ""case_ids"": [867967], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/136/0087-01""], ""opinion_index"": 0}, {""cite"": ""935 P.2d 652"", ""year"": 1997, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""86 Wn. App. 63"", ""year"": 1997, ""case_ids"": [1279171], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""66""}], ""case_paths"": [""/wash-app/86/0063-01""], ""opinion_index"": 0}, {""cite"": ""826 P.2d 690"", ""year"": 1992, ""weight"": 2, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""118 Wn.2d 737"", ""year"": 1992, ""case_ids"": [1372165], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""744-45""}], ""case_paths"": [""/wash-2d/118/0737-01""], ""opinion_index"": 0}, {""cite"": ""6 P.3d 615"", ""year"": 2000, ""weight"": 2, ""category"": ""reporters:state_regional"", ""reporter"": ""P.3d"", ""opinion_index"": 0}, {""cite"": ""101 Wn. App. 866"", ""year"": 2000, ""case_ids"": [1170582], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""874""}], ""case_paths"": [""/wash-app/101/0866-01""], ""opinion_index"": 0}, {""cite"": ""345 P.3d 786"", ""year"": 2014, ""weight"": 2, ""category"": ""reporters:state_regional"", ""reporter"": ""P.3d"", ""pin_cites"": [{""parenthetical"": ""quoting Hudson v. Condon, 101 Wn. App. 866, 874, 6 P.3d 615 (2000)""}], ""opinion_index"": 0}, {""cite"": ""185 Wn. App. 730"", ""year"": 2014, ""weight"": 2, ""case_ids"": [4361521], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""739"", ""parenthetical"": ""quoting Hudson v. Condon, 101 Wn. 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App. 840"", ""year"": 2013, ""case_ids"": [4190525], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""865-66""}], ""case_paths"": [""/wash-app/175/0840-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""197 Wash. App. 875"", ""type"": ""official""}], ""file_name"": ""0875-01"", ""last_page"": ""894"", ""first_page"": ""875"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-05-22""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T22:06:58.996212+00:00"", ""decision_date"": ""2017-02-21"", ""docket_number"": ""No. 74353-8-I"", ""last_page_order"": 914, ""first_page_order"": 895, ""name_abbreviation"": ""Deegan v. 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+1276658,"{""id"": 1276658, ""name"": ""Carmen Rodriguez & another vs. Cambridge Housing Authority"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""955b97e55af9ea2c8776aab3b65973816601b8ad779f865f27bf56fd789101a2"", ""simhash"": ""1:f9a3702398df4a12"", ""pagerank"": {""raw"": 0.00000023816583065668589, ""percentile"": 0.7968949154950733}, ""char_count"": 22319, ""word_count"": 3578, ""cardinality"": 958, ""ocr_confidence"": 0.899}, ""casebody"": {""judges"": [], ""parties"": [""Carmen Rodriguez & another vs. Cambridge Housing Authority.""], ""opinions"": [{""text"": ""Spina, J.\nIn this case, we consider whether Carmen Rodriguez (Carmen) and her son, Samuel Rodriguez (Samuel) (collectively, the plaintiffs), are each entitled to recover damages from the Cambridge Housing Authority (CHA) for their alleged emotional distress resulting from several invasions of the apartment that Carmen leased from the CHA. Answering special questions, a jury found that the CHA had been comparatively negligent as to the maintenance of the premises by failing to change the door locks, and that such negligence had been a proximate cause of two of the three home invasions. The jury awarded Carmen damages of $170,000 for all injuries caused by the home invasion on May 18, 1994, awarded Samuel emotional distress damages of $130,000 for that same incident and awarded Carmen emotional distress damages of $30,000 for the home invasion on June 4, 1994. The trial judge allowed the CHA’s motion for judgment notwithstanding the verdict and entered a final judgment dismissing the plaintiffs’ complaint.\nThe Appeals Court reversed so much of the judgment as dismissed the plaintiffs’ claims against the CHA, and ordered that judgment enter on the verdicts for the plaintiffs, with certain modifications to the damages awards, as required under § 2 of G. L. c. 258, the Massachusetts Tort Claims Act. See Rodriguez v. Cambridge Hous. Auth., 59 Mass. App. Ct. 127 (2003). The Appeals Court concluded, inter alla, that Samuel could recover for the emotional distress that he had suffered as a result of the May 18 home invasion, and that Carmen could recover for the emotional distress that she had suffered as a result of the June 4 home invasion. Id. at 138. We granted the CHA’s application for further appellate review, limited specifically to the issue of the plaintiffs’ recovery of damages for emotional distress. As to that issue, the judgment of the Superior Court dismissing the plaintiffs’ complaint is reversed.\n1. Background. The factual and procedural history of this case is set forth in the Appeals Court opinion. We describe only those facts relevant to this limited appeal.\nOn July 17, 1985, Carmen signed a lease with the CHA to rent an apartment for her family in the Jefferson Park housing development in Cambridge beginning on August 1. On the morning of May 12, 1994, Carmen was attacked by a masked intruder who said that he was there to kill her. After the intruder punched Carmen and sliced her with a small knife, Carmen managed to get out the back door and escape. The Cambridge police investigated the matter and found no signs of forced entry. Carmen’s daughter called her mother’s psychotherapist, Dr. Mauricia Alvarez, who, in turn, contacted the CHA to express her concern for Carmen’s safety and to request additional patrols.\nApproximately one week later, during the early morning of May 18, 1994, Carmen was attacked again by a masked intruder in her bedroom. The intruder punched Carmen in the face, “hogtied” her with wire around her wrists and ankles, wrapped nylon stockings around her neck and mouth, and made small cuts all over her body. When Carmen’s children awoke, they heard their mother moaning from her bedroom. Hearing the children approach, the intruder fled. Samuel, who was twelve years old at the time, unlocked the bedroom door with an electrical cord plug and found his mother face down on the bed with her hands and legs tied behind her back, gasping for air. Samuel and his sister tried to untie their mother, but were unable to do so, and had to wait for the police to arrive to free her.\nAs a consequence of this second attack and the resulting trauma, both Carmen and Samuel were admitted to Cambridge Hospital for seventeen days. Carmen was diagnosed as suffering from the symptoms of posttraumatic stress disorder and major depression. Samuel exhibited the symptoms of posttraumatic stress disorder, nightmares, and suicidal thoughts that necessitated observation every five minutes. Both were discharged after intensive treatment with instructions for follow-up medication and therapy.\nOn June 4, 1994, the day after their release from Cambridge Hospital, Carmen and Samuel returned to their apartment with Samuel’s older brother, Carlos Ocasio, whereupon they heard a plate crash to the floor, followed by the slamming of their back door. Carmen did not enter the apartment but, instead, ran to a friend’s home across the street. Carlos proceeded to confront Joaquin Luciano, who had just been seen walking in the vicinity of the apartment and against whom Carmen had a protective order. Luciano pulled out a knife and severely cut Carlos’s hand. Although Carmen did not observe the confrontation or the infliction of Carlos’s injury, her condition at the time of the incident was very confused, shaken, and scared.\n2. Negligent infliction of emotional distress. The framework for claims of negligent infliction of emotional distress was established in Dziokonski v. Babineau, 375 Mass. 555, 556 (1978), where this court abandoned the so-called “impact” rule that had denied recovery for physical injuries arising solely from negligently caused emotional distress, and not from any direct bodily injury. See Spade v. Lynn & Boston R.R., 168 Mass. 285, 290 (1897). In Dziokonski, we held that an action could proceed against the driver of a motor vehicle that struck a child on allegations that the child’s mother suffered emotional shock and consequent death when she went to the scene of the accident and saw her daughter lying injured on the ground. See Dziokonski v. Babineau, supra at 557, 568. In establishing the limitations of the claim by the mother, a bystander who had not been within the “zone of danger,” we concluded that “there must be both a substantial physical injury and proof that the injury was caused by the defendant’s negligence. Beyond this, the determination whether there should be liability for the injury sustained depends on a number of factors, such as where, when, and how the injury, to the third person entered into the consciousness of the claimant, and what degree there was of familial or other relationship between the claimant and the third person.” Id. at 568. See Migliori v. Airborne Freight Corp., 426 Mass. 629, 638 (1998) (person who witnesses or arrives at scene of accident and renders fruitless aid to victim to whom there is no familial or other preexisting relationship does not have cognizable claim for negligent infliction of emotional distress).\nThis framework for emotional distress claims was broadened in Ferriter v. Daniel O’Connell’s Sons, 381 Mass. 507, 518 (1980), where we held that the wife and children of an employee allegedly injured through his employer’s negligence could maintain an action for negligent infliction of emotional distress, even though they first observed the employee in the hospital, not at the scene of the accident. This court concluded that recovery was permissible not only for those plaintiffs who experienced shock on witnessing the injury to a loved one, but also for those plaintiffs who experienced shock on seeing the injured loved one “closely on the heels of the accident.” Id.\nThe physical injury requirement set forth in Dziokonski v. Babineau, supra at 568, was slightly clarified in Payton v. Abbott Labs, 386 Mass. 540, 547 (1982), where this court stated that it was “in recognition of the tricks that the human mind can play upon itself, as much as of the deception that people are capable of perpetrating upon one another, that we continue to rely upon traditional indicia of harm to provide objective evidence that a plaintiff actually has suffered emotional distress.” In order to recover for negligently inflicted emotional distress, a plaintiff had to prove “(1) negligence; (2) emotional distress; (3) causation; (4) physical harm manifested by objective symptomatology; and (5) that a reasonable person would have suffered emotional distress under the circumstances of the case.” Id. at 557. Moreover, the plaintiff was required to substantiate the physical harm with expert medical testimony. Id. at 556.\nRecognizing the need to “strike a proper balance between the fear of fraudulent claims and the danger of shutting the doors of the courthouse to worthy plaintiffs” and the difficulty in “distinguishing] between the mental and the physical aspects of an emotional disturbance,” this court relaxed the physical harm requirement in Sullivan v. Boston Gas Co., 414 Mass. 129, 134 (1993). There, we allowed the plaintiffs’ claims to go forward where they had produced sufficient objective evidence that they were suffering from posttraumatic stress disorder, tension headaches, sleeplessness, gastrointestinal distress, nightmares, and depression as a result of watching their home bum to the ground after a natural gas explosion. Id. at 130-132, 139. We concluded, without distinguishing between bystanders and others, that “plaintiffs must corroborate their mental distress claims with enough objective evidence of harm to convince a judge that their claims” were likely genuine. Id. at 137-138. While expert medical testimony might be needed to make this showing, it was not mandatory. See id. at 138. See also Bresnahan v. McAuliffe, 47 Mass. App. Ct. 278, 285 (1999). The length of time that plaintiffs experienced particular symptoms could be one reliable indicator of the sufficiency of their evidence. See Sullivan v. Boston Gas Co., supra.\nThus, in the Sullivan case, “[w]e did not eliminate the physical harm requirement, but merely expanded the range of symptoms that may provide the type of objective evidence to prove physical harm to include symptoms that could be classified as more ‘mental’ than ‘physical.’ ” Gutierrez v. Massachusetts Bay Transp. Auth., 437 Mass. 396, 412 (2002), S.C., 442 Mass. 1041 (2004). Contrast Migliori v. Airborne Freight Corp., supra at 631-632, quoting Sullivan v. Boston Gas Co., supra at 137-138 (“While no longer considering attendant physical harm as a necessary condition of a cognizable claim for the negligent infliction of emotional injuries, we still require ‘objective corroboration of the emotional distress alleged’ ”). In addition, we have explicitly stated that “[a] successful negligent infliction of emotional distress claim . . . must do more than allege ‘mere upset, dismay, humiliation, grief and anger.’ ” Sullivan v. Boston Gas Co., supra at 137, quoting Corso v. Merrill, 119 N.H. 647, 653 (1979).\na. Samuel Rodriguez. The thrust of the CHA’s argument is that Samuel’s bystander claim is an impermissible attempt to expand recovery for the negligent infliction of emotional distress beyond the limits enunciated by our case law. We disagree. Samuel was not an unknown bystander, and he did not lack proximity and immediacy to the home invasion on May 18. See, e.g., Migliori v. Airborne Freight Corp., supra at 637-638; Nancy P. v. D'Amato, 401 Mass. 516, 519-520 (1988); Stockdale v. Bird & Son, 399 Mass. 249, 251-252 (1987); Cohen v. McDonnell Douglas Corp., 389 Mass. 327, 341-343 (1983). To the contrary, there was sufficient objective evidence of Samuel’s emotional distress, as manifested by physical symptoms, that satisfied our temporal, spatial, and relational requirements for such claims to allow for his recovery of damages. See Sullivan v. Boston Gas Co., supra at 137-138; Ferriter v. Daniel O’Connell’s Sons, supra at 518.\nSamuel discovered his mother in a bedroom of their home in the brief aftermath of a violent attack that left her bound, gagged, slashed, and suffocating. Because Samuel was unable to free her from her restraints, Carmen continued to choke until the police arrived and cut her free. As a result of this incident, Samuel suffered such severe trauma that he had to be hospitalized for seventeen days, where he was plagued by symptoms of posttraumatic stress disorder, major depression, nightmares, and suicidal thoughts that necessitated constant observation. See note 8, infra. Samuel’s claim for emotional distress damages went far beyond alleging mere upset, dismay, and grief. Rejecting that claim would not comport with this court’s reasoning in Sullivan v. Boston Gas Co., supra at 137-138, and our related jurisprudence. Accordingly, we conclude that Samuel was entitled to recover damages for negligent infliction of emotional distress for the May 18 home invasion.\nb. Carmen Rodriguez. The CHA contends that Carmen’s claim for emotional distress, allegedly suffered as a result of the June 4 home invasion, must fail because she was not the victim of a physical assault, did not witness such an assault on a family member, did not witness the actual invasion of her home on that date, and offered no objective corroboration of any emotional distress arising from that event. Although the issue is close, we conclude that Carmen presented sufficient objective evidence of emotional distress to recover damages for this incident.\nCarmen sought recovery for the emotional trauma she allegedly suffered when, as she prepared to enter her apartment with her children, she heard the sound of a plate falling inside, heard the back door slam, and felt that “somebody was there.” Carmen was so frightened that she screamed and ran to a neighbor’s house. Because the jury concluded that the CHA’s negligence was a proximate cause of this home invasion, the issues become whether the evidence supported a conclusion that there was “sufficient objective evidence of physical manifestation of mental distress,” Sullivan v. Boston Gas Co., supra at 139, and that “a reasonable person would have suffered emotional distress under the circumstances.” Payton v. Abbott Labs, 386 Mass. 540, 557 (1982).\nIn the aftermath of the June 4 home invasion, Carmen was treated at Cambridge Hospital by Dr. Alvarez, who indicated in her medical records that Carmen was very anxious, depressed, and overwhelmed. Dr. Alvarez further noted that Carmen was suffering from an increase in posttraumatic stress disorder, nightmares, insomnia, and dissociative episodes. At trial, Dr. Alvarez testified that where a patient has a prior history of trauma, any new trauma is “not just additive,” but is “exponentially distressing and disruptive and disorganizing.” Contrary to the CHA’s assertion, Carmen experienced more than mere “upset and dismay” as a consequence of having her home invaded on June 4 and her sense of security shattered. See Sullivan v. Boston Gas Co., supra at 135, 139. Cf. Bresnahan v. McAuliffe, 47 Mass. App. Ct. 278, 283, 285 (1999). Moreover, notwithstanding Carmen’s history of mental health problems, and in light of the fact that she had just been the victim of two violent home invasions, there was sufficient evidence for the jury to infer that a reasonable person would have experienced emotional distress when faced with the trauma experienced by Carmen.\n3. Conclusion. As to the plaintiffs’ recovery of damages for emotional distress, the judgment of the Superior Court dismissing the plaintiffs’ complaint is reversed. Judgment shall enter on the verdicts on those claims, as modified by the reductions in damages, pursuant to G. L. c. 258, § 2, set forth in the Appeals Court opinion. See Rodriguez v. Cambridge Hous. Auth., supra at 138-141. Carmen is entitled to recover damages of $100,000 for all injuries caused by the home invasion on May 18, 1994, Samuel is entitled to recover emotional distress damages of $100,000 for that same incident, see note 6, supra, and Carmen is entitled to recover emotional distress damages of $22,800 for the home invasion on June 4.\nSo ordered.\nSeveral other claims raised by the plaintiffs in their complaint had already been dismissed by way of summary judgment.\nThe Cambridge Housing Authority (CHA) has not claimed in this appeal that Carmen was not entitled to recover damages for both the physical injuries and emotional distress she suffered as a result of the May 18 home invasion. We have stated that “[wjhere plaintiffs have suffered directly inflicted personal injuries as a result of a defendant’s negligence, courts have not been reluctant to allow recovery for emotional distress, occurring contemporaneously with those personal injuries, as an additional element of damages.” Payton v. Abbott Labs, 386 Mass. 540, 548 (1982). See Dziokonski v. Babineau, 375 Mass. 555, 559 (1978). Therefore, Carmen was properly entitled to appropriate damages for the injuries she sustained as a result of the May 18 incident.\nAs to those other issues raised by the parties before the Appeals Court, the decision of the Appeals Court is final and binding.\n“Although this court has allowed recovery for emotional distress absent physical harm, it has done so only where the defendant’s conduct was extreme and outrageous, and was either intentional or reckless.” Payton v. Abbott Labs, supra at 547. See Simon v. Solomon, 385 Mass. 91, 95 (1982); Agis v. Howard Johnson Co., 371 Mass. 140, 144-145 (1976).\nThe damages cap set forth in G. L. c. 258, § 2, would reduce the jury’s award of $130,000 in emotional distress damages to $100,000. See Rodriguez v. Cambridge Hous. Auth., 59 Mass. App. Ct. 127, 138-139 (2003).\nWe note that there is no support in the record for the Appeals Court’s factual assertion that Carmen “saw her son slashed with a knife when he chased a person [whom] he believed was the intruder outside the apartment.” Rodriguez v. Cambridge Hous. Auth., supra at 139. Carmen testified that she did not witness the confrontation between Carlos and Luciano, although she did observe Carlos’s severely injured hand in the immediate aftermath of the confrontation. Carmen’s claim for emotional distress with respect to the events of June 4 is a personal claim based on the trauma of the home invasion, not a bystander claim related to the observation of Carlos’s stabbing injury.\nThe record that is before us now and the one that was before the Appeals Court are significantly different in that the Appeals Court record did not include treatment records and medical testimony pertaining to the plaintiffs’ emotional distress. When the CHA filed its notice of cross appeal from entry of the judgment dismissing the plaintiffs’ complaint in the Superior Court, the CHA merely stated that it was appealing “from the amount of the judgments entered against it on the jury verdicts returned in favor of the plaintiffs.” In its brief in support of the cross appeal, the CHA then specifically challenged the evidentiary basis for the jury’s conclusion that Samuel was entitled to emotional distress damages for the May 18 home invasion, and that Carmen was entitled to emotional distress damages for the June 4 home invasion. The plaintiffs’ motion to strike the CHA’s cross appeal was denied. The plaintiffs asserted in their reply brief that had they known that the CHA was going to challenge the evidence as to their emotional distress, they would have added to the record before the Appeals Court the documents pertaining to their medical treatment and the testimony of Dr. Alvarez, all of which had been admitted at trial. Notwithstanding the plaintiffs’ belief that the CHA was required to furnish the Appeals Court with these additional materials, in accordance with Mass. R. A. P. 8 (b) (1), as amended, 430 Mass. 1603 (1999), the plaintiffs did not, in the alternative, seek leave to supplement the record appendix. After we allowed the CHA’s application for further appellate review, limited to the issue of emotional distress damages, the parties filed a joint motion to supplement the record to include the documents pertaining to the plaintiffs’ medical treatment and the testimony of Dr. Alvarez. This court allowed the motion. Absent these supplemental materials, there was insufficient objective evidence of the physical manifestations of Carmen’s emotional distress. There was only the testimony of Carmen, Carlos, and Samuel that, as a result of hearing the plate drop in her apartment, Carmen was scared, confused, and shaken.\nAs to this incident, the jury found the CHA sixty-eight per cent negligent and Carmen thirty-two per cent negligent. Therefore, the $170,000 in damages awarded to Carmen by the jury would be reduced by her comparative negligence, and then the damages cap set forth in G. L. c. 258, § 2, would be applied. See Rodriguez v. Cambridge Hous. Auth., supra at 138-141.\nAs to this incident, the jury found the CHA seventy-six per cent negligent and Carmen twenty-four per cent negligent. Therefore, the $30,000 in damages awarded to Carmen by the jury would be reduced by her comparative negligence. See Rodriguez v. Cambridge Hous. Auth., supra."", ""type"": ""majority"", ""author"": ""Spina, J.""}], ""attorneys"": [""John Egan for the defendant."", ""Jonathan A. Karon & John A. Dalimonte for the plaintiffs.""], ""corrections"": """", ""head_matter"": ""Carmen Rodriguez & another vs. Cambridge Housing Authority.\nMiddlesex.\nDecember 8, 2004.\nMarch 18, 2005.\nPresent: Marshall, C.J., Greaney, Ireland, Spina, & Cordy, JJ.\nNegligence, Emotional distress. Emotional Distress. Damages, Emotional distress.\nDiscussion of the legal framework for evaluating claims of negligent infliction of emotional distress. [700-702]\nThis court concluded that, in an action for injuries that the plaintiffs (mother and son) sustained as a result of multiple invasions of their apartment, which they leased from the defendant public housing authority, the plaintiffs were entitled to recover damages for certain claims of emotional distress, where there was sufficient evidence that the emotional distress of the son (a bystander to one incident), as manifested by physical symptoms, satisfied the temporal, spatial, and relational requirements for such a claim [702-703]; and where the mother, with regard to one incident where she was neither the victim of a physical assault nor a witness to such an assault on a family member or to the actual invasion of her home, presented sufficient objective evidence for the jury to infer that a reasonable person would have experienced emotional distress when faced with the trauma that she had experienced [703-705],\nCivil action commenced in the Superior Court Department on August 23, 1995.\nThe case was tried before Martha B. Sosman, J., and entry of dismissal was ordered by Leila R. Kern, J.\nAfter review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.\nJohn Egan for the defendant.\nJonathan A. Karon & John A. Dalimonte for the plaintiffs.\nSamuel Rodriguez.""}, ""cites_to"": [{""cite"": ""430 Mass. 1603"", ""year"": 1999, ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""opinion_index"": 0}, {""cite"": ""371 Mass. 140"", ""year"": 1976, ""case_ids"": [320403], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""144-145""}], ""case_paths"": [""/mass/371/0140-01""], ""opinion_index"": 0}, {""cite"": ""385 Mass. 91"", ""year"": 1982, ""case_ids"": [900794], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""95""}], ""case_paths"": [""/mass/385/0091-01""], ""opinion_index"": 0}, {""cite"": ""389 Mass. 327"", ""year"": 1983, ""case_ids"": [912935], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""341-343""}], ""case_paths"": [""/mass/389/0327-01""], ""opinion_index"": 0}, {""cite"": ""399 Mass. 249"", ""year"": 1987, ""case_ids"": [3794680], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""251-252""}], ""case_paths"": [""/mass/399/0249-01""], ""opinion_index"": 0}, {""cite"": ""401 Mass. 516"", ""year"": 1988, ""case_ids"": [3878683], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""519-520""}], ""case_paths"": [""/mass/401/0516-01""], ""opinion_index"": 0}, {""cite"": ""119 N.H. 647"", ""year"": 1979, ""case_ids"": [4448427], ""category"": ""reporters:state"", ""reporter"": ""N.H."", ""pin_cites"": [{""page"": ""653""}], ""case_paths"": [""/nh/119/0647-01""], ""opinion_index"": 0}, {""cite"": ""442 Mass. 1041"", ""year"": 2004, ""weight"": 2, ""case_ids"": [1183094], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/442/1041-01""], ""opinion_index"": 0}, {""cite"": ""437 Mass. 396"", ""year"": 2002, ""case_ids"": [734973], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""412""}], ""case_paths"": [""/mass/437/0396-01""], ""opinion_index"": 0}, {""cite"": ""47 Mass. App. Ct. 278"", ""year"": 1999, ""weight"": 2, ""case_ids"": [480405], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""285""}, {""page"": ""283, 285""}], ""case_paths"": [""/mass-app-ct/47/0278-01""], ""opinion_index"": 0}, {""cite"": ""414 Mass. 129"", ""year"": 1993, ""weight"": 4, ""case_ids"": [3902773], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""134""}, {""page"": ""130-132, 139""}, {""page"": ""137-138""}, {""page"": ""138""}], ""case_paths"": [""/mass/414/0129-01""], ""opinion_index"": 0}, {""cite"": ""386 Mass. 540"", ""year"": 1982, ""weight"": 6, ""case_ids"": [906571], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""547""}, {""page"": ""557""}, {""page"": ""556""}, {""page"": ""557""}, {""page"": ""548""}, {""page"": ""547""}], ""case_paths"": [""/mass/386/0540-01""], ""opinion_index"": 0}, {""cite"": ""381 Mass. 507"", ""year"": 1980, ""weight"": 3, ""case_ids"": [816156], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""518""}, {""page"": ""518""}], ""case_paths"": [""/mass/381/0507-01""], ""opinion_index"": 0}, {""cite"": ""426 Mass. 629"", ""year"": 1998, ""weight"": 3, ""case_ids"": [369544], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""638"", ""parenthetical"": ""person who witnesses or arrives at scene of accident and renders fruitless aid to victim to whom there is no familial or other preexisting relationship does not have cognizable claim for negligent infliction of emotional distress""}, {""page"": ""631-632""}, {""page"": ""637-638""}], ""case_paths"": [""/mass/426/0629-01""], ""opinion_index"": 0}, {""cite"": ""168 Mass. 285"", ""year"": 1897, ""case_ids"": [471416], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""290""}], ""case_paths"": [""/mass/168/0285-01""], ""opinion_index"": 0}, {""cite"": ""375 Mass. 555"", ""year"": 1978, ""weight"": 5, ""case_ids"": [330456], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""556""}, {""page"": ""557, 568""}, {""page"": ""568""}, {""page"": ""568""}, {""page"": ""559""}], ""case_paths"": [""/mass/375/0555-01""], ""opinion_index"": 0}, {""cite"": ""59 Mass. App. Ct. 127"", ""year"": 2003, ""weight"": 3, ""case_ids"": [1508565], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""138""}, {""page"": ""138-139""}], ""case_paths"": [""/mass-app-ct/59/0127-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""443 Mass. 697"", ""type"": ""official""}], ""file_name"": ""0697-01"", ""last_page"": ""706"", ""first_page"": ""697"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T17:44:57.462702+00:00"", ""decision_date"": ""2005-03-18"", ""docket_number"": """", ""last_page_order"": 722, ""first_page_order"": 713, ""name_abbreviation"": ""Rodriguez v. Cambridge Housing 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+1290647,"{""id"": 1290647, ""name"": ""Ed Long et al., Respondents, v. William H. Leonard et al., Appellants"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""affb682a8efa6ed332109d664fbfca940ea427c63d7c16461b2e0d76589ac65c"", ""simhash"": ""1:16ef8d20bc88d966"", ""pagerank"": {""raw"": 0.00000012188322776369918, ""percentile"": 0.5977000975732562}, ""char_count"": 21192, ""word_count"": 3626, ""cardinality"": 858, ""ocr_confidence"": 0.635}, ""casebody"": {""judges"": [], ""parties"": [""Ed Long et al., Respondents, v. William H. Leonard et al., Appellants.""], ""opinions"": [{""text"": ""Beals, J.\n— Plaintiffs instituted this action for the purpose of obtaining a decree enjoining defendants from obstructing a road across defendants’ land, which road plaintiffs and their predecessors in interest had used for many years. It is plaintiffs’ contention that, by prescription, they have acquired the right to use the road or way in question, and cross defendants’ land in going to and from their property. By their answer, defendants denied the material allegations of the complaint, and the cause proceeded to trial before the court sitting without a jury, resulting in a decree in plaintiffs’ favor, enjoining defendants from interfering with plaintiffs’ use of the road across defendants’ land. The decree entered by the trial court required defendants to remove the obstructions which they had placed across the road and restrained defendants from interfering with plaintiffs’ use thereof in the future, and continued:\n“It is the order, judgment and command of this court that the defendants and each of them be restrained, and they are hereby restrained and enjoined, from interfering with the plaintiffs in the latter’s use and enjoyment of said right of way, which the plaintiffs and their successors in interest are privileged to use in the usual manner and for all purposes of ingress and egress in connection with farm operations, except that the plaintiffs will not drive loose stock over or across said right of way. That said way of ingress and egress is appurtenant to the aforesaid lands of the plaintiffs and the right is of permanent nature and runs with said land.”\nGates had been installed and for many years maintained at the points where this road crosses defendants’ boundary lines, and the decree evidently provides for the continued maintenance of such gates.\nFrom this decree, defendants have appealed, contending that the court should have entered a decree in their favor, adjudging that respondents have no legal right whatsoever to cross appellants’ land, and that appellants were, by reason of the facts and the law, entitled to forbid respondents the use of appellants’ land for any purpose.\nRespondents are the owners of, and reside upon, the northwest quarter of section twenty-eight, township fourteen north, range forty-one east, and appellants are the owners of the southeast corner of section twenty-nine of the same township. An established public highway, known as the Ping Gulch road, crosses appellants’ land from east to west, at approximately the center of the quarter section. The road which is the subject matter of this action runs from the Ping Gulch road in a northeasterly direction across the north half of appellants’ land, then crosses a ten-acre tract owned by a Mrs. Butler, and enters respondents’ quarter section, across its west boundary, at a point near its east and west center line. This road continues northeasterly, and joins the Beckwith Grade road (often referred to as the Rice’s Bar road) on the easterly line of section twenty-eight. This latter road runs north and south, and then southwesterly, to a junction with the Ping Gulch road.\nRespondents’ land was homesteaded by Susan Banning at least as early as 1884, when most of the land in the vicinity was open and unfenced. The country is quite hilly, rendering the establishment of roads along section or other boundary lines difficult and expensive, and the early roads or trails naturally followed the easiest available grades. Respondents’ property has rested only in two ownerships — that of Mrs. Banning, and respondents. H. T. Banning, Mrs. Banning’s son, occupied the property for a time.\nThe trial court filed a memorandum opinion, including formal findings of fact, followed by the statement of the evidence which formed the basis for the findings. The court referred to the road here in question as the Banning road, and found that the same\n“. . . was an open road used generally by the public from prior to the year 1878 until about the year 1883 or 4, at which time Mrs. Banning, the then owner of said northwest quarter of said section 28, placed a gate across the same north of the north line of said southeast quarter of said section 29, owned by the defendants; that a few years later a Mr. Ping, who had some interest in the said southeast quarter of said section 29, placed a gate across said road at its juncture with the Ping Gulch road in said southeast quarter; that continuously from the time said gates were put across said road it has been used by plaintiffs and their predecessors in interest for ingress and egress to and from the home of plaintiffs in said northwest quarter of said section 28.”\nThe court further found that, during certain seasons of the year, the Banning road from respondents’ home on to the Beckwith Grade road and the latter road are impassable, and that travel from respondents’ home over these roads is impossible\n“. . . for periods of several months during the winter season; that the section of the Banning road running northerly and easterly from plaintiffs’ home to its juncture with the Rice’s Bar or Beckwith Grade road has not been used by plaintiffs and their predecessors in interest for a period of over forty years other than for the purpose of hauling their wheat to the warehouse on the Snake River; that this section of the Banning road running northerly is not an open highway, but is enclosed, as is the section of the Banning road involved in this action;\n“That the only means of ingress to and egress from plaintiffs’ home continuously during said years has been over and across that part of the Banning road involved in this action and it has been so used openly, notoriously, continuously and adversely by plaintiffs and their predecessors in interest for all general farm purposes from prior to the year 1878 until the present time; that said use during all of said time has been with the knowledge and acquiescence of defendants and their predecessors in interest, and said use has been continuous and has never been interfered with except as interfered with by the defendants as hereinafter stated.”\nThe court also found that, prior to the railway grant covering appellants’ quarter section, the Banning road was an open, public highway, in general use by the public, and generally used by four or five landowners living to the north thereof; that appellants’ land now is, and always has been, bunch grass land, and has never been cultivated; that the Banning road, as it crosses respondents’ land, has never shifted its course other than some slight variations; that a gate was first constructed on this roadway at its entrance to the Banning land (now respondents’) about the year 1885, and that sometime thereafter and many years prior to the time appellants acquired their property, a gate was constructed on the Banning road at the point of its entrance to the Ping Gulch road. The court also expressly found that appellants\n“ . . . have had full knowledge of the use of said road as herein stated, recognized said use of said road and never, by word or act, asserted a right to interfere with, or prevent, the use thereof until on or about the 26th day of March, 1929;”\nthat the Banning road is not classified by Garfield county as a public road, but that in the deed from the patentee of appellants’ land, there was inserted the following provision:\n“The lands hereby granted being subject, however, to an easement in the public for any public road or roads heretofore laid out or established and now existing over and across any part of said described land.”\nAppellants contend that the trial court erred in overruling their demurrer to \""the amended complaint, contending that the complaint failed to state a cause of action, because it shows that respondents’ land and that owned by appellants are not adjoining tracts, and contains no allegation to the effect that respondents have the right to cross other lands so that they may reach appellants’ property.\nAppellants’ demurrer upon the ground referred to was properly overruled. Appellants might have pleaded in their answer the situation upon which they now rely, or facts showing that respondents had no right to reach appellants’ land, but respondents’ amended complaint was not obnoxious to a demurrer. As to whether or not the facts which we suggest appellants might have pleaded would have stated a defense, either in fact or in law, we, of course, express no opinion.\nAppellants next contend that the court erred in denying their motion to require respondents to elect whether, on the one hand, they would contend that the right of way which they were seeking to establish across appellants’ land was a public highway, or, on the other hand, that they were entitled to establish by decree and maintain a private way. Appellants concede that a complaint might be framed on the double theory of establishing either a public highway or a private way of prescription.\nExamination of the pleadings, findings and decree discloses no error available to appellants under this assignment. The decree does not establish a public road across appellants’ property. It goes no further than to open the roadway “so as to serve the plaintiffs (respondents) as a means of ingress and egress for their farm lands,” establishing a right of way as appurtenant to respondents’ property and as a right running with the land. Respondents’ rights are determined by the decree, not by the court’s memorandum opinion. If the decree is supported by the evidence, it should be affirmed. The fact that the findings might support a broader decree is immaterial.\nAppellants’ other assignments of error go to the merits of the case on the facts and the law applicable thereto, and will be discussed together.\nAppellants rely upon the doctrine that\n“A prescriptive right acquired by one is determinative of a corresponding loss or forfeiture of right by another, and, as forfeitures are not favored, it is absolutely essential that all of the elements necessary to constitute a permanent valid claim by adverse user, amounting to a prescriptive right should be shown to be present.” Downie v. Renton, 162 Wash. 181, 298 Pac. 454.\nIt is also the rule, as appellants contend, that prescriptive rights do not enjoy the particular favor of the law, and that the burden of proving the existence of such a right rests upon the person who benefits by its establishment, and that it is presumed that “one who enters into the possession of the property of another enters with the permission of the true owner, and holds in subordination to his title.” Peoples Savings Bank v. Bufford, 90 Wash. 204, 155 Pac. 1068.\nAppellants strongly rely upon the case of Scheller v. Pierce County, 55 Wash. 298, 104 Pac. 277, in which it was stated that, while a highway may exist by prescription in this state,\n“ . . . at the same time all the essential elements of adverse possession must be present. The possession or use must be open, notorious, continuous, and adverse.”\nAppellants also contend that the opinion of this court in the case of Schulenbarger v. Johnstone, 64 Wash. 202, 116 Pac. 843, 35 L. R. A. (N. S.) 941, is decisive in their favor on the questions here presented. In that case, the plaintiff sued to restrain the defendants from interfering with his use of a roadway leading to a public highway and which crossed defendants’ land through bars and gates. The lands in question were settled about 1885, but were not fenced until approximately ten years later. The first settlers traveled at will to and from the main road, following three or four different routes. After the land was fenced, plaintiff and his grantors passed through bars or gates as from time to time maintained. It appeared that the right of way was changed several times, on one occasion after express permission by defendants. The court noted that such an easement as the plaintiff sought to establish might be acquired by prescription, citing Wasmund v. Harm, 36 Wash. 170, 78 Pac. 777, and Van De Vanter v. Flaherty, 37 Wash. 218, 79 Pac. 794, and stated that, under the doctrine of those cases, one asserting a right of way must show continuous, uninterrupted and adverse use over a uniform route, with knowledge of the owner, and during a time when he was able in law to assert and enforce his rights. The court held that the plaintiff’s contention that the use of the way was hostile or adverse was not sustained, and also that the way had never been so fixed or defined as to raise a presumption of grant against defendants, and that the way had always been maintained merely as a way of convenience.\nIn the case at bar, certain essential elements referred to by the court in the case last cited are clearly present. The use of the road here in question by respondents and their grantors has been continuous and uninterrupted. Appellants and their grantors have had full knowledge of the use, and have been at all times able in law to assert and enforce their rights. While appellants argue to the contrary, we are of the opinion that the evidence shows that the travel over appellants’ land has followed a uniform route. The variation in the right of way has been slight, as found by the trial court, and in our opinion such variations as are disclosed by the evidence are negligible, and not, as this court concluded in the Schuleribarger case, such as to affect or change the rights of the parties.\nThe serious question in this case, as in the Schulenbarger case, is: Was the use of the right of way adverse to the owner of the land over which the way is claimed? In the case cited, this court was of the opinion that the evidence showed “no more than the usual accommodation between neighbors that marked the settlement of the public domain.”\nAppellants rely upon authorities to the effect that, if the use of a right of way is permissive in its inception, such use will continue until the use of a different nature is clearly established.\nIn most cases similar to this, the difficulty is not so much in determining the basic rules of law as in applying those rules to the facts of the particular case. During all the years of their ownership, appellants have paid taxes on the entire tract of land over which lies the way here in question. They rely upon the fact that respondents consulted appellants about a change in the location of a small portion of the road, and they also argue that respondents’ acceptance of the restricted use of the right of way indicates recognition on respondents’ part of the fact that the use was permissive only. It is admitted that respondents’ deed contains no exception of a right of way over the land conveyed to them in favor of the owner of the Butler tract, nor does it purport to convey any appurtenant easement over the Butler lands or over the tract owned by appellants.\nMr. H. T. Banning, son of Susan Banning, at the age of eighty-four years, testified by deposition at his home in California, and appellants rely strongly upon a portion of his testimony, and contend that the trial court refused to give proper consideration thereto. Appellants vigorously argue that Mr. Banning’s testimony, which was given in answer to written interrogatories and cross-interrogatories, indicates that, in his day, the use of the right of way was regarded as merely permissive. The trial court, in its memorandum opinion, discussed Mr. Banning’s testimony, and after careful consideration, we are of the opinion that the court gave to Mr. Banning’s deposition adequate consideration.\nFarm buildings have existed on respondents’ property for over forty years, and since 1878, or shortly thereafter, the Banning road has been used continuously and without interruption by persons having occasion to follow its course. Since the occupation of respondents’ land, those in possession thereof have used the road almost exclusively for leaving and entering their property. For more than ten years prior to the institution of this action, respondents’ mail box stood at the intersection of the Banning and the Ping Gulch roads. During the winter months, it often happens that respondents’ only usable road is that across appellants’ land.\nRespondents rely upon the early case of Wasmund v. Harm, 36 Wash. 170, 78 Pac. 777, and the facts are indeed very similar to those here presented. In the course of the opinion, referring to the installation of some gates across the right of way sought to be established by prescription, this court, after noting certain disputes in the evidence, said:\n“At any rate, there was no interruption of, or attempt to interrupt respondents’ use of, the way, and this, to our minds, is strong evidence that the parties thought that the way was being used as a matter of right, rather than as a matter of grace.”\nIn the case of Lechman v. Mills, 46 Wash. 624, 91 Pac. 11, 13 L. R. A. (N. S.) 990, this court, in upholding a prescriptive right to maintain a canal, referring to an uninterrupted use of the canal for more than twenty-five years, held that, under the facts shown, including, it was contended, an oral grant by a former occupant, the use “must now be presumed to have been adverse, unless it is explained to have been otherwise.”\nA prescriptive right to maintain a private right of way was upheld in the case of Hendrickson v. Sund, 105 Wash. 406, 177 Pac. 808, it appearing that the plaintiff and his predecessors in interest had constructed the road and used the same without interruption for a period of more than thirty years. It was noted that, when the road was originally constructed, the owner of the land across which the same ran made no objection, but acquiesced in what was done. In the course of the opinion, the court said:\n“We are of the opinion that the evidence does not disclose that the right to use the road was a mere license or a temporary permissive right. It shows that the right was given, as a matter of course, for an indefinite use by the respondent, and, therefore, when he had used the road for the required length of time, he acquired a prescriptive right, notwithstanding the fact that the owner of the servient estate and others who desired to go upon the road also used it.”\nA prescriptive right to the maintenance of a drainage ditch was upheld in the case of Ochfen v. Kominsky, 121 Wash. 60, 207 Pac. 1050. The court cited its earlier opinion in the case of Berryman v. East Hoquiam Boom & Logging Co., 68 Wash. 657, 124 Pac. 130, in which the following text from Gould on Waters (3d ed.), p. 644, was relied upon:\n“If the use of the easement for twenty years is unexplained, it will be presumed to be under a claim of right, and adverse, and be sufficient to establish a title by prescription.”\nIn 9 R. C. L., page 781, title “Easements,” § 39, the majority rule is stated as follows:\n“The prevailing rule is that where the claimant has shown an open, visible, continuous, and unmolested use of land for the period of time sufficient to acquire title by adverse possession, the use will be presumed to be under a claim of right, so as to place upon the owner of the servient estate, in order to avoid the acquisition of an easement by prescription, the burden of rebutting this presumption by showing that the use was permissive.”\nAmong many cases cited to support the principle laid down, is the Washington case of Lechman v. Mills, supra.\nWe do not go so far as to determine this controversy upon the principle stated in the text last cited. We hold that it sufficiently appears from the evidence, as found by the trial court, that respondents’ claim to use the Banning road across appellants’ land was adverse to appellants and supports the decree entered.\nThe extensive, continuous, and uninterrupted use of the road for such a very long period of time must be given weight in deciding the issues presented.\nThe maintenance of gates, under such circumstances as appear here, is perfectly consistent with assertion of a claim to use a road by opening and closing the gates. That is an entirely reasonable and natural limitation on the use of a private way, although it might well be considered inconsistent with the use of a public highway.\nThe trial court carefully considered the evidence and stated its views at length in the memorandum opinion and in the findings included therein. It is true here, as was said in the opinion in the case of Wasmund v. Harm, supra, that “whether the use was adverse to the owners, or permissive, only, is the sole question on which there is any real dispute,” and in this case, as in that, we agree that the weight of the evidence is with the findings of the trial court, in favor of the establishment of the prescriptive right.\nWe hold that the decree which the trial court entered is supported by the preponderance of the evidence, and the same is accordingly affirmed.\nSteinert, C. J., Main, and Robinson, JJ., concur.\nHolcomb, J., concurs in the result."", ""type"": ""majority"", ""author"": ""Beals, J.""}], ""attorneys"": [""G. W. Jewett (Cox, Ware & Stellmon, of counsel), for appellants."", ""W. G. Coleman (Cameron Sherwood, of counsel), for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 26613.\nDepartment Two.\nAugust 23, 1937.]\nEd Long et al., Respondents, v. William H. Leonard et al., Appellants.\nG. W. Jewett (Cox, Ware & Stellmon, of counsel), for appellants.\nW. G. Coleman (Cameron Sherwood, of counsel), for respondents.\nReported in 71 P. (2d) 1.""}, ""cites_to"": [{""cite"": ""71 P. (2d) 1"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""124 Pac. 130"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""68 Wash. 657"", ""case_ids"": [563454], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/68/0657-01""], ""opinion_index"": 0}, {""cite"": ""207 Pac. 1050"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""121 Wash. 60"", ""case_ids"": [757349, 757350], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/121/0060-01"", ""/wash/121/0157-01""], ""opinion_index"": 0}, {""cite"": ""177 Pac. 808"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""105 Wash. 406"", ""case_ids"": [672146], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/105/0406-01""], ""opinion_index"": 0}, {""cite"": ""13 L. R. A. (N. S.) 990"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A.N.S."", ""opinion_index"": 0}, {""cite"": ""91 Pac. 11"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""46 Wash. 624"", ""case_ids"": [1356907], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/46/0624-01""], ""opinion_index"": 0}, {""cite"": ""79 Pac. 794"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""37 Wash. 218"", ""case_ids"": [5247913], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/37/0218-01""], ""opinion_index"": 0}, {""cite"": ""78 Pac. 777"", ""weight"": 2, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""36 Wash. 170"", ""weight"": 2, ""case_ids"": [5242488], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/36/0170-01""], ""opinion_index"": 0}, {""cite"": ""35 L. 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+1353648,"{""id"": 1353648, ""name"": ""Alphus Burleson et al., Appellants, v. E. H. Blankenship et al., Respondents"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""9fbce67625d1712cd44a5e53c131bde62bc61faee98e12d37b772e6d00845691"", ""simhash"": ""1:e70da1ceec88c497"", ""pagerank"": {""raw"": 0.00000009783118631960537, ""percentile"": 0.5322897203659364}, ""char_count"": 9149, ""word_count"": 1541, ""cardinality"": 533, ""ocr_confidence"": 0.677}, ""casebody"": {""judges"": [], ""parties"": [""Alphus Burleson et al., Appellants, v. E. H. Blankenship et al., Respondents.""], ""opinions"": [{""text"": ""Blake, J.\nPriorto May 5, 1936, the plaintiffs owned real estate in the town of Morton, in the building upon which they ran a beer tavern. On the date mentioned, they entered into a contract whereby they agreed to sell the business and the real and personal property used in connection therewith to the defendants E. H. Blankenship and G. F. Keith, “a partnership.” The consideration for the sale was nine thousand dollars, of which two thousand dollars was paid when the contract was executed. The contract contained the following provision: “This contract cannot be assigned without the written consent of the seller.” The contract also contained a clause permitting forfeiture for failure to make payments or to perform any of its other covenants and conditions.\nOn December 9, 1936, Keith, in consideration of $250, relinquished all claim in “that certain partnership,” and delivered to Blankenship a quitclaim deed to the real estate. Blankenship agreed to assume “all obligations now existing or which may come into existence on account of the partnership.” No specific reference was made, either in the contract or in the deed, to the contract with plaintiffs.\nOn December 12, 1936, Blankenship entered into articles of copartnership with one Sethe, in which he assigned to Sethe\n“. . . one-half of his equity in said business and in the equipment being purchased under said contract [with plaintiffs], together with one-half of all his rights . . . under said conditional sale contract.”\nIn January, 1937,. the plaintiffs brought this action to forfeit the contract on the ground that the covenant against assignment had been breached. Subsequently, on February 1, 1937, Blankenship and Sethe dissolved partnership, the latter assigning all his interest to the former. Upon trial of the issue, the court entered a decree dismissing the action, from which plaintiffs appeal.\nThe appellants contend that they were entitled to a forfeiture under the rule laid down by this court in the following cases: Behrens v. Cloudy, 50 Wash. 400, 97 Pac. 450; Bonds-Foster Lumber Co. v. Northern Pac. R. Co., 53 Wash. 302, 101 Pac. 877; Hunter Tract Imp. Co. v. Stone, 58 Wash. 661, 109 Pac. 112; Lockerby v. Amon, 64 Wash. 24, 116 Pac. 463, Ann. Cas. 1913A, 262, 35 L. R. A. (N. S.) 1064; Boyd v. Bondy, 113 Wash. 384, 194 Pac. 393; Bethel v. Matthews, 187 Wash. 175, 59 P. (2d) 1125. These cases hold that an assignee of the vendee cannot maintain an action for specific performance or damages against the vendor, when the assignment has been made without the consent of the latter in face of a covenant against assignment. But these cases are not decisive of the question presented here, for two reasons: (1) As stated in Boyd v. Bondy, supra, “The question of forfeiture [was] not involved . . . ” in any of them — that is, on the ground of breach of the covenant against assignment; and (2) in each, the entire interest of the vendees had been assigned. (The latter statement might be challenged from a reading of the opinion alone in Bethel v. Matthews, supra. The statement is justified, however, by the findings of fact made by the trial court.)\nIn the case at bar, we have a claim of foreiture against an original vendee, based upon two partial assignments. In the first instance, we have only a transfer by one vendee to the other of his interest in the partnership. In the second instance, we have the formation of a new partnership and an assignment by the old partner to the new of a one-half interest in the contract. In determining whether these transactions violate the stipulation against assignment, we must look to the covenant itself, bearing in mind that covenants of such character are to be strictly — even literally — construed. 1 Taylor, Landlord and Tenant (9th ed.), §§403, 405; Burns v. Dufresne, 67 Wash. 158, 121 Pac. 46; Willenbrock v. Latulippe, 125 Wash. 168, 215 Pac. 330.\nWhile the cases just cited relate to covenants in leases against assignment and subletting, the principles laid down are of some assistance in solving the problem now confronting us. The gist of the holding in Burns v. Dufresne, supra, is that a covenant not to assign without the consent of the lessor is not breached by subletting a portion of the premises. Willenbrock v. Latulippe, supra, presented a converse situation, and it was held that a covenant against subletting without the consent of the lessor was not breached by an assignment of the entire lease. And Taylor says (§405, supra):\n“But a covenant not to underlet without the consent of the lessor does not apply to a mere change in the business of the lessee’s firm, incident to the admission of a new partner or the withdrawal of an old one.”\nIt is a generally accepted rule that a stipulation against assignment in an insurance policy is not violated by the assignment by one partner to another of his interest in the policy, without the insurer’s consent. 6 Couch, Cyc. of Insurance Law, 5165, § 1450p. Appellant insists that this rule has been repudiated by this court in the recent case of Richardson v. Superior Fire Ins. Co., 192 Wash. 553, 74 P. (2d) 192. We do not think the case susceptible of such construction. The holding there turned upon a stipulation voiding the policy upon change of ownership of the insured property without the consent of the insurer.\nThe principle, namely, that a covenant against assignment is not violated by the transfer of one partner’s interest to another partner, has been applied to leases by the courts of California. Randol v. Scott, 110 Cal. 590, 42 Pac. 976; Spangler v. Spangler, 11 Cal. App. 321, 104 Pac. 995. In the latter case, it appears that the lease provided that the lessees should not assign the lease without the written consent of the lessor. One lessee assigned to the other. Denying the lessor’s claim of forfeiture, the court said:\n“The important question in this case is, Was there a breach of the conditions of the lease, and a consequent forfeiture thereof, by its assignment, without the consent of the lessor, by Annie Leal to the defendant?\n“The covenant is that the lessees shall not assign, .and only one of them has done so. It does not provide that neither of the lessees shall assign, nor that one may not assign to the other; and construing this covenant strictly against the lessor, as the law requires us to do, it should be presumed to mean that the lease shall not be assigned by both. As the assignment was by one only of the lessees, there was no breach of the covenant, and therefore there was no forfeiture.”\nApplying the principle of these cases to the case at bar, we think it clear that the stipulation against assignment without the consent of the vendor must be construed to refer to assignment of the entire interest of the vendees. In neither transaction upon which appellants base their claim of forfeiture was this done. Blankenship has at all times preserved at least a half interest in the contract. During the interval between Keith’s withdrawal from, and Sethe’s entry into, the partnership, and again subsequent to Sethe’s withdrawal, Blankenship, an original vendee, succeeded to all rights under the contract. In view of the terms of the stipulation against assignment, we do not think he can be deprived of those rights by Keith’s withdrawal from the partnership, nor the subsequent formation of the partnership with Sethe. If the parties had intended such partial assignments to be the basis of forfeiture, it would have been an easy matter to have so stipulated in the contract.\nAppellants contend that the contract is of a personal character. By trial amendment to their complaint, they alleged that they entered into the contract upon the confidence and trust they put in Keith— in his experience and ability in running a beer tavern and restaurant. Clearly, the contract is not inherently of such a personal character as to bring it within the rule of those cases holding contracts involving personal trust and confidence nonassignable with or without stipulations against assignment.\nThe court heard evidence on the issue tendered by appellants that they, in fact, entered into the contract on faith and confidence in Keith’s ability to run the business. We do not feel it necessary to discuss the admissibility of the evidence on this issue. The court, in discussing the question, said:\n“Without deciding that the admission of such testimony violates the parol evidence rule, I am satisfied from the testimony that there was no relation of personal confidence and trust between Burleson and Keith. ... I am quite sure that Burleson did not enter into the contract by reason of any special trust or confidence in Keith.”\nConceding the admissibility of the evidence for the purpose of this decision only, we may say that we agree with that conclusion.\nJudgment affirmed.\nSteinert, C. J., Beals, Millard, and Robinson, JJ., concur."", ""type"": ""majority"", ""author"": ""Blake, J.""}], ""attorneys"": [""Reuben C. Carlson and Robert W. Copeland, for appellants."", ""C. D. Cunningham, for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 26883.\nDepartment Two.\nFebruary 23, 1938.]\nAlphus Burleson et al., Appellants, v. E. H. Blankenship et al., Respondents.\nReuben C. Carlson and Robert W. Copeland, for appellants.\nC. D. Cunningham, for respondents.\nReported in 76 P. (2d) 614.""}, ""cites_to"": [{""cite"": ""76 P. (2d) 614"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""104 Pac. 995"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""11 Cal. App. 321"", ""case_ids"": [4649426], ""category"": ""reporters:state"", ""reporter"": ""Cal. App."", ""case_paths"": [""/cal-app/11/0321-01""], ""opinion_index"": 0}, {""cite"": ""42 Pac. 976"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""110 Cal. 590"", ""case_ids"": [1925411], ""category"": ""reporters:state"", ""reporter"": ""Cal."", ""case_paths"": [""/cal/110/0590-01""], ""opinion_index"": 0}, {""cite"": ""74 P. (2d) 192"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""192 Wash. 553"", ""case_ids"": [1292765], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/192/0553-01""], ""opinion_index"": 0}, {""cite"": ""215 Pac. 330"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""125 Wash. 168"", ""case_ids"": [763901], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/125/0168-01""], ""opinion_index"": 0}, {""cite"": ""121 Pac. 46"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""67 Wash. 158"", ""case_ids"": [558730], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/67/0158-01""], ""opinion_index"": 0}, {""cite"": ""59 P. (2d) 1125"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""187 Wash. 175"", ""case_ids"": [478369], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/187/0175-01""], ""opinion_index"": 0}, {""cite"": ""194 Pac. 393"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""113 Wash. 384"", ""case_ids"": [704326], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/113/0384-01""], ""opinion_index"": 0}, {""cite"": ""35 L. R. A. (N. 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+1379085,"{""id"": 1379085, ""name"": ""Atherton Condominium Apartment-Owners Association Board of Directors, Petitioner, v. Blume Development Company, et al, Respondents"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""78b958d4286ca00e3cd043863f66f9b2203b67606f2111ecddf9ab283250e721"", ""simhash"": ""1:afe6dca5e5243d78"", ""pagerank"": {""raw"": 0.0000015050612257233207, ""percentile"": 0.9918118778353487}, ""char_count"": 56109, ""word_count"": 8895, ""cardinality"": 2004, ""ocr_confidence"": 0.837}, ""casebody"": {""judges"": [], ""parties"": [""Atherton Condominium Apartment-Owners Association Board of Directors, Petitioner, v. Blume Development Company, et al, Respondents.""], ""opinions"": [{""text"": ""Durham, J.\nAtherton Condominium Apartment-Owners Association Board of Directors (Owners) appeal from orders of summary judgment dismissing virtually all of their construction defect claims. Blume Development Company and its partners (Blume) cross-appeal, seeking dismissal of Owners' remaining claims. We affirm in part and reverse in part.\nOwners represent condominium owners in the Atherton complex (Atherton), which is located in the City of Lynn-wood. It consists of two 3-story buildings, each of which contains 10 condominium units. In each building, there are four units on the first floor, and six townhouse units which occupy the second and third floors. Blume was the original owner, developer, construction contractor, and vendor of the Atherton condominiums. Donald R. Westlin was hired by Blume to he the project design architect for Atherton.\nIn November 1978, pursuant to Uniform Building Code (UBC) § 301(c), Westlin submitted two identical sets of architectural plans for the Atherton project to the City of Lynnwood (Lynnwood) for plan review and issuance of building permits. The plans were reviewed by John Farrens, a registered licensed architect and head of the Lynn-wood Building Department. At that time, the applicable Lynnwood building code was the 1973 edition of the UBC.\nOn January 12, 1979, after reviewing the Atherton plans and finding some UBC violations, Farrens responded with a plan correction sheet. The sheet enumerated 17 specific items which Lynnwood either wanted more fully addressed or changed before it would issue any permits. Most of the changes related to UBC fire resistivity standards.\nOn January 17, 1979, in response to the plan review, Westlin submitted revised architectural plans. Subject to further changes which he noted on the revised plans, Farrens approved the revised plans on February 21, 1979. Upon receipt of the appropriate permit fees, Lynnwood issued the applicable UBC building permits. During the construction process, the Atherton project was regularly inspected by Lynnwood building officials, usually Barbara Collier.\nThe construction of building one was substantially completed in November 1979. The building was ultimately approved as constructed and Farrens issued a certificate of occupancy. Construction of building two was substantially completed in mid-1980. The building was approved as constructed and Farrens issued a certificate of occupancy. The certificates of occupancy certified that Atherton complied with all applicable provisions of the UBC. On June 16, 1981, Blume turned the management of Atherton over to the Homeowners Association.\nIn 1982, portions of the exterior walls of the Atherton buildings, originally believed to be stucco, began to crack and fall off. Owners contacted Blume and he completed repairs without charge. Further problems were encountered with the exterior in 1984 and 1985, and Blume was again asked to perform repairs. This time, however, Blume refused. Owners had the exterior repaired at their own expense.\nOwners learned that the product which Blume had originally applied to the exterior walls was not stucco, as Owners believed. Rather, Blume had used Kolor Krete, an allegedly inferior stucco substitute, which could be expected to deteriorate further. The use of Kolor Krete was not authorized in the Atherton plans and does not satisfy the UBC 1-hour fire resistivity standard. Owners also learned that Atherton contained several other construction defects.\nSpecifically, Owners alleged that the following defects also violate the 1973 UBC fire resistivity standards and profoundly compromise the safety of Atherton: omission of one-half-inch plywood underlayment on the third floor, the absence of any gypsum on the inner surface of the mansard walls, a single layer roof/ceiling assembly, carport ceilings which do not satisfy the UBC 1-hour fire resistive construction standard, inadequate exits on the third floor, and unsafe prefabricated fireplaces which are not those depicted on the plans.\nOn January 3, 1986, pursuant to RCW 64.32.240, Owners filed suit against Blume, Westlin, and the City of Lynn-wood and employees of its building department. Owners sought damages for the cost to repair the alleged construction defects. With respect to Blume, Owners alleged that Blume failed to construct Atherton in accordance with the approved plans and the UBC fire resistivity standards. Accordingly, they brought an action for negligence, negligence per se, nuisance, breach of the implied warranty of habitability, and fraudulent concealment of defects. With respect to Westlin, Owners alleged that he failed to design Atherton in compliance with the UBC and brought an action against him for negligent design. Finally, Owners alleged that Lynnwood and employees Farrens and Collier failed to require that Atherton be designed and constructed in compliance with the UBC.\nOn September 2, 1987, Lynnwood moved for summary judgment on the grounds that under the public duty doctrine, Lynnwood and its employees owed no duty to Owners. In addition, Lynnwood argued that Owners' claim was time barred by the statute of limitation. On November 30, 1987, Judge Bibb entered an order granting summary judgment dismissing all claims against Lynnwood and its employees pursuant to the public duty doctrine. The order, however, denied Lynnwood's motion to dismiss the case pursuant to the statute of limitation and the statute of repose.\nOn February 5, 1988, Owners filed an amended motion for partial summary judgment against defendants Blume and Westlin, requesting the court to determine, as a matter of law, that the mansard wall and the floor/ceiling assembly did not satisfy the UBC fire resistivity standard. On February 8, 1988, Judge Knight granted partial summary judgment in favor of defendant Westlin determining that Westlin, as the design architect, had no liability as to the issue of 1-hour fire resistivity.\nOn February 9, 1988, defendant Blume filed a motion for summary judgment of dismissal of Owners' amended complaint with respect to all of Owners' theories of recovery, or in the alternative, partial summary judgment declaring that Owners have not sustained any damages for alleged noncompliance with the UBC and that Owners' claims are time barred by the applicable statute of limitation. Defendant Westlin later joined in Blume's motion for summary judgment.\nOn February 19 and 22, 1988, Judge Knight heard oral argument on Blume's motion for summary judgment. Judge Knight concluded that even if Atherton was not constructed in compliance with UBC fire resistivity standards, Owners did not have an actionable claim against Blume or Westlin. Accordingly, Judge Knight orally granted the motion for summary judgment in favor of Blume and Westlin dismissing all of Owners' claims except for the three express warranty claims of Pamela Foster-Macri, Fern Martinson, and Glenn Ortloff. In addition, Judge Knight denied a motion on behalf of the Owners to strike expert testimony concerning interpretation of the UBC and a motion for summary judgment against defendants Blume and Westlin concerning fire resistivity of the mansard wall and the third floor.\nOn March 16, 1988, following the trial court's decision granting the other defendants' motions for summary judgment, Lynnwood, pursuant to CR 54(b), filed a motion for final summary judgment. On March 31, 1988, Judge Bibb entered final judgment in favor of Lynnwood and its employees. On April 8, 1988, pursuant to CR 54(b), Judge Knight entered a written order of final summary judgment dismissing all of Owners' claims except for the three express warranty claims.\nOn April 27, 1988, Owners timely filed notice of appeal. Owners appealed (1) the entry of summary judgment of dismissal which dismissed all of their claims except the three express warranty claims, (2) the order of final judgment dismissing their claims against Lynnwood and its employees, (3) the order denying their motion to strike certain testimony, and (4) the order granting summary judgment in favor of Lynnwood and its employees. Blume timely filed notice of cross appeal seeking dismissal of the three express warranty claims.\nOn September 5, 1989, in an unpublished opinion, the Court of Appeals issued its decision. Atherton Condominium, Apartment-Owners Ass'n Bd. of Directors v. Blume Dev. Co., noted at 55 Wn. App. 1027 (1989). The Court of Appeals reversed the trial court's dismissal of Owners' claim against Blume for fraudulent concealment and reversed the trial court's retention of Maori's and Ortloff's express warranty claims. All other aspects of the trial court's orders were affirmed. Owners filed a motion for discretionary review, which we granted.\nSeveral issues are presented. First, did the trial court properly grant Blume's motion for summary judgment which dismissed Owners' claims for breach of implied warranty, fraudulent concealment, negligent construction, and nuisance. Second, did the trial court properly grant Westlin's motion for summary judgment dismissing Owners' claim for negligent design. Third, does the public duty doctrine require summary judgment of dismissal of the claims against Lynnwood and its building department employees Farrens and Collier. Fourth, did the trial court properly reject Owners' motion to strike certain testimony of experts. Finally, was the motion for summary judgment dismissing the express oral warranty claims of Atherton condominium owners Pamela Foster-Macri, Fern Martin-son, and Glenn Ortloff properly denied.\nWe begin by identifying the appropriate standard of review. Owners appeal from trial court orders granting summary judgment of dismissal in favor of defendants. In our review of an order of summary judgment, we engage in the same inquiry as the trial court. E.g., Marincovich v. Tarabochia, 114 Wn.2d 271, 274, 787 P.2d 562 (1990). Summary judgment is appropriate \""if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.\"" CR 56(c). A material fact is one upon which the outcome of the litigation depends in whole or in part. Morris v. McNicol, 83 Wn.2d 491, 494, 519 P.2d 7 (1974).\nIn a summary judgment motion, the burden is on the moving party to demonstrate that there is no genuine issue as to a material fact and that, as a matter of law, summary judgment is proper. See Hartley v. State, 103 Wn.2d 768, 774, 698 P.2d 77 (1985). The moving party is held to a strict standard. Any doubts as to the existence of a genuine issue of material fact is resolved against the moving party. In addition, we consider all the facts submitted and the reasonable inferences therefrom in the light most favorable to the nonmoving party. E.g., Citizens for Clean Air v. Spokane, 114 Wn.2d 20, 38, 785 P.2d 447 (1990).\nIf the moving party satisfies its burden, the non-moving party must present evidence that demonstrates that material facts are in dispute. Baldwin v. Sisters of Providence in Wash., Inc., 112 Wn.2d 127, 132, 769 P.2d 298 (1989) . If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to his case, then the trial court should grant the motion. Hines v. Data Line Sys., Inc., 114 Wn.2d 127, 148, 787 P.2d 8 (1990) .\nIn the present case, for purposes of review, we consider all facts and the reasonable inferences therefrom in the light most favorable to Owners as the nonmoving party. Accordingly, we assume that Atherton did not comply with the UBC fire resistivity standards. At issue, therefore, is whether the trial court correctly determined, given the facts of this case, that Owners failed to establish a legally cognizable cause of action.\nOwners' Claims Against Blume\nWe begin our analysis with Owners' claims against Blume. Owners assign error to the trial court's summary judgment order dismissing their claims against Blume for breach of implied warranty, fraudulent concealment, negligent construction, and nuisance. We consider each claim separately.\nImplied Warranty of Habitability\nOwners first assign error to the trial court's summary judgment order dismissing their claim for breach of the implied warranty of habitability. Owners contend that Blume's construction of Atherton in violation of the UBC fire resistivity standards breached the implied warranty of habitability. In deciding the summary judgment motion, the trial court assumed that Atherton did not satisfy the UBC 1-hour fire resistivity standards, but nonetheless determined, as a matter of law, that Owners' claim did \""not fall within the limited sphere of the warranty of habitability\"". The Court of Appeals affirmed the trial court.\nOwners argue that the trial court erred in dismissing the claim as a matter of law. Blume responds that the implied warranty claim fails because Owners do not establish that there is structural damage to the condominium.\nIn the sale of new residential dwellings, the doctrine of caveat emptor has properly been eroded by the winds of contemporary realities. See generally McDonald v. Mianecki, 79 N.J. 275, 283-91, 398 A.2d 1283 (1979); Humber v. Morton, 426 S.W.2d 554, 557-62 (Tex. 1968). The fictional foundation of the doctrine was aptly dispelled in Chandler v. Madsen, 197 Mont. 234, 642 P.2d 1028 (1982), where the Montana Supreme Court explained:\nCaveat emptor, which traditionally has applied to sales of real estate, developed at a time when a buyer and seller were in equal bargaining positions. They were of comparable skill and knowledge and each could protect himself in a transaction.\nIn the modern marketplace that equality of position no longer necessarily exists, and a growing number of jurisdictions have abandoned caveat emptor in favor of implied warranties where a builder-vendor sells a new residence.\nChandler, at 238. This metamorphosis, as one court has observed, \""brings the law much closer to the realities of the market for new homes than does the anachronistic maxim of caveat emptor.\"" David v. B&J Holding Corp., 349 So. 2d 676, 678 (Fla. Dist. Ct. App. 1977) (quoting Gable v. Silver, 258 So. 2d 11, 17 (Fla. Dist. Ct. App.), cert. discharged, 264 So. 2d 418 (Fla. 1972)).\nThe seminal case concerning implied warranties in the sale of new residential dwellings is Carpenter v. Donohoe, 154 Colo. 78, 388 P.2d 399 (1964). In Carpenter, the Supreme Court of Colorado held that builder-vendors of residential dwellings impliedly warranted that the homes they constructed complied with applicable building code requirements, were built in a workmanlike manner, and were suitable for habitation. Carpenter, at 83-84.\nIn House v. Thornton, 76 Wn.2d 428, 457 P.2d 199 (1969), Washington followed Carpenter and abandoned the doctrine of caveat emptor as applied to the sale of new residential dwellings by builder-vendors, and recognized an implied warranty. Based upon the facts of the case, this court stated:\n[W]hen a vendor-builder sells a new house to its first intended occupant, he impliedly warrants that the foundations supporting it are firm and secure and that the house is structurally safe for the buyer's intended purpose of living in it. Current literature on the subject overwhelmingly supports ... an implied warranty of fitness in the sale of new houses.\nHouse, at 436.\nThe entire realm of defects which are within the purview of this implied warranty has not been precisely defined. Instead, \"" [a] more precise definition of the scope of this warranty must await delineation on a case by case basis.\"" (Footnote omitted.) Yepsen v. Burgess, 269 Or. 635, 641, 525 P.2d 1019 (1974).\nIn the present case, the trial court dismissed Owners' claim, as a matter of law, because the claim did \""not fall within the limited sphere of the warranty of habitability\"". Both the Court of Appeals and Blume rely on Stuart v. Coldwell Banker Comm'l Group, Inc., 109 Wn.2d 406, 745 P.2d 1284 (1987) to support their restrictive interpretations of the implied warranty of habitability. The Court of Appeals reasoned as follows:\nThe principal defect Owners allege violates this warranty is that Blume's building code violations will enable fire to spread more rapidly between units than it would in a properly constructed building. While we acknowledge the seriousness of this problem, we do not believe that it constitutes a defect which \""profoundly compromises\"" Atherton as a dwelling, or makes it unfit for habitation within the meaning of Stuart. Although Atherton may be less safe during a fire than it should be, on an everyday basis it can still be used for its intended purpose.\nAtherton Condominium Apartment-Owners Association Board of Directors v. Blume Development Company, cause 23427-7-1 slip op. at 7 (Sept. 5, 1989). We disagree with this casual characterization of the UBC fire resistivity requirements.\nIn Stuart, a homeowners association argued that the condominium decks, walkways, and railings were improperly constructed and dangerous. The limited record indicated that the decks, walkways, and railings did not meet UBC water-tightness requirements and this led to rotting and substantial impairment of those structures. This court found that the trial court record was inadequate and remanded the case to the trial court for a determination as to which of the condominium units had walkways which made it unsafe to enter them. Stuart, at 417.\nBlume relies on language from Stuart which states that the implied warranty of habitability applies only to \""egregious defects in the fundamental structure of a home.\"" Stuart, at 416. Blume contends that because Atherton's fire resistivity problems are neither egregious nor structural, the implied warranty is not applicable. We disagree. As noted above, the interpretation of the implied warranty at issue here has been left to a case-by-case basis. In a vacuum, a strongly worded phrase like \""egregious defects\"" could easily be construed as unnecessarily constrictive. However, as is frequently the case in appellate interpretation, applying earlier formulas in a new factual context creates new shading, new shadows. We conclude that the facts of this case clearly demonstrate the wisdom of applying the implied warranty of habitability to these circumstances.\nThe allegations raised here present serious questions of the safety of the Atherton condominium, a consideration recognized in Stuart. Stuart, at 417. The claimed violations of the UBC fire resistivity requirements are serious and substantial and, if proven, have the potential to severely restrict the habitability of the condominiums. As such, the Owners' claims fall within the purview of the warranty of habitability, at least for purposes of the summary judgment proceedings.\nSeveral policy considerations support our interpretation of the implied warranty of habitability. First, the implied warranty of habitability protects purchasers from latent construction defects. As the court stated in Christensen v. R.D. Sell Constr. Co., 774 S.W.2d 535 (Mo. Ct. App. 1989):\nThe structural quality of a house, by its very nature, is nearly impossible to determine by inspection after the house is built, since many of the most important elements of its construction are hidden from view. The ordinary 'consumer' can determine little about the soundness of the construction but must rely upon the fact that the vendor-builder holds the structure out to the public as fit for use as a residence, and of being of reasonable quality.\nChristensen, at 538 (quoting Smith v. Old Warson Dev. Co., 479 S.W.2d 795, 799 (Mo. 1972)). From the evidence before us, it appears that the alleged defects at Atherton are not readily discoverable by the average purchaser. The defects are latent structural deficiencies primarily pertaining to the inner construction of the floors and ceilings. Ascertaining whether Atherton is constructed in compliance with the fire resistivity standards of the applicable building code would be quite difficult.\nSecond, the implied warranty of habitability fixes liability for defective construction on the builder-vendor rather than the purchaser because the builder-vendor's position throughout the construction process is markedly superior to that of the purchaser, and because the builder-vendor has a far better opportunity to avoid the alleged defect. House, 76 Wn.2d at 435. See also Degnan v. Executive Homes, Inc., 215 Mont. 162, 166, 696 P.2d 431 (1985); Sloat v. Matheny, 625 P.2d 1031, 1033 (Colo. 1981). In the present case, Blume was in a decidedly superior position to prevent the occurrence of the alleged defects. In the process of constructing Atherton, Blume had sole control over compliance with the applicable building code.\nThird, the implied warranty of habitability should attach because a purchaser:\nhas a right to expect to receive that for which he has bargained and that which the builder-vendor has agreed to construct and convey to him, that is, a house that is reasonably fit for use as a residence.\nFrickel v. Sunnyside Enters., Inc., 106 Wn.2d 714, 719-20, 725 P.2d 422 (1986) (quoting Petersen v. Hubschman Constr. Co., 76 Ill. 2d 31, 40, 389 N.E.2d 1154 (1979)). See also McDonald v. Mianecki, 79 N.J. 275, 289, 398 A.2d 1283 (1979). In the present case, Owners, as purchasers of new condominium units, have a right to expect that the condominium complex will comply with the fire safety provisions of the applicable building code. This expectation is neither unreasonable nor harsh on a builder-vendor.\nAlthough the implied warranty of habitability does not extend to \""mere defects in workmanship\"" or impose upon a builder-vendor an obligation to construct a perfect residential dwelling, Stuart v. Coldwell Banker Comm'l Group, Inc., 109 Wn.2d 406, 417, 745 P.2d 1284 (1987); accord, Klos v. Gockel, 87 Wn.2d 567, 571-72, 554 P.2d 1349 (1976), the alleged defects in this case are not \""mere defects in workmanship.\"" The alleged building code violations Eire neither trivial nor aesthetic concerns, nor those involving procedural breaches. Rather, the alleged building code violations concern fundamental fire safety provisions regarding the construction of Atherton's floors and ceilings. As such, the alleged defects are within the purview of the implied warranty of habitability and should not have been dismissed on summary judgment as a matter of law.\nFraudulent Concealment\nOwners also assign error to the trial court's summary judgment order dismissing their claim for fraudulent concealment. They contend that Blume's failure to disclose its departure from the plans approved by Lynnwood and its alleged violations of the UBC constitutes fraudulent concealment. The trial court, however, dismissed the fraudulent concealment claim on the basis that there was no evidence of intentional concealment. The Court of Appeals reversed the trial court and we agree. The trial court erroneously determined that intent, as opposed to knowledge, is an element of the cause of action. The appropriate inquiry is if Owners provided evidence of Blume's knowledge sufficient to create a question of fact.\nIn the sale of residential dwellings, the doctrine of caveat emptor no longer applies \""to the complete exclusion of any moral and legal obligation to disclose material facts not readily observable upon reasonable inspection by the purchaser.\"" Hughes v. Stusser, 68 Wn.2d 707, 711, 415 P.2d 89 (1966). In Obde v. Schlemeyer, 56 Wn.2d 449, 353 P.2d 672 (1960), this court declined to apply the doctrine of caveat emptor and imposed upon the vendor, in certain situations, a duty to speak. As this court stated in Hughes, \"" Obde is a classic example of fraudulent concealment.\"" Hughes, at 710.\nIn Obde, the vendors sold a residence which was infested with termites. Although the vendors knew there was widespread termite infestation in the residence, the purchasers did not. The vendors argued that they had no duty to inform the purchasers of the termite condition because the purchasers had not so inquired. This court, however, held that such a duty existed. Obde, at 453. Relying on Perkins v. Marsh, 179 Wash. 362, 37 P.2d 689 (1934), a landlord-tenant case, the court stated:\n\""Where there are concealed defects in demised premises, dangerous to the property, health or life of the tenant, which defects are known to the landlord when the lease is made, but unknown to the tenant, and which a careful examination on his part would not disclose, it is the landlord's duty to disclose them to the tenant before leasing, and his failure to do so amounts to a fraud.\""\nWe deem this rule to be equally applicable to the vendor-purchaser relationship.\nObde, at 452 (quoting Perkins, at 365).\nAccordingly, a builder-vendor's duty to speak arises in those situations where: there is a concealed defect in the premises of the residential dwelling, the builder-vendor has knowledge of the defect, the defect is dangerous to the property, health or life of the purchaser, and the defect is unknown to the purchaser and a careful, reasonable inspection on the part of the purchaser would not disclose the defect. Obde, at 452-53. In addition, the defect complained of must \""substantially affect[] adversely the value of the property or operate [] to materially impair or defeat the purpose of the transaction.\"" Mitchell v. Straith, 40 Wn. App. 405, 411, 698 P.2d 609 (1985). See also Luxon v. Caviezel, 42 Wn. App. 261, 264-65, 710 P.2d 809 (1985). In such a situation, a builder-vendor's failure to inform the purchasers of the defect constitutes fraudulent concealment. Obde, 56 Wn.2d at 452 (duty to inform purchaser of termite condition); Perkins, 179 Wash. at 367 (duty to inform lessee of failure of the drainage system to carry away water during the rainy season); Luxon, 42 Wn. App. at 264-65 (duty to inform purchaser of inadequate septic system); Sorrell v. Young, 6 Wn. App. 220, 225, 491 P.2d 1312 (1971) (duty to inform purchaser that lot was built up to street level with fill).\nAlthough a fraudulent concealment claim may exist even though the purchaser makes no inquiries which would lead him to ascertain the concealed defect, Obde, at 453, in those situations where a purchaser discovers evidence of a defect, the purchaser is obligated to inquire further. Puget Sound Serv. Corp. v. Dalarna Mgt. Corp., 51 Wn. App. 209, 752 P.2d 1353, review denied, 111 Wn.2d 1007 (1988). Simply stated, fraudulent concealment does not extend to those situations where the defect is apparent.\nReview of the evidence before the trial court establishes that there is a factual question as to whether Blume fraudulently concealed construction practices which violated the UBC from Atherton purchasers. The evidence supports a reasonable inference that Blume knew that it deviated from the approved construction plans in ways related to fire resistivity and substitution of Kolor Krete for stucco as the exterior wall covering. The evidence also indicates that the alleged UBC violations are not apparent and would not be revealed through a purchaser’s reasonably careful inspection. It is a sharply disputed issue of fact whether the construction deviations create a danger to Atherton purchasers. Finally, as to materiality, we find the evidence sufficient to create a question of fact. Although Owners supply no specific evidence of diminution of value resulting from the construction deviations, it may reasonably be inferred that a condominium constructed in a manner that will not adequately resist the spread of fire is substantially less valuable than one constructed in compliance with fire resistivity standards, and that bringing Atherton into compliance with building code would be a substantial expenditure. Moreover, a jury could reasonably conclude that the construction deviations pose a potential danger to the lives of Owners and that this danger materially impairs or defeats the purpose of the Blume-Owners transaction.\nIn sum, the trial court erred in granting summary judgment dismissing Owners' claim for fraudulent concealment.\nNegligent Construction\nOwners next assign error to the trial court's summary judgment order dismissing their claim for negligent construction. Owners seek damages for the cost to repair the alleged construction defects at Atherton. The trial court correctly dismissed this claim on the basis that Washington does not recognize such a cause of action.\nStuart v. Coldwell Banker Comm'l Group, Inc., 109 Wn.2d 406, 745 P.2d 1284 (1987) is controlling. Stuart involved, inter alia, a claim for negligent construction brought by a condominium homeowners association against the builder-vendor for alleged defects in private decks and walkways constructed in violation of the applicable UBC provisions. In Stuart, the plaintiffs had not suffered any personal injuries, nor was there any evidence of physical damage. Rather, the plaintiffs had suffered economic damage; i.e., the cost to repair the deteriorated decks and walkways. Although the trial court allowed the claim, we reversed on the basis that tort recovery was an inappropriate remedy for the damages pleaded:\nWashington does not recognize a cause of action for negligent construction on behalf of individual homeowners. Beyond the terms expressed in the contract of sale, the only recognized duty owing from a builder-\\ andor of a newly completed residence to its first purchaser is that embodied in the implied warranty of habitability, which arises from the sale transaction.\nStuart, at 417.\nIn the present case, as in Stuart, Owners have presented no evidence of personal or physical injury resulting from the manner in which Atherton was constructed. Rather, Owners seek only economic damages. Accordingly, their claim is barred by Stuart.\nNuisance\nOwners also assign error to the trial court's summary judgment order dismissing their claim for nuisance. Owners contend that Blume's failure to construct Atherton in compliance with the applicable building code fire resistivity standards created a nuisance. Owners rely on UBC § 203, which states that all buildings which constitute a fire hazard are unsafe buildings \""declared to be public nuisances\"". Although the trial court found the nuisance claim to be creative, it nonetheless determined that the nuisance claim was \""not supportable by the law.\"" The Court of Appeals affirmed and we agree.\nInitially, we question whether Owners may properly bring a nuisance claim against Blume. Although the alleged defects at Atherton may constitute an actionable nuisance, Owners cite no authority for the proposition that a purchaser of a condominium unit may bring a nuisance claim against the builder-vendor.\nIn any event, we are convinced that the trial court properly dismissed Owners' nuisance claim. In Washington, a \""negligence claim presented in the garb of nuisance\"" need not be considered apart from the negligence claim. Hostetler v. Ward, 41 Wn. App. 343, 360, 704 P.2d 1193 (1985), review denied, 106 Wn.2d 1004 (1986). See also Re v. Tenney, 56 Wn. App. 394, 398 n.3, 783 P.2d 632 (1989). In those situations where the alleged nuisance is the result of the defendant's alleged negligent conduct, rules of negligence are applied. Hostetler, at 360. Cf. Albin v. National Bank of Commerce, 60 Wn.2d 745, 753, 375 P.2d 487 (1962) (trial court properly refused to give a proposed instruction on nuisance which was based on the same omission to perform a duty which allegedly constituted negligence).\nOwners' contention that Atherton is a nuisance is premised on their argument that Blume was negligent in failing to construct Atherton in compliance with the applicable building code. In other words, even if Atherton does constitute a nuisance, the nuisance would be solely the result of Blume's alleged negligent construction. Accordingly, we do not consider the nuisance claim apart from the negligence claim, discussed supra. We conclude that the trial court properly dismissed Owners' nuisance claim.\nPublic Duty Doctrine\nWe next consider Owners' claim against the City of Lynnwood. Owners assign error to the trial court's dismissal of their claim against Lynnwood and its employees. Owners contend that Lynnwood officials negligently administered the UBC in issuing building permits and inspecting Atherton. The trial court determined that even if Lynnwood were negligent, the public duty doctrine precluded liability. The Court of Appeals affirmed the trial court.\nOwners offer two arguments. First, Owners contend that the public duty doctrine does not apply to this case. Second, Owners argue that even if the doctrine does apply, this case falls within the failure to enforce exception to the public duty doctrine. We find both positions unconvincing.\nAs in any negligence action, Owners must establish that Lynnwood owed them a duty of care which was breached. See, e.g., Hartley v. State, 103 Wn.2d 768, 777, 698 P.2d 77 (1985). The determination of the existence of a duty is a question of law. Taylor v. Stevens Cy., 111 Wn.2d 159, 168, 759 P.2d 447 (1988); Mele v. Turner, 106 Wn.2d 73, 76, 720 P.2d 787 (1986); Pedroza v. Bryant, 101 Wn.2d 226, 228, 677 P.2d 166 (1984); Bernethy v. Walt Failor's, Inc., 97 Wn.2d 929, 933, 653 P.2d 280 (1982).\nWhere the liability of a governmental entity is at issue, the public duty doctrine is employed to determine if the alleged \""duty is one owed to a nebulous public or whether that duty is owed to a particular individual.\"" Honcoop v. State, 111 Wn.2d 182, 188, 759 P.2d 1188 (1988). The public duty doctrine precludes liability for a public official's negligent conduct unless it is established that \"" 'the duty breached was owed to the injured person as an individual and was not merely the breach of an obligation owed to the public in general....'\"" Taylor, at 163 (quoting J&B Dev. Co. v. King Cy., 100 Wn.2d 299, 303, 669 P.2d 468, 41 A.L.R.4th 86 (1983)). See also Oberg v. Department of Natural Resources, 114 Wn.2d 278, 282, 787 P.2d 918 (1990); Honcoop, 111 Wn.2d at 188; Meaney v. Dodd, 111 Wn.2d 174, 178, 759 P.2d 455 (1988); Bailey v. Forks, 108 Wn.2d 262, 265, 737 P.2d 1257, 753 P.2d 523 (1987). In the present case, the question is whether the UBC imposes a duty upon Lynnwood and its building officials which is owed to the public as a whole or whether the duty is owed to the Owners as individuals.\nTaylor is instructive. There, the buyers of a house which did not comply with the applicable building code sought damages from the sellers, the sellers' realtor, and the County which inspected the house and issued a building permit. We held that the County owed the buyers no actionable duty. Taylor, at 172. Pursuant to the public duty doctrine, governmental entities do not owe an actionable duty of care to individuals for negligent failure to detect building code violations under the UBC. Specifically, we stated that:\n[N]o duty is owed by local government to a claimant alleging negligent issuance of a building permit or negligent inspection to determine compliance with building codes. The duty to ensure compliance rests with individual permit applicants, builders and developers. . . . [LJocal government owes no duty of care to ensure compliance with the codes.\nTaylor, at 168. On this issue, the court's opinion was unanimous. Taylor, at 173 (Utter, J., concurring). We noted that \""[sjeveral policy considerations compel our conclusion that it is the duty of individuals, not local government, to ensure compliance with building codes.\"" Taylor, at 168. First, the primary purpose of building codes is to protect the public safety, not to compensate individuals for economic loss. Second, burdening local government to ensure compliance with code requirements may well cause serious budgetary and personnel costs more aptly borne by the builder. Taylor, at 168-69. Third, imposing liability for noncompliance on the builder is consistent with the vested rights doctrine which protects the right to develop land only if building codes are fully complied with. Taylor, at 169-70 (citing Comment, Washington's Zoning Vested Rights Doctrine, 57 Wash. L. Rev. 139, 143 (1981); Nolan v. Blackwell, 123 Wash. 504, 212 P. 1048 (1923)). We concluded that the public duty doctrine is premised upon the well reasoned policy that \""legislative enactments for the public welfare should not be discouraged by subjecting a governmental entity to unlimited liability.\"" Taylor, at 170. No persuasive reason has been presented in this case to warrant departing from Taylor. Accordingly, we reject Owners' contention that the public duty doctrine should not apply to claims that public officials negligently administered the UBC.\nThere is, however, an exception to the public duty doctrine which is relevant to this case. See Bailey, 108 Wn.2d at 268. The failure to enforce exception recognizes that:\n[A] general duty of care owed to the public can be owed to an individual\nwhere [1] governmental agents responsible for enforcing statutory requirements [2] possess actual knowledge of a statutory violation, fail to take corrective action despite a statutory duty to do so, and [3] the plaintiff is within the class the statute intended to protect. . .\nHoncoop, 111 Wn.2d at 190 (quoting Bailey, 108 Wn.2d at 268). As to the performance of building code inspections, the failure to enforce exception to the public duty doctrine recognizes a duty where a public building official has actual knowledge of an inherently dangerous and hazardous condition, is under a duty to correct the problem and fails to meet this duty. See Taylor, 111 Wn.2d at 171-72. See also Zimbelman v. Chaussee Corp., 55 Wn. App. 278, 777 P.2d 32 (1989), review denied, 114 Wn.2d 1007 (1990); Waite v. Whatcom Cy., 54 Wn. App. 682, 686, 775 P.2d 967 (1989). The plaintiff has the burden of establishing each element of the exception. In addition, we construe this exception narrowly. To do otherwise would effectively overrule Taylor and eviscerate the policy considerations therein identified. In a review of a summary judgment proceeding, we must decide if, viewing the evidence in the light most favorable to Owners, there is any evidence that building officials had actual knowledge of an inherently hazardous and dangerous condition.\nHere, Owners argue that Lynnwood building officials (Farrens and Collier) possessed actual knowledge of the UBC violations at Atherton. As evidence, Owners point to the plan review sheet which Farrens completed and the notations which he made on the building plans.\nZimbelman v. Chaussee Corp., supra, is instructive in resolving this issue. In Zimbelman, a King County building official reviewed plans for a condominium complex. The building official noted deviations from UBC requirements, including plans which did not conform with exit requirements, insufficient fire-resistant materials in certain required locations, and flooring below minimum fire resistance standards. The building official returned the plans with the necessary corrections noted. A building permit was issued and the building inspected. The building inspector did not note any deficiencies and did not attempt to verify if the previously noted deviations had been corrected. A certificate of occupancy was then issued. The building as constructed, however, violated UBC standards. In finding that there was no evidence that the building official had actual knowledge, the Court of Appeals stated:\nAwareness of code violations in the plans as submitted only establishes knowledge of defective plans, not knowledge of defective construction. The County cannot be charged with knowing that the contractor would fail to correct the deficiencies identified by the County in the plans. If the County instead had required submission of amended plans which incorporated the noted corrections, the approval of such corrected plans would not be actual knowledge of the contractor's subsequent failure to build in compliance with code requirements. Even if the County failed to note some defects in the plans, this would not constitute actual knowledge of inherently dangerous and hazardous conditions created by the contractor.\nZimbelman, 55 Wn. App. at 283.\nIn the present case, Owners argue that the plan correction sheet which Farrens filled out after reviewing the first set of Atherton building plans and the plans which include Farrens' notations constitute actual knowledge of an inherently dangerous and hazardous condition at Atherton. We disagree. The evidence presented to us does not establish actual knowledge on the part of any Lynnwood building official of any inherently hazardous and dangerous condition at Atherton as actually constructed. Zimbelman, 55 Wn. App. at 282. Accord, Coffel v. Clallam Cy., 58 Wn. App. 517, 794 P.2d 513 (1990). Owners' evidence, at most, points to constructive knowledge. Constructive knowledge, however, is not enough. The requirement of actual knowledge does not encompass facts which the building official should have known. Zimbelman, 55 Wn. App. at 282. Thus, Owners have failed to support their claim for invocation of this exception to the public duty doctrine.\nMotion To Strike\nOwners next assign error to the trial court's order denying their motion to strike certain affidavits submitted by Blume in support of its motion for summary judgment. The Court of Appeals affirmed the trial court. We agree.\nOwners assert that the trial court erred because the affidavits, which concerned construction practices, interpretation of the UBC, and Atherton's compliance with the UBC, improperly offered opinions on questions of law. The record, however, indicates that the trial court did not rely on those parts of the contested evidence which could be characterized as conclusions of law. In ruling on the summary judgment motion, the trial court assumed that there were in fact UBC violations, and that Atherton was not constructed in compliance with the applicable building code. In deciding the summary judgment motion, the trial court dismissed Owners' claims as a matter of law. Accordingly, Owners have not demonstrated prejudicial error in the trial court's decision to deny the motion. Cf. Everett v. Diamond, 30 Wn. App. 787, 792-93, 638 P.2d 605 (1981) (objecting party must explain how the trial court's decision to admit the testimony was prejudicial).\nOwners' Claim Against Westlin\nFinally, we consider Owners' claim against the architect, Westlin. Owners assign error to the trial court's summary judgment order dismissing their claim against Westlin. The record indicates that Westlin, without presenting additional evidence or legal argument, joined Blume's summary judgment motion. The trial court granted Blume's summary judgment motion and dismissed Owners' claim against Westlin without specifically addressing the claim.\nOn appeal, Owners appear to argue that Westlin negligently designed Atherton and that this resulted in the defects at issue. We conclude that the trial court did not err in dismissing the claim.\nNo genuine issue of material fact exists to establish liability on the part of Westlin. The defects which Owners allege exist at Atherton fall into two categories: (1) construction defects for unauthorized departures from the plans as submitted by Westlin and approved by Lynnwood, or (2) construction defects for unauthorized departures from the handwritten notations of John Farrens. Because the alleged defects do not result from compliance with the approved building plans which Westlin designed, Owners' claim was properly dismissed. See Covil v. Robert & Co. Assocs., 112 Ga. App. 163, 168, 144 S.E.2d 450 (1965).\nFurthermore, the record indicates that Westlin's involvement with the Atherton project terminated at the point the building permits were issued. Westlin was not engaged to inspect, supervise, or monitor construction at Atherton. Accordingly, under the facts of this case, he has no liability for the alleged defects. See Goette v. Press Bar & Cafe, Inc., 413 N.W.2d 854 (Minn. Ct. App. 1987) (court affirmed a summary judgment in favor of architect when the failure occurred because the contractor deviated from the architect's drawings and the architect had no duty to supervise or inspect the work).\nMoreover, Owners cite no authority that Washington recognizes a cause of action in tort by a third party seeking economic loss damages for negligent design against an architect. In sum, the trial court did not err in granting summary judgment dismissing Owners' claim against Westlin.\nBlume's Cross Appeal\nBlume assigns error to the trial court's refusal to dismiss the express warranty claims brought on behalf of Pamela Macri, Fern Martinson, and Glenn Ortloff. The three claims regard alleged expressed oral warranties relating to the stucco on the exterior walls of Atherton. Blume alleges that the trial court erroneously determined that there are issues of fact appertaining to the making of express warranties to Macri, Ortloff, and Martinson.\nThe Court of Appeals affirmed in part and reversed in part. It determined that the evidence was insufficient to create a question of fact as to whether Blume made express warranties to Macri and Ortloff. Martinson's affidavit, however, was held to be sufficient to raise a question of fact as to whether one of Blume's agents made a warranty to Martinson. We agree.\nAn express oral warranty regarding the construction of a residence exists where a builder or vendor makes oral representations of fact regarding the workmanship and/or materials used in the construction of the residence, prior to the sale, and upon which the buyer relies. See Jackson v. Buesgens, 290 Minn. 78, 81, 186 N.W.2d 184 (1971). See generally Annot., Liability of Builder-Vendor or Other Vendor of New Dwelling for Loss, Injury, or Damage Occasioned by Defective Condition Thereof, 25 A.L.R.3d 383 § 5[a] (1969). The trial court erred in not dismissing Macri and Ortloff's express warranty claims. Maori's affidavit is conclusionary and wholly fails to support the claim in any meaningful way. Ortloff's affidavit is less specific than Maori's. Neither Macri nor Ortloff states who made the alleged representation or whether the alleged representation was made before they contracted to purchase an Atherton condominium. Accordingly, the evidence was insufficient to create a question of fact as to whether Blume made an express oral warranty to Macri or Ortloff. These claims are therefore properly subject to summary judgment of dismissal.\nMartinson's affidavit, however, establishes that (1) a realtor showing Martinson the Atherton complex \""pointed out . . . that the exterior of the buildings was stucco and that stucco was more durable than other building exteriors commonly used for condominium construction\"" (2) prior to Martinson's purchase of an Atherton condominium, and that (3) Martinson \""relied upon this statement \""'in. making the \""decision to purchase a unit at Atherton Condominiums.\"" Accordingly, the evidence was sufficient to create a question of fact as to whether one of Blume's agents made an express oral warranty to Martinson and the trial court properly retained this claim.\nConclusion\nAs to the issues pertaining to Owners' appeal, we reverse the trial court's dismissal of Owners' claims against Blume for breach of the implied warranty of habitability and fraudulent concealment. In regard to Blume's cross appeal, we reverse the trial court's retention of Maori's and Ortloff's express warranty claims. These issues are remanded for further proceedings consistent with this opinion. All other aspects of the orders appealed from are affirmed.\nCallow, C.J., and Utter, Brachtenbach, Dolliver, Dore, Andersen, and Smith, JJ., concur.\nReconsideration denied May 16, 1991.\nBlume Development Company is a partnership consisting of the following five corporate entities: Bill Blume Limited; University Enterprises, Inc.; Thomas F. Carey, M.D., Inc., P.S.; P.R.A. Investments, Inc.; and C.M. Arnim Investments, Inc.\n\""Kolor Krete\"" is the trade name for an oil based surfacing material which is approximately one-eighth inch thick.\nSee UBC §§ 1302(b), 3302(a), 4302(a), 4304(a), 4305(a); UBC Tables 43-B, 43-C, 43-C n.14.\nThis ruling confirmed Judge Bibb's letter ruling of October 2, 1987, in which he notified the parties that he would deny the motion for summary judgment based upon the statute of repose, RCW 4.16.310, and the applicable statute of limitation, RCW 4.16.080, against Owners by Blume and Lynnwood.\nBecause this case arose before the effective date of the Washington condominium act, we do not consider RCW 64.34.445.\nSee also Frickel v. Sunnyside Enters., Inc., 106 Wn.2d 714, 719, 725 P.2d 422 (1986) (\""The implied warranty of habitability or fitness is based upon judicial recognition that the rule of caveat emptor—premised as it is on an arm's length transaction between buyers and sellers of comparable skill and experience—has little relevance when applied to the sale of new homes in today's market.'').\nTwo prerequisites, however, must exist for the implied warranty of habitability to arise from the sale of a new residential dwelling. First, the builder-vendor of the dwelling must be a commercial builder. Second, the unit must be built for sale, rather than personal occupancy. Klos v. Gockel, 87 Wn.2d 567, 570, 554 P.2d 1349 (1976). See also Frickel v. Sunnyside Enters., Inc., supra at 718; Luxon v. Caviezel, 42 Wn. App. 261, 265, 710 P.2d 809 (1985); Boardman v. Dorsett, 38 Wn. App. 338, 341, 685 P.2d 615, review denied, 103 Wn.2d 1006 (1984); Allen v. Anderson, 16 Wn. App. 446, 448, 557 P.2d 24 (1976). In the present case, the record indicates, and the parties do not dispute, that Blume is a commercial builder and that the Atherton condominiums are new dwellings which were built for sale.\nSee also Waggoner v. Midwestern Dev., Inc., 83 S.D. 57, 68, 154 N.W.2d 803 (1967) (\""The builder is not required to construct a perfect house and in determining whether a house is defective the test is reasonableness and not perfection.\"").\nFor example, \""a claim based solely on the lack of a certificate of occupancy does not fall within the ambit of the implied warranty. The warranty protects against construction defects, not procedural defects.\"" Dann v. Perrotti & Hauptman Dev. Co., 670 P.2d 448, 451 (Colo. Ct. App. 1983).\nWe note that we are not alone in concluding that a purchaser may bring a cause of action for breach of the implied warranty of habitability in those cases where the builder-vendor deviates from fundamental aspects of the applicable building code. See Vantage View, Inc. v. Bali East Dev. Corp., 421 So. 2d 728 (Fla. Dist. Ct. App. 1982); Drexel Properties, Inc. v. Bay Colony Club Condominium, Inc., 406 So. 2d 515 (Fla. Dist. Ct. App. 1981); B&J Holding Corp. v. Weiss, 353 So. 2d 141 (Fla. Dist. Ct. App. 1977); David v. B&J Holding Corp., 349 So. 2d 676 (Fla. Dist. Ct. App. 1977); Carpenter v. Donohoe, 154 Colo. 78, 388 P.2d 399 (1964); Dann v. Perrotti & Hauptman Dev. Co., 670 P.2d 448 (Colo. Ct. App. 1983); Schiro v. W.E. Gould & Co., 18 Ill. 2d 538, 165 N.E.2d 286 (1960).\nWe have subsequently characterized fraudulent concealment as \""a species of fraud.” Liebergesell v. Evans, 93 Wn.2d 881, 893, 613 P.2d 1170 (1980).\nUBC § 303 requires that all work proceed in accordance with the plans as approved by the building department.\nOwners also assign error to the trial court's dismissal of their negligence per se claim. The concept of negligence per se, however, does not constitute a separate cause of action. The doctrine merely substitutes a legislatively created standard of care for the lesser common law standard of reasonableness. See Adkins v. Aluminum Co. of Am., 110 Wn.2d 128, 144, 750 P.2d 1257, 756 P.2d 142 (1988).\nAlthough Owners also cite to Washington Water Power Co. v. Graybar Elec. Co., 112 Wn.2d 847, 774 P.2d 1199, 779 P.2d 697 (1989), that case is readily distinguishable. In Graybar, this court held only that Washington's product liability and tort reform act disallows claims for economic loss.\nSee also Woodrome v. Benton Cy., 56 Wn. App. 400, 403-04, 783 P.2d 1102 (1989); Re v. Tenney, 56 Wn. App. 394, 396, 783 P.2d 632 (1989); Metlow v. Spokane Alcoholic Rehabilitation Ctr., Inc., 55 Wn. App. 845, 849, 781 P.2d 498 (1989); Favors v. Matzke, 53 Wn. App. 789, 796, 770 P.2d 686 (1989); Leyendecker v. Cousins, 53 Wn. App. 769, 775, 770 P.2d 675 (1989); Youngblood v. Schireman, 53 Wn. App. 95, 99, 765 P.2d 1312 (1988); Knott v. Liberty Jewelry & Loan, Inc., 50 Wn. App. 267, 271, 748 P.2d 661, review denied, 110 Wn.2d 1024 (1988). We evaluate public policy considerations in determining the existence of a duty. Bernethy, 97 Wn.2d at 933; Haslund v. Seattle, 86 Wn.2d 607, 611 n.2, 547 P.2d 1221 (1976).\nAlthough Owners limited their oral argument before this court to the failure to enforce exception, Owners argue in their briefs that the legislative intent exception and the special relationship exception to the public duty doctrine are also applicable. In their petition for review, however, Owners raised only the failure to enforce exception. Accordingly, pursuant to RAP 13.7(b), we consider only the failure to enforce exception. See Clam Shacks of Am., Inc. v. Skagit Cy., 109 Wn.2d 91, 98, 743 P.2d 265 (1987); Garth Parberry Equip. Repairs, Inc. v. James, 101 Wn.2d 220, 225 n.2, 676 P.2d 470 (1984); Caruso v. Local Union 690 of Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers, 100 Wn.2d 343, 352, 670 P.2d 240 (1983); State v. Murdock, 91 Wn.2d 336, 339, 588 P.2d 1143 (1979).\nOwners also fail to articulate a recognizable negligence claim. Owners do not demonstrate what, if any, duty Westlin owed to them. Owners do not indicate that Westlin breached any duty of care and that such breach was the proximate cause of the alleged damages. In addition, Owners appear to seek only economic loss damages which are not recoverable under tort law. See R. Cushman & T. Bottum, Architect and Engineer Liability: Claims Against Design Professionals § 7.9 (1987).\nIn addition, Blume alleges that each of these claims are time barred pursuant to RCW 4.16.080(3). We, however, do not reach the statute of limitation question. The record indicates that Blume did not appeal the trial court's denial of its motion for partial summary judgment based upon the statute of limitation.\nCf. Hausken v. Hodson-Feenaughty Co., 109 Wash. 606, 612, 187 P. 319 (1920) (\""A warranty is express when the seller makes an affirmation with respect to the article to be sold, pending the treaty of sale, upon which it is intended that the buyer shall rely in making the purchase.\"")."", ""type"": ""majority"", ""author"": ""Durham, J.""}], ""attorneys"": [""Philip A. Talmadge (of Talmadge Friedman & Cutler) and Bo Barker (of Bo Barker, P.S.), for petitioner."", ""Anderson Hunter Law Firm, H. Scott Holte, Jeffrey H. Capeloto, and Todd R. Startzel, for respondent Blume Development Co."", ""John T. Arrabito, P.C., and John T. Arrabito, for respondents Westlin."", ""Martin, Bischoff, Templeton, Ericsson & Langslet, by David P. Templeton, Stephanie L. Striffler, and Michael G. Harting, for respondents City of Lynnwood, et al."", ""Bryan P. Harnetiaux and Robert H. Whaley on behalf of Washington State Trial Lawyers Association, amici curiae for petitioner."", ""Fred D. Gentry on behalf of Washington Association of Fire Chiefs; Katrin Frank on behalf of the Seattle Fire Fighters Union; Ron Meyers on behalf of the Tacoma Professional Fire Fighters Union; James L. Strichartz on behalf of the Community Associations Institute; Ron Perey on behalf of Gordon F. Vickery; Robert B. Gould on behalf of Abraham B. Bergman, amici curiae for petitioner."", ""J. Richard Aramburu and Jeffrey M. Eustis on behalf of \""Rebound\"", amici curiae for petitioner."", ""Jeffrey B. Mahan on behalf of Washington Defense Trial Lawyers, amicus curiae for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 56677-1.\nEn Banc.\nNovember 1, 1990]\nAtherton Condominium Apartment-Owners Association Board of Directors, Petitioner, v. Blume Development Company, et al, Respondents.\nPhilip A. Talmadge (of Talmadge Friedman & Cutler) and Bo Barker (of Bo Barker, P.S.), for petitioner.\nAnderson Hunter Law Firm, H. Scott Holte, Jeffrey H. Capeloto, and Todd R. Startzel, for respondent Blume Development Co.\nJohn T. Arrabito, P.C., and John T. Arrabito, for respondents Westlin.\nMartin, Bischoff, Templeton, Ericsson & Langslet, by David P. Templeton, Stephanie L. Striffler, and Michael G. Harting, for respondents City of Lynnwood, et al.\nBryan P. Harnetiaux and Robert H. Whaley on behalf of Washington State Trial Lawyers Association, amici curiae for petitioner.\nFred D. Gentry on behalf of Washington Association of Fire Chiefs; Katrin Frank on behalf of the Seattle Fire Fighters Union; Ron Meyers on behalf of the Tacoma Professional Fire Fighters Union; James L. Strichartz on behalf of the Community Associations Institute; Ron Perey on behalf of Gordon F. Vickery; Robert B. Gould on behalf of Abraham B. Bergman, amici curiae for petitioner.\nJ. Richard Aramburu and Jeffrey M. Eustis on behalf of \""Rebound\"", amici curiae for petitioner.\nJeffrey B. Mahan on behalf of Washington Defense Trial Lawyers, amicus curiae for respondents.""}, ""cites_to"": [{""cite"": ""55 Wn. App. 1027"", ""year"": 1989, ""case_ids"": [8849691, 8849683, 8849676], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""case_paths"": [""/wash-app/55/1027-03"", ""/wash-app/55/1027-02"", ""/wash-app/55/1027-01""], ""opinion_index"": 0}, {""cite"": ""187 P. 319"", ""year"": 1920, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""pin_cites"": [{""parenthetical"": ""\""A warranty is express when the seller makes an affirmation with respect to the article to be sold, pending the treaty of sale, upon which it is intended that the buyer shall rely in making the purchase.\""""}], ""opinion_index"": 0}, {""cite"": ""109 Wash. 606"", ""year"": 1920, ""case_ids"": [696318], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""pin_cites"": [{""page"": ""612"", ""parenthetical"": ""\""A warranty is express when the seller makes an affirmation with respect to the article to be sold, pending the treaty of sale, upon which it is intended that the buyer shall rely in making the purchase.\""""}], ""case_paths"": [""/wash/109/0606-01""], ""opinion_index"": 0}, {""cite"": ""588 P.2d 1143"", ""year"": 1979, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""91 Wn.2d 336"", ""year"": 1979, ""case_ids"": [1101818], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""339""}], ""case_paths"": [""/wash-2d/91/0336-01""], ""opinion_index"": 0}, {""cite"": ""670 P.2d 240"", ""year"": 1983, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""100 Wn.2d 343"", ""year"": 1983, ""case_ids"": [1142069], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""352""}], ""case_paths"": [""/wash-2d/100/0343-01""], ""opinion_index"": 0}, {""cite"": ""676 P.2d 470"", ""year"": 1984, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""101 Wn.2d 220"", ""year"": 1984, ""case_ids"": [1139544], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/101/0220-01""], ""opinion_index"": 0}, {""cite"": ""743 P.2d 265"", ""year"": 1987, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""109 Wn.2d 91"", ""year"": 1987, ""case_ids"": [1186068], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""98""}], ""case_paths"": [""/wash-2d/109/0091-01""], ""opinion_index"": 0}, {""cite"": ""547 P.2d 1221"", ""year"": 1976, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""86 Wn.2d 607"", ""year"": 1976, ""case_ids"": [1117385], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/86/0607-01""], ""opinion_index"": 0}, {""cite"": ""110 Wn.2d 1024"", ""year"": 1988, ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""opinion_index"": 0}, {""cite"": ""748 P.2d 661"", ""year"": 1988, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""50 Wn. App. 267"", ""year"": 1988, ""case_ids"": [1706191], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""271""}], ""case_paths"": [""/wash-app/50/0267-01""], ""opinion_index"": 0}, {""cite"": ""765 P.2d 1312"", ""year"": 1988, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""53 Wn. App. 95"", ""year"": 1988, ""case_ids"": [1764070], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""99""}], ""case_paths"": [""/wash-app/53/0095-01""], ""opinion_index"": 0}, {""cite"": ""770 P.2d 675"", ""year"": 1989, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""53 Wn. App. 769"", ""year"": 1989, ""case_ids"": [1764218], ""category"": ""reporters:state"", ""reporter"": ""Wash. 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+142838,"{""id"": 142838, ""name"": ""Geraldine McAllister vs. Boston Housing Authority"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""725bf206f1e86c08dd9575d945c5f100e4183c07d3fefa88dd55adf1016e0763"", ""simhash"": ""1:e286f49cca7cc7f8"", ""pagerank"": {""raw"": 0.0000003124125263606882, ""percentile"": 0.8608297240495488}, ""char_count"": 15755, ""word_count"": 2527, ""cardinality"": 747, ""ocr_confidence"": 0.896}, ""casebody"": {""judges"": [], ""parties"": [""Geraldine McAllister vs. Boston Housing Authority.""], ""opinions"": [{""text"": ""Abrams, J.\nThe plaintiff, Geraldine McAllister, appeals from a decision allowing the defendant Boston Housing Authority’s motion for directed verdicts on claims relating to injuries sustained on the defendant’s property and from a jury determination that the defendant was not negligent. We allowed the plaintiff’s application for direct appellate review. We affirm.\nThe plaintiff was a resident of property owned by the defendant. She slipped and fell on ice that had accumulated on exterior stairs on the defendant’s property. The plaintiff sued the defendant alleging (1) negligence; (2) breach of the implied warranty of habitability; (3) breach of the covenant of quiet enjoyment; and (4) violation of the lease. After the plaintiff presented her case, the defendant successfully moved for a directed verdict on all but the negligence claim. A jury then found for the defendant on the negligence claim.\n1. Negligence. At trial, the defendant acknowledged that it had a duty to remove snow and ice. The central issue was whether the defendant was negligent in performing that duty. That issue was sent to the jury and the jury determined that the defendant was not negligent.\n“[T]he better procedure in a case in which it is a close question whether the standard for granting a directed verdict is met is to allow the matter to go to the jury. If the judge then decides that the jury’s verdict cannot stand, a motion for judgment notwithstanding the verdict may be allowed.” Smith v. Ariens Co., 375 Mass. 620, 627 (1978), citing Soares v. Lakeville Baseball Camp, Inc., 369 Mass. 974, 975 (1976).\nWe reject the plaintiff’s contention that she is entitled to a new trial based on her claims that the defendant violated the lease and the covenant of quiet enjoyment, G. L. c. 186, § 14. Negligence is a prerequisite for recovery under both theories. See Al-Ziab v. Mourgis, 424 Mass. 847, 850 (1997) (showing of negligence is required for recovery under quiet enjoyment statute); Anderson v. Fox Hill Village Homeowners Corp., 424 Mass. 365, 367 (1997) (“a landlord, who agrees in a lease to remove snow and ice and negligently fails to perform that duty may be liable to his tenant”); Carey v. Malley, 327 Mass. 189, 193 (1951). The jury’s determination that the defendant was not negligent precludes the possibility that the directed verdicts on these claims constitute a basis for a new trial. Both the lease and the State code provisions merely restated a duty which the defendant acknowledged. We turn now to issues arising from the trial.\n2. The trial, (a) Verbal completeness. On cross-examination, the plaintiff testified that she did not call the work order center to complain about a recurrent problem of ice on the front stairs. Rather, she spoke to a person in the management office because the work order system was ineffective. Defense counsel then read a portion of her deposition testimony where she stated that she had always received a proper response from the work order center.\nOn redirect examination, the plaintiff’s counsel sought to rehabilitate the plaintiff by introducing other portions of the deposition testimony under the doctrine of verbal completeness. Over the defendant’s objection, the plaintiff’s counsel was allowed to read the next several lines of the deposition testimony. This testimony described the plaintiff’s problems with the work order system. The plaintiff’s counsel then sought to introduce additional portions of the plaintiff’s deposition testimony, under the doctrine of verbal completeness. The judge sustained the defendant’s objection, reasoning that the plaintiff’s counsel was required to object, under the doctrine of verbal completeness, at the time the deposition was originally used by the defendant. According to the plaintiff, she was prejudiced because the statements introduced by the defendant were taken out of context and the jurors were given a false and misleading impression of a material fact. The plaintiff further contends that the proffered statements would have allowed counsel to rehabilitate the plaintiff.\nUnder the doctrine of verbal completeness, when one party introduces a written or verbal statement, “the other party may add what has been omitted to give a full picture.” Kobayashi v. Orion Ventures, Inc., 42 Mass. App. Ct. 492, 498 (1997). The judge’s decision to exclude the additional deposition testimony was within her discretion. The plaintiff’s counsel read the next several lines of the deposition following those offered by the defendant. This testimony, establishing that the plaintiff had problems with the work order system, was sufficient to complete the “full picture” as raised by cross-examination. See id. The portion excluded by the judge appeared a number of pages later in the deposition transcript, and the record does not reflect that the additional proffered testimony explained further the picture painted by defense counsel. See id. at 497 (“[Verbal completeness doctrine] does not open the gate for everything in a document or statement. There is always the test of relevance”).\nWe agree with the judge’s conclusion that the better practice is to require an objection and contemporaneous introduction of the complete statements when the original statement is offered. That procedure prevents the jury from receiving the statement in a fragmentary manner and also allows the jury to consider the offered statement as a whole, which in turn furthers the “full picture” rationale of the doctrine. See id.\n(b) Introduction of the State codes in evidence. The plaintiff argues that the judge erred by prohibiting her counsel from referring, in his opening statement, to provisions in the State sanitary and building codes, requiring the defendant to keep the stairs free of snow and ice, and from introducing the code provisions in evidence “early in the case.” See Passanessi v. C.J. Maney Co., 340 Mass. 599, 603-604 (1960). According to the plaintiff, this error requires a new trial because the code provisions had a central place in the case and because the code provisions were referred to in the lease. The plaintiff asserts that the reading of the relevant portions of the codes during the jury charge was insufficient.\nWe agree with the plaintiff that the codes were admissible. See id. However, the failure to introduce the relevant portions of the codes in evidence does not require a new trial. Although the code provisions established a duty on the part of the defendant to remove snow and ice, the defendant never challenged that it owed the plaintiff that duty. The only issue was whether the defendant violated its duty and that was determined by the jury. Further, the relevant portions of the codes were read to the jurors, and they were instructed properly that a violation of the codes was to be considered as evidence of negligence. Thus, even though the codes were not introduced in evidence, the jurors were aware of them and their significance. A new trial is not warranted based on the failure to introduce the codes in evidence.\n(c) Jury instructions. The plaintiff complains that the judge erred in instructing the jurors on the weight the jurors should accord the State sanitary and building codes. We disagree.\nThe judge instructed that a violation of a code provision was to be considered as evidence of negligence, but that “[i]t should not be taken as conclusive of a breach of the duty of care.” According to the plaintiff, this instruction required the jurors to find some additional evidence of negligence before they could determine that the defendant was liable to the plaintiff. The plaintiff argues that the judge should have further instructed that jurors have the discretion to determine negligence based solely on a violation of the code.\nThe judge defined negligence as “the performance or the omission of some act in violation of a legal duty.” She instructed that, because the defendant had a duty, the plaintiff was required to show that “the Defendant failed to exercise the . . . amount of care that a prudent person would exercise [in] the circumstances.” She then read from the codes and explained that a violation of a code provision is not conclusive on the issue of liability. Rather, it is evidence of negligence. This instruction is consistent with the language used in Perry v. Medeiros, 369 Mass. 836, 841 (1976). See id., and cases cited. There was no error.\n3. Implied warranty of habitability. The plaintiff argues that the judge erroneously granted the defendant’s motion for a directed verdict as to the plaintiff’s claim of breach of the implied warranty of habitability. According to the plaintiff, the defendant is liable under the implied warranty of habitability for injuries resulting from the failure of the landlord to comply with State sanitary and building code provisions that require the removal of snow and ice. There was no error.\nThe implied warranty of habitability “is concerned with the provision, maintenance, and repair of the physical facilities vital to the use of the leased premises” (emphasis in original). Doe v. New Bedford Hous. Auth., 417 Mass. 273, 282 (1994). Not every breach of the State sanitary code supports a claim under the implied warranty of habitability. Rather, the implied warranty of habitability applies to significant defects in the property itself. Berman & Sons v. Jefferson, 379 Mass. 196, 201-202 (1979) (“A dwelling afflicted with a substantial Sanitary Code violation is not habitable”). See, e.g., Cruz Mgt. Co. v. Thomas, 417 Mass. 782, 787 (1994) (apartment lacked adequate heat, hot water, and fire escape; was infested with cockroaches, mice, and rats; had unsanitary common areas; and had defective smoke detector, windows, and wiring); Simon v. Solomon, 385 Mass. 91, 93, 96 (1982) (water and sewage repeatedly flooded apartment); Crowell v. McCaffrey, 377 Mass. 443, 451 (1979) (defective railing on third-floor porch). The natural accumulation of snow and ice is not such a defect. See Aylward v. McCloskey, 412 Mass. 77, 79 (1992); Gamere v. 236 Commonwealth Ave. Condominium Ass’n, 19 Mass. App. Ct. 359, 363 (1985). Thus, the directed verdict on the implied warranty of habitability claim was proper.\nJudgment affirmed.\nThe lease agreement between the parties contained a provision whereby the defendant agreed to “[mjaintain buildings and common areas and grounds of the project in decent, safe and sanitary condition in conformity with the requirements of local housing and sanitary codes and applicable [Fjederal and [Sjtate regulations!, and rjemove all snow [and] ice . . . from the sidewalks, parking areas and driveways and other common areas . . . .”\nThe plaintiff was asked, “Have you ever contacted the work order center with a request for maintenance and not received a proper response to your request?” The plaintiff answered, “No.”\nThe plaintiff’s counsel also argued at trial that the additional portion of the deposition, where the plaintiff had described previous instances of ice accumulation, was admissible as a “prior consistent statement where [defense counsel] rebutted it with prior inconsistent [statements] . . . it’s a hearsay exception apart from completeness.” She now claims that she was prejudiced when the judge “indicated” that counsel would not be allowed to introduce other deposition testimony on “different evidentiary grounds.” According to the plaintiff, the judge “shut down” counsel’s attempts to rehabilitate the witness. There was no error.\nThe prior inconsistent statement used to impeach the plaintiff related to the plaintiff’s experience with the work order system, not the accumulation of snow and ice. Contrary to the plaintiff’s contention, the judge was within her discretion to limit the use of the deposition to issues raised on cross-examination.\nThe State sanitary code and building code require a landlord to keep all exterior stairways “free of snow and ice,” 105 Code Mass. Regs. § 410.452 (1997). 780 Code Mass. Regs. § 805.2, recodified at 780 Code Mass. Regs. § 1028.2.\nThe plaintiff also argues that the judge erred by not reading a proposed jury instruction stating that the defendant “shall be liable . . . [for] a violation of the State Building Code,” citing G. L. c. 143, § 51. There was no error. “[N]one of the benefits of G. L. c. 143, [§ 51] is ‘available to persons using stairways and egresses for purposes other than escape from danger from fire.’ ” Festa v. Piemonte, 349 Mass. 761, 761 (1965), quoting Landers v. Brooks, 295 Mass. 344, 348 (1936).\nThe plaintiff does not argue that a violation of the code is negligence per se. Rather, the plaintiff argues that the instructions failed to convey that a violation of the code is sufficient, in and of itself, to warrant a finding of liability.\nThe defendant asserts that, even assuming that the plaintiff’s alternative claims are meritorious, the plaintiff only filed notice of the negligence claim. G. L. c. 258, § 4. Therefore, the other claims are barred. See G & B Assocs., Inc. v. Springfield, 39 Mass. App. Ct. 51 (1995). We do not agree. The purpose of the presentment provision is to allow the executive officer “an adequate opportunity to investigate the circumstances surrounding [the] claim.” Weaver v. Commonwealth, 387 Mass. 43, 47 (1982). We conclude that the requirements of § 4 were satisfied. Gilmore v. Commonwealth, 417 Mass. 718, 723 (1994). The proper authority was placed on notice of the circumstances surrounding the alleged injury. The executive officer had the opportunity to investigate the circumstances of each claim, as all theories of liability argued by the plaintiff were based on the same facts."", ""type"": ""majority"", ""author"": ""Abrams, J.""}], ""attorneys"": [""Chris A. Milne for the plaintiff."", ""Stephen J. Gill for the defendant."", ""Steven H. Schafer & John J. St. Andre, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief.""], ""corrections"": """", ""head_matter"": ""Geraldine McAllister vs. Boston Housing Authority.\nSuffolk.\nFebruary 1, 1999.\nApril 8, 1999.\nPresent: Wilkins, CJ., Abrams, Lynch, Greaney, Fried, Marshall, & Ireland, JJ.\nNegligence, Snow and ice. State Sanitary Code. Practice, Civil, Directed verdict, Instructions to jury. Landlord and Tenant, Snow and ice, Quiet enjoyment, Habitability, State sanitary code. Evidence, Verbal completeness.\nIn a slip and fall case, the plaintiff was not entitled to a new trial after directed verdicts on her claims that the defendant violated a lease and the covenant of quiet enjoyment, where a jury had found, in the circumstances, that the defendant had not been negligent. [301-302]\nAt the trial of a negligence action, the judge properly within her discretion allowed certain deposition testimony to be read to the jury under the doctrine of verbal completeness and properly excluded other proffered portions. [302-303]\nAt the trial of a negligence action, the judge incorrectly prohibited plaintiff’s counsel from referring to or introducing in evidence certain provisions of the State sanitary and building codes; however, the error did not require a new trial where the defendant did not dispute its duty to remove snow and ice. [303-304]\nAt the trial of a negligence action, the judge correctly instructed the jury on negligence and on the weight the jurors should accord the State sanitary and building codes. [304-305]\nA natural accumulation of snow and ice is not a defect in property such as would give rise to a claim for breach of the implied warranty of habitability, and on such a claim the defendant’s motion for a directed verdict was correctly granted. [305-306]\nCivil action commenced in the Superior Court Department on September 7, 1995.\nThe case was tried before Margaret R. Hinkle, J.\nThe Supreme Judicial Court granted an application for direct appellate review.\nChris A. Milne for the plaintiff.\nStephen J. Gill for the defendant.\nSteven H. Schafer & John J. St. Andre, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief.""}, ""cites_to"": [{""cite"": ""377 Mass. 443"", ""year"": 1979, ""case_ids"": [334138], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""451"", ""parenthetical"": ""defective railing on third-floor porch""}], ""case_paths"": [""/mass/377/0443-01""], ""opinion_index"": 0}, {""cite"": ""417 Mass. 718"", ""year"": 1994, ""case_ids"": [482560], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""723""}], ""case_paths"": [""/mass/417/0718-01""], ""opinion_index"": 0}, {""cite"": ""387 Mass. 43"", ""year"": 1982, ""case_ids"": [908863], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""47""}], ""case_paths"": [""/mass/387/0043-01""], ""opinion_index"": 0}, {""cite"": ""39 Mass. App. Ct. 51"", ""year"": 1995, ""case_ids"": [1040737], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""case_paths"": [""/mass-app-ct/39/0051-01""], ""opinion_index"": 0}, {""cite"": ""295 Mass. 344"", ""year"": 1936, ""case_ids"": [883595], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""348""}], ""case_paths"": [""/mass/295/0344-01""], ""opinion_index"": 0}, {""cite"": ""349 Mass. 761"", ""year"": 1965, ""case_ids"": [524370, 524383, 524487], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""761""}], ""case_paths"": [""/mass/349/0761-01"", ""/mass/349/0761-02"", ""/mass/349/0761-03""], ""opinion_index"": 0}, {""cite"": ""19 Mass. App. Ct. 359"", ""year"": 1985, ""case_ids"": [5743727], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""363""}], ""case_paths"": [""/mass-app-ct/19/0359-01""], ""opinion_index"": 0}, {""cite"": ""412 Mass. 77"", ""year"": 1992, ""case_ids"": [3900340], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""79""}], ""case_paths"": [""/mass/412/0077-01""], ""opinion_index"": 0}, {""cite"": ""385 Mass. 91"", ""year"": 1982, ""case_ids"": [900794], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""93, 96"", ""parenthetical"": ""water and sewage repeatedly flooded apartment""}], ""case_paths"": [""/mass/385/0091-01""], ""opinion_index"": 0}, {""cite"": ""417 Mass. 782"", ""year"": 1994, ""case_ids"": [482588], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""787"", ""parenthetical"": ""apartment lacked adequate heat, hot water, and fire escape; was infested with cockroaches, mice, and rats; had unsanitary common areas; and had defective smoke detector, windows, and wiring""}], ""case_paths"": [""/mass/417/0782-01""], ""opinion_index"": 0}, {""cite"": ""379 Mass. 196"", ""year"": 1979, ""case_ids"": [5879462], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""201-202"", ""parenthetical"": ""\""A dwelling afflicted with a substantial Sanitary Code violation is not habitable\""""}], ""case_paths"": [""/mass/379/0196-01""], ""opinion_index"": 0}, {""cite"": ""417 Mass. 273"", ""year"": 1994, ""case_ids"": [482606], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""282""}], ""case_paths"": [""/mass/417/0273-01""], ""opinion_index"": 0}, {""cite"": ""369 Mass. 836"", ""year"": 1976, ""weight"": 2, ""case_ids"": [309786], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""841""}], ""case_paths"": [""/mass/369/0836-01""], ""opinion_index"": 0}, {""cite"": ""340 Mass. 599"", ""year"": 1960, ""weight"": 2, ""case_ids"": [3851877], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""603-604""}], ""case_paths"": [""/mass/340/0599-01""], ""opinion_index"": 0}, {""cite"": ""42 Mass. App. Ct. 492"", ""year"": 1997, ""weight"": 4, ""case_ids"": [1606152], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""498""}, {""page"": ""497"", ""parenthetical"": ""\""[Verbal completeness doctrine] does not open the gate for everything in a document or statement. There is always the test of relevance\""""}], ""case_paths"": [""/mass-app-ct/42/0492-01""], ""opinion_index"": 0}, {""cite"": ""327 Mass. 189"", ""year"": 1951, ""case_ids"": [512227], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""193""}], ""case_paths"": [""/mass/327/0189-01""], ""opinion_index"": 0}, {""cite"": ""424 Mass. 365"", ""year"": 1997, ""case_ids"": [117638], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""367"", ""parenthetical"": ""\""a landlord, who agrees in a lease to remove snow and ice and negligently fails to perform that duty may be liable to his tenant\""""}], ""case_paths"": [""/mass/424/0365-01""], ""opinion_index"": 0}, {""cite"": ""424 Mass. 847"", ""year"": 1997, ""case_ids"": [117626], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""850"", ""parenthetical"": ""showing of negligence is required for recovery under quiet enjoyment statute""}], ""case_paths"": [""/mass/424/0847-01""], ""opinion_index"": 0}, {""cite"": ""369 Mass. 974"", ""year"": 1976, ""case_ids"": [309817], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""975""}], ""case_paths"": [""/mass/369/0974-01""], ""opinion_index"": 0}, {""cite"": ""375 Mass. 620"", ""year"": 1978, ""case_ids"": [330364], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""627""}], ""case_paths"": [""/mass/375/0620-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""429 Mass. 300"", ""type"": ""official""}], ""file_name"": ""0300-01"", ""last_page"": ""306"", ""first_page"": ""300"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T17:35:48.090940+00:00"", ""decision_date"": ""1999-04-08"", ""docket_number"": """", ""last_page_order"": 326, ""first_page_order"": 320, ""name_abbreviation"": ""McAllister v. Boston Housing 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+1429037,"{""id"": 1429037, ""name"": ""North Bend Lumber Company, Respondent, v. The City of Seattle, Appellant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""cf3fd9ad030353b397f5e4b7ad687d1f599923e63150384ed0769ce0b7e65574"", ""simhash"": ""1:b7c5e864177091e9"", ""pagerank"": {""raw"": 0.00000021738099472949552, ""percentile"": 0.7715200770392405}, ""char_count"": 23273, ""word_count"": 4082, ""cardinality"": 1024, ""ocr_confidence"": 0.509}, ""casebody"": {""judges"": [], ""parties"": [""North Bend Lumber Company, Respondent, v. The City of Seattle, Appellant.""], ""opinions"": [{""text"": ""Bridges, J.\nBoxley creek is a small mountain stream in King county, having its source near Rattlesnake lake, and running thence in a southerly direction for some three miles, empties into the south fork of the Snoqualmie river. The plaintiff, North Bend Lumber Company, had its sawmill located on both sides of this creek, at a point about one mile above its mouth. The Druid Lumber Company’s sawmill was located on the same creek, but very near its mouth. These mills were built during the years 1905 and 1906, and from time to time since have been enlarged. The plaintiff built a dam across the creek a short distance above its mill for the purpose of creating a pond of water in which to store its saw logs. A platform crossed the creek from one part to another of the sawmill. This platform rests upon piling driven in the banks and bed of the stream.\nCedar river flows through Cedar lake, which is located near the foot of Mount Washington. The river, after flowing out of the lake, takes, for a number of miles, a general westerly course. In 1914, the city of Seattle constructed a large dam in this river at a point about two miles west of the lake. The purpose of the dam was to impound waters in the canyon of the river between the lake and the dam, to be used by the city in generating electric power. The northerly bank of this reservoir is for the most part a glacial moraine. Whether this moraine formation would permit much of the water of the reservoir to leak out has been a question from the beginning, and has, to a considerable extent, disturbed the minds of the city authorities. This glacial moraine covers several hundred acres and a part of it is within the watershed of Boxley creek, and a part within the Cedar river watershed. The divide between the two watersheds is less than one mile in width.\nImmediately prior to December 23, 1918, there had been heavy rains which caused the waters of Boxley creek to become very considerably swollen. On that date the sawmills of the North Bend Lumber Company and of the Druid Lumber Company were either wholly Or partially destroyed by high water. The plaintiff sued the city of Seattle for its damage, and also for damage to the property of the Druid Lumber Company, the latter having assigned to the former its claim of damages.. The plaintiff contends that its damage was caused by the waters from defendant’s reservoir seeping through the coarse ground forming the moraine and tending in a westerly direction, suddenly breaking out in great quantities near the westerly edge of the moraine, thence being conveyed into the watershed of Boxley creek, and ultimately into that creek above plaintiff’s works. . -\nThe plaintiff charged the city with negligence in the construction and maintenance of its reservoir, and particularly the north bank thereof, and in permitting the waters of Cedar river to be diverted in part into the channels of Boxley creek.. The city denied negligence upon its part, and denied that any of the waters had found their way into Boxley creek, to the damage of the plaintiff, and alleged-that the damage done to its property was caused by the waters coming from the natural watershed of Boxley creek. It further alleged contributory negligence on the part of the plaintiff in building and maintaining its log pond in the creek, and in partially closing up the creek by means of piling, logs and debris. .\nUpon these issues the case went to trial before a jury, which returned its verdict in favor of the defendant. ■ The plaintiff’s motion for a new trial was granted by the trial court, and the defendant has appealed therefrom.\nThe trial court gave three instructions on contributory negligence wherein, among other things, it told the jury that it was to determine whether the plaintiff used such degree of care and prudence as an ordinarily prudent person, under the same or similar circumstances, would have used, and that in determining whether it did use such degree of care and caution, the jury had the right to, and should, take into consideration any knowledge which the plaintiff had of the danger, and should consider all the circumstances and conditions surrounding the situation.\nAt the hearing of the motion for a new trial, the court concluded that it had erred in giving these instructions on contributory negligence, and for that reason granted a new trial. The respondent argues that there is not, and cannot be, in this case any question of contributory negligence; that the only question involved is whether, because of the negligence of the appellant, any of the waters belonging to the Cedar river watershed were suddenly diverted into the watershed of Boxley creek, to the respondent’s damage; and that, if this question be answered in the negative, then, under no circumstances, could the appellant be held liable; and that, if it be answered in the affirmative, then, even if respondent’s works in the bed of the creek did block the stream more or less, and did cause or aggravate the injury to its property, still, there would be no question of contributory negligence, because respondent would not be required, under any circumstances, to so use its property as to protect itself against the wrongful act of the appellant in diverting large quantities of the waters of Cedar river into their unnatural watershed and into Boxley creek.\nIf the destruction of respondent’s property was caused by the waters naturally coming from the watershed of Boxley creek, or if appellant was not guilty of the negligence charged against it, then that would be an end of the case, for it is plain that, under those circumstances, contributory negligence could not be involved, because contributory negligence of the plaintiff grows out of, and is necessarily associated with, the negligence of the defendant.\nBut appellant argues that the question of its negligence was for the jury, and that, if the finding was against it in that regard, then it would he proper for the jury to consider whether respondent contributed to its damage by putting its dam across the creek and by driving piling in the bed of the stream, thus restricting its natural capacity. In this connection it asserts that there was testimony to show that some of respondent’s officers had lived many years in the immediate vicinity of Cedar lake; knew that the appellant was creating the great reservoir; knew that its north bank was a moraine, and knew as much as the city officers concerning whether it was pervious to water, and because of this information had reason to anticipate that the very thing which happened might happen; that, notwithstanding all this knowledge, it afterwards caused the channel of the creek to be blocked in such a way as to impede the flow of the waters therein. ‘ To these facts (and it may be conceded that there was testimony tending to show such to be the facts) it applies the doctrine that one must protect himself and his property against such acts of negligence of others as a reasonably prudent person would have reason to anticipate.\nAppellant’s reasoning is plausible but not sound. We need not here decide whether one may use and improve his property in total disregard of a danger, resulting from the negligence of someone else, which he knows exists and which he is morally certain will damage him. There is no evidence showing or tending to show this condition. We hold, however, that one is not bound to use his property in anticipation of a situation arising which, because of the negligence of someone else, known to or suspected by him, may or may not cause him damage. The use one may make of Ms property is not to be measured or limited by any such unstable rule as that contended for by appellant. At least, up to the point where one has become morally certain that the negligence of another will injure him, he may make any proper and customary use of his property in total disregard of any negligence of that other, whether such negligence be known to him or not. One owns real estate for the use he may make of it. Being the owner, he may make such use of it as he sees fit, so long as he does not injure his neighbor or violate some principle of the doctrine of police regulation. His neighbor may not say to Mm, “you must not improve your land nor plant it to crop, because I have been guilty of such negligence as may cause your improvements or your crop to be damaged or destroyed.” Any other rule would permit one guilty of wrongdoing to deprive another of the right of making any lawful use of his property. If appellant’s theory of the law is to prevail, then every man who owns real estate below a reservoir of water must use it at Ms peril, if he have reason to suspect the dam, through the negligence of the owner, has become weakened; and a farmer takes Ms chances in planting his land to crop, simply because he knows a culvert has been so negligently built by another that it will not carry away flood waters, but may cause them to wash over his land to his damage. The rule which requires one to make a reasonable effort to protect his person from the known negligence of another is a rule of personal conduct and, in the nature of tMngs, cannot be extended to the use of property. Respondent knew something about the moraine and it knew that it formed the northerly bank of appellant’s reservoir. It did not know that it was or was not impervious to water. From its standpoint, there was no certainty that what it claims happened would happen. Must it then, at its peril, make use of the land because of the knowledge it had: If it was guilty of contributory negligence in putting a dam in Boxley creek, it was guilty of contributory negligence in constructing its mills on the bank of the stream.\nAn extensive examination of the authorities on this question convinces us that they are not in entire accord, and that the subject has not always been treated with the thoroughness its difficulties and importance deserve.\nWe will first examine the cases out of this court which affect the question. Appellant calls our attention to the case of Box v. Kelso, 5 Wash. 360, 31 Pac. 973, which it claims is contrary to our conclusion here. In that case the facts were that the plaintiff had cut some shingle bolts and left them in the woods, under such surroundings as that he knew they were in danger of being destroyed by fire. They were so destroyed, and he charged defendant with negligently causing the destruction. The defendant pleaded contributory negligence. Judge Anders, speaking for the court, among other things, said:\n“While it may be true that this property might not have been destroyed if it had been in some other’ place, or differently situated, still we are of the opinion that ordinary prudence did not require the respondents to provide against the negligent acts of others which they had no reason to anticipate.” (Italics ours).\nBut that the court did not use those words in the sense appellant construes them is shown, by the facts in the case and by what the court later said in the opinion, as follows:\n“They had a perfect right to cut their timber into shingle bolts and to leave them upon their own premises as they did, and as was said by this court in Tacoma Lumber & Mfg. Co. v. Tacoma, 1 Wash. 12, ‘were entitled at any and all times to have them protected from the wrongful and negligent acts of any and all persons’. From what we have said it follows that the court committed no error in failing to instruct the jury upon the question of contributory negligence.”\nCounsel for appellant also call our attention to a quotation from Cyc. found in the recent case of Rainier Heat & Power Co. v. Seattle, 113 Wash. 95, 193 Pac. 233, as follows:\n“The general rule is that every person has a right to presume that every other person will perform his duty and obey the law, and in the absence of reasonable ground to think otherwise (Italics ours) it is not negligence to assume that he is not exposed to danger winch can come to him only from violation of law or duty to such other person. Hence failure to anticipate defendant’s negligence does not amount to contributory negligence, even though he places his property in an exposed or hazardous position.” 29 Cyc. 516.\nThe italicized portion of this quotation may be correct as applied to individual conduct, such as is involved in a personal injury suit. Indeed, the text shows that subject was under consideration, because, in connection with the discussion, it is said:\n“This rule (to use reasonable effort to avoid danger) is subject to the exception that as a person is entitled to use his own premises for any lawful purpose, his failure to protect it from the negligence of another will not be contributory negligence.” 29 Cyc. 516.\nOur holding in that case supports our conclusion here. There the facts were that the heat and power company had its plant located in a basement, thirty feet below the level of the street grade. One of the city’s water mains, laid in an adjoining street, burst and flooded the cellar and injured and damaged the heating plant therein. Speaking of the question of contributory negligence, we said:\n“We are of the opinion that the maintaining of appellant’s plant at the level of approximately thirty feet below the street grade was not contributory negligence, and\"" that it must be here so decided as a matter of law. ... It may have been obliged to anticipate damage from the natural flow of water and the accumulation of surface water, but manifestly, it was not obliged to anticipate danger from any such source as the bursting of this water main.”\nThe appellant contends that the case of Woolworth Co. v. Seattle, 104 Wash. 629, 177 Pac. 664, is contrary to our conclusion. But that case, in our judgment, is easily distinguishable from this one. It was there held that no recovery could be had for damages because of the flooding and injury to goods located in a basement, where such flooding was caused by a city sewer of insufficient capacity, and the failure of the plaintiff to maintain and keep in proper repair a back water valve, required by ordinance to be installed. It will be observed that plaintiff was denied recovery because he had violated an express provision of a city ordinance.\nIn Fraler v. Sears Union Water Co., 12 Cal. 556, 73 Am. Dec. 562, discussing this question, the court said:\n“The defendants were bound to see to their own property, and to so govern and control it that injury would not result to their neighbor’s. If, in consequence of gross neglect on the part of the plaintiffs, the injury happened, a different rule might be appliedbut a mere want of reasonable care to prevent the injury does not impair the right to \""recover.”\nIn the case of Clark v. Dyer, 81 Tex. 339, 16 S. W. 1061, the plaintiff was a farmer and his crops had previously been drowned out because of an insufficient road culvert. Notwithstanding such knowledge, the farmer again planted his ground to grain and again it was destroyed, and upon a suit for damages the defense of contributory negligence was made. The court, discussing this question, said:\n“The owner in lawful possession of his land is entitled to use in it any lawful manner he may desire, for any purpose for which it may be adapted. The owner in the exercise of this right is not guilty of negligence if he does not anticipate the results and consequences of acts that are remote, and may never happen, and of which he is not the promoting cause. The negligence that would defeat his recovery must be such as would proximately contribute to the injury. It cannot be said that the owner is guilty of negligence if he plants a crop on land that may be overflowed, when there are no present indications of that fact. . . . The law does not require that the owner should preserve and guard his premises from the effects of injuries caused by the wrongful acts of another before he is justified in the use thereof. A different rule would virtually deprive the owner of the beneficial rights that flow with and are incident to the enjoyment of his estate.”\nIn the case of Kendrick v. Towle, 60 Mich. 363, 27 N. W. 567, the court said:\n“The obligation of care to prevent the fire from the defendant’s engine burning the plaintiff’s -min rested upon the defendant, and the fact that old, combustible matter accumulated about the mill, and in near proximity to the railroad, cannot be urged as contributory negligence on the part of the plaintiff. He had a right to use the offal of his mill to fill up the waste and low places about it, just as he was accustomed to do before the railroad was built. He was not obliged to guard his premises to relieve the defendant from liability for his negligent acts.”\nIn support of this general rule see the following cases: Mississippi Home Ins. Co. v. Louisville, New Orleans & T. R. Co., 70 Miss. 119, 12 South. 156; Helpand v. Independent Tel. Co., 88 Neb. 542, 130 N. W, 111; McLennan v. Brownsville Land & Irrigation Co., 46 Tex. Civ. App. 249, 103 S. W. 206; Emison v. Owy hee Ditch Co., 37 Ore. 577, 62 Pac. 13; Philadelphia etc. R. Co. v. Smith, 64 Fed. 679; Hollenback v. Dingwell, 16 Mont. 335, 50 Am. St. 502; Gulf C. & San Francisco R. Co. v. Clay, 28 Tex. Civ. App. 176, 66 S. W. 1115; Underwood v. Waldron, 33 Mich. 232; Fritz v. First Division, St. Paul & Pacific R. Co., 22 Minn. 404; Kellogg v. Chicago & Northwestern R. Co., 26 Wis. 223; Cook v. Champlain Transportation Co., 1 Denio (N. Y.) 91; Yik Hon v. Spring Valley Water Works, 65 Cal. 619, 4 Pac. 666.\nThere are many cases touching the question of whether a railroad company may defend on the ground of contributory negligence, where private property adjoining the right of way has been destroyed by fire which was the result of negligence in operating trains. While such cases are not controlling of this case, they involve the same general question. A large number of such cases have been collected and digested in the note to Walker v. Chicago, R. I. & P. R. Co., 76 Kan. 32, 90 Pac. 772, 12 L. R. A. (N. S.) 624.\nWe have said that the cases on this question are not harmonious. One which may he contrary to our conclusion-is Emry v. Raleigh & Gaston R. Co., 109 N. C. 589, 14 S. E. 352. Plaintiffs owned land a short distance from a culvert by means of which the defendant’s road crossed a certain creek. It was claimed that this culvert was too small to allow the waters of the creek in times of freshet to pass through or under it, and that as a result a pond was created which overflowed plaintiff’s land and damaged it, and also a brick yard located on the land. The plaintiffs testified that this overflow and damage occurred on an average of every four out of five years. The court said:\n“It seems to us clear, and we cannot hesitate to decide, that no prudent business man would place and keep his brick-yard and brick-kilns at a place like that in question, when he would hazard the loss or serious injury described by the plaintiff four years out of five. ... A prudent business man would establish his business elsewhere and seek his remedy for injury to his land. . . . The defendant’s insufficient culvert caused the flooding of the plaintiff’s land. The latter well knew of this for years; still, they put their brick-kilns where they had strong reason to believe they too would be flooded and injured or destroyed. Thus they contributed to their own injury.”\nWhile this case may be distinguished on the facts from the case at bar because in the one the landowner had ‘£strong reasons” to believe defendant’s negligence would injure his land, because during previous years it had so done, while in the other case the landowner did not have “strong reasons” to believe it would be injured, because at no previous time had it been injured, yet we cannot follow the reasoning of the cited case. The idea that one by his wrongful act may drive an owner from his land and force him to ‘£ establish his business elsewhere” does not appeal to us. The plaintiff there owned the land and had a right to make any lawful use of it. If he could not establish his brick-kilns there, then he could not plant his crops, and thus is entirely deprived of any use of his lands. The foregoing is the strongest case cited by appellant, and we do not consider it necessary to review any others. Most of them are personal injury cases or cases involving flooding of cellars because of defective sewers, in all of which different principles of law are involved.\nWe therefore conclude that the question of contributory negligence is in no wise involved in this case, and that the court was right in granting a new trial because he had erred in instructing the jury on that question.\nBut appellant contends' that, aside from the question of contributory negligence, the court erred in granting a new trial because there was not sufficient evidence of its negligence to carry the case to the jury. We cannot sustain this position. At the trial the appellant’s contention was that the waters which damaged respondent’s property were those belonging to the natural watershed of Boxley creek, and that none of them came from appellant’s reservoir. On the other hand, respondent contended that the waters which injured it seeped from the reservoir through the moraine and were there stored in great quantities till they suddenly broke out and found their way into Boxley creek, and that appellant knew, or should have known, of the pervious character of the moraine. There was testimony to support each of these theories or contentions. It was, therefore, the duty of the court to submit to the jury the question of appellant’s negligence.\nThe judgment is affirmed.\nParker, C. J., Mackintosh, Fullerton, Main, Holcomb, Tot,man, and Mitchell, JJ., concur."", ""type"": ""majority"", ""author"": ""Bridges, J.""}], ""attorneys"": [""Walter F. Meier and Frank S. Griffith, for appellant."", ""Peters & Powell, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 16143.\nEn Banc.\nAugust 8, 1921.]\nNorth Bend Lumber Company, Respondent, v. The City of Seattle, Appellant.\nNegligence (16, 18)—Contributory Negligence—Nature and Elements—Care Required as to Use oe Property. The fact that a property owner knew or suspected that the negligence of another might cause damage to his property and made no effort to counteract it, would not constitute contributory negligence on his part, since the rule of personal conduct which requires one to make a reasonable effort to protect his person from the known negligence of another does not extend to the use of property.\nWaters and Water Courses (79, 87)—Public Supply—Damages from Negligence. In an action for damages against a city for the destruction of plaintiff’s mill property by the flooding of a creek on which the mill was located, a question for the jury was presented where there was evidence showing that the flood had been swelled by the bursting out of water through one wall of defendant’s reservoir, which wall was a glacial moraine of pervious character utilized for the purpose, through which there had always been seepage within the knowledge of defendant.\nAppeal from a judgment of the superior court for King county, Smith, J., entered May 4, 1920, granting a new trial, after the verdict of a jury rendered in favor of the defendant, in an action in tort.\nAffirmed.\nWalter F. Meier and Frank S. Griffith, for appellant.\nPeters & Powell, for respondent.\nReported in 199 Pac. 988.""}, ""cites_to"": [{""cite"": ""199 Pac. 988"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": -1}, {""cite"": ""14 S. E. 352"", ""category"": ""reporters:state_regional"", ""reporter"": ""S.E."", ""opinion_index"": 0}, {""cite"": ""109 N. C. 589"", ""case_ids"": [8651170], ""category"": ""reporters:state"", ""reporter"": ""N.C."", ""case_paths"": [""/nc/109/0589-01""], ""opinion_index"": 0}, {""cite"": ""12 L. R. A. (N. S.) 624"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A.N.S."", ""opinion_index"": 0}, {""cite"": ""76 Kan. 32"", ""weight"": 2, ""case_ids"": [1190094], ""category"": ""reporters:state"", ""reporter"": ""Kan."", ""case_paths"": [""/kan/76/0032-01""], ""opinion_index"": 0}, {""cite"": ""4 Pac. 666"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""65 Cal. 619"", ""case_ids"": [2226676], ""category"": ""reporters:state"", ""reporter"": ""Cal."", ""case_paths"": [""/cal/65/0619-01""], ""opinion_index"": 0}, {""cite"": ""26 Wis. 223"", ""case_ids"": [11284697], ""category"": ""reporters:state"", ""reporter"": ""Wis."", ""case_paths"": [""/wis/26/0223-01""], ""opinion_index"": 0}, {""cite"": ""22 Minn. 404"", ""case_ids"": [561883], ""category"": ""reporters:state"", ""reporter"": ""Minn."", ""case_paths"": [""/minn/22/0404-01""], ""opinion_index"": 0}, {""cite"": ""33 Mich. 232"", ""case_ids"": [1346630], ""category"": ""reporters:state"", ""reporter"": ""Mich."", ""case_paths"": [""/mich/33/0232-01""], ""opinion_index"": 0}, {""cite"": ""66 S. W. 1115"", ""category"": ""reporters:state_regional"", ""reporter"": ""S.W."", ""opinion_index"": 0}, {""cite"": ""28 Tex. Civ. App. 176"", ""case_ids"": [2894424], ""category"": ""reporters:state"", ""reporter"": ""Tex. Civ. App."", ""case_paths"": [""/tex-civ-app/28/0176-01""], ""opinion_index"": 0}, {""cite"": ""16 Mont. 335"", ""case_ids"": [4374309], ""category"": ""reporters:state"", ""reporter"": ""Mont."", ""case_paths"": [""/mont/16/0335-01""], ""opinion_index"": 0}, {""cite"": ""64 Fed. 679"", ""case_ids"": [6721752], ""category"": ""reporters:federal"", ""reporter"": ""F."", ""case_paths"": [""/f/64/0679-01""], ""opinion_index"": 0}, {""cite"": ""37 Ore. 577"", ""weight"": 2, ""case_ids"": [2250767], ""category"": ""reporters:state"", ""reporter"": ""Or."", ""case_paths"": [""/or/37/0577-01""], ""opinion_index"": 0}, {""cite"": ""103 S. W. 206"", ""category"": ""reporters:state_regional"", ""reporter"": ""S.W."", ""opinion_index"": 0}, {""cite"": ""46 Tex. Civ. App. 249"", ""case_ids"": [4391783], ""category"": ""reporters:state"", ""reporter"": ""Tex. Civ. App."", ""case_paths"": [""/tex-civ-app/46/0249-01""], ""opinion_index"": 0}, {""cite"": ""130 N. W, 111"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.W."", ""opinion_index"": 0}, {""cite"": ""88 Neb. 542"", ""case_ids"": [5366603], ""category"": ""reporters:state"", ""reporter"": ""Neb."", ""case_paths"": [""/neb/88/0542-01""], ""opinion_index"": 0}, {""cite"": ""12 South. 156"", ""category"": ""reporters:state_regional"", ""reporter"": ""So."", ""opinion_index"": 0}, {""cite"": ""70 Miss. 119"", ""case_ids"": [1781564], ""category"": ""reporters:state"", ""reporter"": ""Miss."", ""case_paths"": [""/miss/70/0119-01""], ""opinion_index"": 0}, {""cite"": ""27 N. W. 567"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.W."", ""opinion_index"": 0}, {""cite"": ""60 Mich. 363"", ""case_ids"": [1421457], ""category"": ""reporters:state"", ""reporter"": ""Mich."", ""case_paths"": [""/mich/60/0363-01""], ""opinion_index"": 0}, {""cite"": ""16 S. W. 1061"", ""category"": ""reporters:state_regional"", ""reporter"": ""S.W."", ""opinion_index"": 0}, {""cite"": ""81 Tex. 339"", ""case_ids"": [2215343], ""category"": ""reporters:state"", ""reporter"": ""Tex."", ""case_paths"": [""/tex/81/0339-01""], ""opinion_index"": 0}, {""cite"": ""73 Am. Dec. 562"", ""category"": ""reporters:federal"", ""reporter"": ""Am. 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+1712225,"{""id"": 1712225, ""name"": ""Dana Aspon, Appellant, v. Edward Loomis, et al, Respondents"", ""court"": {""id"": 8985, ""name"": ""Washington Court of Appeals"", ""name_abbreviation"": ""Wash. Ct. App.""}, ""analysis"": {""sha256"": ""f2664b1f3fb15e799890231f596d28e48fb644ba1b4d4a55de69e621f4304cc2"", ""simhash"": ""1:636dffb67f0f10d2"", ""pagerank"": {""raw"": 0.00000008564340611741667, ""percentile"": 0.4883412121710571}, ""char_count"": 19469, ""word_count"": 3204, ""cardinality"": 908, ""ocr_confidence"": 0.778}, ""casebody"": {""judges"": [], ""parties"": [""Dana Aspon, Appellant, v. Edward Loomis, et al, Respondents.""], ""opinions"": [{""text"": ""Webster, A.C.J.\nDana Aspon appeals the jury verdict returned in favor of the respondents, Edward and Pat Loomis, and the trial court's order denying her motion for a new trial. She asserts that the court erred in: (1) not instructing on her claim that the Loomises negligently failed to make a defective condition safe, (2) refusing to give Aspon's proposed instruction that a landlord has a duty to use ordinary care to keep the premises fit for human habitation at all times during a tenancy, and (3) admitting photographs of Aspon's breasts when the only permanent damage she claimed was a scar to her left breast. We affirm.\nFacts\nIn early 1985, the Loomises rented a house to Aspon's boyfriend, Kevin Howard. The Loomises purchased the house in 1972 as an investment for rental purposes and never lived in the house themselves. In late 1986, Aspon moved in with Howard.\nOn November 24, 1987, Aspon was getting ready for work. She had just finished taking a shower and had entered the utility room across the hall to get some clothes out of the dryer. The utility room was not shared with other tenants. In order to leave the utility room, it was necessary to pass in front of an oil furnace located near the doorway. A venting pipe protruded from the front of the furnace. The venting pipe was uninsulated and its surface temperature was searing hot. An oil burner box was attached to the base of the furnace.\nWith an armload of clothes, Aspon attempted to exit the utility room. She was looking at the light switch rather than where she was walking. As she passed in front of the furnace, she stubbed her toe on the oil burner box, lost her balance, and landed against the furnace pipe. As a result, she suffered serious burns to her left arm and breast with permanent scarring. The burner box was clearly visible at the time of the accident, and Aspon had tripped over the burner box several times previously. However, neither Aspon nor Howard was aware that the pipe presented any danger.\nNo one had ever informed the Loomises of any problem with the furnace venting pipe. Pat Loomis did not know that the venting pipe got hot or created any danger. Edward Loomis also testified that he did not know that the venting pipe got hot or created any danger; however, his son had told him that the pipe got \""warm\"". Edward Loomis testified that if he had known that the pipe was dangerous, he would have repaired it.\nAs an electrician, Edward Loomis had worked on over 100 residential and commercial furnaces, and was familiar with the general operation of furnaces. In the course of his 35 years of employment on construction sites, he observed crews install heating systems and he read instruction manuals on the repair of furnaces. Although Loomis wired furnaces, he never hooked up vent pipes. Prior to the incident, he had done remodeling work in the utility room, changed the location of the washer and dryer, and changed the oil filter on the furnace. He knew that the pipe in question was a venting duct and that the occupants of the premises would have to pass near the furnace in order to use the laundry facilities. He was also aware that asbestos board was mounted on the wall nearest the pipe as a fire retardant and that there were remnants of asbestos wrapping attached to the venting pipe, indicating that it had been previously wrapped.\nAspon brought a negligence action against the Loom-ises, seeking damages for medical expenses, wage loss, residual scarring, and pain and suffering. She proposed a jury instruction based on WPI 130.06, which stated that \""[a] landlord has a duty to use ordinary care to keep the premises fit for human habitation at all times during a tenancy.\"" The trial court rejected the proposed instruction on the basis that the landlord-tenant act imposed a duty to repair only with respect to conditions specifically enumerated in the statute. In place of Aspon's proposed instruction, the court gave the following instruction as to a landlord's duty:\nA landlord has a duty to warn a tenant of any condition which involves an unreasonable risk of physical harm if:\n1. The tenant does not know or have reason to know of the condition or the risk involved, and\n2. The landlord knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to expect that the tenant will not discover the condition or realize the risk.\nInstruction 12.\nAspon also proposed the following jury instruction:\nThe plaintiff claims that the defendant was negligent in one or more of the following respects:\nThat although defendant had superior knowledge of the dangerous condition then existing with respect to the venting pipe, he failed to give his tenants warning of the danger presented by the pipe.\nThat although defendant was familiar with the operation and maintenance of furnaces, knew or should have known the pipe was previously wrapped with protective insulation material, and knew or should have known protective wrapping materials were readily available on the market, he failed to protectively wrap the pipe.\nPlaintiff claims that one or more of the acts of defendant's conduct was a proximate cause of injuries and damage to plaintiff. The defendant denies these claims.\n(Italics ours.) Plaintiff's proposed instruction 2.\nThe trial court refused to give the proposed instruction and gave the following instruction instead:\nThe plaintiff claims that the defendant was negligent in:\nThat the defendant knew or should have known the venting pipe was hot and could cause injury and he failed to give warning of the condition.\nThe plaintiff claims that this was a proximate cause of injuries and damage to plaintiff. The defendant denies this claim.\nThe defendant claims that the plaintiff was negligent for causing her own injuries by tripping over an object which was open and obvious. The plaintiff denies this claim.\n(Italics ours.) Instruction 4. Aspon's counsel proposed that this instruction be changed to indicate that the landlord had a duty not only to warn of the condition of the pipe, but also to make it safe, once he had notice and an opportunity to repair it. The court refused to include the proposed changes.\nAt trial, both parties introduced photographs showing Aspon's burns. Aspon's attorney objected to photographs offered by the Loomises showing both of Aspon's breasts on the basis that the photographs lacked probative value and were needlessly embarrassing. The trial court admitted the photographs into evidence, reasoning that the jury should have an opportunity to view the injury in context and that the photographs themselves were not prejudicial.\nThe jury returned a verdict in favor of the Loomises.\nDiscussion\nWe first address Aspon's claim that the trial court erred in refusing to instruct that \""[a] landlord has a duty to use ordinary care to keep the premises fit for human habitation at all times during a tenancy.\"" WPI 130.06. The Residential Landlord-Tenant Act of 1973 (RCW 59.18.060) provides:\nThe landlord will at all times during the tenancy keep the premises fit for human habitation, and shall in particular:\n(1) Maintain the premises to substantially comply with any applicable code, statute, ordinance, or regulation governing their maintenance or operation, which the legislative body enacting the applicable code, statute, ordinance or regulation could enforce as to the premises rented if such condition substantially endangers or impairs the health or safety of the tenant;\n(2) Maintain the roofs, floors, walls, chimneys, fireplaces, foundations, and all other structural components in reasonably good repair so as to be usable and capable of resisting any and all normal forces and loads to which they may be subjected;\n(3) Keep any shared or common areas reasonably clean, sanitary, and safe from defects increasing the hazards of fire or accident;\n(4) Provide a reasonable program for the control of infestation by insects, rodents, and other pests at the initiation of the tenancy and, except in the case of a single family residence, control infestation during tenancy except where such infestation is caused by the tenant;\n(5) Except where the condition is attributable to normal wear and tear, make repairs and arrangements necessary to put and keep the premises in as good condition as it by law or rental agreement should have been, at the commencement of the tenancy;\n(6) Provide reasonably adequate locks and furnish keys to the tenant;\n(7) Maintain all electrical, plumbing, heating, and other facilities and appliances supplied by him in reasonably good working order;\n(8) Maintain the dwelling unit in reasonably weathertight condition;\n(9) Except in the case of a single family residence, provide and maintain appropriate receptacles in common areas for the removal of ashes, rubbish, and garbage, incidental to the occupancy and arrange for the reasonable and regular removal of such waste;\n(10) Except where the building is not equipped for the purpose, provide facilities adequate to supply heat and water and hot water as reasonably required by the tenant;\n(11) Designate to the tenant the name and address of the person who is the landlord by a statement on the rental agreement or by a notice conspicuously posted on the premises. The tenant shall be notified immediately of any changes by certified mail or by an updated posting. If the person designated in this section does not reside in the state where the premises are located, there shall also be designated a person who resides in the county who is authorized to act as an agent for the purposes of service of notices and process, and if no designation is made of a person to act as agent, then the person to whom rental payments are to be made shall be considered such agent.\nNo duty shall devolve upon the landlord to repair a defective condition under this section, nor shall any defense or remedy be available to the tenant under this chapter, where the defective condition complained of was caused by the conduct of such tenant, his family, invitee, or other person acting under his control, or where a tenant unreasonably fails to allow the landlord access to the property for purposes of repair. When the duty imposed by subsection (1) of this section is incompatible with and greater than the duty imposed by any other provisions of this section, the landlord's duty shall be determined pursuant to subsection (1) of this section.\n(Italics ours.) Aspon. contends that the italicized language imposes upon landlords a general duty to \""keep the premises fit for human habitation\"", which extends beyond the specific duties enumerated in subsections (1) through (11) of RCW 59.18.060. The Loomises contend that a landlord's duty to a tenant is restricted to those duties enumerated in the statute.\nIn 1973, concurrent with the Legislature's passage of the Residential Landlord-Tenant Act of 1973, the Washington Supreme Court recognized the theory of an implied warranty of habitability, and held that breach of the implied warranty is a valid defense in an unlawful detainer action. Foisy v. Wyman, 83 Wn.2d 22, 28, 515 P.2d 160 (1973). The court reasoned that \""[a]ny realistic analysis of the lessor-lessee or landlord-tenant situation leads to the conclusion that the tenant's promise to pay rent is in exchange for the landlord's promise to provide a liveable dwelling.\"" Foisy, at 27. The court commented that its decision was \""reinforced\"" by the newly passed Residential Landlord-Tenant Act of 1973. Foisy, at 28. Since the duty allegedly violated by the landlord in Foisy, compliance with housing codes, was encompassed by RCW 59.18.060(1), the decision provides no guidance as to the existence of duties not specifically enumerated in RCW 59.18.060. Moreover, the Residential Landlord-Tenant Act of 1973 and the Foisy decision appear to have developed independently. Thus, we cannot presume that the Legislature intended the act to restrict application of the implied warranty of habitability. See generally Wichert v. Cardwell, 117 Wn.2d 148, 154-56, 812 P.2d 858 (1991) (discussing construction of statutes in derogation of the common law). Nor can we presume that the Foisy court construed the act as giving rise to a general duty extending beyond the specific duties enumerated.\nThe plain language of RCW 59.18.060 suggests that a landlord has a general duty to keep the premises fit for human habitation, in addition to the duties specifically enumerated in subsections (1) through (11). However, upon reviewing RCW 59.18.060 in its entirety, we believe that the Legislature intended the duties enumerated in subsections (1) through (11) to be comprehensive and, thus, exclusive. The enumerated duties include not only judicially created exceptions to the doctrine of caveat emptor, but also several duties having no foundation in the common law, such as the obligation to provide adequate locks. Furthermore, the Legislature specifically provided that a landlord must keep structural aspects of buildings in good repair (RCW 59.18.060(2)) and keep common areas reasonably clean, sanitary, and safe from defects (RCW 59.18.060(3)), but did not provide that landlords must keep noncommon areas safe from defects. An inference therefore arises that the Legislature did not intend to impose a duty on landlords to keep noncommon areas safe from defects. \""Under the principle of expressio unius est exclusio alterius (the expression of one thing is the exclusion of another), the list of particulars is treated as exhaustive.\"" S. Burnham, Drafting Contracts 83 (1987). See Bradley v. Department of Labor & Indus., 52 Wn.2d 780, 329 P.2d 196 (1958). We conclude that the trial court did not err in refusing to instruct that a landlord has a duty to \""keep the premises fit for human habitation.\"" See RCW 59.18.060. In so holding, we disapprove of WPI 130.06.\nWe next address Aspon's assertion that the trial court erred in refusing to instruct on her claim that the Loomises negligently failed to make the pipe's defective condition safe. Under Washington common law, a landlord has no duty to repair noncommon areas absent an express covenant to repair. Lincoln v. Farnkoff, 26 Wn. App. 717, 719, 613 P.2d 1212 (1980). However, a landlord is liable to a tenant for damages caused by a concealed, dangerous condition known to the landlord. Younger v. United States, 662 F.2d 580, 582 (9th Cir. 1981); see Thomas v. Housing Auth., 71 Wn.2d 69, 426 P.2d 836 (1967). Known otherwise as \""the latent defect theory\"", a claim based on a concealed, dangerous condition known to the landlord is comprised of the following elements:\n(1) latent or hidden defects in the leasehold\n(2) that existed at the commencement of the leasehold\n(3) of which the landlord had actual knowledge\n(4) and of which the landlord failed to inform the tenant.\nYounger, at 582. The latent defect theory does not impose upon the landlord any duty to discover obscure defects or dangers. Nor does it impose any duty to repair a defective condition. Under the latent defect theory, the landlord is liable only for failing to inform the tenant of known dangers which are not likely to be discovered by the tenant. Flannery v. Nelson, 59 Wn.2d 120, 123, 366 P.2d 329 (1961). We therefore conclude that the Loomises had no common-law duty to discover or repair the defective pipe.\nAspon argues that the Residential Landlord-Tenant Act of 1973 modified the common law to impose upon landlords a duty to discover and repair unsafe conditions. RCW 59.18.060(3) provides that landlords must keep common areas \""reasonably clean, sanitary, and safe from defects\"". However, there is no provision creating a similar duty with respect to noncommon areas. Aspon relies on O'Brien v. Detty, 19 Wn. App. 620, 621, 576 P.2d 1334, review denied, 90 Wn.2d 1020 (1978), in which the court stated that the Residential Landlord-Tenant Act of 1973 \""modified the common law so as to require decent, safe and sanitary housing.\"" It appears that the court was merely summarizing what it believed to be the significance of the act, and erroneously cited to a specific provision, RCW 59.18.060(4), which concerns \""control of infestation by insects, rodents, and other pests\"". In two decisions following O'Brien, the court reiterated the words \""decent, safe, and sanitary\"". Younger, at 583; Lincoln, at 720. Similar wording is found, however, only in RCW 59.18.060(3), which provides that a landlord has a duty to keep \""any shared or common areas reasonably clean, sanitary, and safe from defects\"". (Italics ours.) Since the laundry room area was not a common area, RCW 59.18.060 did not entitle Aspon to an instruction based on a landlord's duty to keep the area safe from defects. We conclude that the trial court did not err in refusing to instruct that Loomises had a duty to repair the pipe.\nLastly, we address whether the trial court erred in admitting photographs of Aspon's breasts into evidence. ER 403 provides that relevant evidence may be excluded if its probative value is outweighed by the danger of an unfairly prejudicial effect. Aspon's counsel objected to photographs taken by Aspon's plastic surgeon showing both of her breasts fully exposed. She argued that the scarring was limited to Aspon's left breast, the photographs were not necessary or useful to the jury in its deliberation, and introducing them would cause Aspon needless embarrassment. The trial court admitted the photographs on the basis that viewing Aspon's permanent injuries in context with the rest of her body would be helpful to the jury and that the photographs, by themselves, were not prejudicial. We hold that the trial court made no error.\nThe judgment is affirmed.\nScholfield and Forrest, JJ., concur.\nReview denied at 118 Wn.2d 1015 (1992).\nDefendant's exhibits 11 and 12.\nAspon argues that the word \""premises\"" which is defined in RCW 59.18.030 indicates the Legislature did not intend to restrict a landlord's duties to those enumerated. We reject this argument.\nAspon asserts that the trial court refused to instruct that Loomises had a duty to repair the pipe because it found no evidence supporting an inference that Edward Loomis had actual knowledge of the defective pipe. We find no support for this assertion in the record. The court's instruction 12 set forth the elements of the latent defect theory, but required proof only of constructive as opposed to actual knowledge. The trial court apparently substituted constructive for actual knowledge based on RCW 59.18.060(5), which requires that a landlord know the conditions of the premises before leasing them to the tenant.\nWe reject Loomises' argument that the trial court's refusal to give the duty-to-repair instruction may be upheld on grounds that Aspon failed to propose proper jury instructions. See Harris v. Groth, 99 Wn.2d 438, 447, 663 P.2d 113 (1983) (trial court has no duty to revise proposed instruction to eliminate improper statements). Although Aspon's proposed instruction 2 improperly indicated that the court had already determined Loomises were aware of the pipe's dangerous condition, Aspon's counsel did propose revising the court's instruction 4 to indicate that a landlord has a duty to make a defective condition safe."", ""type"": ""majority"", ""author"": ""Webster, A.C.J.""}], ""attorneys"": [""Eileen C. Sussex, for appellant."", ""William W. Spencer and Murray, Dunham & Murray, for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 26494-0-I.\nDivision One.\nSeptember 16, 1991.]\nDana Aspon, Appellant, v. Edward Loomis, et al, Respondents.\nEileen C. Sussex, for appellant.\nWilliam W. Spencer and Murray, Dunham & Murray, for respondents.""}, ""cites_to"": [{""cite"": ""663 P.2d 113"", ""year"": 1983, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""pin_cites"": [{""parenthetical"": ""trial court has no duty to revise proposed instruction to eliminate improper statements""}], ""opinion_index"": 0}, {""cite"": ""99 Wn.2d 438"", ""year"": 1983, ""case_ids"": [1145902], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""447"", ""parenthetical"": ""trial court has no duty to revise proposed instruction to eliminate improper statements""}], ""case_paths"": [""/wash-2d/99/0438-01""], ""opinion_index"": 0}, {""cite"": ""118 Wn.2d 1015"", ""year"": 1992, ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""opinion_index"": 0}, {""cite"": ""90 Wn.2d 1020"", ""year"": 1978, ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""opinion_index"": 0}, {""cite"": ""576 P.2d 1334"", ""year"": 1978, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""19 Wn. App. 620"", ""year"": 1978, ""case_ids"": [473788], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""621""}], ""case_paths"": [""/wash-app/19/0620-01""], ""opinion_index"": 0}, {""cite"": ""366 P.2d 329"", ""year"": 1961, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""59 Wn.2d 120"", ""year"": 1961, ""case_ids"": [1028362], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""123""}], ""case_paths"": [""/wash-2d/59/0120-01""], ""opinion_index"": 0}, {""cite"": ""426 P.2d 836"", ""year"": 1967, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""71 Wn.2d 69"", ""year"": 1967, ""case_ids"": [1095193], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/71/0069-01""], ""opinion_index"": 0}, {""cite"": ""662 F.2d 580"", ""year"": 1981, ""case_ids"": [1185428], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""582""}], ""case_paths"": [""/f2d/662/0580-01""], ""opinion_index"": 0}, {""cite"": ""613 P.2d 1212"", ""year"": 1980, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""26 Wn. App. 717"", ""year"": 1980, ""case_ids"": [1833910], ""category"": ""reporters:state"", ""reporter"": ""Wash. 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App. 818"", ""type"": ""official""}], ""file_name"": ""0818-01"", ""last_page"": ""828"", ""first_page"": ""818"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T22:56:27.972826+00:00"", ""decision_date"": ""1991-09-16"", ""docket_number"": ""No. 26494-0-I"", ""last_page_order"": 858, ""first_page_order"": 848, ""name_abbreviation"": ""Aspon v. 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+1729245,"{""id"": 1729245, ""name"": ""Larry G. Howard, et al, Appellants, v. William Horn, Respondent"", ""court"": {""id"": 8985, ""name"": ""Washington Court of Appeals"", ""name_abbreviation"": ""Wash. Ct. App.""}, ""analysis"": {""sha256"": ""c2b0d1c7b87b170749fe2704920416abd20608bb5f0b8b00215fc8318766292e"", ""simhash"": ""1:44659504d5aa2eea"", ""pagerank"": {""raw"": 0.00000011926072785265565, ""percentile"": 0.5917231081812105}, ""char_count"": 7174, ""word_count"": 1203, ""cardinality"": 505, ""ocr_confidence"": 0.824}, ""casebody"": {""judges"": [], ""parties"": [""Larry G. Howard, et al, Appellants, v. William Horn, Respondent.""], ""opinions"": [{""text"": ""Green, C.J.\nThis is a personal injury action brought by Larry and Patricia Howard against their landlord, William Horn, for alleged negligence. Mr. Horn's motion for summary judgment of dismissal was granted. The Howards appeal. We affirm.\nThe question presented is whether a landlord may be sued in tort for personal injury to his tenant if the injury is proximately caused by a defect in the leased premises.\nIn 1984 Mr. Horn purchased a duplex, constructed in 1974, at E. 15103-05 Rich in the Spokane Valley. In September 1987, Mr. Horn rented unit 103 to Mr. and Mrs. Howard. On October 15, approximately 2 weeks after the Howards moved onto the premises, Mr. Howard stumbled on the uneven cement walkway between the porch and the driveway. He fell across three steps leading to the front door. As he fell, he put his arm through the glass window panel adjacent to the door. The accident occurred just after dusk while the Howards were unloading groceries and carrying children from their car. Mr. Howard admitted the porch light was on and that the uneven edge of the cement was visible \""[i]f you were looking for it\"".\nMr. Horn moved for summary judgment, contending there were no material issues of fact under any legal theory of recovery. The trial court agreed and dismissed the action.\nIn reviewing a summary judgment order, the evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the nonmoving party. Charlton v. Day Island Marina, Inc., 46 Wn. App. 784, 787, 732 P.2d 1008 (1987).\nOn appeal, the Howards contend the uneven sidewalk and failure to install a handrail along the front steps and safety glass in the window panel create questions of fact regarding Mr. Horn's duty and his consequent liability for the injury. There are three possible legal theories under which liability may be imposed: the rental agreement, common law, and an implied warranty of habitability under the Residential Landlord-Tenant Act of 1973, RCW 59.18.\nFirst, the rental agreement required the Howards to accept the premises in its present condition and inform the landlord of any necessary repairs. The agreement further provided the Howards would maintain the grounds, including the sidewalks which were to be kept \""in a safe condition\"". Thus, no duty was imposed upon Mr. Horn under the rental agreement.\nSecond, common law negligence encompasses four basic elements: duty, breach, proximate cause, and injury. Mauch v. Kissling, 56 Wn. App. 312, 318, 783 P.2d 601 (1989) (citing Hoffer v. State, 110 Wn.2d 415, 421, 755 P.2d 781 (1988)). A duty may arise from common law principles or a statute or regulation. Doss v. ITT Rayonier, Inc., 60 Wn. App. 125, 129, 803 P.2d 4 (1991) (citing Bernethy v. Walt Failor's, Inc., 97 Wn.2d 929, 932, 653 P.2d 280 (1982)). Whether a duty exists is initially a question of law. In deciding questions of duty, a court must evaluate public policy considerations. Swanson v. McKain, 59 Wn. App. 303, 307, 796 P.2d 1291 (1990), review denied, 116 Wn.2d 1007 (1991).\nA commercial or residential landlord may be liable for personal injury to a tenant if the injury is caused by a latent defect known to the landlord. Charlton, at 788, and cases cited therein. The trial court held the uneven cement and lack of a handrail were patent defects and the failure to use safety glass was a noncompensable latent defect because Mr. Horn did not know the glass was hazardous. There is no evidence indicating a material question of fact whether the uneven cement and lack of a handrail were patent defects. The absence of a handrail and uneven concrete were clearly observable. As to the latent defect, there is no evidence to create a question of fact whether Mr. Horn knew the glass was not safety glass. While he knew a broken panel of glass in unit 105 had been replaced by the prior owner when he purchased the duplex, he did not participate in the repair and did not know the type of glass which was installed. It was only after Mr. Howard broke the window in unit 103 that Mr. Horn learned the building code required it to be replaced with an acrylic glass. Thus, the court's conclusion the latent defect was noncompensa-ble is correct and liability could not be imposed based on common law negligence.\nFinally, the Howards contend a duty was imposed on Mr. Horn under the Residential Landlord-Tenant Act of 1973 — the warranty of habitability. We disagree. Prior to the adoption of this act, the landlord's duty to the tenant was governed by an implied warranty of habitability. See discussion in Lincoln v. Farnkoff, 26 Wn. App. 717, 613 P.2d 1212 (1980). This warranty was later codified by the Legislature in the act. RCW 59.18.\nThis statute incorporates into all residential leases a covenant to repair. However, the landlord's duty is predicated upon notice and a reasonable time to repair. O'Brien v. Detty, 19 Wn. App. 620, 622-23, 576 P.2d 1334, review denied, 90 Wn.2d 1020 (1978); RCW 59.18.070. Here, it is undisputed there was no notice to Mr. Horn.\nAs to the landlord's duty to keep the leased premises fit for human habitation, RCW 59.18.060 provides:\n(1) Maintain the premises to substantially comply with any applicable code, statute, ordinance, or regulation governing their maintenance or operation, which the legislative body enacting the applicable code, statute, ordinance or regulation could enforce as to the premises rented if such condition substantially endangers or impairs the health or safety of the tenant;\n(5) Except where the condition is attributable to normal wear and tear, make repairs and arrangements necessary to put and keep the premises in as good condition as it by law or rental agreement should have been, at the commencement of the tenancy;\nFailure to carry out these duties gives rise to certain statutory remedies which are premised on the landlord having notice of the defect. Those remedies, however, are limited to (1) the tenant's right to repair and deduct the cost from the rent, (2) a decrease in the rent based upon the diminished value of the premises, (3) payment of rent into a trust account, or (4) termination of the tenancy. RCW 59.18-.110(2), .115, .120.\nThe defects complained of here do not impact the habitability of the duplex. In Stuart v. Coldwell Banker Comm'l Group, Inc., 109 Wn.2d 406, 415-16, 745 P.2d 1284 (1987), a case involving new construction, the warranty of habitability was limited to those defects which render a house unfit to be lived in or those which profoundly compromise the essential nature of the subject property as a dwelling. Additionally, the court stated the warranty does not apply to defects in exterior, nonstructural elements adjacent to the dwelling. The defects mentioned here do not impact the livability of the dwelling so as to render it unfit for habitation. There was no error.\nThe dismissal is affirmed.\nMunson and Shields, JJ., concur."", ""type"": ""majority"", ""author"": ""Green, C.J.""}], ""attorneys"": [""Timothy Cronin and Mullin, Cronin & Blair, P.S., for appellants."", ""Curtis L. Shoemaker and Paine, Hamblen, Coffin, Brooke & Miller, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 10957-7-III.\nDivision Three.\nJune 6, 1991.]\nLarry G. Howard, et al, Appellants, v. William Horn, Respondent.\nTimothy Cronin and Mullin, Cronin & Blair, P.S., for appellants.\nCurtis L. Shoemaker and Paine, Hamblen, Coffin, Brooke & Miller, for respondent.""}, ""cites_to"": [{""cite"": ""745 P.2d 1284"", ""year"": 1987, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""109 Wn.2d 406"", ""year"": 1987, ""case_ids"": [1186056], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""415-16""}], ""case_paths"": [""/wash-2d/109/0406-01""], ""opinion_index"": 0}, {""cite"": ""90 Wn.2d 1020"", ""year"": 1978, ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""opinion_index"": 0}, {""cite"": ""576 P.2d 1334"", ""year"": 1978, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""19 Wn. App. 620"", ""year"": 1978, ""case_ids"": [473788], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""622-23""}], ""case_paths"": [""/wash-app/19/0620-01""], ""opinion_index"": 0}, {""cite"": ""613 P.2d 1212"", ""year"": 1980, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""26 Wn. App. 717"", ""year"": 1980, ""case_ids"": [1833910], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""case_paths"": [""/wash-app/26/0717-01""], ""opinion_index"": 0}, {""cite"": ""116 Wn.2d 1007"", ""year"": 1991, ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""opinion_index"": 0}, {""cite"": ""796 P.2d 1291"", ""year"": 1990, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""59 Wn. App. 303"", ""year"": 1990, ""case_ids"": [1750997], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""307""}], ""case_paths"": [""/wash-app/59/0303-01""], ""opinion_index"": 0}, {""cite"": ""653 P.2d 280"", ""year"": 1982, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""97 Wn.2d 929"", ""year"": 1982, ""case_ids"": [1154942], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""932""}], ""case_paths"": [""/wash-2d/97/0929-01""], ""opinion_index"": 0}, {""cite"": ""803 P.2d 4"", ""year"": 1991, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""pin_cites"": [{""parenthetical"": ""citing Bernethy v. Walt Failor's, Inc., 97 Wn.2d 929, 932, 653 P.2d 280 (1982)""}], ""opinion_index"": 0}, {""cite"": ""60 Wn. App. 125"", ""year"": 1991, ""case_ids"": [1719194], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""129"", ""parenthetical"": ""citing Bernethy v. Walt Failor's, Inc., 97 Wn.2d 929, 932, 653 P.2d 280 (1982)""}], ""case_paths"": [""/wash-app/60/0125-01""], ""opinion_index"": 0}, {""cite"": ""755 P.2d 781"", ""year"": 1988, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""110 Wn.2d 415"", ""year"": 1988, ""case_ids"": [1182867], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""421""}], ""case_paths"": [""/wash-2d/110/0415-01""], ""opinion_index"": 0}, {""cite"": ""783 P.2d 601"", ""year"": 1989, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""pin_cites"": [{""parenthetical"": ""citing Hoffer v. State, 110 Wn.2d 415, 421, 755 P.2d 781 (1988)""}], ""opinion_index"": 0}, {""cite"": ""56 Wn. App. 312"", ""year"": 1989, ""case_ids"": [1760104], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""318"", ""parenthetical"": ""citing Hoffer v. State, 110 Wn.2d 415, 421, 755 P.2d 781 (1988)""}], ""case_paths"": [""/wash-app/56/0312-01""], ""opinion_index"": 0}, {""cite"": ""732 P.2d 1008"", ""year"": 1987, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""46 Wn. App. 784"", ""year"": 1987, ""case_ids"": [1811881], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""787""}], ""case_paths"": [""/wash-app/46/0784-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""61 Wash. App. 520"", ""type"": ""official""}], ""file_name"": ""0520-01"", ""last_page"": ""525"", ""first_page"": ""520"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T22:26:26.544793+00:00"", ""decision_date"": ""1991-06-06"", ""docket_number"": ""No. 10957-7-III"", ""last_page_order"": 553, ""first_page_order"": 548, ""name_abbreviation"": ""Howard v. 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+1764319,"{""id"": 1764319, ""name"": ""Pacesetter Real Estate, Inc., et al, Respondents, v. J. Stanley Fasules, et al, Appellants"", ""court"": {""id"": 8985, ""name"": ""Washington Court of Appeals"", ""name_abbreviation"": ""Wash. Ct. App.""}, ""analysis"": {""sha256"": ""a1cff7373c58c1c61ae9c8e2a8a98779b68fe4e538c2b4b61041a77178d362bf"", ""simhash"": ""1:c88965da114289b8"", ""pagerank"": {""raw"": 0.0000002730780211816899, ""percentile"": 0.8311025082929545}, ""char_count"": 25443, ""word_count"": 4112, ""cardinality"": 1180, ""ocr_confidence"": 0.833}, ""casebody"": {""judges"": [], ""parties"": [""Pacesetter Real Estate, Inc., et al, Respondents, v. J. Stanley Fasules, et al, Appellants.""], ""opinions"": [{""text"": ""Munson, J.\n—J. Stanley Fasules appeals from the judgment that determines two loans made to Pacesetter Real Estate, Inc., were usurious. He contends the court erred in (1) failing to dismiss the action for lack of standing as to Pacesetter and the Fullers; (2) finding the $40,000 and $12,000 loans were \""primarily for consumer purposes\"" and not \""primarily for commercial, investment, or business purposes\""; and (3) awarding attorney fees to the Fullers only and denying them to Mr. Fasules, despite contractual provisions allowing such fees. We reverse.\nPacesetter is a closely held corporation in which Brian and Sandra Fuller are sole shareholders, officers, and directors. The Fullers incorporated Pacesetter in 1980, purportedly to engage in the real estate business. Mr. Fuller has been in that business for 17 years and is licensed as a real estate broker in both Idaho and Washington.\nIn 1985, Pacesetter entered into a contract to purchase 113 acres of land in Stevens County, Washington, for $138,000. It decided to build a combined real estate office and residence and to farm the land. The $8,000 down payment was made with corporate funds, leaving a balance due of $130,000 plus interest. Thereafter, the Fullers contacted Rick Van Gelder of Equity Mortgage Services, Inc., who subsequently arranged a $40,000 loan to Pacesetter from Clyde R. Ross. The loan was evidenced by a promissory note dated November 27, 1985, secured by a deed of trust on 14 acres of the 113-acre tract. The note bore an annual interest rate of 18 percent and contained the following language on its face: \""This is acknowledged to be a commercial loan.\"" A $3,600 broker's commission was paid to Equity Mortgage from the $40,000 loan. Of the remaining proceeds, less attorney fees and closing costs, a portion was paid to obtain a deed to the 2lA acres upon which the office-residence structure was being constructed. The Fullers signed the note in their corporate capacity as president and vice-president but not in their individual capacity.\nAdditional funds were needed to complete the structure. The Fullers engaged Nelson Realty to find a lender for an additional loan; Mr. Fasules was contacted. Mr. Fasules personally evaluated the property and found the office portion of the structure incomplete but being used; the residential portion was vacant and unlivable. Mr. Fasules was aware Pacesetter owned the property. A $12,000 promissory note dated May 6, 1986, was initially executed by the Fullers in their corporate capacity on behalf of Pacesetter. The note bore an annual interest rate of 16 percent and was secured by a second deed of trust in favor of Mr. Fasules covering the 2Yi acres deeded to Pacesetter. Thereafter, Mr. Fasules insisted the Fullers sign the note individually to insure their personal liability. A $1,200 broker fee was paid to Nelson Realty from the gross proceeds of the loan; the remaining net proceeds, less attorney fees and other minor charges, were used exclusively to complete the structure. On December 4, 1986, Mr. Fasules obtained an assignment from Mr. Ross of the $40,000 note.\nThe Fullers occupied the residential portion of the structure as their family residence without a written rental agreement with Pacesetter. The Fullers made no rental payments to Pacesetter. By July 6, 1987, both loans were delinquent. The trustee under the deed of trust gave notice of foreclosure based on delinquencies in payment. Thereafter, Pacesetter filed this action seeking injunctive relief from the nonjudicial foreclosure, a determination that the $12,000 loan was usurious, and attorney fees. The trial court temporarily restrained the nonjudicial foreclosure proceeding and, following a trial, found both loans to be usurious. It offset the statutory penalties against the principal owning on the respective loans and awarded attorney fees to the Fullers. Mr. Fasules appeals.\nFirst, he contends Pacesetter lacked standing to commence or maintain this action when it, at the initiation of this action, had not complied with the fee requirements of RCW 23A.44.120 which provides:\nCompliance with fee requirements prerequisite to court proceedings. No corporation shall be permitted to commence or maintain any suit, action, or proceeding in any court of this state, without alleging and proving that it has paid or contracted to pay as herein provided all fees and penalties due the state of Washington under existing law or this title.\nFinding of fact 1 provides:\nPacesetter Real Estate, Inc. is a Washington corporation. At the time of the initiation and trial of this matter, said corporation had not paid the fees for its license, and was not current in its licensing and requirements with the State of Washington.\nThis finding was based on ample evidence. On direct examination by his own counsel, Mr. Fuller was asked what year Pacesetter last paid its license fees; he responded, \""I believe it was in '83. I'm not positive. We fell behind because of real estate sales and never did get quite caught up again.\"" This admission in conjunction with the court's unchallenged finding of fact is sufficient to establish Pacesetter's failure to meet the requirements of RCW 23A.44.120, thus stripping it of the right to bring an action.\nPacesetter claims Mr. Fasules' failure to raise the standing issue at trial prohibits him from raising it for the first time on appeal. Smith v. Shannon, 100 Wn.2d 26, 666 P.2d 351 (1983). Such waiver has been recognized where the issue has not been raised by answer or motion. Portland Ass'n of Credit Men, Inc. v. Earley, 42 Wn.2d 273, 254 P.2d 758 (1953); Draper Mach. Works, Inc. v. Hagberg, 34 Wn. App. 483, 663 P.2d 141 (1983). Here, Mr. Fasules specifically pleaded Pacesetter's lack of standing in his answer and reiterated his position at trial.\nThe Fullers alternately contend Pacesetter has standing to sue under RCW 23A.28.250. The underlying prerequisite of the statute is the presence of a dissolved corporation. The trial record is silent as to when dissolution occurred. Mr. Fasules, by motion of his appellate counsel, requested this court to accept two certificates from the Secretary of State that reveal Pacesetter was administratively dissolved by the Secretary of State on December 30, 1983. The motion was not opposed; we grant it. RAP 9.10. From December 30, 1983, Pacesetter or any of its creditors had 2 years to initiate an action arising from predissolution transactions. Here, Pacesetter and the Fullers filed this action on September 25,1987. Not only was this action filed beyond the 2-year limitation period for reinstatement, but it dealt with one loan made subsequent to this period.\nWhile the Legislature expressly provides for administrative dissolution following a corporation's failure to pay annual license fees, and further provides for timely reinstatement following such dissolution, it fails to provide direction as to the status of a corporation so dissolved. Early Washington case law, however, holds a corporation's failure to apply for reinstatement within the time permitted results in irrevocable dissolution. Hawley v. Bonanza Queen Mining Co., 61 Wash. 90, 111 P. 1073 (1910); see also Globe Constr. Co. v. Yost, 173 Wash. 522, 527, 23 P.2d 892 (1933) (once reinstatement period passes, corporation is \""dead\""); Peck v. Linney, 97 Wash. 103, 114, 165 P. 1080 (1917) (corporation in \""dormant condition\"" cannot sue); Gamble v. Alder Group Mining & Smelting Co., 5 Wn.2d 578, 582, 105 P.2d 811 (1940) (following expiration of reinstatement period, corporation cannot maintain an action). This view is consistent with case law across the country. See 16A W. Fletcher, Corporations § 8113, p. 358 (1988). Since Pacesetter failed to comply with the 2-year reinstatement period, it lacks standing to bring this action.\nSecond, Mr. Fasules contends the Fullers lack standing to maintain an action for usury as to the $40,000 Ross loan when they did not sign the note in their individual capacity. It is undisputed that this note was signed by the Fullers only as officers of Pacesetter. Neither signed in an individual capacity. As such, capacity to sue must be based on something other than the face of the instrument.\nThe Fullers allege their potential personal liability provides a basis for standing under RCW 23A.44.100. Mr. Fasules, in reply, contends the court made no finding that the Fullers were unlawfully assuming to act as a corporation without authority. While his contention is correct, we note the facts are sufficient to find unauthorized assumption of corporate powers, considering the date of Pacesetter's dissolution; its failure to apply for reinstatement; the limited statutory power provided the corporate directors to wind up corporate affairs; the expiration of the reinstatement period; and the Fullers' act of securing corporate loans following dissolution. We find RCW 23A.44-.100 provides a basis for standing to the Fullers.\nAdditionally, the Fullers are provided a basis for standing as trustees of the corporate property. RCW 23A-.28.250 provides in part:\nThe directors of any such corporation shall hold title to the property of the corporation as trustees for the benefit of its creditors and shareholders. Any such action or proceeding by or against the corporation may be prosecuted or defended by the corporation in its corporate name. The shareholders, directors, and officers shall have power to take such corporate or other action as shall be appropriate to protect such remedy, right, or claim.\nWhile arguably the trustee's right to litigate is limited to the 2-year period following corporate dissolution under RCW 23A.28.250 (see footnote 2), we see no reason the directors should lose the position of trustees where title to property remains in the corporate name. Here, the record reflects there is corporate property requiring the care of a trustee. In addition to the land and the structures, Mr. Fuller testified that subsequent to both loans, a barn was built for approximately $20,000, milking equipment purchased for approximately $5,000 to $7,000, and dairy cows purchased for an unspecified amount. The record is silent as to the source of funds used for these purchases and whether they were a corporate or an individual endeavor. Mr. Fuller does reveal, however, that 30 to 40 acres of the corporate property, i.e., from the original 113-acre purchase, were leased for pasture. As such, the Fullers had standing as trustees of the corporate property.\nThird, Mr. Fasules contends the loans to Pacesetter were primarily for commercial or business purposes as opposed to personal, family, or household purposes, within the meaning of RCW 19.52.080. This statute provides an exception to the usury defense when the purposes of the loan are \""primarily for agricultural, commercial, investment, or business purposes\"". This exception, however, is inapplicable to consumer transactions, i.e., those \""primarily for personal, family, or household purposes.\"" Here, the court in applying the statute determined these two loans were consumer transactions, as they were primarily for the purpose of constructing a single family residence. Mr. Fasules claims this determination was erroneous and asks this court to review, de novo, the purpose of the loans and the applicability of RCW 19.52.080.\nTo support de novo review, Mr. Fasules claims the determination of a loan's purpose within the meaning of RCW 19.52.080 is a conclusion of law and/or a mixed question of law and fact. Fisher v. World-Wide Trophy Outfitters, 15 Wn. App. 742, 743-44, 551 P.2d 1398 (1976) (determination of whether a particular statute applies to the factual situation is a conclusion of law and not a finding of fact). Accord, Blake v. Federal Way Cycle Ctr., 40 Wn. App. 302, 309, 698 P.2d 578 (whether actions are \""unfair\"" or \""deceptive\"" under the Consumer Protection Act is a question of law), review denied, 104 Wn.2d 1005 (1985); Keyes v. Bollinger, 31 Wn. App. 286, 289, 640 P.2d 1077 (1982) (whether actions give rise to violation under the Consumer Protection Act is a question of law); see also Lobdell v. Sugar 'N Spice, Inc., 33 Wn. App. 881, 887, 658 P.2d 1267 (whether distributorships constitute \""franchises\"" under the Franchise Investment Protection Act), review denied, 99 Wn.2d 1016 (1983).\nWe agree with Mr. Fasules and examine, de novo as a question of law, whether the loans in question were \""primarily\"" for business or consumer purposes. Brown v. Giger, 111 Wn.2d 76, 82, 757 P.2d 523 (1988), decided while this case was on appeal, held in determining a transaction's \""purpose\"" the court will look to the objective purpose rather than a subjective one. The court concurred with Aetna Fin. Co. v. Darwin, 38 Wn. App. 921, 691 P.2d 581 (1984), review denied, 103 Wn.2d 1019 (1985) in finding a \""loan's 'purpose' in the context of RCW 19.52.080 is principally established by the representations the borrower makes to the lender at the time the loan is procured.\"" Brown, at 82; see also National Bank of Commerce v. Thomsen, 80 Wn.2d 406, 415, 495 P.2d 332 (1972) (usury must be established at the inception of the contract). Here, the representations by the Fullers on behalf of the corporate owner were that the purpose of the loans were to complete a combined office-residence. This factor alone may be inconclusive.\nA more significant statement by Brown is the holding that documents themselves are to be given substantial weight: \""More conclusive [than the borrower's representations] are the loan documents themselves.\"" Brown, at 82. Even though the borrower in Brown had not drafted the instruments which described the loans as having a business or commercial purpose, she had \""signed them, thereby representing that she sought funding for the purposes stated.\"" Brown, at 82 (citing Conrad v. Smith, 42 Wn. App. 559, 712 P.2d 866, review denied, 105 Wn.2d 1017 (1986)). While the court acknowledged the borrower's predicament, it focused on the importance of upholding the validity of contracts:\nWe have stressed before the strength of the commitments that mise from the making of legal contracts, and our reluctance to forgive them when a party has carelessly 'sold the farm.' We must emphasize again the duty of each individual to be vigilant when undertaking contractual obligations.\n(Citation omitted.) Brown, at 83.\nHere, there is ample evidence that the Fullers from the outset intended the loans to be advanced to Pacesetter for construction and completion of a combined corporate real estate office-residence. However, it is also clem that the face of the November 27, 1985, $40,000 promissory note contained the following language in bold type: \""This is acknowledged to be a commercial loan.\"" Using the Brown rationale, the purpose acknowledged on the instrument provides more conclusive evidence than the representations in isolation. Mr. Fuller's vast experience in real estate likewise would raise the expectations of vigilance in entering into such a contractual obligation.\nIn considering the \""objective purpose,\"" Mr. Fasules' argument that the loan moneys were used exclusively to improve corporate property is well taken. The initial purchase of the 113 acres, which includes the 2XA acres in question, was made by Pacesetter. Further, a portion of the $40,000 loan was utilized to pay a sufficient amount on the land contract to acquire a deed to the 2lA acres; the record is silent on the issue, but the diverted portion of the original loan for this purpose may or may not have supplied the need for additional funds to complete the residence. The only collateral given for the loan was Pacesetter's real property; the structure was to be built on that property, thus furthering the goal of increasing corporate wealth.\nThe court in its findings and oral opinion relied heavily upon the nature of the structure, i.e., single family residence and a homeowner's insurance policy naming the Fullers as the insureds, in determining the loan was made primarily for a consumer rather than a business purpose. This focus is misplaced; a corporation has a legitimate business purpose in building its officers a combined home/ office on its property. See 6A W. Fletcher, Corporations § 2794, at 239 (1981) (the tendency of courts is toward holding the acquisition of land or buildings, or both, for use by employees as homes to be within the corporate powers). Mere occupation of the structure as a residence by the Fullers does not in itself obviate the corporate business purpose. As the court's unchallenged finding of fact indicates, the structure was occupied as a family residence \""through a nonwritten rental agreement with the corporation.\"" Mr. Fuller testified that he probably should be paying rent to Pacesetter while using the structure as his residence.\nOne additional factor provides support for a finding of corporate purpose here. Our Supreme Court has recognized a party's right to rely on representations made in the contract setting based on a general duty to contract in good faith. Liebergesell v. Evans, 93 Wn.2d 881, 889, 613 P.2d 1170 (1980); see also Kammerer v. Western Gear Corp., 27 Wn. App. 512, 618 P.2d 1330 (1980), aff'd, 96 Wn.2d 416, 635 P.2d 708 (1981); Puget Sound Serv. Corp. v. Dalarna Mgt. Corp., 51 Wn. App. 209, 213, 752 P.2d 1353, review denied, 111 Wn.2d 1007 (1988). Here, the Pullers' representations of Pacesetter's existing corporate status, supported by their use of a portion of the $40,000 loan to secure a deed to the 2lh acres upon which the structure is located, provide a legitimate basis for reliance. Based on this factor, as well as the ones noted above, we find a business or investment purpose, at least insofar as the $40,000 loan.\nIn regard to the $12,000 loan, the evidence is less compelling. Unlike the earlier promissory note, the May 6, 1986, note does not contain a purpose clause. It does, however, contain signatures by the Fullers initially in their corporate capacity. By signing the note in their individual capacity, the Fullers changed their legal status to personal guarantors of the corporate debt. See generally Lincoln v. Transamerica Inv. Corp., 89 Wn.2d 571, 573 P.2d 1316 (1978); Topline Equip., Inc. v. Stan Witty Land, Inc., 31 Wn. App. 86, 639 P.2d 825, review denied, 97 Wn.2d 1015 (1982). Requiring these individual guaranties is a common practice of lenders when dealing with a closely held corporation. This fact in conjunction with the above noted evidence as to the use of the money for the economic improvement of Pacesetter's assets helps establish Mr. Fasules' contention of a business or investment purpose.\nThe Fullers urged the trial court and this court to pierce the corporate veil to find the transactions were primarily for consumer purposes. To support this position, the Fullers point to the closely held format of the company, the mixing of accounts, and the use of the primary portion of the corporate structure for a single family residence. Mr. Fasules responds that the \""reverse use\"" of the doctrine applies only in limited situations:\nAs a general rule, the separate identity of a corporation distinct from its stockholders will be honored unless its recognition serves to perpetuate some form of injustice which typically involves a fraud, misrepresentation, or manipulation of the corporation to a creditor's detriment.\nRoderick Timber Co. v. Willapa Harbor Cedar Prods., Inc., 29 Wn. App. 311, 315, 627 P.2d 1352 (citing Truckweld Equip. Co. v. Olson, 26 Wn. App. 638, 618 P.2d 1017 (1980)), review denied, 96 Wn.2d 1003 (1981). The party asserting such a position would have the burden of proof. Here, the trial court made no finding of fact disregarding the corporate entity. Rather, in its finding of fact 1, it held that Pacesetter at the initiation of this action was not a \""current\"" Washington corporation, yet granted relief to both the corporation and the Fullers. This contradicts the argument that the court deemed Pacesetter the alter ego of the shareholders. If no finding is entered as to a material issue, it is deemed to have been found against the party having the burden of proof. Omni Group, Inc. v. Seattle-First Nat'l Bank, 32 Wn. App. 22, 28, 645 P.2d 727, review denied, 97 Wn.2d 1036 (1982). We find the Fullers have not met their burden of establishing Pacesetter was merely an alter ego of its shareholders or, if so, that a manipulation to the creditor's detriment is being attempted.\nFourth, Mr. Fasules contends the trial court erred in awarding attorney fees to the Fullers and denying fees to himself. We agree.\nThe judgment is reversed and the matter is remanded for further proceedings and for the determination of the amount of attorney fees to be awarded to Mr. Fasules both at trial and on appeal.\nThompson, C.J., and Ripple, J. Pro Tern., concur.\nAfter modification, further reconsideration denied March 9, 1989.\nThe complaint alleged usury only as to the $12,000 loan and not the initial $40,000 Ross loan. We consider the latter only because the court considered it in its findings of fact, conclusions of law, and judgment.\nRCW 23A.28.250 provides in part:\n\""Survival of remedy after dissolution. The dissolution of a corporation either: (1) By the issuance of a certificate of dissolution by the secretary of state, or (2) by a decree of court, or (3) by expiration of its period of duration shall not take away or impair any remedy available to or against such corporation, its directors, officers, or shareholders, for any right or claim existing, or any liability incurred, prior to such dissolution if action or other proceeding thereon is commenced within two years after the date of such dissolution.\"" (Italics ours.)\nMr. Fasules filed in this court documentation that the Secretary of State had administratively dissolved Pacesetter in 1983, pursuant to RCW 23A.28,125; as of August 3, 1988, it had not been reinstated.\nRCW 23A.28.125 provides in part:\n\""(1) A domestic corporation shall be administratively dissolved by the secretary of state upon the conditions prescribed in this section when:\n\"" (a) The corporation has failed to file the annual report required by this title or to pay the annual license fee required by this title, and a period of sixty days has expired since the last day permitted for timely filing or payment, without the corporation having filed or made payment of all required fees and penalties;\""\nRCW 23A.28.127(1) allows an administratively dissolved corporation to apply to the Secretary of State for reinstatement within 2 years following the effective date of the dissolution. The current 2-year reinstatement period is the last in an extensive history of legislative amendments on the subject. Under the Laws of 1907, ch. 140, § 7, p. 271, the Legislature provided no specific provisions for reinstatement. Rather, a corporation was required to pay its fees within 2 years or its name was stricken from the records. Under the Laws of 1909,1st Ex. Sess., ch. 19, § 1, p. 57, a corporation was given 6 months to reinstate. Under the Laws of 1911, ch. 41, § 1, p. 135, a corporation could apply for reinstatement at any time. Under the Laws of 1923, ch. 144, § 5, p. 465, a corporation could apply for reinstatement within 3 years of its name being stricken from the records. Under the Laws of 1937, ch. 70, § 14, p. 246, a corporation was allowed a 10-year period to reinstate. Under the Laws of 1965, ch. 53, § 3 eí seq., p. 1054, the Washington Business Corporation Act was adopted, which omitted the prior references to postdissolution reinstatement. Not until the Laws of 1983, ch. 32, § 2, p. 285 was the current 2-year reinstatement period adopted.\nRCW 23A.44.100 provides:\n\""Unauthorized assumption of corporate powers—Exception. (1) All persons who assume to act as a corporation without authority so to do shall be jointly and severally liable for all debts and liabilities incurred or arising as a result thereof.\n\""(2) Subsection (1) of this section does not apply to any persons assuming to act as a corporation during a period of administrative dissolution if the corporation is subsequently reinstated under the provisions of RCW 23A.28.127 and 23A.28.135.\""\nRCW 19.52.080 provides:\n\""Defense of usury or maintaining action thereon prohibited if transaction primarily agricultural, commercial, investment, or business—Exception. Profit and nonprofit corporations . . . may not plead the defense of usury nor maintain any action thereon or therefor, and persons may not plead the defense of usury nor maintain any action thereon or therefor if the transaction was primarily for agricultural, commercial, investment, or business purposes: Provided, however, That this section shall not apply to a consumer transaction of any amount.\n\""Consumer transactions, as used in this section, shall mean transactions primarily for personal, family, or household purposes.\""\nWe note for tax purposes, a corporation is allowed to deduct depreciation and utilities from a residence used in the corporation's business as a residence for its on-site president/manager/operator. See J. Grant Farms, Inc. v. Commissioner, 49 T.C.M. 1197 (1985) (married couple incorporated a farm)."", ""type"": ""majority"", ""author"": ""Munson, J.""}], ""attorneys"": [""Leo Driscoll and Winston & Cashatt, for appellants."", ""Robert Walker, for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 9157-1-III.\nDivision Three.\nFebruary 16, 1989.]\nPacesetter Real Estate, Inc., et al, Respondents, v. J. Stanley Fasules, et al, Appellants.\nLeo Driscoll and Winston & Cashatt, for appellants.\nRobert Walker, for respondents.""}, ""cites_to"": [{""cite"": ""49 T.C.M. 1197"", ""year"": 1985, ""category"": ""reporters:specialty"", ""reporter"": ""T.C.M."", ""pin_cites"": [{""parenthetical"": ""married couple incorporated a farm""}], ""opinion_index"": 0}, {""cite"": ""97 Wn.2d 1036"", ""year"": 1982, ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""opinion_index"": 0}, {""cite"": ""645 P.2d 727"", ""year"": 1982, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""32 Wn. App. 22"", ""year"": 1982, ""case_ids"": [1814662], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""28""}], ""case_paths"": [""/wash-app/32/0022-01""], ""opinion_index"": 0}, {""cite"": ""96 Wn.2d 1003"", ""year"": 1981, ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""opinion_index"": 0}, {""cite"": ""618 P.2d 1017"", ""year"": 1980, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""26 Wn. App. 638"", ""year"": 1980, ""case_ids"": [1833903], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""case_paths"": [""/wash-app/26/0638-01""], ""opinion_index"": 0}, {""cite"": ""627 P.2d 1352"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""29 Wn. App. 311"", ""case_ids"": [1824096], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""315""}], ""case_paths"": [""/wash-app/29/0311-01""], ""opinion_index"": 0}, {""cite"": ""97 Wn.2d 1015"", ""year"": 1982, ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""opinion_index"": 0}, {""cite"": ""639 P.2d 825"", ""year"": 1982, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""31 Wn. App. 86"", ""year"": 1982, ""case_ids"": [1822368], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""case_paths"": [""/wash-app/31/0086-01""], ""opinion_index"": 0}, {""cite"": ""573 P.2d 1316"", ""year"": 1978, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""89 Wn.2d 571"", ""year"": 1978, ""case_ids"": [1108595], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/89/0571-01""], ""opinion_index"": 0}, {""cite"": ""111 Wn.2d 1007"", ""year"": 1988, ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""opinion_index"": 0}, {""cite"": ""752 P.2d 1353"", ""year"": 1988, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""51 Wn. App. 209"", ""year"": 1988, ""case_ids"": [591938], ""category"": ""reporters:state"", ""reporter"": ""Wash. 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App. 463"", ""type"": ""official""}], ""file_name"": ""0463-01"", ""last_page"": ""476"", ""first_page"": ""463"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T23:30:26.045121+00:00"", ""decision_date"": ""1989-02-16"", ""docket_number"": ""No. 9157-1-III"", ""last_page_order"": 510, ""first_page_order"": 497, ""name_abbreviation"": ""Pacesetter Real Estate, Inc. v. 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+1770937,"{""id"": 1770937, ""name"": ""Lewis and Sims, Inc., Respondent, v. Key Industries, Inc., et al, Appellants"", ""court"": {""id"": 8985, ""name"": ""Washington Court of Appeals"", ""name_abbreviation"": ""Wash. Ct. App.""}, ""analysis"": {""sha256"": ""37063116d806e157261efea34ba609f75b708cde6abc095a5645af924e806af3"", ""simhash"": ""1:06a773047c545c56"", ""pagerank"": {""raw"": 0.00000005747034550892732, ""percentile"": 0.3597315905290231}, ""char_count"": 15793, ""word_count"": 2696, ""cardinality"": 824, ""ocr_confidence"": 0.65}, ""casebody"": {""judges"": [], ""parties"": [""Lewis and Sims, Inc., Respondent, v. Key Industries, Inc., et al, Appellants.""], ""opinions"": [{""text"": ""Swanson, J.—Lewis\nand Sims, Inc., an Alaska corporation, was awarded a subcontract to install a water and sewer system in the town of North Pole, Alaska. As part of the contract Lewis and Sims was required to furnish all the pipe necessary to complete the project. Lewis and Sims placed an order on January 27, 1972, with Liberty Equipment and Supply Co. (Liberty), a Washington corporation, for a quantity of pipe sufficient to complete the project. The purchase order signed by Harold Sims of Lewis and Sims and given to Liberty recited the size, quantity and the fact that the pipe was to be coal-tar enamel lined:\n1,280' of 4\"" x 10\"" gage x 40' long pipe, coal tar enamel lined\n11,560' of 6\"" x 10\"" gage x 40' long pipe, coal tar enamel lined\n7,880' of 8\"" x 10\"" gage x 40' long pipe, coal tar enamel lined\n1,640' of 10\"" x 10\"" gage x 40' long pipe, coal tar enamel lined\n400' of 12\"" x 10\"" gage x 40' long pipe, coal tar enamel lined.\n(Italics ours.) Finding of fact No. 3. (Note: The finding lists the total number of feet of pipe ordered in item two as 1,560' whereas the purchase order of Lewis and Sims lists the number of feet of pipe ordered as 11,560'.)\nOn February 2, 1972, Liberty which acted only as a middleman ordered the same pipe from Northwest. Pipe and Casing Co. (Northwest), an Oregon corporation engaged in the manufacture of steel pipe. Northwest in turn contracted with Hall Processing Co. (Hall), a Utah corporation with offices in Oregon, for the application of the coal-tar lining to the pipe. Thereafter, the pipe was shipped f.o.b. Clackamas, Oregon, to North Pole, Alaska, and was delivered at the jobsite on March 22 and 23, 1972. Once at the jobsite, the general contractor, Fairbanks-Lundgren, took charge of unloading the steel pipe. This unloading process with its inevitable rough handling of the pipe took place over a period during which the temperature at nearby Fairbanks, Alaska, ranged from a high on March 22, 1972, of +6° F to a low on March 24,1972, of -27° F.\n• During the middle of April 1972, Lewis and Sims began laying the pipe for the sewer outfall line. By early May of 1972, some 5,000 feet of pipe had been installed. It was also during the early part of May that Mr. Edwards Stitch commenced his duties as project inspector. His subsequent inspections of the steel pipe revealed that portions of the interior enamel lining had cracked away from the steel outer casing and were hanging down in large sheets. This condition existed throughout the remainder of the pipe except for the pipe already installed. As a consequence, the pipe not already in place was rejected. In order to complete the project, Lewis and Sims ordered replacement pipe from Beall Pipe & Tank Corp., paying $39,861.78 for the pipe and freight.\nSuit was commenced by Lewis and Sims against Liberty, Northwest, and Hall to recover for damages it allegedly suffered due to the defective pipe. The trial court, sitting without a jury, after entering findings of fact and conclusions of law, awarded a $64,273.95 judgment to Lewis and Sims against Liberty and Northwest. In reaching its decision, the trial court found that the pipe was intended for a particular purpose—the installation of a sewer and water project at North Pole, Alaska, commencing in the early part of April 1972. Delivery, the trial court reasoned, necessarily required handling in the unloading process. Since the lining could not withstand even the most careful handling due to the unusually cold weather, the trial court found that the pipe was not fit for the particular purpose intended at the time of contracting, as impliedly warranted by RCW 62A.2-315:\nWhere the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.\nAlthough the appellants present this court with 11 assignments of error, their primary challenge is to the trial court’s finding of fact No. 22:\nLiberty and Northwest each breached their implied warranty of fitness to Lewis & Sims. Northwest breached its implied warranty of fitness to Liberty.\nIn order to invoke the provisions of the section 2-315 warranty, the evidence must be sufficient to show that (1) the seller at the time of contracting had reason to know the particular purpose for which the goods were required, and (2) that the buyer relied upon the seller’s skill or judgment in selecting or furnishing suitable goods. Ringstad v. I. Magnin & Co., 39 Wn.2d 923, 239 P.2d 848 (1952); Burnett v. Hunt, 5 Wn. App. 385, 486 P.2d 1129 (1971); Garner v. S & S Livestock Dealers, Inc., 248 So. 2d 783 (Miss. 1971); 1 R. Anderson, Anderson on the Uniform Commercial Code § 2-315:4 (2d ed. 1970). In marked contrast to other commercial code warranties, it is imperative to the existence of a warranty of fitness for a particular purpose that the buyer relied upon the seller’s skill or judgment in selecting the appropriate goods. In so relying, the buyer generally is ignorant of the fitness of the article offered by the seller and thus relies on the superior skill, information or judgment the seller possesses and not on his own judgment.\nIn Frisken v. Art Strand Floor Coverings, Inc., 47 Wn.2d 587, 288 P.2d 1087 (1955), the owner of a commercial building entered into an agreement with a corporation engaged in the business of selling and laying floor coverings whereby the latter contracted to furnish and install asphalt tile on the floor of the premises. The building’s floor was concrete covered with magnesite. The corporation’s agent, after viewing the premises, recommended a certain tile suitable for the building owner’s needs. The tile, • as it turned out, was incompatible with the magnesite under-flooring such that the tile floor became uneven and buckled. Our Supreme Court held that the seller impliedly warranted that the floor would be fit for the intended use regardless of the structure of the underflooring. In so holding, the court found that the buyer was ignorant of the risk involved in covering magnesite with tile and that she relied on the seller’s knowledge and judgment in the matter. See also Martin v. J.C. Penney Co., 50 Wn.2d 560, 313 P.2d 689, 80 A.L.R.2d 697 (1957). Accord, Catania v. Brown, 4 Conn. Cir. 344, 231 A.2d 668 (1967); Handy v. Holland Furnace Co., 11 Wis. 2d 151, 105 N.W.2d 299 (1960). In similar fashion, the Catania case involved a fairly typical situation where application of the implied warranty of fitness for a particular purpose is deemed appropriate. In Catania, the buyer asked the seller, who was engaged in the retail paint business, to recommend a paint to cover the exterior stucco walls of the buyer’s house. The seller was told that the stucco was in a chalky or powdery condition. Based on this information, the seller recommended a particular brand name product and also provided instructions on its use. Subsequent to its application, the paint began to flake and blister. The Connecticut Supreme Court found that the implied warranty liability existed since the buyer justifiably relied on the superior information, skill, and judgment of the seller.\nIf, as has been shown, liability for the implied warranty for fitness for a particular purpose flows from the existence of: (1) reliance by the buyer on the judgment of the seller and (2) the fact that the seller had reason to know of the buyer’s particular purpose, Burnett v. Hunt, supra, then it conversely follows that no warranty of fitness for a particular purpose arises when it is clear that the buyer orders goods according to his own specifications. As stated in 1 R. Anderson, Anderson on the Uniform Commercial Code § 2-315:21, at 666 (2d ed. 1970),\nA buyer does not rely upon the seller’s judgment, skill, or experience where an article, although intended for a disclosed purpose, is to be made or manufactured or furnished by the seller in accordance with plans and specifications furnished by the purchaser; there is in such case no implied warranty that the article, if in accordance with the specifications, will answer the intended purpose, or in other words, no warranty against unfitness arising out of defects in the plans and specifications.\nWashington, in adhering to this rule, has stated the proposition in its own terms:\n[W]hen the article ordered is to be manufactured according to certain prescribed specifications, or is an article well known and defined in current trade, the contract is complied with when an article is furnished which is manufactured in accordance with the designated specifications, or is an article of the standard kind known to the trade, even though the seller may know the purposes for which it is intended to be used and it afterwards proves to be unfit or unsuitable for the intended purpose.\nUnited States Cast Iron Pipe & Foundry Co. v. Ellis, 117 Wash. 601, 606, 201 P. 900 (1921).\nWe turn now from the abstract legal aspects of the warranty of fitness for purpose to a discussion of that warranty as it applies to the facts before us. In order to prevail in the instant action, the respondent-buyer was under an obligation to show that he relied on the seller’s judgment in choosing a pipe that best suited the needs of an underground water-sewer system in North Pole, Alaska. While the trial court apparently believed such reliance existed, we are at a loss to find substantial evidence within the record to sustain the trial court. On the contrary, after carefully reviewing the record, we find ample evidence to conclude that Lewis and Sims ordered a specific size and type of pipe and that any deviation from the coal-tar enamel lined pipe that was manufactured would not have been accepted by Lewis and Sims. In short, neither Liberty nor Northwest was asked for its recommendations, nor did either select the pipe or lining to be used. Liberty merely filled a specific purchase order for pipe—a job it held itself out to do. Moreover, Mr. Sims testified that he knéw exactly what he was ordering from Liberty and that it would not have been within Liberty’s province to substitute another type of pipe:\nQ [By Mr. Tewell] All right. Now, when you ordered this pipe and wrote “coal-tar lined pipe” on your order, do you know what I am referring to, do you not?\nA Yes.\nQ At that time, you had already read the specifications which provided that the lining would be pursuant to the AWWA specifications, isn’t that right?\nA Yes.\nQ And you intended, when you put down that “coal-tar lined pipe,” to ask for precisely the pipe that was set forth in the specifications, did you not?\nA There is an area in there that is vague to me and I really can’t give an answer to it one way or another, because as it has been brought up before, those specifications don’t ask for AWWA 203 pipe, they ask for AWWA 204 pipe and there is no such thing.\nQ All right. You did read that?\nA Uh-huh.\nQ Isn’t that so?\nA Yes.\nQ You believed at the time you read that that it meant some particular pipe though, did you not?\nA Yes.\nQ All right. When you ordered coal-tar lined pipe, you intended to order that pipe that you believed was set forth in the specifications, did you not?\nA Yes.\nQ . . . All right. When you ordered this pipe from Liberty, you did not intend at that time in making that order that they would have the privilege of changing the type of pipe that you were ordering from the kind that was set forth in the specifications?\nA No.\nQ All right. You were relying on the specifications themselves as indicating the kind of pipe precisely that you were going to get and work with on this job, were you not?\nA Yes.\nQ Your answer to that question?\nA Yes.\nThe warranty for fitness for a particular purpose was not meant to be applied in a situation such as we face today. The central tenet—reliance upon the skill, judgment,- or experience of the seller—is not manifested. What, is apparent is the fact that both parties to this action knew what was desired, and that desire was fulfilled. It is also important to note that the pipe itself was not negligently manufactured; rather, the lining was susceptible to cracking upon exposure to extreme cold. However, as Mr. Lewis of Lewis and Sims testified, his company was working on a time schedule necessarily requiring delivery of the pipe in late March or early April—a time when, as Mr. Sims testified, the weather in Alaska could be quite variable.\nInasmuch as we find insufficient evidence in the record to support the trial court’s finding that Liberty and Northwest each breached its warranty of fitness for purpose to Lewis and Sims, Ormiston v. Boast, 68 Wn.2d 548, 413 P.2d 969 (1966), we do not reach appellant Northwest’s additional assignments of error. Nor do we find it necessary to undertake a discussion of appellant Liberty’s claimed assignments of error in that they are generally directed toward the implied warranty of fitness for purpose issue. However, Liberty does challenge the trial court’s finding denying attorney fees to it. Liberty contends that Northwest’s failure to provide pipe suitable for the particular purpose required by Lewis and Sims was the proximate cause of Lewis and Sims’ resulting damage. Had suitable pipe been provided, the argument continues, there would have been no litigation and Liberty would not have incurred attorney fees. In light of the fact that we have reversed the imposition of liability on the part of Northwest and Liberty to Lewis and Sims, there is no basis for Liberty’s contention.\nIn summary then, we find no breach of an implied warranty of fitness for purpose owed to Lewis and Sims by Northwest or Liberty. Consequently, the award of $64,273.95 is without foundation.\nThe judgment is reversed with directions to dismiss the complaint.\nFarris and Andersen, JJ., concur.\nPetition for rehearing denied June 16,1977.\nThe contract documents and specifications given to Lewis and Sims by the general contractor, Fairbanks-Lundgren, contained the following language dealing with the type of pipe to be used in completing the project:\n2.07.02 Piping\nPiping for water mains connections shall be of the type and materials specified herein, or as approved by the Engineer.\n2.07.03 Materials A Pipe—\nAll piping shall be black steel minimum wall thickness 10 gauge. Exterior and interior shall be lined with coal-tar enamel, coatings conforming to AWWA [American Water Works Association] C-20[3]. [The original specifications called for AWWA C-204. However, all parties agreed that no such AWWA standard existed for coal-rtar enamel lined pipe; rather the specifications should have read AWWA C-203.]\nIt is interesting to note that the purchase order from Lewis and Sims to Beall recited the former’s desire to have coal-tar enamel lined pipe per AWWA C-203. In other words, Lewis and Sims ordered exactly the same kind of pipe from Beall as it did from the defendants herein.\nThis case arose before the enactment of the present-day Uniform Commercial Code; however, the same principles are still applicable. •\nThe trial court’s award of $43,068.48, representing the damages suffered by Liberty proximately caused by Lewis and Sims’ failure to pay for the pipe it ordered was neither briefed nor argued on appeal and thus must be left to stand."", ""type"": ""majority"", ""author"": ""Swanson, J.—Lewis""}], ""attorneys"": [""Robbins, Merrick & Kraft, Burton S. Robbins, Thomas J. Kraft, Elvidge, Veblen, Tewell, Bergmann & Taylor, Duane Tewell, Thomas A. St. Pierre, Macbride, Sax & Maclver, and James L. Magee, for appellants."", ""Anthony T. Ressa, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 3245-1.\nDivision One.\nDecember 29, 1976.]\nLewis and Sims, Inc., Respondent, v. Key Industries, Inc., et al, Appellants.\nRobbins, Merrick & Kraft, Burton S. Robbins, Thomas J. Kraft, Elvidge, Veblen, Tewell, Bergmann & Taylor, Duane Tewell, Thomas A. St. Pierre, Macbride, Sax & Maclver, and James L. Magee, for appellants.\nAnthony T. Ressa, for respondent.""}, ""cites_to"": [{""cite"": ""413 P.2d 969"", ""year"": 1966, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""68 Wn.2d 548"", ""year"": 1966, ""case_ids"": [1052704], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/68/0548-01""], ""opinion_index"": 0}, {""cite"": ""201 P. 900"", ""year"": 1921, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""117 Wash. 601"", ""year"": 1921, ""case_ids"": [752579], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""pin_cites"": [{""page"": ""606""}], ""case_paths"": [""/wash/117/0601-01""], ""opinion_index"": 0}, {""cite"": ""105 N.W.2d 299"", ""year"": 1960, ""category"": ""reporters:state_regional"", ""reporter"": ""N.W.2d"", ""opinion_index"": 0}, {""cite"": ""11 Wis. 2d 151"", ""year"": 1960, ""category"": ""reporters:state"", ""reporter"": ""Wis. 2d"", ""opinion_index"": 0}, {""cite"": ""231 A.2d 668"", ""year"": 1967, ""category"": ""reporters:state_regional"", ""reporter"": ""A.2d"", ""opinion_index"": 0}, {""cite"": ""80 A.L.R.2d 697"", ""year"": 1957, ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R. 2d"", ""opinion_index"": 0}, {""cite"": ""313 P.2d 689"", ""year"": 1957, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""50 Wn.2d 560"", ""year"": 1957, ""case_ids"": [1002125], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/50/0560-01""], ""opinion_index"": 0}, {""cite"": ""288 P.2d 1087"", ""year"": 1955, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""47 Wn.2d 587"", ""year"": 1955, ""case_ids"": [5041745], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/47/0587-01""], ""opinion_index"": 0}, {""cite"": ""248 So. 2d 783"", ""year"": 1971, ""case_ids"": [9773368], ""category"": ""reporters:state_regional"", ""reporter"": ""So. 2d"", ""case_paths"": [""/so2d/248/0783-01""], ""opinion_index"": 0}, {""cite"": ""486 P.2d 1129"", ""year"": 1971, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""5 Wn. App. 385"", ""year"": 1971, ""case_ids"": [1866999], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""case_paths"": [""/wash-app/5/0385-01""], ""opinion_index"": 0}, {""cite"": ""239 P.2d 848"", ""year"": 1952, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""39 Wn.2d 923"", ""year"": 1952, ""case_ids"": [4974670], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/39/0923-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""16 Wash. App. 619"", ""type"": ""official""}], ""file_name"": ""0619-01"", ""last_page"": ""627"", ""first_page"": ""619"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T22:53:50.608733+00:00"", ""decision_date"": ""1976-12-29"", ""docket_number"": ""No. 3245-1"", ""last_page_order"": 655, ""first_page_order"": 647, ""name_abbreviation"": ""Lewis & Sims, Inc. v. Key Industries, 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+1776383,"{""id"": 1776383, ""name"": ""James J. Cherberg, et al, Respondents, v. Peoples National Bank of Washington, Defendant, Joshua Green Corporation, Appellant"", ""court"": {""id"": 8985, ""name"": ""Washington Court of Appeals"", ""name_abbreviation"": ""Wash. Ct. App.""}, ""analysis"": {""sha256"": ""7cbb49d95c603b9a8697e82c08b8e8b7b751d98509a0ac4aff082f944c6e7136"", ""simhash"": ""1:6bd8c463f99785c4"", ""pagerank"": {""raw"": 0.00000009482132832043697, ""percentile"": 0.5179952576385728}, ""char_count"": 22592, ""word_count"": 3781, ""cardinality"": 1143, ""ocr_confidence"": 0.673}, ""casebody"": {""judges"": [], ""parties"": [""James J. Cherberg, et al, Respondents, v. Peoples National Bank of Washington, Defendant, Joshua Green Corporation, Appellant.""], ""opinions"": [{""text"": ""Reed, J.\nThis is an appeal by defendant-lessor, Joshua Green Corporation, hereafter called lessor, from a judgment on a jury verdict rendered in favor of plaintiff-lessees, James J. and Arlene M. Cherberg, hereafter called Cherbergs, for an alleged failure to make repairs to a wall of the building in which the leased premises are located.\nIn 1967 Cherbergs leased from Seattle-First National Bank, a designated portion of the Lewis Building on Fifth Avenue in Seattle, Washington, and established therein a successful restaurant business. In 1972 the defendant-lessor acquired the building subject to plaintiffs’ lease and one other. In April 1972, Peoples National Bank of Washington, owner of the property abutting to the south, commenced demolition of the Blue Mouse Theater located thereon, in order to construct a high-rise banking facility. This work resulted in exposing the south wall of the Lewis Building, revealing it to be structurally unsound and in need of substantial repairs in order to satisfy City of Seattle safety requirements.\nThe bank notified lessor who promptly wrote Cherbergs advising them in part that the city concurred with the bank’s engineer’s findings and that\nThey have concluded that the Lewis Building is structurally unsound and creates a hazard to the safety of the persons occupying the building. . . .We are advised by the Bank that the City is processing, a letter which may require the abatement of the use of the property.\nShortly thereafter lessor’s attorney wrote lessees enclosing a copy of a letter from the city concerning the need for repairs and indicating lessor would probably elect not to make corrections in view of the age of the building, risks involved, and cost. Cherbergs countered that the lease agreement required lessor to make “structural repairs” and demanded it do so promptly, pointing out the lease did not expire until September 30, 1977, and that Cherbergs would suffer substantial damages if their tenancy should be interrupted.\nThe parties met on numerous occasions and exchanged considerable correspondence during which neither wavered in its position and the lessor eventually gave written notice of its election to terminate the lease and announced its intention to post safety warnings on the building. Cher-bergs reacted by closing the restaurant for a period of 6 or 7 days. No notices were in fact posted and Cherbergs reopened, after learning from an independent consultant that repairs could be made to bring the wall into conformity with city requirements. They again indicated they expected lessor to make the repairs. In the interim, while the parties were negotiating, the bank agreed with lessor to leave in place a portion of the theater wall in order to provide temporary support to the defective wall. In July 1972, however, the bank, not wishing to be delayed further in its construction plans, with consent of the lessor, repaired the wall at its own expense at a cost of $30,000 to $50,000.\nIt is undisputed that the lessor and the bank had mutual interests and that Joshua Green, lessor’s president, was also a senior officer of the bank and a member of its board of directors. Neither is it disputed that it would have been highly advantageous to both lessor and the bank if the building could be razed. In fact, during February and March of 1972 the lessor, and thereafter until sometime in July 1972, the bank, employed a Mr. Tucker to negotiate for purchase of the Lewis Building tenancies. No agreement was reached through these negotiations, however, and they ended when the repairs were accomplished by the bank.\nAll negotiations having come to naught, plaintiffs brought suit in July 1972 seeking damages and injunctive relief against lessor and the bank alleging in one cause of action (1) a breach of lessor’s duty to repair, (2) negligent damage to the wall during demolition, and (3) a conspiracy between defendants to destroy plaintiff’s business. When all evidence was in, the trial court dismissed the bank and the negligence and conspiracy claims but instructed the jury that the lessor was liable for any damage proximately caused by its failure to make the needed repairs. Additionally, the court instructed on a theory of “willful misconduct,” i.e., the tort of intentional business interference. The evidence showed a loss of profits of approximately $3,100. The jury returned a general verdict in the sum of $42,000 with a special finding that the lessor acted willfully.\nThe lessor assigns error to denial of its motion for a directed verdict and the court’s instructions on duty to repair, intentional tort, and damages. These assignments present the following issues: (1) Did the lessor have a duty to repair? (2) Did the lessor breach an implied covenant of quiet enjoyment? (3) Was it error to submit willful misconduct—intentional business interference—to the jury and allow consideration of damages for inconvenience, discomfort, and mental anguish?\nThe pivotal issue before the trial court was whether the lessor had a duty to its tenant to make repairs to the wall in question. Cherbergs, contending the lease was ambiguous in this regard, offered the testimony of one Henry Wood, who negotiated the lease on behalf of the original lessor, Seattle-First National Bank, to prove the bank intended to assume that burden. Lessor objected to the admission of this testimony, contending the lease was not ambiguous, and clearly contained no express covenant by lessor to make such repairs. The trial court found the lease was ambiguous and ruled it would resolve the issue as a matter of law. The trial court then, however, sustained the objection to admission of the testimony but allowed it to be presented in an offer of proof. After all testimony was in, the court resolved the “ambiguity” against lessor, saying it was “taking into consideration the testimony of Mr. Wood.” This was error for two reasons as we shall demonstrate.\nFirst, an offer of proof serves to inform the trial court of the content and purport of the evidence sought to be admitted, and to preserve the record for appellate review when the exclusionary ruling is challenged. Cf. McCarty v. Hagen, 67 Wn.2d 434, 407 P.2d 953 (1965); Cameron v. Boone, 62 Wn.2d 420, 383 P.2d 277 (1963). Unless the court sees fit to change its ruling, the proffered evidence passes out of the case in the trial court and may not be considered for any purpose.\nSecondly, we find no ambiguity in the lease before us which would permit recourse to parol testimony. The pertinent lease provisions are as follows:\n(5) Unless otherwise provided in this lease, Lessee, having ascertained the physical condition of said premises from a careful and complete inspection thereof, accepts said premises in present condition, no exceptions. Lessee shall place, maintain and keep the leased premises, including the store front, if any, in good, neat and sanitary physical condition, and at Lessee’s sole expense, shall promptly make all repairs and do all acts and things necessary or incidental thereto; provided, however, that Lessee’s said obligation shall not extend to the foundations, structural bearing parts, roof and outside walls of the premises unless repairs thereto or work thereon be necessitated by Lessee’s act or negligence. . . .\n(16) Lessee shall allow Lessor and Agent free access to said premises at all reasonable times for purpose of inspecting of the same or of making repairs, additions or alterations to said premises or to the building in which said premises are located but this right shall not constitute or be construed as an agreement on the part of Lessor to make any repairs, which Lessee is required to make, or to make any additions or alterations to said premises. . . .\n(17) Unless otherwise provided in a rider to this lease, the use of the outside area of the walls and the roof of said premises or the building in which said premises are located, is reserved unto Lessor who shall have the right to utilize the same for any purposes desired including sign purposes; . . .\n(Italics ours.)\nLeases are contracts, as well as conveyances, and as such are to be given effect so as to carry out the intentions of the parties as manifested by the words used. Allied Stores Corp. v. North West Bank, 2 Wn. App. 778, 469 P.2d 993 (1970). It is not the province of the court to make a contract for the parties or impose duties where they do not exist. Grant County Constructors v. E.V. Lane Corp., 77 Wn.2d 110, 459 P.2d 947 (1969). It is only when the intention of the parties cannot be deduced from the verbiage used that an ambiguity may be said to exist, justifying a resort to parol evidence. No ambiguity exists unless the language adopted by the parties is doubtful or is fairly susceptible to one of either of two meanings contended for. Grant County Constructors v. E.V. Lane Corp., supra.\nWashington adheres to the common-law rule that, in the absence of an express covenant, the landlord is under no duty to make repairs to the demised premises, even if they become defective through decay or deterioration. Conradi v. Arnold, 34 Wn.2d 730, 209 P.2d 491 (1949); Clarke v. Yukon Inv. Co., 83 Wash. 485, 145 P. 624 (1915); 49 Am. Jur. 2d Landlord and Tenant § 774 (1970); 1 American Law of Property § 3.78 (1952). Nor may such a covenant be raised by inference. Cordes v. Guy Inv. Co., 146 Wash. 143, 262 P. 131 (1927).\nIn the lease before us it can readily be seen there is nothing rising to the stature of an express covenant by the lessor to make repairs to either the “demised premises” or the Lewis Building proper. On the contrary, by express provision the lessee is obliged to make all repairs to the “demised premises,” except for foundation, structural bearing parts, roof, and outside walls. It is true the lessor has reserved the right to inspect and repair the demised premises. Without such a reservation or agreement it is questionable whether the lessor could enter to effect such repairs, even if it elected to do so, without being guilty of a trespass. 49 Am. Jur. 2d Landlord and Tenant § 227 (1970). Additionally, lessor has expressly reserved the right to repair the portions of the building not forming a part of the demised premises. Such a reserved right is far removed from an express undertaking to perform repair. We agree the language of paragraph (16) is somewhat curious, but it was obviously intended to stress the lack of any duty to make repairs, improvements, and additions and it would be a strained construction to forge what was clearly intended as a shield into a sword. In Refrigeration for Science Inc., v. Deacon Realty Corp., 70 Misc. 2d 500, 334 N.Y.S.2d 418 (1972), the court interpreted similar language as imposing no duty on either lessor or lessee to make major structural repairs to foundation and walls, saying at page 507:\nThe difficulty is that the lease contains no express covenant by the landlord to make structural repairs. “A landlord’s obligation to repair in any case rests solely on express covenant. Without an express undertaking to repair the demised premises, the lessor is neither bound to do so himself nor to pay for repairs made by the tenant” . . . Nor is plaintiff aided by the clauses of the lease granting the landlord permission to enter upon the premises “for the purpose of examining the same, or making such repairs or alterations therein as may be necessary for the preservation and safety thereof” and to remove signs when necessary to do so for painting and related purposes. Such clauses do not impose on the landlord the duty to make repairs; they “simply giue[s] permission to the landlord to inspect his premises and make such repairs as are necessary. It creates no duty upon him so to do, and the tenant could not require it to be done”\n(Citations omitted. Italics ours.)\nThe trial court erred, therefore, in considering the testimony of Mr. Wood and in finding a lease-imposed duty by lessor to repair.\nWe next consider whether, as contended by Cherbergs, the lessor’s failure to make immediate repairs and other actions taken by it after notification from the city, breached an implied covenant of quiet enjoyment and resulted in a constructive eviction. The lease agreement contains no express covenant of quiet enjoyment but it is well settled that such a covenant arises by implication and inheres in every lease unless negated by express provision. Washington Chocolate Co. v. Kent, 28 Wn.2d 448, 183 P.2d 514 (1947); 1 American Law of Property § 3.47 (1952); 49 Am. Jur. 2d Landlord and Tenant § 330 (1970); Annot., 41 A.L.R.2d 1414 (1955).\nSuch a covenant secures the tenant from any wrongful act by the lessor which impairs the character and value of the leased premises or otherwise interferes with the tenant’s quiet and peaceable use and enjoyment thereof. Acts or omissions of the lessor render it liable however only when it has breached an underlying duty which results in an invasion of the interests secured. Washington Chocolate Co. v. Kent, supra. As we have demonstrated there was no express or implied duty to repair arising from the lease itself and a failure to repair would not therefore be a wrongful act such as would constitute a breach of the covenant of quiet enjoyment. Ripps v. Kline, 70 Nev. 510, 275 P.2d 381 (1954).\nAn independent duty to repair, wholly apart from the lease covenants, may arise when, in the interest of public health, safety, and welfare, repairs are required by statute or mandated by competent government authority. 1 American Law of Property § 3.80 (1952); Annot., 22 A.L.R.3d 521 (1968). In the instant case the wall in question was not a part of the “demised premises” and was within the complete control of the lessor. The responsibility for any repairs, additions, or alterations which might be ordered by competent governmental authority was that of the lessor under these circumstances. The City of Seattle had notified lessor the wall was not safe and that “necessary corrections” should be submitted for approval. The evidence presented supports a conclusion that the integrity and safety of the entire building, including the leased premises, depended upon the condition of the wall. It is true the city did not issue any formal order that the repairs be accomplished within any certain time period. Nor does the record reveal the avenues of enforcement available to the city should lessor fail to comply. Those remedies could conceivably involve criminal prosecution, posting and closure, or, as a last resort, demolition of the nonconforming building.\nHad the lessor allowed the matter to progress to the point where it could argue it might have elected to demolish rather than repair, the instant case might present a more difficult problem. Cases involving such a dilemma usually turn on construction of the governmental edict. The majority hold that where the lessor is given no choice and must demolish, by doing so it has neither breached a duty nor voluntarily committed an act in violation of the covenant of quiet enjoyment. Ripps v. Kline, supra; Goldring v. Kline, 71 Nev. 181, 284 P.2d 374 (1955); Annot., 22 A.L.R.3d 521 (1968). On the other hand, when repairs only are ordered or the lessor is given the alternative to either repair or demolish, the better reasoned decisions treat an election to demolish as a voluntary act breaching the covenant of quiet enjoyment. Burofsky v. Turner, 274 Mass. 574, 175 N.E. 90 (1931); Lindwall v. May, 111 App. Div. 457, 97 N.Y.S. 821 (1906); cf. Ripps v. Kline, supra; Goldring v. Kline, supra. Here the evidence supports the one conclusion that the lessor fastened upon the city’s notice as a means of escaping from the Cherbergs’ lease. It chose to treat the letter as some sort of mandate when it advised Cherbergs the whole building was deemed unsafe and that the city was considering abatement. By so doing and by attempting to terminate the lease and threatening to post notices warning potential customers of the hazard, the lessor effectively forced its tenant to close down its business and temporarily vacate the leased premises. In our view, these actions, coupled with the delays in making the repairs required by the city, constituted a breach of the lessor’s covenant of quiet enjoyment and amply support the trial court’s determination that, as a matter of law, lessor was liable for any damages stemming from such breach and to so instruct the jury-\nWe turn finally to the propriety of submitting to the jury the intentional tort of business interference or willful misconduct. Upon conclusion of all the evidence and after the hank had been dismissed with all claims against either defendant for conspiracy, the trial court denied lessor’s challenge to the sufficiency of the evidence and its motion tor a directed verdict on the claim of willful misconduct or intentional business interference. In doing so, the court announced it would instruct the jury on the elements of that tort as they appeared in the case of Calbom v. Knudt-zon, 65 Wn.2d 157, 396 P.2d 148 (1964).\nThe actual instructions given, which we need not •set forth herein, did not in fact relate to the tort of business interference discussed in Calbom, which deals with unprivileged intermeddling in the contractual affairs of third persons. Nor should they have, because one cannot be guilty of the separate tort of interfering with one’s own contract. Hein v. Chrysler Corp., 45 Wn.2d 586, 277 P.2d 708 (1954); Restatement of Torts § 766 (1939). In N.A. Berwin .& Co. v. American Safety Razor Corp., 108 N.Y.S.2d 677 (Sup. Ct. 1951), in dismissing just such a claim the court quotes with approval Miller v. Vanderlip, 285 N.Y. 116, 33 N.E.2d 51, 56 (1941):\n“Although the plaintiff may have a cause of action for interference with his contract rights, on the part of the person not named in the first cause of action, plaintiff himself apparently does not so construe the second cause of action. Instead, when fairly read and as construed by plaintiff, the second cause of action seeks to restate as a conspiracy that which amounts to nothing more than the breach of contract alleged in the first cause of action. The second cause of action adds nothing by way of legal liability, and only seeks to explain the possible motives of defendants for their failure to perform the agreements sued upon in the first cause of action. Since plaintiff’s cause of action for breach of contract is his entire grievance against the defendants he may not split his causes of action based upon a single grievance and, therefore, the second cause is bad and should be dismissed.”\nN.A. Berwin & Co. v. American Safety Razor Corp., supra at 679.\nAnd, as stated in Sax v. Sommers, 108 N.Y.S.2d 467 (Sup. Ct. 1951) at page 468:\nThus, as to the defendants, Sommers and Pitts, conspiracy on their part to breach their own contract obligations would not constitute a cause of action. The theory appears to be that the damages properly recoverable are those flowing from the breach and additional recovery, as for a tort, in the nature of punitive damages, is not permissible.\nThe instructions given did, however, inform the jury it could award additional damages for inconvenience, discomfort, and mental anguish if it found lessor’s actions were willful. This, too, was error for the reasons stated in Berwin and Sax because to award such damages for a lessor’s breach of covenant would be to allow punitive or exemplary damages, a result long since not countenanced in this state. Barnes v. Bickle, 111 Wash. 133, 189 P. 998 (1920); Risdon v. Hotel Savoy Co., 99 Wash. 616, 170 P. 146 (1918).\nThus, the evidence and all reasonable inferences therefrom would not support submission of these last two theories to the jury, and lessor’s motion for a directed verdict as to these theories should have been granted.\nThe defendant invites us to remand for entry of judgment in the sum of $3,100 should we find adversely to it on the issue of breach of duty to repair. Because the verdict is general, however, we are unable to segregate the damages awarded. Accordingly, we reverse and remand for dismissal with prejudice of all claims for willful misconduct or business interference and for a new trial unless plaintiff consents to entry of judgment in its favor in the sum of $3,100 within 30 days of the going down of the remittitur herein.\nPetrie, C. J., and Pearson, J., concur.\nPetition for rehearing denied May 24, 1976.\nReview granted by Supreme Court October 5, 1976.\nThe letter, dated April 28, 1972, was directed to lessor and read in relevant part:\n“We understand that you are the owner of the Lewis Hotel Building, located at the above noted address. [1425-29 5th Ave.]\n“Recently, an inspection was .made of this building by members of the Building Department of the City of Seattle. This inspection revealed that the south wall is not adequately anchored to the framing of the building and therefore is, in our opinion, considered unsafe.\n“Please have your engineer inspect this building and submit the necessary corrections to this department for approval and permit.”\nCherbergs argue here that any error in submission of willful ■misconduct or business interference was not preserved because lessor’s ■exceptions to the instructions were not sufficiently specific under Dravo Corp. v. L.W. Moses Co., 6 Wn. App. 74, 492 P.2d 1058 (1971). We disagree for the reasons stated in Rhoades v. DeRosier, 14 Wn. App. 946, 948 n.2, 546 P.2d 930 (1976), which reads in part:\nWhile instructions to which no exception is taken become the law of the case, the doctrine does not bar review of the granting or denial of a directed verdict. Whether a verdict should have been directed is a question of law, and its resolution is not controlled by the pronouncements of the instructions, but by the applicable law. The standard to be applied is the same whether the issue is raised by way of a motion for a directed verdict or a motion for judgment notwithstanding the verdict. A timely motion for a directed verdict .and its subsequent denial preserves the issue for review. . . .\nThe failure to object to instructions does not, therefore, preclude an appellate consideration of a trial court’s denial of a motion for a •directed verdict."", ""type"": ""majority"", ""author"": ""Reed, J.""}], ""attorneys"": [""D. Gordon Willhite (of MacBride, Sax & MacIver), for appellant."", ""Lee Olwell (of Olwell, Boyle & Hattrup), for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 2089-2.\nDivision Two.\nApril 16, 1976.]\nJames J. Cherberg, et al, Respondents, v. Peoples National Bank of Washington, Defendant, Joshua Green Corporation, Appellant.\nD. Gordon Willhite (of MacBride, Sax & MacIver), for appellant.\nLee Olwell (of Olwell, Boyle & Hattrup), for respondents.""}, ""cites_to"": [{""cite"": ""14 Wn. App. 946"", ""year"": 1976, ""case_ids"": [1789509], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""case_paths"": [""/wash-app/14/0946-01""], ""opinion_index"": 0}, {""cite"": ""492 P.2d 1058"", ""year"": 1971, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""6 Wn. App. 74"", ""year"": 1971, ""case_ids"": [1864332], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""case_paths"": [""/wash-app/6/0074-01""], ""opinion_index"": 0}, {""cite"": ""170 P. 146"", ""year"": 1918, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""99 Wash. 616"", ""year"": 1918, ""case_ids"": [656788], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/99/0616-01""], ""opinion_index"": 0}, {""cite"": ""189 P. 998"", ""year"": 1920, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""111 Wash. 133"", ""year"": 1920, ""case_ids"": [691142], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/111/0133-01""], ""opinion_index"": 0}, {""cite"": ""108 N.Y.S.2d 467"", ""year"": 1951, ""category"": ""reporters:state"", ""reporter"": ""N.Y.S.2d"", ""opinion_index"": 0}, {""cite"": ""33 N.E.2d 51"", ""year"": 1941, ""category"": ""reporters:state_regional"", ""reporter"": ""N.E.2d"", ""pin_cites"": [{""page"": ""56""}], ""opinion_index"": 0}, {""cite"": ""285 N.Y. 116"", ""year"": 1941, ""case_ids"": [2045296], ""category"": ""reporters:state"", ""reporter"": ""N.Y."", ""case_paths"": [""/ny/285/0116-01""], ""opinion_index"": 0}, {""cite"": ""108 N.Y.S.2d 677"", ""year"": 1951, ""category"": ""reporters:state"", ""reporter"": ""N.Y.S.2d"", ""opinion_index"": 0}, {""cite"": ""277 P.2d 708"", ""year"": 1954, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""45 Wn.2d 586"", ""year"": 1954, ""case_ids"": [2425307], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/45/0586-01""], ""opinion_index"": 0}, {""cite"": ""396 P.2d 148"", ""year"": 1964, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""65 Wn.2d 157"", ""year"": 1964, ""case_ids"": [1966273], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/65/0157-01""], ""opinion_index"": 0}, {""cite"": ""97 N.Y.S. 821"", ""year"": 1906, ""case_ids"": [5530656], ""category"": ""reporters:state"", ""reporter"": ""N.Y.S."", ""case_paths"": [""/nys/97/0821-01""], ""opinion_index"": 0}, {""cite"": ""111 App. Div. 457"", ""year"": 1906, ""case_ids"": [5219773], ""category"": ""reporters:state"", ""reporter"": ""A.D."", ""case_paths"": [""/ad/111/0457-01""], ""opinion_index"": 0}, {""cite"": ""175 N.E. 90"", ""year"": 1931, ""category"": ""reporters:state_regional"", ""reporter"": ""N.E."", ""opinion_index"": 0}, {""cite"": ""274 Mass. 574"", ""year"": 1931, ""case_ids"": [3828059], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/274/0574-01""], ""opinion_index"": 0}, {""cite"": ""71 Nev. 181"", ""year"": 1955, ""weight"": 2, ""case_ids"": [4949145], ""category"": ""reporters:state"", ""reporter"": ""Nev."", ""case_paths"": [""/nev/71/0181-01""], ""opinion_index"": 0}, {""cite"": ""22 A.L.R.3d 521"", ""year"": 1968, ""weight"": 2, ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R. 3d"", ""opinion_index"": 0}, {""cite"": ""70 Nev. 510"", ""year"": 1954, ""weight"": 3, ""case_ids"": [4956450], ""category"": ""reporters:state"", ""reporter"": ""Nev."", ""case_paths"": [""/nev/70/0510-01""], ""opinion_index"": 0}, {""cite"": ""41 A.L.R.2d 1414"", ""year"": 1955, ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R. 2d"", ""opinion_index"": 0}, {""cite"": ""183 P.2d 514"", ""year"": 1947, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""28 Wn.2d 448"", ""year"": 1947, ""case_ids"": [2514977], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/28/0448-01""], ""opinion_index"": 0}, {""cite"": ""334 N.Y.S.2d 418"", ""year"": 1972, ""category"": ""reporters:state"", ""reporter"": ""N.Y.S.2d"", ""opinion_index"": 0}, {""cite"": ""70 Misc. 2d 500"", ""year"": 1972, ""case_ids"": [1246307], ""category"": ""reporters:state"", ""reporter"": ""Misc. 2d"", ""case_paths"": [""/misc2d/70/0500-01""], ""opinion_index"": 0}, {""cite"": ""262 P. 131"", ""year"": 1927, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""146 Wash. 143"", ""year"": 1927, ""case_ids"": [798646], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/146/0143-01""], ""opinion_index"": 0}, {""cite"": ""145 P. 624"", ""year"": 1915, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""83 Wash. 485"", ""year"": 1915, ""case_ids"": [604005], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/83/0485-01""], ""opinion_index"": 0}, {""cite"": ""209 P.2d 491"", ""year"": 1949, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""34 Wn.2d 730"", ""year"": 1949, ""case_ids"": 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+1831428,"{""id"": 1831428, ""name"": ""Harry D. DeMaris, Individually and as Administrator, et al, Appellants, v. Sharon J. Brown, et al, Defendants, The State of Washington, Respondent"", ""court"": {""id"": 8985, ""name"": ""Washington Court of Appeals"", ""name_abbreviation"": ""Wash. Ct. App.""}, ""analysis"": {""sha256"": ""3307635f018d9127858528c37c04dd4da504c513a9843f579b2c0053e1151410"", ""simhash"": ""1:c5e0ac20f0f0d438"", ""pagerank"": {""raw"": 0.0000000993622047422609, ""percentile"": 0.5365150632334164}, ""char_count"": 28602, ""word_count"": 4707, ""cardinality"": 1112, ""ocr_confidence"": 0.835}, ""casebody"": {""judges"": [], ""parties"": [""Harry D. DeMaris, Individually and as Administrator, et al, Appellants, v. Sharon J. Brown, et al, Defendants, The State of Washington, Respondent.""], ""opinions"": [{""text"": ""Callow, C.J.\nThe plaintiffs below, Kathryn DeMaris, acting individually, and Harry DeMaris, acting individually and as administrator of the estate of Thomas I. DeMaris, appeal from a judgment against the State of Washington in the amount of $0.\nOn June 10, 1975, Thomas I. DeMaris was killed while a passenger in an automobile driven by Curtis B. Clark. The plaintiffs commenced this suit on July 22, 1977, against the driver's estate based on the driver's alleged negligence, and against the State of Washington based on the State's alleged negligent design of the highway at the location of the accident.\nPrior to trial, the plaintiffs settled with the driver's estate for $10,000. As a part of this settlement, the parties thereto entered into a settlement, release and indemnity agreement. The agreement provides in part as follows:\n[T]he plaintiffs hereby acknowledge receipt from Hartford Insurance Group, insurer of Curtis B. Clark, of the sum of Ten Thousand Dollars ($10,000.00) this date, which sum the plaintiffs acknowledge to be in settlement of the disputed claim growing out of injury to and death of Thomas I. DeMaris, and the consequences flowing therefrom as a result of an accident, incident or casualty which occurred on the 10th day of June, 1975, for which injury, death and consequences flowing therefrom, the plaintiffs claimed the said Curtis B. Clark to be liable, which liability is expressly denied, and in sole consideration of the [sic] of the sum paid, the plaintiffs hereby release and forever discharge the said Curtis B. Clark, his heirs, successors, administrators and assigns and their insurer, Hartford Insurance Group, from any and all actions, causes of action, liability, claims and demands upon or by reason of any damage, loss, injury or death, arising out of the accident, incident or casualty in question.\nWithout limitation of the recitals contained above and as further consideration and inducement for this agreement the plaintiffs agree that it is full and final release of all claims against Curtis B. Clark for survival actions and the wrongful death of said Thomas I. DeMaris, including but not limited to the pain and suffering, if any, shortened life expectancy, loss of income and earning capacity sustained by him, and the loss of society, support, companionship, love and affection, and for injury to or destruction of parent-child relationship sustained by the plaintiffs as personal representative and parents of Thomas I. DeMaris, deceased, as well as funeral expenses and expense of last illness.\nThe parties mutually agree that Curtis B. Clark and the State of Washington were concurrent or successive tort feasors and were not joint tort feasors. The parties further agree that the plaintiffs do not intend to release the State of Washington from liability for the death of Thomas I. DeMaris; and the parties further agree that the release given by the plaintiffs to defendant Sharon J. Brown as personal representative of the estate of Curtis B. Clark, deceased, and the estate of Curtis B. Clark does not constitute a full satisfaction in damages for the death of Thomas I. DeMaris. The release given by the plaintiffs to the above-named defendant is neither intended to apply to the State of Washington nor may it be so construed. The parties agree, for the purposes of settlement and release, that the independent acts, or failure to act, of each of the defendants united to cause a single injury thus constituting Curtis B. Clark and the State of Washington as concurrent tort feasors.\nThe agreement is signed by Mr. and Mrs. DeMaris in their individual capacities and by Mr. DeMaris as personal representative of his son's estate.\nThe plaintiffs and the State of Washington thereafter went to trial. At the conclusion of the trial and insofar as damages are concerned, the trial court instructed the jury only on the issue of damages to the plaintiff estate measured by the decedent's lost earning capacity. The jury entered a special verdict that the plaintiff estate had sustained total damages of $50,000, and that the decedent was 85 percent contributorially negligent. Following return of the verdict, the trial court arrived at its judgment by taking the plaintiff estate's total damages ($50,000) and multiplying that sum by the decedent's negligence (85 percent) to arrive at a figure of $7,500 against which it credited the amount of the pretrial settlement with the driver's estate ($10,000), thereby resulting in a net judgment of $0 against the State of Washington. The parties were denied costs.\nThe plaintiffs appeal, asserting that in a suit brought by injured parties against one of two concurrent tort-feasors it is error for the trial court to deduct the amount of the plaintiffs’ pretrial settlement with a released tort-feasor from the plaintiffs' total damages attributable to the non-released tort-feasor's negligence. The plaintiffs assert that the amount of the plaintiffs' total damages should have been first diminished by the amount of the plaintiffs' pretrial settlement, and then the degree of negligence attributable to the nonreleased tort-feasor should have been applied against the difference to arrive at the amount of damages owed by the nonreleased tort-feasor.\nThe plaintiffs contend that the trial court erroneously deducted the $10,000 from the amount of damages attributable to the State's negligence rather than from the estate's total damages. They argue that where one codefendant is released in a pretrial settlement, the amount of that pretrial settlement should be subtracted from the plaintiff's total damages rather than from the damages allocable to the nonreleased defendant against whom the jury returned a verdict. They rely on Elliott v. Kundahl, 89 Wn.2d 639, 574 P.2d 732 (1978). The plaintiffs assert that the trial judge should have diminished the amount of the plaintiff's claim against the State ($50,000) by the amount of the plaintiff's pretrial settlement with the driver's estate ($10,000), applied the degree of negligence attributable by the jury to the State (15 percent) against the difference ($40,000), and then entered judgment against the State in the amount of $6,000, citing Pierringer v. Hoger, 21 Wis. 2d 182, 190-91, 124 N.W.2d 106, 111 (1963), and American Motorcycle Ass'n v. Superior Court, 20 Cal. 3d 578, 578 P.2d 899, 146 Cal. Rptr. 182 (1978).\nThe record presented consists solely of the clerk's papers. Among other things, the clerk's papers include the plaintiffs' complaint, their pretrial release, the court's instructions and judgment, and a brief of the plaintiffs that contains the same contention and argument set forth except that now the plaintiffs speak of the \""plaintiff's\"" claim and damages rather than the \""plaintiffs\""' claim and damages as they did at trial. The prayer for damages in the plaintiffs' complaint potentially encompasses damages under the wrongful death statutes, RCW 4.20.010, RCW 4.20.020, and RCW 4.24.010, and the survival statutes, RCW 4.20.046 and RCW 4.20.060, because the complaint is brought by the DeMarises in their own right and by Mr. DeMaris as personal representative for his son's estate. We do not know if Thomas DeMaris was a minor. The plaintiffs' release with the driver's estate includes any claim based on the wrongful death and survival statutes. The sole damage issue presented to the jury was the pecuniary loss to the estate, a measure of damages authorized under RCW 4.20.046 for the benefit of the estate as opposed to the decedent's heirs or next of kin, Hinzman v. Palmanteer, 81 Wn.2d 327, 501 P.2d 1228 (1972). The jury was not instructed to and did not determine what, if any, damages Mr. and Mrs. DeMaris might be entitled to in their individual capacities under RCW 4.24.010. Nevertheless, when the issue of deducting the pretrial settlement from the jury's verdict arose, the plaintiffs treated the jury's verdict as the \""plaintiffs'\"" damages and objected to the court's judgment only by arguing that the pretrial settlement should be first deducted from the \""plaintiffs'\"" gross claim of $50,000 against the State. The issue is framed in accordance with the arguments presented to the trial court. See, e.g., Transamerica Ins. Group v. United Pac. Ins. Co., 92 Wn.2d 21, 593 P.2d 156 (1979); Magerstaedt v. Eric Co., 64 Wn.2d 298, 391 P.2d 533 (1964); Ross v. Hagen, 51 Wn.2d 165, 316 P.2d 896 (1957); Sweeney v. Pacific Coast Elevator Co., 14 Wash. 562, 45 P. 151 (1896).\nWe turn to a discussion of the distinction between joint and concurrent tort-feasors, and the rules applicable to releases and covenants not to sue. Joint tort-feasors must act in concert in committing the wrong, or their acts, if independent of each other, must breach a joint duty and unite in causing a single injury. Seattle-First Nat'l Bank v. Shoreline Concrete Co., 91 Wn.2d 230, 235, 588 P.2d 1308 (1978); Young v. Dille, 127 Wash. 398, 404, 220 P. 782 (1923). If two or more individuals commit independent acts of negligence that concurrently produce the proximate cause of a third party's injury, they are regarded as concurrent tort-feasors. Mason v. Bitton, 85 Wn.2d 321, 534 P.2d 1360 (1975). Thus, concurrent tort-feasors breach separate duties while joint tort-feasors breach a joint duty. Seattle-First Nat'l Bank v. Shoreline Concrete Co., supra at 235. In either case, the harm caused is indivisible and each multiple tort-feasor is personally liable for any injury for which his tortious act is a proximate cause, i.e., each tort-feasor is liable for the entire harm caused and each or all may be sued by the injured party to obtain full recovery. Seattle-First Nat'l Bank v. Shoreline Concrete Co., supra at 233. The parties do not argue that the State and the deceased automobile driver are not concurrent tort-feasors. See Boeing Co. v. State, 89 Wn.2d 443, 572 P.2d 8 (1978); Litts v. Pierce County, 5 Wn. App. 531, 488 P.2d 785 (1971).\nThe primary concern when one of two or more multiple tort-feasors execute a release or covenant not to sue with the injured party has been the effect to be given the release or covenant not to sue vis-a-vis the nonsettling defendant. Under the common law rule, a release of one joint tortfeasor releases all other joint tort-feasors regardless of whether the release was given for full or partial satisfaction, and regardless of whether the release contained an express reservation of rights against the noncovenanting tort-feasors, J.E. Pinkham Lumber Co. v. Woodland State Bank, 156 Wash. 117, 286 P. 95 (1930).\nIn order to avoid the harshness of the common law rule, plaintiffs resorted to covenants not to sue and the rule which strictly limits application of the common law release rule to joint tort-feasors. White Pass Co. v. St. John, 71 Wn.2d 156, 158, 427 P.2d 398 (1967); DeNike v. Mowery, 69 Wn.2d 357, 366, 418 P.2d 1010 (1966); Monjay v. Evergreen School Dist. 114, 13 Wn. App. 654, 658 n.2, 537 P.2d 825 (1975). A covenant not to sue confers a right of action upon the covenanting tort-feasor against the covenantor in the event the covenantor breaches the covenant by bringing an action. Haney v. Cheatham, 8 Wn.2d 310, 316, 111 P.2d 1003 (1941). The utilization of a covenant not to sue has met with qualified success due to the possibility of a plaintiff using the covenant as a means for obtaining a double recovery or an overly favorable recovery by settling with one and then the other joint tort-feasor. See Mills v. Inter Island Tel. Co., 68 Wn.2d 820, 827-28, 416 P.2d 115 (1966).\nIn an attempt to avoid the potential abuse of covenants not to sue and to encourage settlements, Mills v. Inter Island Tel. Co., supra at 829, adopted the rule that the intention of the parties to distinguish a covenant not to sue from a release will be observed unless the document operates as a release because \""(1) a reasonably compensatory consideration has been paid by a codefendant (2) for the alleged tort (3) to (for the benefit of) the party plaintiff who gives the covenant not to sue.\"" In Mills, Mrs. Mills sued two tort-feasors as executrix of her husband's estate, basing her claim upon the wrongful death statutes for her own benefit and that of her two stepchildren. She also sued as executrix on an assigned claim for the destruction of the decedent's airplane. Prior to trial, she approved but did not sign two documents characterized as covenants not to sue with one of the defendants for a partial consideration of $12,750 that inured solely to the benefit of the stepchildren. As executrix, she also approved and signed a covenant not to sue the defendant in consideration of $8,500 that devolved by right of subrogation to the insurer of the airplane. Mills held that the latter document did not operate as a release of the other defendant because Mrs. Mills received nothing in her own right and she was compelled by her fiduciary responsibilities to execute the covenant so that the beneficial claimant might obtain a settlement. Mills v. Inter Island Tel. Co., supra at 831-32. Mills further held that the $12,750 settlement was not a ground upon which the trial court could dismiss Mrs. Mills' claim against the remaining defendant because \""we must look to who actually received the compensation, not the name of the nominal plaintiff.\"" Mills v. Inter Island Tel. Co., supra at 832. The $12,750 could only be attributable to Mrs. Mills in her capacity as fiduciary for the stepchildren.\nMills v. Inter Island Tel. Co., supra at 829, adverts to the problem of double recovery as it pertains to covenants not to sue as an illusion because any settlement received by the plaintiff must be credited against any \""judgment\"" that results from a later trial against the remaining tort-feasor, provided that the defendant gives the court notice of the prior payment. Subsequently recognizing that a reason for the common law rule regarding releases is to preclude double recovery, Christianson v. Fayette R. Plumb, Inc., 7 Wn. App. 309, 499 P.2d 72 (1972), adopted section 885 of the Restatement of Torts (1939) to handle the problem of when a document in the form of a covenant not to sue will operate as a release.\nSection 885 provides as follows:\n(1) A valid release of one tortfeasor from liability for a harm, given by the injured person, discharges all others liable for the same harm, unless the parties to the release agree that the release shall not discharge the others and, if the release is embodied in a document, unless such agreement appears in the document.\n(2) A covenant not to sue one tortfeasor for a harm does not discharge any other liable for the harm.\n(3) Payments made by one tortfeasor on account of a harm for which he and another are each liable, diminish the amount of the claim against the other whether or not it was so agreed at the time of payment and whether the payment was made before or after judgment; the extent of the diminution is the amount of the payment made, or a greater amount if so agreed between the payor and the injured person.\n(Italics ours.) Though section 885 uses the word \""claim,\"" which is seized upon by the plaintiffs here as support for their argument, subsection (3) of section 885 parallels the crediting approach referred to in Mills and it underscores Mills' statement that a covenant not to sue will be distinguished from a release unless \""reasonably compensatory\"" consideration has been paid. Elliott v. Kundahl, 89 Wn.2d 639, 574 P.2d 732 (1978).\nIn Elliott v. Kundahl, supra, Mr. Kundahl brought a wrongful death action as administrator for his wife's estate against an anesthesiologist, a dentist and a dental center. Prior to trial, Mr. Kundahl executed a covenant not to sue with the anesthesiologist for a consideration of $125,000. The trial court ruled, during trial against the remaining defendants, that evidence of the settlement would be admissible for the purpose of determining whether the amount was '\""reasonably compensatory', that is, whether the covenant not to sue was‘in fact a release.\"" Elliott v. Kundahl, supra at 641. On appeal the ruling of the trial court was reversed, the decision holding that the determination of what is \""reasonably compensatory\"" must be dealt with as follows:\nWhile the reasonableness of the compensation under a covenant not to sue is a question of fact, this can best be determined and the interests of the parties better protected by submitting the case to the jury after the trial without mentioning the covenant not to sue at any time during the trial. Then, if the jury finds for the plaintiff, the court will know the value placed on the injury sustained by the plaintiff and thus, by this measure, the reasonableness of the covenant not to sue. If the verdict exceeds the amount paid under the covenant not to sue, the verdict will be reduced by that amount. On the other hand, if the jury verdict is no greater than or less them the amount paid under the covenant not to sue, the covenant will be deemed compensatory.\nElliott v. Kundahl, supra at 645. See generally Annot., 94 A.L.R.2d 352, at § 6 (1964). This is a reiteration of the crediting approach and an enunciation of the procedure to be followed in its implementation. Mills v. Inter Island Tel. Co., supra; Christianson v. Fayette R. Plumb, Inc., supra.\nThe relevance to concurrent tort-feasors of the Mills, Christianson and Elliott decisions, as they relate to covenants not to sue in the joint tort-feasor context, lies in recognition that the injured party who executes a covenant not to sue should be allowed satisfaction but no more from the other tort-feasors. Although the common law release rule has been limited to joint tort-feasors, a covenant not to sue or a release of one concurrent tort-feasor may release the other concurrent tort-feasor. The circumstances under which this will occur and the reasons therefor are stated in Litts v. Pierce County, 5 Wn. App. 531, 537-38, 488 P.2d 785 (1971):\nPerhaps the most significant distinction between joint liability and several liability is that in the former there is in reality only one cause of action, where as in the latter there are as many causes of action as there are debtors. Because there is, under a joint liability, only one cause of action, the chief effect thereof is that when that which ties them together is loosed, it is loosed as to all of them. That is what is really meant when the court has said that a release of one \""joint\"" tort-feasor is a release of all. On the other hand, as to those bound together by a solidary obligation described as \""several\"", satisfaction is necessary to release the others, simply because of this same distinction. When the amount of the obligation is the full amount of the injury, the satisfaction required is also the full amount of the injury. . . .\nInsofar as the solidary obligation of concurrent tortfeasors is effected by a release, we hold that it is related to the several aspect of the joint and several liability. Thus, when the release of one constitutes satisfaction of the obligation it releases all the others. Clearly the creditor cannot recover more than the full amount of the obligation owed. Thus, to the extent that the release does not satisfy the full obligation, the others are not released. Put another way, the release of one concurrent tortfeasor releases the others pro tanto.\n(Citations omitted.) This crediting approach is the approach set forth in Elliott v. Kundahl, supra, and subsection (3) of section 885 of the Restatement of Torts, supra. It equally applies to releases and covenants not to sue entered into by a concurrent tort-feasor and the injured party. See Monjay v. Evergreen School Dist. 114, 13 Wn. App. 654, 662, 537 P.2d 825 (1975); Restatement (Second) of Torts § 885, comment e (1979); Restatement of Torts § 885 (1939). A problem not addressed or at issue in the cases discussed is the effect of comparative negligence on the crediting approach.\nIn 1973, the legislature adopted a form of pure comparative negligence as the law of this state. RCW 4.22.010. The adoption of RCW 4.22.010 has not altered the rule that multiple tort-feasors are each liable for any injury of which his tortious act is a proximate cause and that no right of contribution exists at least as between joint tort-feasors. Seattle-First Nat'l Bank v. Shoreline Concrete Co., 91 Wn.2d 230, 588 P.2d 1308 (1978); Wenatchee Wenoka Growers Ass'n v. Krack Corp., 89 Wn.2d 847, 576 P.2d 388 (1978).\nWe turn to the question of what effect, if any, the rule of comparative negligence has upon the crediting process that applies when one (or more) of two (or more) concurrent tort-feasors executes a release or covenant not to sue with the plaintiff and either all or just the remaining tortfeasors) are subsequently found negligent.\nIn comparative negligence states the issue has arisen whether a plaintiff's recovery from nonsettling tort-feasors should be diminished (a) by any amount at all, (b) by the amount that the plaintiff has actually recovered in a good faith settlement, or (c) by an amount measured by the settling tort-feasor's proportionate responsibility for the injury. E.g., Lynn v. Southwestern Elec. Power Co., 453 F. Supp. 599, 604 (E.D. Tex. 1978); American Motorcycle Ass'n v. Superior Court, 20 Cal. 3d 578, 603-04, 578 P.2d 899, 915-16, 146 Cal. Rptr. 182 (1978); Boston Edison Co. v. Tritsch, 370 Mass. 260, 346 N.E.2d 901 (1976); Mihoy v. Proulx, 113 N.H. 698, 313 A.2d 723 (1973); Rogers v. Spady, 147 N.J. Super. 274, 371 A.2d 285, 288 (1977); Pierringer v. Hoger, 21 Wis. 2d 182, 191-92, 124 N.W.2d 106, 111-12 (1963). Important in this respect have been the issues whether the plaintiff's negligence must be measured against the combined negligence of all the multiple tortfeasors, parties or not, and whether and how the jury should allocate the respective negligence of the tort-feasors. E.g., Lemos v. Eichel, 83 Cal. App. 3d 110, 117, 147 Cal. Rptr. 603, 606 (1978); Pierringer v. Hoger, supra; Ross v. Koberstein, 220 Wis. 73, 264 N.W. 642 (1936). See H. Woods, The Negligence Case—Comparative Fault, app. at 494-95, 561, 572-73, 592-93 (1978); V. Schwartz, Comparative Negligence, app. B at 372-73 (1974). The plaintiffs argue that we should address these problems because the trial court's action in reducing their recovery is inconsistent with the rule of comparative negligence.\nThe record reveals that the plaintiffs argued to the trial court that the settlement amount should be deducted from the plaintiffs' total damages because Monjay v. Evergreen School Dist. 114, supra at 659, and Christianson v. Fayette R. Plumb, Inc., supra, dictate that settlement amounts diminish the amount of the plaintiffs' \""claim\"" against the remaining tort-feasors. Without more, the plaintiffs asserted the \""claim\"" to be their total damages of $50,000. The plaintiffs did not argue about whether and how in a comparative negligence case a plaintiff's recovery from the nonsettling tort-feasor should be diminished, and whether the combined or separate negligence of all the multiple tort-feasors should be determined by the jury. Neither did they argue that the State was precluded from any offset because it failed to plead release as an affirmative defense in accordance with CR 8(c) or possibly CR 15(a). Having failed to present these arguments and theories to the trial court, the plaintiffs will not be heard to raise them for the first time on appeal. Seattle-First Nat'l Bank v. Shoreline Concrete Co., supra at 240-41. Nevertheless, in order to convey our reasons for deciding the issue, it is necessary to state generally what arguments might have been made to the trial court. Our discussion of those arguments should not be taken as our approval of them.\nHad release been pleaded as an affirmative defense and had the jury been instructed to determine the decedent's negligence in relation to the combined negligence of the decedent and both tort-feasors, it could have been argued that the plaintiffs' pretrial settlement should be deducted from the plaintiffs' damages after first reducing them by the percentage of fault attributable to the decedent. The reason advanced for this would be that deducting the settlement first from the total damages would reduce the decedent's percentage of fault below that found by the jury and result in a double recovery. Lemos v. Eichel, supra. Where the plaintiff settles with one tort-feasor for $10,000, the plaintiff is found to have suffered $50,000 in damages, and the plaintiff and nonsettling tort-feasor are respectively found 85 percent and 15 percent negligent, the plaintiff could argue that no offset should be granted since a jury might have found the combined negligence of both tortfeasors to have been 20 percent or more, in which case the nonsettling tort-feasor would be jointly and severally liable for any amount exceeding $10,000. Ross v. Koberstein, supra. The nonsettling tort-feasor might have argued in the same situation that an offset should be deducted from his $7,500 legal liability because the tort-feasors' total negligence could have amounted to no more than 20 percent, which corresponds to the $10,000 settlement that plaintiff has received. The argument was available to the plaintiff in the same hypothetical that had the settling tort-feasor's negligence been 0 percent, no offset should be made in order to encourage settlements. Rogers v. Spady, supra.\nThe issue we decide is: Where the plaintiffs settle with one concurrent tort-feasor for $10,000, their damages are determined to be $50,000, and the jury finds the decedent 85 percent negligent, should the $10,000 settlement be deducted from the plaintiffs' total damages of $50,000 or should the $10,000 be offset against the $7,500 that the nonsettling defendant is otherwise legally obligated to pay, i.e., the plaintiffs' total damages less the percentage of negligence attributable to the decedent? We hold that the $10,000 settlement must first be deducted from the plaintiffs' total damages. The jury, without knowing of the settlement, found thé total damages to equal $50,000. By reducing the $40,000 by the decedent's 85 percent contributory negligence, the comparative negligence rule is not affronted since the total percentage of contributory negligence remains the same. No one can know whether the tort-feasors' combined negligence might have been found to be 20 percent or less, in which case the State might not have owed anything, or more than 20 percent, in which case the State might have been liable for any excess over $10,000. The settling tort-feasor most likely wished to wash his hands clean of the whole affair. Involving the settling tort-feasor in the suit has been avoided. The trial court should have awarded the plaintiffs a judgment of $6,000.\nThe judgment of the trial court is reversed and the case remanded for entry of judgment in the sum of $6,000 in the plaintiffs' favor.\nDurham, J., concurs.\nRCW 4.22.010 provides:\n\""Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages caused by negligence resulting in death or in injury to person or property, but any damages allowed shall be diminished in proportion to the percentage of negligence attributable to the party recovering.\""\nJoint tort-feasors may be included if the release contains an express reservation of rights. Christianson v. Fayette R. Plumb, Inc., supra at 311.\nThe plaintiffs do not argue that no offset should be given."", ""type"": ""majority"", ""author"": ""Callow, C.J.""}, {""text"": ""Dore, J.\n(dissenting)—I dissent. I would affirm the trial court. The plaintiff's percentage of fault should be applied against the total amount of damage which the jury determined the plaintiff sustained. From this figure should be deducted the plaintiff's pretrial settlement. By deducting the settlement amount first, the majority reduces the plaintiff's fault percentage below that found by the jury. I approve the trial court's procedure which reduces the plaintiff's damages in accordance with the plaintiff's role in causing the injury. Lemos v. Eichel, 83 Cal. App. 3d 110, 118-19, 147 Cal. Rptr. 603, 606-07 (1978).\nReconsideration denied January 19, 1981.\nReview denied by Supreme Court April 8, 1981."", ""type"": ""dissent"", ""author"": ""Dore, J.""}], ""attorneys"": [""Clinton, Fleck, Glein & Brown and Lawrence B. Linville, for appellants."", ""Slade Gorton, Attorney General, and Donald L. Law, Assistant, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 7566-7-I.\nDivision One.\nDecember 17, 1980.]\nHarry D. DeMaris, Individually and as Administrator, et al, Appellants, v. Sharon J. Brown, et al, Defendants, The State of Washington, Respondent.\nClinton, Fleck, Glein & Brown and Lawrence B. Linville, for appellants.\nSlade Gorton, Attorney General, and Donald L. Law, Assistant, for respondent.""}, ""cites_to"": [{""cite"": ""264 N.W. 642"", ""year"": 1936, ""category"": ""reporters:state_regional"", ""reporter"": ""N.W."", ""opinion_index"": 0}, {""cite"": ""220 Wis. 73"", ""year"": 1936, ""case_ids"": [8684816], ""category"": ""reporters:state"", ""reporter"": ""Wis."", ""case_paths"": [""/wis/220/0073-01""], ""opinion_index"": 0}, {""cite"": ""147 Cal. Rptr. 603"", ""year"": 1978, ""category"": ""reporters:state"", ""reporter"": ""Cal. Rptr."", ""pin_cites"": [{""page"": ""606""}], ""opinion_index"": 0}, {""cite"": ""83 Cal. App. 3d 110"", ""year"": 1978, ""case_ids"": [1990033], ""category"": ""reporters:state"", ""reporter"": ""Cal. 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+1833711,"{""id"": 1833711, ""name"": ""Washington Hydroculture, Inc., Respondent, v. Frank Payne, Appellant"", ""court"": {""id"": 8985, ""name"": ""Washington Court of Appeals"", ""name_abbreviation"": ""Wash. Ct. App.""}, ""analysis"": {""sha256"": ""c6bb8c885778200e1b779a43549f524397b48897052951c059292cc574a35aa8"", ""simhash"": ""1:de47d15aee480bb0"", ""pagerank"": {""raw"": 0.00000006380125665320789, ""percentile"": 0.39167592396313455}, ""char_count"": 7801, ""word_count"": 1316, ""cardinality"": 524, ""ocr_confidence"": 0.861}, ""casebody"": {""judges"": [], ""parties"": [""Washington Hydroculture, Inc., Respondent, v. Frank Payne, Appellant.""], ""opinions"": [{""text"": ""Roe, J.\n—In 1975, Frank Payne leased \""2 Model S-1100 'Magic Garden' Hydrophonic [sic] Units located on lessor's property\"" from Washington Hydroculture, Inc., in Sunny-side, Washington. The units were fiber glass greenhouses used in growing plants indoors. The following year, the greenhouses were substantially destroyed by fire. The lease provided that:\n3. . . . During the term of this lease, lessee shall maintain said S-1100 unit; and, upon expiration of the term hereof surrender in as good a condition as it shall be when lessee takes possession thereof, except for ordinary wear and tear, [singular]\n(Italics ours.)\nBoth parties moved for summary judgment on the issue of liability. The trial court ruled that lessee Payne was liable for damage to the buildings. At a subsequent trial on the issue of damages, the court held that the defendant was liable for the reasonable cost of returning the premises to the landlord in as good condition as when he leased them, less normal wear and tear. Lessee appeals the adverse summary judgment; Washington Hydroculture cross-appeals on the issue of damages. We affirm.\nThe law in Washington is well settled that, unless there is an agreement to the contrary, the inclusion of a general maintenance and delivery clause in a real property lease obligates the tenant to rebuild in case of fire. Armstrong v. Maybee, 17 Wash. 24, 48 P. 737 (1897). See also Publishers Bldg. Co. v. Miller, 25 Wn.2d 927, 933-38, 172 P.2d 489 (1946); Carstens v. Western Pipe & Steel Co., 142 Wash. 259, 252 P. 939 (1927).\nThe court in Anderson v. Ferguson, 17 Wn.2d 262, 270-71, 135 P.2d 302 (1943), relied upon by the trial court, stated the rule:\nThus, it appears to be the settled law in this state that an unconditional or unqualified covenant on the part of the lessee to maintain and keep premises leased by him in good repair or in as good condition as that existing at the time specified in the lease, and to return the premises at the expiration or termination of the lease in such equivalent condition, obligates the lessee to rebuild in case the buildings leased are destroyed by fire or other casualty during the term. So far as we have been advised, there is no statute in this state modifying this rule.\nWe can find no agreement between the parties which would change this general rule, nor are we persuaded by the authorities cited by the lessee. The court in Anderson v. Ferguson, supra at 271, although recognizing and stating the above rule, nevertheless construed a provision in a lease which did not \""require the lessees to maintain or keep the premises in any particular condition whatever during the period of the term.\"" Thus, the general rule did not apply in that case. Here, the lease specifically provides that the lessee shall maintain the premises and surrender them in as good condition as when the lessee took possession. Appellant's criticism of the above case is not persuasive.\nUnited Mut. Sav. Bank v. Riebli, 55 Wn.2d 816, 350 P.2d 651 (1960), concerned the rupture of a pipe embedded in the concrete floor of a leased premises, causing damage to the furnishings therein. Construing that lease as a whole, the court determined that a general covenant to repair does not make the tenants \""insurers of latent defects in the premises.\"" (Italics ours.) United Mut. Sav. Bank v. Riebli, supra at 823. Other statements regarding the liability are dicta because the case was only concerned with an unknown, undiscovered defect. In the case at bench, the issue is not defects in the property, but a fire of unknown origin. The tenant must bear the loss.\nThe lessee urges that the rental units were personal property or, even if they were not, that the rule on personal property as found in St. Paul Fire & Marine Ins. Co. v. Charles H. Lilly Co., 48 Wn.2d 528, 535-37, 295 P.2d 299 (1956) (St. Paul II), reversing St. Paul Fire & Marine Ins. Co. v. Charles H. Lilly Co., 46 Wn.2d 840, 286 P.2d 107 (1955) (St. Paul I) governs this case. That case involved the lease of a Scoopmobile, obviously personal property. St. Paul II enunciated the rule in Washington for bailment contracts. That rule is where the bailee of personal property has contracted to return the property in the condition received, except for normal wear and tear, or words to that effect, then if the subject matter of the bailment is destroyed without fault or negligence on the part of the bailee, any liability on his part for the loss must arise out of the specific words of the contract making him an insurer of the loss irrespective of fault. If the contract does not so provide, the bailee is not liable for nonnegligent loss or acts of God.\nThe dissent in St. Paul I (which became the majority in St. Paul II) quotes at page 847 Perreault v. Circle Club, 326 Mass. 458, 459, 95 N.E.2d 204 (1950):\n\""In the absence of contract increasing the liability of a bailee, he is not liable for loss or damage occurring without his fault. . . . Greater responsibility can be imposed upon a bailee only by his express contract. ...\""\n(Citations omitted.)\nIn this case we are not concerned with the bailment of the property. We are concerned with a lease which from its four corners is a lease of realty. The parties are referred to as \""landlord and tenant\""; the subject matter, though there is no legal description, is denominated \""the premises.\"" We thus rely on the general rule for leases of realty and do not find St. Paul II persuasive authority for changing the common-law and well established real property rule in Washington.\nWashington Hydroculture cross-claims on the issue of damages. The trial court apparently awarded damages for the depreciated value of the premises, while Washington Hydroculture claims the proper measure is not the value of the greenhouses before they were destroyed, but the reasonable cost of restoring them to the agreed condition. If only new materials can be used, the tenant is liable for their full cost.\nThe correct measure of damages is the reasonable cost of returning the premises to the condition they were in at the commencement of the lease, less reasonable wear and tear, and not their market value. McFerran v. Heroux, 44 Wn.2d 631, 643, 269 P.2d 815 (1954) (dictum); Yakima Valley Motors, Inc. v. Webb Tractor & Equip. Co., 14 Wn.2d 468, 473, 128 P.2d 507 (1942); DeLano v. Tennent, 138 Wash. 39, 45-46, 244 P. 273, 45 A.L.R. 766 (1926).\nTestimony for Washington Hydroculture was that it would cost $31,403.96 to rebuild the greenhouses. On the other hand, experts for Payne stated the costs at only $13,904.77. On cross-examination Washington Hydroculture demonstrated that extra costs had not been considered by those witnesses. The trial court added these extra costs to Payne's bids, including the depreciated value of some equipment, and concluded the damages totaled $23,780.72.\nThe lessor has not challenged any of the findings of fact, and they thus become the established facts of the case. State Bar Ass'n v. Great W. Union Fed. Sav. & Loan Ass'n, 91 Wn.2d 48, 586 P.2d 870 (1978). Our function is to determine whether such findings support the conclusions of law and judgment. In re Bennett, 24 Wn. App. 398, 401, 600 P.2d 1308 (1979).\nThe findings state the amount of damages on different items. The conclusion of law, that the lessee is liable to the lessor for $23,780.72, follows from the findings of fact. The judgment of the trial court is thus affirmed.\nMunson and McIntukff, JJ., concur.\nReconsideration denied May 8, 1980.\nReview granted by Supreme Court July 18, 1980."", ""type"": ""majority"", ""author"": ""Roe, J.""}], ""attorneys"": [""Charles C. Countryman, for appellant."", ""Charles F. Diesen, John A. Rossmeissl, and Velikanje, Moore & Shore, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 3050-4-III.\nDivision Three.\nApril 29, 1980.]\nWashington Hydroculture, Inc., Respondent, v. Frank Payne, Appellant.\nCharles C. Countryman, for appellant.\nCharles F. Diesen, John A. Rossmeissl, and Velikanje, Moore & Shore, for respondent.""}, ""cites_to"": [{""cite"": ""600 P.2d 1308"", ""year"": 1979, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""24 Wn. App. 398"", ""year"": 1979, ""case_ids"": [458736], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""401""}], ""case_paths"": [""/wash-app/24/0398-01""], ""opinion_index"": 0}, {""cite"": ""586 P.2d 870"", ""year"": 1978, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""91 Wn.2d 48"", ""year"": 1978, ""case_ids"": [1101813], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/91/0048-01""], ""opinion_index"": 0}, {""cite"": ""45 A.L.R. 766"", ""year"": 1926, ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R."", ""opinion_index"": 0}, {""cite"": ""244 P. 273"", ""year"": 1926, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""138 Wash. 39"", ""year"": 1926, ""case_ids"": [814272], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""pin_cites"": [{""page"": ""45-46""}], ""case_paths"": [""/wash/138/0039-01""], ""opinion_index"": 0}, {""cite"": ""128 P.2d 507"", ""year"": 1942, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""14 Wn.2d 468"", ""year"": 1942, ""case_ids"": [2568726], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""473""}], ""case_paths"": [""/wash-2d/14/0468-01""], ""opinion_index"": 0}, {""cite"": ""269 P.2d 815"", ""year"": 1954, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""pin_cites"": [{""parenthetical"": ""dictum""}], ""opinion_index"": 0}, {""cite"": ""44 Wn.2d 631"", ""year"": 1954, ""case_ids"": [2423034], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""643"", ""parenthetical"": ""dictum""}], ""case_paths"": [""/wash-2d/44/0631-01""], ""opinion_index"": 0}, {""cite"": ""95 N.E.2d 204"", ""year"": 1950, ""category"": ""reporters:state_regional"", ""reporter"": ""N.E.2d"", ""opinion_index"": 0}, {""cite"": ""326 Mass. 458"", ""year"": 1950, ""case_ids"": [508719], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""459""}], ""case_paths"": [""/mass/326/0458-01""], ""opinion_index"": 0}, {""cite"": ""286 P.2d 107"", ""year"": 1955, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""pin_cites"": [{""parenthetical"": ""St. Paul I""}], ""opinion_index"": 0}, {""cite"": ""46 Wn.2d 840"", ""year"": 1955, ""case_ids"": [5029771], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""parenthetical"": ""St. Paul I""}], ""case_paths"": [""/wash-2d/46/0840-01""], ""opinion_index"": 0}, {""cite"": ""295 P.2d 299"", ""year"": 1956, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""pin_cites"": [{""parenthetical"": ""St. Paul II""}], ""opinion_index"": 0}, {""cite"": ""48 Wn.2d 528"", ""year"": 1956, ""case_ids"": [996487], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""535-37"", ""parenthetical"": ""St. Paul II""}], ""case_paths"": [""/wash-2d/48/0528-01""], ""opinion_index"": 0}, {""cite"": ""350 P.2d 651"", ""year"": 1960, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""55 Wn.2d 816"", ""year"": 1960, ""case_ids"": [1017660], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/55/0816-01""], ""opinion_index"": 0}, {""cite"": ""135 P.2d 302"", ""year"": 1943, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""17 Wn.2d 262"", ""year"": 1943, ""case_ids"": [2580485], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""270-71""}], ""case_paths"": [""/wash-2d/17/0262-01""], ""opinion_index"": 0}, {""cite"": ""252 P. 939"", ""year"": 1927, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""142 Wash. 259"", ""year"": 1927, ""case_ids"": [805349], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/142/0259-01""], ""opinion_index"": 0}, {""cite"": ""172 P.2d 489"", ""year"": 1946, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""25 Wn.2d 927"", ""year"": 1946, ""case_ids"": [2532786], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""933-38""}], ""case_paths"": [""/wash-2d/25/0927-01""], ""opinion_index"": 0}, {""cite"": ""48 P. 737"", ""year"": 1897, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""17 Wash. 24"", ""year"": 1897, ""case_ids"": [5113363], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/17/0024-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""26 Wash. App. 40"", ""type"": ""official""}], ""file_name"": ""0040-01"", ""last_page"": ""45"", ""first_page"": ""40"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T17:22:45.310828+00:00"", ""decision_date"": ""1980-04-29"", ""docket_number"": ""No. 3050-4-III"", ""last_page_order"": 67, ""first_page_order"": 62, ""name_abbreviation"": ""Washington Hydroculture, Inc. v. 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+1833910,"{""id"": 1833910, ""name"": ""Bertha Louise Lincoln, Appellant, v. Robert C. Farnkoff, et al, Respondents"", ""court"": {""id"": 8985, ""name"": ""Washington Court of Appeals"", ""name_abbreviation"": ""Wash. Ct. App.""}, ""analysis"": {""sha256"": ""450ec540fb9f0878cac4bb84dca3e370189833d18988e717919087d9249ee232"", ""simhash"": ""1:f34584d71db81128"", ""pagerank"": {""raw"": 0.00000011040430303726957, ""percentile"": 0.5690744904432652}, ""char_count"": 5371, ""word_count"": 871, ""cardinality"": 413, ""ocr_confidence"": 0.85}, ""casebody"": {""judges"": [], ""parties"": [""Bertha Louise Lincoln, Appellant, v. Robert C. Farnkoff, et al, Respondents.""], ""opinions"": [{""text"": ""McInturff, J.\n—In an action for negligence in the landlord-tenant context, the appellant, Mrs. Lincoln, appeals a judgment in favor of respondents, Mr. and Mrs. Farnkoff.\nThis action concerns two unanchored concrete blocks which served as a step to the rear entrance of a single-family residence occupied by Mrs. Lincoln as a tenant. The home was originally owned by Mr. and Mrs. Hovinghoff. Although Mr. Hovinghoff made improvements to the rear entrance of the home in 1972, he denied responsibility for installing the blocks.\nIn July 1973, the Hovinghoffs sold the home to Mr. and Mrs. Farnkoff, who continued the month-to-month tenancy with Mrs. Lincoln. The new landlord and tenant discussed the need for repairs, but disagree over whether their discussion included the concrete blocks. In October 1973, Mrs. Lincoln allegedly fell and was injured when one of the blocks tipped backward. The parties disagree as to when Mrs. Lincoln notified the Farnkoffs of her mishap.\nMrs. Lincoln brought this action for personal injuries against Hovinghoff and Farnkoff in September 1976. The Hovinghoffs were dismissed from the action on motion for summary judgment. By special verdict the jury found the Farnkoffs were not negligent. This appeal followed.\nMrs. Lincoln’s principal assignment of error concerns the court's refusal to enter a directed verdict or, in the alternative, to give an instruction concerning the landlord's duties under the residential landlord-tenant act, specifically RCW 59.18.060, which provides, in part:\nThe landlord will at all times during the tenancy keep the premises fit for human habitation, and shall in particular:\n(2) Maintain the roofs, floors, walls, chimneys, fireplaces, foundations, and all other structural components in reasonably good repair so as to be usable and capable of resisting any and all normal forces and loads to which they may be subjected;\n(Italics ours.)\nAt common law under the principle of caveat emptor, the landlord had no duty to repair rental property, the tenant taking it as he found it. Hughes v. Chehalis School Dist. 302, 61 Wn.2d 222, 225, 377 P.2d 642 (1963). With time, however, this legal position gave way to modern realities and residential tenants were afforded the protection of an implied covenant of habitability. Foisy v. Wyman, 83 Wn.2d 22, 25-28, 515 P.2d 160 (1973), and cases cited. Following this lead, the legislature enacted the residential landlord-tenant act in 1973. This act \""modified the common law so as to require decent, safe and sanitary housing,\"" and \""adds ... a covenant to repair\"" to most residential rental agreements. O'Brien v. Detty, 19 Wn. App. 620, 621, 622, 576 P.2d 1334 (1978); see RCW 59.18.060(2).\nThis statute, however, does not render the landlord strictly liable as Mrs. Lincoln contends. Instead, RCW 59.18.060 speaks in terms of maintaining the demised premises in \""reasonably good repair\"" and we have held that no violation occurs until a reasonable time after notice of the defect. O'Brien v. Detty, supra at 622-23.\nIn considering a motion for directed verdict, the evidence must be viewed in the light most favorable to the nonmoving party. The motion should be granted only if no evidence or reasonable inferences therefrom would sustain a verdict for the nonmoving party. Cherberg v. Peoples Nat'l Bank, 88 Wn.2d 595, 606, 564 P.2d 1137 (1977). For this reason, the motion for a directed verdict was properly denied as issues of fact preclude a finding of negligence as a matter of law. Some of the unanswered questions include: whether the step was in a state of disrepair; whether the landlord had notice, actual or constructive, of this condition; and whether, given notice, a reasonable time had elapsed for the making of any necessary repairs.\nThe trial court instructed the jury that Mrs. Lincoln had the burden of proving:\nFirst, that the defendant agreed to repair the steps within a reasonable time.\nSecond, that the failure of the defendants to repair the steps within a reasonable time was a proximate cause of the injury to the plaintiff.\n(Italics ours.) In view of the landlord's statutory duty of repair, it was error for the court to condition Mrs. Lincoln's recovery upon proof of an agreement to repair the step. Instead, the court should have instructed the jury concerning the landlord's statutory duty to maintain the premises in \""reasonably good repair.\""\nMrs. Lincoln's argument that it was error for the court to instruct the jury on contributory negligence is not well taken.\nEvery person has a duty to look out for his own safety and to use a degree of care which a \""reasonably prudent person of ordinary intelligence would exercise under like or similar circumstances.\""\nDaly v. Lynch, 24 Wn. App. 69, 72, 600 P.2d 592 (1979).\nThe instructional errors necessitate a new trial and dispose of some of Mrs. Lincoln's additional assignments of error. We have carefully considered Mrs. Lincoln's remaining assignments of error and find them to be without merit.\nJudgment of the Superior Court is reversed; the case is remanded for a new trial in accordance with this opinion.\nGreen, C.J., and Roe, J., concur."", ""type"": ""majority"", ""author"": ""McInturff, J.""}], ""attorneys"": [""Charles H. Barr, for appellant."", ""Mike R. Johnston and Campbell, Johnston & Roach, for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 3208-6-III.\nDivision Three.\nJuly 8, 1980.]\nBertha Louise Lincoln, Appellant, v. Robert C. Farnkoff, et al, Respondents.\nCharles H. Barr, for appellant.\nMike R. Johnston and Campbell, Johnston & Roach, for respondents.""}, ""cites_to"": [{""cite"": ""600 P.2d 592"", ""year"": 1979, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""24 Wn. App. 69"", ""year"": 1979, ""case_ids"": [458479], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""72""}], ""case_paths"": [""/wash-app/24/0069-01""], ""opinion_index"": 0}, {""cite"": ""564 P.2d 1137"", ""year"": 1977, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""88 Wn.2d 595"", ""year"": 1977, ""case_ids"": [1111226], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""606""}], ""case_paths"": [""/wash-2d/88/0595-01""], ""opinion_index"": 0}, {""cite"": ""576 P.2d 1334"", ""year"": 1978, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""19 Wn. App. 620"", ""year"": 1978, ""case_ids"": [473788], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""621, 622""}], ""case_paths"": [""/wash-app/19/0620-01""], ""opinion_index"": 0}, {""cite"": ""515 P.2d 160"", ""year"": 1973, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""83 Wn.2d 22"", ""year"": 1973, ""case_ids"": [1127907], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""25-28""}], ""case_paths"": [""/wash-2d/83/0022-01""], ""opinion_index"": 0}, {""cite"": ""377 P.2d 642"", ""year"": 1963, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""61 Wn.2d 222"", ""year"": 1963, ""case_ids"": [1034584], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""225""}], ""case_paths"": [""/wash-2d/61/0222-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""26 Wash. App. 717"", ""type"": ""official""}], ""file_name"": ""0717-01"", ""last_page"": ""721"", ""first_page"": ""717"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T17:22:45.310828+00:00"", ""decision_date"": ""1980-07-08"", ""docket_number"": ""No. 3208-6-III"", ""last_page_order"": 743, ""first_page_order"": 739, ""name_abbreviation"": ""Lincoln v. 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+1836119,"{""id"": 1836119, ""name"": ""Crown Controls, Inc., Respondent, v. Jim Smiley, Appellant"", ""court"": {""id"": 8985, ""name"": ""Washington Court of Appeals"", ""name_abbreviation"": ""Wash. Ct. App.""}, ""analysis"": {""sha256"": ""c77edef8565bfc7c54622c5f53a78a7d50adbd2ba5a34506814522bbf19f4026"", ""simhash"": ""1:d6a3fb6650e43a08"", ""pagerank"": {""raw"": 0.00000011027860246659477, ""percentile"": 0.5687663643710502}, ""char_count"": 31111, ""word_count"": 5052, ""cardinality"": 1484, ""ocr_confidence"": 0.836}, ""casebody"": {""judges"": [""Callow and Revelle, JJ. Pro Tern., concur.""], ""parties"": [""Crown Controls, Inc., Respondent, v. Jim Smiley, Appellant.""], ""opinions"": [{""text"": ""Chan, J.\nJim Smiley appeals from a judgment rendered against him for $9,136.03 plus interest, stemming from the purchase of certain industrial equipment from Crown Controls, Inc. He contends the court erred: (1) in assuming personal jurisdiction over him; (2) in finding him liable as an agent of an undisclosed principal; (3) in failing to determine there had been an election of remedies; and (4) in awarding prejudgment interest. We affirm, but remand for entry of judgment against both the principal and agent.\nJim Smiley operates a manufacturer's representative/ distributorship business from his home in Bend, Oregon. Smiley uses various trade names for his businesses, including \""Industrial Associates,\"" \""Industrial Associates International,\"" \""Engineering Products Manufacturing Company,\"" and \"" Consolidated Leasing.\"" Smiley is also the president of North American Drill Supply, Inc. (NADS), an Oregon corporation. The trade name \""Industrial Associates” is owned by NADS and was registered pursuant to Oregon law.\nCrown Controls, Inc., is a Washington corporation. It is a manufacturer's representative for chemical controls equipment suppliers.\nIn June 1983, Smiley telephoned Crown Controls and spoke with its president, Michael Slomer. Smiley identified himself as an agent of Industrial Associates. After several telephone discussions regarding various items of equipment and their prices, Crown Controls agreed to supply and Industrial Associates agreed to purchase certain gas chlorination equipment. The equipment was duly delivered to and accepted by Industrial Associates' agent in Portland, Oregon, and it was then shipped to an Industrial Associates customer in Guam. Crown Controls invoiced Industrial Associates for these shipments in July and August 1983, for a total principal sum of $9,136.03.\nAt the time of this transaction, Industrial Associates, through Smiley, also purchased certain pump control valves from Crown Controls. The Roll Seal Valve Company, located in Irvine, California, supplied the valves to Crown Controls. Industrial Associates' customers were dissatisfied with these valves and returned them directly to Roll Seal Valve Company.\nAt no time did Smiley disclose to Crown Controls he was acting on behalf of a corporate entity in general, or NADS in particular. He only disclosed he was acting on behalf of \""Industrial Associates.\"" Crown Controls requested credit references from Smiley after some of the equipment had been ordered, and Smiley supplied two bank references. Crown Controls only investigated one of them, which was in the name of \""Industrial Associates-International.\"" The second bank account indicated the existence of NADS, Inc., on the monthly statements, but not on the printed checks. Mr. Slomer first knew of the existence of NADS, Inc., when his attorney sent him a copy of the complaint in this case.\nCrown Controls was not paid and commenced this action in February 1984. In March 1984, NADS commenced litigation in Oregon against Crown Controls regarding the pump control valve problems. NADS also claimed the pump control valve problems constituted a partial setoff to the amount claimed in this action. In August 1984, Crown Controls obtained a partial summary judgment against NADS in this action for $5,547.92 plus prejudgment interest. There remained for trial the issues of Smiley's personal liability and the claimed setoff. In February 1985, NADS obtained judgment against Crown Controls for $3,363.11 in the Oregon action. That sum was the exact amount alleged as a setoff in this action.\nAfter the partial summary judgment but before trial in this action, Crown Controls conducted a supplemental proceeding against Smiley as president of NADS. Crown Controls then attempted to garnish NADS' bank account, but the account was closed.\nTrial of this action proceeded against Smiley in March 1985. The Superior Court found Smiley had failed to disclose the identity of his true principal. The court also ruled Smiley had sufficient contacts with Washington to justify imposition of personal jurisdiction under the long-arm statute, RCW 4.28.185. The court granted Crown Controls the option of taking judgment against Smiley and vacating the partial summary judgment against NADS. Crown Controls selected that option and judgment was entered against Smiley for $9,136.03 plus pre- and post-judgment interest. Smiley timely appeals.\nSmiley first contends he did not have the minimum contacts with Washington necessary under the due process clause to justify personal jurisdiction under the long-arm statute. Crown Controls argues Smiley waived any minimum contacts argument by failing to raise it in a responsive pleading or written motion. See CR 12(h). The issue was thoroughly litigated by the parties at trial and we will address the issue.\nSmiley argues \""a single telephone call\"" is not sufficient to subject an Oregon resident to Washington jurisdiction. An unchallenged finding states Smiley initiated the transaction between the parties, and there were \""several\"" telephone conversations before the parties agreed on a contract. This finding is a verity on appeal. Davis v. Department of Labor & Indus., 94 Wn.2d 119, 615 P.2d 1279 (1980). It is also supported by substantial evidence, as the president of Crown Controls testified Smiley initially telephoned him and he spoke with Smiley approximately four times. In addition, one item was ordered by Crown Controls from a Washington company and shipped to Industrial Associates \""F.O.B. Bellevue.\""\nA Washington court may exercise personal jurisdiction if these criteria are met:\n(1) The nonresident defendant or foreign corporation must purposefully do some act or consummate some transaction in the forum state; (2) the cause of action must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation.\nSorb Oil Corp. v. Batalla Corp., 32 Wn. App. 296, 298-99, 647 P.2d 514 (1982), quoting Lewis v. Curry College, 89 Wn.2d 565, 568, 573 P.2d 1312 (1978).\nGriffiths & Sprague Stevedoring Co. v. Bayly, Martin & Fay, Inc., 71 Wn.2d 679, 430 P.2d 600 (1967) is directly on point. There, plaintiff was a Washington insurance broker and defendant was a California insurance broker. Defendant solicited plaintiff by telephone and mail to procure insurance for one of its customers; plaintiff obtained it from Lloyds of London. The customer failed to pay the premium, and plaintiff sued defendant in Washington to recover the amount. The court held it would not violate due process to impose personal jurisdiction:\nIn the absence of a connecting tie or link between a nonresident and the forum state, the long-arm statute does not vest jurisdiction in the courts of a forum state where none existed before enactment of the statute. But the statute does tacitly recognize as an economic fact of modern life that large segments of commerce, finance, manufacturing and agriculture inevitably seek out a connection with or link to customers, consumers, users, fabricators, processors, or subcontractors in other states who intend or contemplate that the product, process or article of commerce, manufacturing or agriculture shall be consumed, used or employed in states other than the place of origin or beginning.\nThe connecting link then may consist of affirmative acts taking place here by which the out-of-state resident overtly submits to jurisdiction; or the initiation of a transaction outside the state in contemplation that some phase of it will take place in the forum state; or the start of a commercial process outside the forum state on the assumption that the article will be sold, used or acted upon or within many other states but with no particular jurisdiction in actual contemplation. The existence of these phenomena of modern economy are ordinarily enough to bring the parties within the long-arm statute without engendering an unjust or oppressive extension of jurisdiction.\nWhen defendant, Bayly, Martin & Fay, insurance brokers in Los Angeles, ordered insurance by telephone and mail from or through plaintiff, Farwest General Agency, insurance brokers in Seattle, Washington, it overtly performed acts making it a party to and participant in a business transaction in Washington even though it was contemplated by Bayly, Martin & Fay that the insurer might be a foreign agency. Defendant thus submitted to the jurisdiction of Washington courts under the long-arm statute as to that particular transaction.\nGriffiths & Sprague Stevedoring Co. v. Bayly, Martin & Fay, Inc., supra at 684-85.\nIn Peter Pan Seafoods, Inc. v. Mogelberg Foods, Inc., 14 Wn. App. 527, 544 P.2d 30 (1975), defendant was a New Jersey corporation which initiated a business relationship with plaintiff Washington corporation. This court held defendant's conduct in soliciting a series of sales, traveling to Washington to inspect plaintiff's facilities, and the fact most of the goods were delivered \""F.O.B. Seattle,\"" provided the minimum contacts necessary to justify imposition of personal jurisdiction. The court particularly relied upon the fact the defendant initiated the contacts. Peter Pan Sea-foods, Inc., at 532. The court further held the trial court on remand would have discretion to dismiss on forum non conveniens grounds if the requisite circumstances were shown.\nThis court followed Griffiths and Peter Pan Seafoods in Sorb Oil Corp. v. Batalla Corp., supra. There, the defendant was a Texas corporation which had ordered products from a Washington distributor. The products were ordered at irregular intervals and in varying quantities over approximately 18 months. The products were shipped directly from the manufacturer in Indiana to defendant. The court recognized the amount of business was less than that in Peter Pan Seafoods, and that defendant did not initiate the transactions. The court nevertheless held defendant had the protection of Washington laws and thus it would not violate due process to impose jurisdiction. Accord, Cofinco of Seattle, Ltd. v. Weiss, 25 Wn. App. 195, 605 P.2d 794 (1980) (defendant purposefully entered into employment contract with Washington corporation, thereby invoking protection of Washington laws; personal jurisdiction upheld); Huebner v. Sales Promotion, Inc., 38 Wn. App. 66, 684 P.2d 752 (1984), review denied, 103 Wn.2d 1018 (Texas defendants solicited business in Washington through magazine advertisements and personal contacts; personal jurisdiction upheld because, inter alia, defendants could reasonably foresee being haled into Washington court for harm flowing from their activities), cert. denied, 474 U.S. 818, 88 L. Ed. 2d 52, 106 S. Ct. 64 (1985).\nBased upon the foregoing analysis, we hold it did not offend traditional notions of fair play and substantial justice to impose personal jurisdiction here. Smiley initiated the contacts and had the protection of Washington courts. We also note there is nothing in the record to indicate Smiley moved to dismiss on forum non conveniens grounds, even though NADS, Inc., commenced suit in Oregon against Crown Controls while this action was pending. See Peter Pan Seafoods, Inc. v. Mogelberg Foods, Inc., supra.\nSmiley also argued in his brief that Crown Controls failed to file an affidavit of service as required by RCW 4.28.185(4). His counsel conceded at oral argument the affidavit was timely filed. We consider the issue to be moot.\nSmiley next contends the court erred in finding he failed to sufficiently disclose his principal.\nWhether an agent has disclosed the identity of his principal so as to avoid personal liability is a question of fact. Matsko v. Dally, 49 Wn.2d 370, 301 P.2d 1074 (1956). Accord, Maxwell's Elec., Inc. v. Hegeman-Harris Co., 18 Wn. App. 358, 567 P.2d 1149 (1977). Therefore this court will uphold the trial court decision if it is based upon substantial evidence. Ridgeview Properties v. Starbuck, 96 Wn.2d 716, 638 P.2d 1231 (1982).\nThe parties do not cite any Washington authority, and our research has revealed none, addressing whether disclosure of a trade name is sufficient disclosure of a principal. However, courts in other jurisdictions have held the agent has the duty to disclose the true name of the principal, not just the principal's assumed name; the plaintiff does not have a duty to inquire; and the burden of proving disclosure is upon the agent. Myers-Leiber Sign Co. v. Weirich, 2 Ariz. App. 534, 410 P.2d 491 (1966); Brown-Wright Hotel Supply Corp. v. Bagen, 112 Ga. App. 300, 145 S.E.2d 294 (1965); Judith Garden, Inc. v. Mapel, 342 N.Y.S.2d 486 (Cir. Ct. 1973); 3 Am. Jur. 2d Agency § 327 (1986).\nSmiley argues Industrial Associates' true identity could have been revealed had Crown Controls followed up on the credit information he supplied. First, this information was supplied after some of the equipment had already been ordered. Disclosure must take place at the time of contracting. Matsko v. Dally, supra. Second, the monthly bank statement sent to Smiley, but not the printed checks, disclose the true situation. No evidence was produced from the bank indicating what it would have revealed in response to a credit inquiry.\nSmiley relies upon Seattle Ass'n of Credit Men v. Green, 45 Wn.2d 139, 273 P.2d 513 (1954), which held plaintiffs had a duty to check assumed name filings. There, creditors of an insolvent corporation argued it had abandoned its corporate status by adopting an assumed name, and therefore its officers and directors were liable as partners by estoppel. The court held the term \""Company\"" in the assumed name put the creditors at least on inquiry notice, as \""Company\"" could denote either a partnership or a corporation. The court emphasized there was nothing deceptive or misleading about the assumed name.\nSeattle Ass'n of Credit Men is distinguishable from the instant case. \""Industrial Associates\"" connotes a partnership only. See Black's Law Dictionary (5th ed. 1979). The assumed name is misleading and would not put a creditor on inquiry notice. Furthermore, it has been repeatedly held the only consequence of filing an assumed name is the ability to sue in Washington courts. E.g., Griffiths & Sprague Stevedoring Co. v. Bayly, Martin & Fay, Inc., supra; McCombs Constr., Inc. v. Barnes, 32 Wn. App. 70, 77 n.2, 645 P.2d 1131 (1982); Laliberte v. Wilkins, 30 Wn. App. 782, 638 P.2d 596 (1981).\nAs the court noted in Judith Garden, Inc. v. Mapel, supra, it is not unreasonable to place upon the agent the burden to fully disclose his principal's identity. This would seem to be especially true where, as here, an interstate transaction is involved. It would have been a simple matter for Smiley to disclose the existence of \""NADS, Inc. dba Industrial Associates\"", whereas it would be unreasonable to impose upon Crown Controls the duty to inquire of the appropriate Oregon state official whether there was an assumed name filing for Industrial Associates.\nSmiley also assigns error to finding of fact 2.8 regarding a conditional tender he made to Crown Controls in response to a demand for payment. Whether the word \""my\"" in the conditional tender meant Smiley or NADS, Inc., was immaterial to the court's decision that Smiley was an agent of an undisclosed principal. The court correctly relied upon the facts existing at the time of contracting. Any error in a finding that was not material to the court's decision is deemed harmless. Ulberg v. Seattle Bonded, Inc., 28 Wn. App. 762, 626 P.2d 522 (1981); Prager's, Inc. v. Bullitt Co., 1 Wn. App. 575, 463 P.2d 217 (1969).\nWe hold substantial evidence supports the trial court's conclusion Smiley is personally liable as an agent of an undisclosed principal.\nSmiley next contends Crown Controls' efforts to collect its partial summary judgment against NADS constituted an election of remedies. Smiley relies upon Pennsylvania Cas. Co. v. Washington Portland Cement Co., 63 Wash. 689, 116 P. 284 (1911). We agree that Crown Controls' acts of conducting a supplemental proceeding and garnishing NADS' bank account constituted an election by Crown Controls to hold NADS liable to the exclusion of Smiley. However, we believe the election rule pertaining to agents and undisclosed principals is illogical and contrary to the policy favoring full compensation of wronged parties. We therefore hold, for the reasons that follow, that Crown Controls may have judgment against both NADS and Smiley, although it may only have one satisfaction.\nIn dicta, Pennsylvania Cas. Co. v. Washington Portland Cement Co. recites the common law rule that, upon learning all the facts, a creditor who elects to hold the previously undisclosed principal liable thereby discharges the agent. The agent is discharged from liability even if the creditor thereafter discovers the principal is insolvent. Chapman v. Ross, 152 Wash. 262, 277 P. 854 (1929). Many Washington cases repeat this rule, mostly in dicta, and none discusses the rationale behind the rule. E.g., Glover v. Tacoma Gen. Hosp., 98 Wn.2d 708, 658 P.2d 1230 (1983) (terming the case law in this area \""sketchy\""); Turnbull v. Shelton, 47 Wn.2d 70, 286 P.2d 676 (1955); Patent Scaffolding Co. v. Roosevelt Apartments, Inc., 171 Wash. 507, 18 P.2d 857 (1933); LeVette v. Hardman Estate, 77 Wash. 320, 137 P. 454 (1914); McDonald v. New World Life Ins. Co., 76 Wash. 488, 136 P. 702 (1913); Landers v. Foster, 34 Wash. 674, 76 P. 274 (1904); Roderick Timber Co. v. Willapa Harbor Cedar Prods., Inc., 29 Wn. App. 311, 627 P.2d 1352 (1981); Maxwell's Elec., Inc. v. Hegeman-Harris Co., supra.\nThis court may abandon or modify a common law rule if, in the light of current conditions and thinking, the rule's precepts are incompatible with present-day society. Irwin v. Coluccio, 32 Wn. App. 510, 648 P.2d 458, review denied, 98 Wn.2d 1011 (1982); Wyman v. Wallace, 15 Wn. App. 395, 549 P.2d 71 (1976), aff'd, 94 Wn.2d 99, 615 P.2d 452 (1980).\nA leading case abolishing the rule of alternative liability in the undisclosed principal context is Grinder v. Bryans Rd. Bldg. & Supply Co., 290 Md. 687, 432 A.2d 453 (1981). As in this case, the creditor there obtained a summary judgment against the undisclosed principal and then proceeded to a trial against the agent. The trial court held that the mere taking of a summary judgment against the principal did not estop plaintiff from obtaining judgment against the agent. The Court of Special Appeals (Maryland's intermediate appellate court) remanded to permit plaintiff to make an election, holding the taking of a nonfinal summary judgment did not preclude a later election. The Court of Appeals (Maryland's highest state court) agreed no final election had been made because the agent had not demanded it by motion or other appropriate pleading. Grinder, at 691 n.3. Nevertheless, the court took the opportunity to review and abolish the election rule.\nThe court in Grinder first reviewed the three reasons commonly given for the election rule: (1) One contract-no windfall. This reason is based upon the notion it would be unjust to permit the creditor to pursue two causes of action when it made only one contract. (2) Avoidance of vexatious double litigation. The court stated the need to avoid double litigation through the election rule is greatly undercut by modern pleading and practice, which permits an agent who is sued to implead the principal or to cross-claim for indemnity against the principal if they are sued jointly. See, e.g., CR 13, 14, 18, 20. See also Pennsylvania Cas. Co. v. Washington Portland Cement Co., supra (addressing contention regarding misjoinder of parties defendant, which is no longer an issue under the liberal joinder provisions of CR 20(a)). (3) Merger. The court discounted traditional merger analysis as inconsistent with the rule that a principal is not discharged if the creditor recovers judgment against the agent before learning the identity of the principal.\nThe Grinder court adopted the law of Pennsylvania as the better reasoned rule and the one endorsed by legal commentators. Under that rule, the liability of the agent and previously undisclosed principal is joint and several rather than alternative.\nUndoubtedly an agent who makes a contract in his own name without disclosing his agency is liable to the other party. The latter acts upon his credit and is not bound to yield up his right to hold the former personally, merely because he discloses a principal who is also liable.. The principal is liable because the contract was for his benefit, and the agent is benefited by his being presumedly the creditor, for there can be but one satisfaction. But it does not follow that the agent can afterwards discharge himself by putting the creditor to his election. Being already liable by his contract, he can be discharged only by satisfaction of it, by himself or another. So the principal has no right to compel the creditor to elect his action, or to discharge either himself or his agent, but can defend his agent only by making satisfaction for him.\nGrinder v. Bryans Rd. Bldg. & Supply Co., supra at 698, quoting Beymer v. Bonsall, 79 Pa. 298, 300 (1875).\nIn drafting the Restatement of Agency, the American Law Institute believed Pennsylvania's to be the better reasoned rule, but felt bound by the judicial precedent of the majority of other jurisdictions. See Grinder v. Bryans Rd. Bldg. & Supply Co., at 691-701, quoting Restatement of Agency § 435 explanatory notes, (Temp, draft 4, 1929); W. Seavey, Studies in Agency § 210 (1949) (American Law Institute \""was coerced by the cases\""). Legal commentary approving the minority rule is summarized in Grinder, at 703-06, and includes J. Story, Agency § 295, at 378 (3d ed. 1846); F. Wharton, Agency & Agents § 473, at 307-08 (1876); and F. Mechem, Agency § 159, at 105 (4th ed. 1952) (conventional rule deemed illogical and unfair).\nThe Grinder court at pages 704-06 quotes extensively from Ferson, Undisclosed Principals, 22 U. Cin. L. Rev. 131, 142-44 (1953), to explain the illogic of the election rule and the unassailable logic of the Pennsylvania rule:\n[T]he third party can hold an undisclosed principal; he can also hold the agent; and, yet, he is entitled to only one performance. What is the theory of the situation? It seems clear that when the agent of an undisclosed principal makes a contractual promise to a third person the result is not one obligation. It is two obligations. The agent is bound because he makes a contract that in terms is binding on him. The principal is bound owing to a different set of facts, viz. he assented—i.e., offered to be bound if and when the agent should make such a contract. The condition is met when the agent makes his contract. The principal and agent each consented to assume, and thus created, his own obligation. The obligations are not of identical origin, and they bind different obligors even though each obligation would be broken or satisfied according to whether the obligee gets what is coming to him. . . .\nIt should not be necessary to argue at this late date that a principal and his agent are not identical. But it was approved learning in earlier days. . . . Out of the false assumption that only one obligation was created by the agent's contract, has come a century of confusion and disagreement with regard to the liabilities of principal and agent.\nWhen it is recognized that the third person acquires several rights against the principal and agent, there does not seem to be any reason of logic, justice or expediency why he should not have every advantage that accrues to any one else who has more than one right. Specifically his attempt to hold one obligor should not exonerate another obligor. And a merger of his claim against one into a judgment against that one should not take away his right against the other obligor. The several rights of a third person who has contracted with the agent of an undisclosed principal are comparable to the several rights acquired by a \""creditor-beneficiary\"" for whom a contract has been made. In that kind of a case, A promises B that A will pay B's debt to C. The result is that C gets a right against A, and, of course, retains his right against B. In that situation, it is settled law that C can recover against either A or B. C's attempt to hold one does not exonerate the other and C's procurement of a judgment against one does not exonerate the other. C is, of course, entitled to only one payment of what is coming to him and insofar as he has been paid by one obligor it reduces the extent, but does not cut off the existence, of his claim against the other. [Footnotes omitted.] [Emphasis in text.]\nWe agree with this analysis and hold a creditor is entitled to take judgment against both an agent and his previously undisclosed principal, although the creditor may have only one satisfaction.\nWe note the Minnesota Supreme Court followed Grinder in Engelstad v. Cargill, Inc., 336 N.W.2d 284 (Minn. 1983). The Oregon Court of Appeals has also indicated approval of the minority rule in Carter v. Forstrom, 80 Or. App. 213, 722 P.2d 23 (1986) (dicta). Accord, Ore. S.S. Corp. v. D/S A/S Hassel, 137 F.2d 326, 330 (2d Cir. 1943) (election rule termed a \""harsh doctrine, resting at most on a rather barren logic1'); Johnson & Higgins v. Charles F. Garrigues Co., 30 F.2d 251, 254 (2d Cir. 1929) (Hand, J., dissenting) (\""no logical basis\"" for election rule); Joseph Denunzio Fruit Co. v. Crane, 79 F. Supp. 117 (S.D. Cal. 1948) (no reason to retain election rule in light of Federal Rules of Civil Procedure).\nSmiley argues abandonment of the election rule will result in a windfall to Crown Controls. Crown Controls will not receive a windfall but rather satisfaction of its debt. On the other hand, the election rule results in a windfall to one debtor. Typically, as here, the creditor does not take discovery of defendants' assets before judgment is entered and discerns the judgment debtor's financial worth through supplemental proceedings. Thus the creditor is not in a position to make a considered decision at the time of the purported election. Nor is there any more of a windfall than in any other joint and several liability case.\nFurthermore, as stated in Grinder, at 695, the election rule is not relied upon by people when they structure their business transactions:\nIt is not a rule with respect to which predictability of the result of its application should remain stable in order to protect past transactions. Indeed, from the standpoint of the principal and agent, the rule predicts only that an election must be made, but because the election is that of the creditor, the result of the election is not necessarily predictable. As Grinder would urge in the instant matter, the election could occur by operation of law and unintentionally from the creditor's standpoint. It is ... a \""technicality.\""\n(Citation omitted.)\nWe also believe our opinion has been presaged by the many exceptions created by the courts to mitigate the harshness of the election rule. See, e.g., Glover v. Tacoma Gen. Hosp., supra (in case involving vicarious liability, settlement and release of agent does not release principal if plaintiff not likely to be fully compensated by agent); Turnbull v. Shelton, supra (no election because creditor did not know of agency relationship); Maxwell's Elec., Inc. v. Hegeman-Harris Co., supra (plaintiff permitted to make election after trial); Letterman v. Tacoma, 53 Wn.2d 294, 333 P.2d 650 (1959) (an act done through ignorance or mistake does not constitute an election of remedies unless the defendant can show an estoppel); Ross v. Hagen, 51 Wn.2d 165, 316 P.2d 896 (1957) (subsequent action not barred by election of remedies doctrine where plaintiff reaped no benefit from previous action and defendant suffered no substantial detriment therein).\nSmiley argues Crown Controls could have raised its claims against him in the Oregon action. Smiley appears to be rearguing collateral estoppel, although he has not assigned error to the trial court's ruling against him on that issue. We therefore will not consider it. RAP 10.3(a)(3).\nLastly, Smiley contends the court erred in awarding prejudgment interest. This issue is raised for the first time on appeal and will not be addressed. RAP 2.5(a). Smiley assigned error in this court to finding of fact 2.8 regarding a conditional tender, but he never raised the issue of prejudgment interest in the trial court.\nSmiley's request for attorney fees on appeal is denied. The judgment is affirmed and remanded for entry of judgment against Smiley and NADS, jointly and severally.\nCallow and Revelle, JJ. Pro Tern., concur.\nReconsideration denied July 8, 1987.\nReview granted by Supreme Court November 4, 1987.\nThis appeal was heard by a Supreme Court Justice, a Superior Court Judge, and a retired Superior Court Judge sitting as Court of Appeals Judges Pro Tem-pore in Division One.\nThe court ruled the judgment would be for $9,136.03 if a satisfaction of the Oregon judgment were entered, otherwise the judgment in this action would be $5,547.92 plus interest.\nIt is undisputed NADS, Inc., was an Oregon corporation. The parties and the trial court assumed the Oregon trade name statute is the same as Washington's. See Save-Way Drug, Inc. v. Standard Inv. Co., 5 Wn. App. 726, 490 P.2d 1342 (1971).\n”The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation. But the most difficult labor will be to understand the combination of the two into new products at every stage. The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past.'\"" Wyman v. Wallace, 15 Wn. App. 395, 396 n.l, 549 P.2d 71 (1976), aff'd, 94 Wn.2d 99, 615 P.2d 452 (1980), quoting O. Holmes, The Common Law 1-2 (1881)."", ""type"": ""majority"", ""author"": ""Chan, J.""}], ""attorneys"": [""Jim Smiley, pro se."", ""Jeffrey C. Wishko and Lesourd & Patten, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 16804-5-I.\nDivision One.\nMay 28, 1987.]\nCrown Controls, Inc., Respondent, v. Jim Smiley, Appellant.\nJim Smiley, pro se.\nJeffrey C. Wishko and Lesourd & Patten, for respondent.""}, ""cites_to"": [{""cite"": ""474 U.S. 818"", ""year"": 1985, ""case_ids"": [6253347, 6250437, 6251302, 6250729, 6251918, 6252559, 6251600, 6251022, 6253715, 6254035, 6252245, 6252856], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/474/0818-10"", ""/us/474/0818-01"", ""/us/474/0818-04"", ""/us/474/0818-02"", ""/us/474/0818-06"", ""/us/474/0818-08"", ""/us/474/0818-05"", ""/us/474/0818-03"", ""/us/474/0818-11"", ""/us/474/0818-12"", ""/us/474/0818-07"", ""/us/474/0818-09""], ""opinion_index"": 0}, {""cite"": ""490 P.2d 1342"", ""year"": 1971, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""5 Wn. App. 726"", ""year"": 1971, ""case_ids"": [1866942], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""case_paths"": [""/wash-app/5/0726-01""], ""opinion_index"": 0}, {""cite"": ""316 P.2d 896"", ""year"": 1957, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""pin_cites"": [{""parenthetical"": ""subsequent action not barred by election of remedies doctrine where plaintiff reaped no benefit from previous action and defendant suffered no substantial detriment therein""}], ""opinion_index"": 0}, {""cite"": ""51 Wn.2d 165"", ""year"": 1957, ""case_ids"": [1005638], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""parenthetical"": ""subsequent action not barred by election of remedies doctrine where plaintiff reaped no benefit from previous action and defendant suffered no substantial detriment therein""}], ""case_paths"": [""/wash-2d/51/0165-01""], ""opinion_index"": 0}, {""cite"": ""333 P.2d 650"", ""year"": 1959, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""pin_cites"": [{""parenthetical"": ""an act done through ignorance or mistake does not constitute an election of remedies unless the defendant can show an estoppel""}], ""opinion_index"": 0}, {""cite"": ""53 Wn.2d 294"", ""year"": 1959, ""case_ids"": [1011191], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""parenthetical"": ""an act done through ignorance or mistake does not constitute an election of remedies unless the defendant can show an estoppel""}], ""case_paths"": [""/wash-2d/53/0294-01""], ""opinion_index"": 0}, {""cite"": ""79 F. Supp. 117"", ""year"": 1948, ""case_ids"": [656983], ""category"": ""reporters:federal"", ""reporter"": ""F. Supp."", ""pin_cites"": [{""parenthetical"": ""no reason to retain election rule in light of Federal Rules of Civil Procedure""}], ""case_paths"": [""/f-supp/79/0117-01""], ""opinion_index"": 0}, {""cite"": ""30 F.2d 251"", ""year"": 1929, ""case_ids"": [1748752], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""254"", ""parenthetical"": ""Hand, J., dissenting""}], ""case_paths"": [""/f2d/30/0251-01""], ""opinion_index"": 0}, {""cite"": ""137 F.2d 326"", ""year"": 1943, ""case_ids"": [3673309], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""330"", ""parenthetical"": ""election rule termed a \""harsh doctrine, resting at most on a rather barren logic1'""}], ""case_paths"": [""/f2d/137/0326-01""], ""opinion_index"": 0}, {""cite"": ""80 Or. 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+1843503,"{""id"": 1843503, ""name"": ""Ronald L. Ewer, Respondent, v. Goodyear Tire and Rubber Company, Appellant"", ""court"": {""id"": 8985, ""name"": ""Washington Court of Appeals"", ""name_abbreviation"": ""Wash. Ct. App.""}, ""analysis"": {""sha256"": ""a78e0edf4cb4db1aad0dacf79de5624b1ef6a301284dddb8e479f11527554a62"", ""simhash"": ""1:a76a814a961ebc45"", ""pagerank"": {""raw"": 0.00000014595824739952846, ""percentile"": 0.6570381130328448}, ""char_count"": 25624, ""word_count"": 4307, ""cardinality"": 1247, ""ocr_confidence"": 0.644}, ""casebody"": {""judges"": [], ""parties"": [""Ronald L. Ewer, Respondent, v. Goodyear Tire and Rubber Company, Appellant.""], ""opinions"": [{""text"": ""Munson, C. J.\nPlaintiff, Ronald L. Ewer, brought suit for damages suffered when a tractor tire he was mounting exploded. The jury found for plaintiff and appropriate judgment was entered. Defendant manufacturer, Goodyear Tire and Rubber Company, appealed.\nThe exploding tire — a new Goodyear 1324, 4-ply nylon' replacement tire — was purchased from defendant’s' distributor by plaintiff’s employer in the fall of 1966. The tire was stored in the employer’s enclosed warehouse until removed by plaintiff on the day of the accident. The number “13” designates the width (13 inches) from one sidewall to the other, and the number “24” designates the rim diameter (24 inches). Around the circumference on each side of the tire is a circular bead, consisting of a number of strands of high tensile strength wire. The purpose of this bead is to give stiffness to the portion of the tire which will seat against the wheel rim and keep it firmly in place. In the instant tire, the bead structure consisted of 30 strands of wire.\nPrior to the production of the instant tire a fabric change was made whereby nylon replaced rayon. Defendant’s chief design engineer testified that shortly after this change defendant began receiving complaints from the field because of the new nylon construction. Dealers were accustomed to the more firm-feeling sidewall of a rayon tire, and were concerned that this new tire might not be adequate. He also testified that defendant had experienced kinking of the beads at the factory level due to handling by forklifts.\nA modification was made in an attempt to bolster the general acceptance of the tire line to which the instant tire belonged. This was done pursuant to a document entitled “Change in Specifications” dated March 24, 1966 which stated as the reason for the change: “[to] remedy field complaints of beads breaking during mounting”. The modiñcation consisted of one more turn of the six strands thereby increasing the number of strands of bead wire from 30 to 36.\nOn May 4, 1967, preparatory to mounting the instant tire on a used tractor, plaintiff removed it from his employer’s warehouse. He mounted the tire on the wheel rim. While airing the tire so it would seat itself on the rim, the tire exploded throwing plaintiff to the floor injuring him. The tire itself was propelled 15 to 20 feet into the air. After plaintiff had been attended to and sent to the hospital, another employee and plaintiff’s employer mounted a different tire on the same wheel rim without incident.\nAlthough defendant does not take issue with the procedure employed by plaintiff in mounting the tire, it does claim that the explosion was caused by over inflation. At trial, plaintiff stated he had no recollection of the happening from the moment he started mounting the tire until he awoke in the hospital the following day. However, plaintiff testified, without objection, his normal practice was never to inflate a tractor tire in excess of 25 pounds in order to seat it. Although the normal operating pressure for the tire in question was 14 to 16 pounds, plaintiff testified it was often necessary to inflate the tire to 20-25 pounds per square inch to seat it properly and then deflate it to its normal pressure for operative purposes. Plaintiff’s employer, who was 20 feet away from- the place where plaintiff was attempting to mount the tire, testified plaintiff was mounting it in a normal fashion and that he had repeatedly inflated and deflated the tire during the mounting in an attempt to seat it.\nDefendant sets forth 21 assignments of error which will be handled in the following four groupings.\nI. Trial Amendment\nPlaintiff’s original complaint set forth a claim based primarily upon negligence, i.e., res ipsa loquitur, breach of warranty, and strict liability. However, at the commencement of the trial plaintiff filed an amended complaint which added several specific acts of negligence allegedly committed by defendant as additional bases for recovery. A copy of the amended complaint was mailed to defendant 3 days prior to trial. The trial court allowed the amendment over defendant’s objections.\nThe challenged amendment merely specified more particularly those areas of negligence in which plaintiff sought to establish liability. The trial court was not in error in allowing the amendment; it should be noted also defendant neither sought a continuance nor claimed surprise or prejudice by the trial court in permitting the amendment. Clark v. Icicle Irr. Dist., 72 Wn.2d 201, 204, 432 P.2d 541 (1967); Callahan v. Keystone Fireworks Mfg. Co., 72 Wn.2d 823, 435 P.2d 626 (1967).\nII. Negligence\nThirteen of defendant’s remaining assignments of error relate to the court’s failure to grant defendant’s alternative motion for dismissal or directed verdict at the conclusion of all the evidence, and in thé giving of various instructions upon the.issue of negligence.\nDefendant contends there was a complete lack of evidence offered by plaintiff to show (a) defendant’s negligence, (b) a defect in the product, (c) the proximate cause of plaintiff’s injury, or (d) the actual cause of the accident.\nAs far as direct evidence establishing either a defeet in the tire or cause of the explosion is concerned, defendant’s contention is correct. The burden is upon plaintiff under any theory of negligence, res ipsa loquitur, or strict liability to prove by a preponderance of the evidence that there was a defect in the tire which proximately caused the explosion and the resulting injury. However, circumstantial evidence can adequately establish a basis for recovery under the theories above mentioned and a review of the record establishes the presence of such evidence.\n(A) Res Ipsa Loquitur\nThe three elements of res ipsa loquitur are set forth in Horner v. Northern Pac. Beneficial Ass’n Hosps., Inc., 62 Wn.2d 351, 382 P.2d 518 (1963) as follows:\nFurther proof of negligence is not essential to take a case to the jury or to overcome challenges to the sufficiency of the evidence where (1) the accident or occurrence producing the injury is of a kind which ordinarily does not happen in the absence of someone’s negligence, (2) the injuries are caused by an agency or instrumentality within the exclusive control of the defendant, and (3) the injury-causing accident or occurrence is not due to any voluntary action or contribution on the part of the plaintiff.\nCf. Stone v. Sisters of Charity of the House of Providence, 2 Wn. App. 607, 469 P.2d 229 (1970).\n(1) Defendant admits the type of accident which occurred here does not ordinarily occur in the absence of someone’s negligence. Thus, this element has been met. Douglas v. Bussabarger, 73 Wn.2d 476, 438 P.2d 829 (1968).\n(2) The second requirement is satisfied if there is evidence of control by the defendant at the time of the negligent act complained of, i.e., creation of the defect, Hogland v. Klein, 49 Wn.2d 216, 298 P.2d 1099 (1956), Baker v. B. F. Goodrich Co., 115 Cal. App. 2d 221, 252 P.2d 24 (1953), although the defendant’s control is not exclusive at the time of the accident, provided plaintiff proves that the condition of the product had not been changed after it left defendant’s control. Zentz v. Coca Cola Bottling Co., 39 Cal. 2d 436, 247 P.2d 344 (1952); 1 Frumer & Friedman, Products Liability § 12.03 at 289. Defendant’s chief design engineer, when examined about the effects of plaintiff’s employer’s storage, testified he would not normally expect such storage procedures to have much adverse effect upon the product. There is also testimony that nothing unusual was observed about the tire either when it was received by plaintiff’s employer or at the time of mounting. This evidence, if believed by a jury, would be sufficient to establish the second requirement.\n'(3) The third requirement does not mean that plaintiff must conclusively prove no action on his part contributed to the accident but rather that he bring forth sufficient evidence to allow a jury to exclude his conduct as a responsible cause. United Mut. Sav. Bank v. Riebli, 55 Wn.2d 816, 820, 350 P.2d 651 (1960); Zentz v. Coca Cola Bottling Co., supra; Lewis v. United States Rubber Co., 414 Pa. 626, 202 A.2d 20 (1964); 2 Harper & James, The Law of Torts § 19.8 at 87 (Supp. 1968); 2 Harper & James, The Law of Torts § 9.18 at 1093 (1956).\nAs stated in Tubb v. Seattle, 136 Wash. 332, 337, 239 P. 1009 (1925), quoting from St. Germain v. Potlatch Lumber Co., 76 Wash. 102, 135 P. 804 (1913) :\n“While it is a sound rule that to sustain a finding that the appellant’s negligence was the proximate cause of the injury, the evidence must present something more than a mere possibility or conjecture, it is equally sound that the cause of an accident may be inferred from circumstances. A plaintiff in this character of case is not obligated to establish the material facts essential to a recovery beyond a reasonable doubt. Such a rule would amount to a denial of justice. It is sufficient if his evidence affords room for men of reasonable minds to conclude that there is a greater probability that the accident causing the injury happened in such a way as to fix liability upon the person charged with such liability, than it is that it happened in a way for which the person so charged would not be liable. ‘There are very few things in human affairs, and especially in litigation involving damages, that can be established to such absolute certainty as to exclude the possibility, or even some probability, that 'another cause or reason may have been the true cause or reason for the damage, rather than the one alleged by the plaintiff. But such possibility, or even probability, is not to be allowed to defeat the right of recovery, where the plaintiff has presented to the jury sufficient facts and circumstances surrounding the occurrence as to justify a reasonable juror in concluding that the thing charged was the prime and moving cause.’ In other words, the plaintiff is only required to satisfy the jury, by a fair preponderance of the evidence, that the accident causing the death occurred in the manner he contends it did.\n(Italics ours.) The Oregon Supreme Court, in discussing this requirement, stated in Powell v. Moore, 228 Ore. 255, 364 P.2d 1094 (1961):\n[E]ven where there is some evidence that plaintiff’s failure to exercise care in the use of defendant’s equipment was a contributing cause producing the injury, the doctrine is not excluded as a matter of law; rather the case is to be submitted to the jury with proper instructions permitting the jury to draw the inference of defendant’s negligence if it finds that plaintiff by his own conduct was not responsible for causing his injury.\nBoth plaintiff and his employer described their normal procedure in mounting tires. Defendant agrees that plaintiff’s mounting procedure was in accordance with common practice throughout the industry. Furthermore, plaintiff testified that in no instance would he exceed 25 pounds per square inch in seating the bead. Defendant introduced testimony that the maximum inflation pressure recommended was 30 pounds per square inch. This, coupled with documentary evidence that defendant had received complaints regarding beads breaking in the particular line of tires involved after they changed from rayon to nylon and in kinks occurring while being transported by forklift trucks, was sufficient to get plaintiff by a motion challenging the sufficiency of the evidence under the doctrine of res ipsa loquitur.\nThe instant case is distinguishable from Casetta v. United States Rubber Co., 260 Cal. App. 2d 792, 67 Cal. Rptr. 645 (1968) wherein the court stated at page 807:\nThe lacuna in plaintiff’s proof is the absence of testimony to show that any of the defects, the existence of which is suggested by the testimony, was of a type which could have contributed to the explosion.\nHere, defendant’s own “Change in Specifications” order provided the jury with evidence from which they could conclude a defect existed.\n(B) Specific Acts of Negligence\nDefendant contends there is no evidence to support the allegations of specific acts of negligence upon which the court instructed, i.e., negligent manufacture, failure to test or inspect, and failure to instruct or warn.\n(1) In light of our holding on res ipsa loquitur above, we believe that there is sufficient evidence upon which the jury under proper instruction could find defendant negligent in the manufacture of this tire. The instruction, based upon Callahan v. Keystone Fireworks Mfg. Co., supra, properly submitted this issue to the jury and we find no error.\n(2) As for the failure to test or inspect, there is ample evidence from defendant’s own expert that no testing or inspecting was conducted following the change from rayon to nylon construction even though field complaints that beads were breaking during mounting and information that kinks were being made in the bead during assembly of tires were received. Although only alluded to in Callahan v. Keystone Fireworks Mfg. Co., supra, it is well established that a manufacturer has a duty to inspect its product. This is a logical inference from the manufacturer’s duty to exercise reasonable care throughout the manufacturing process. 1 Hursh, American Law of Products Liability § 2:16 at 137 (1961); Manufacturer’s Liability — Inspection, Annot., 6 A.L.R.3d 91 (1966). It was proper for the court to instruct in this area since defendant’s failure to test or inspect could be found by the jury to be a proximate cause of plaintiff’s injury.\n(3) As for defendant’s alleged negligence in failing to instruct or warn of the dangerous propensities of its product, its chief design engineer testified that any tire is a potential bomb and improper handling can result in serious injury. Armed with this knowledge, in addition to complaints of bead breaking and kinks, being placed in the beads, defendant took no steps to warn anyone handling these particular tires of the possible hazard.\nDefendant contends that both the owner of the business and plaintiff already knew of the potential hazard of explosion in the mounting and airing of tires, and that under plaintiff’s testimony as to the maximum pressure he would use, any warning would have had little effect. More particularly, defendant contends there is no duty to give a warning to members of a profession who know of the risks involved. Since the court’s instruction did not exclude from the jury’s consideration any danger obvious or known to the user as required by Callahan v. Keystone Fireworks Mfg. Co., supra, 2 Restatement (Second) of Torts § 388 (1965), defendant’s contention is partially correct.\nA manufacturer usually has no duty to warn of a danger which is obvious and known. However, a factual question may arise, as we believe it did here, as to the obviousness of the danger involved in these particular tires. Callahan v. Keystone Fireworks Mfg. Co., supra. A jury could find the evidence in this case clearly indicates that these particular tires possessed deficiencies of sufficient gravity to cause a change in manufacturing specifications. The jury could also find defendant was derelict in its duty in not giving prompt warning to those handling these tires, since bead breaking during mounting procedures is not contemplated in the normal case of usage by users, consumers, or those in the tire business due to defective sidewall construction. Comstock v. General Motors Corp., 358 Mich. 163, 99 N.W.2d 627, 78 A.L.R.2d 449 (1959). Submission of this issue to the jury was proper.\nIII. Strict Liability\nThe trial of this case began 4 days after the opinion in Ulmer v. Ford Motor Co., 75 Wn.2d 522, 452 P.2d 729 (1969) was filed; both court and counsel had copies of that opinion before them during the trial.\nDefendant contends two instructions given by the trial court on this issue were incomplete. They did not include all of section 402A(1), Restatement (Second) of Torts (1965), upon which Ulmer is based. That section states:\nOne who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if\n(a) the seller is engaged in the business of selling such a product, and\n. (b) it is expected to .and does reach the user or consumer without substantial change in the condition in which it is sold.\nThe court’s instruction did not include subsections (a) or (b) above. Although defendant admits it is engaged in the business of selling tires, it claims there is an issue as to whether or not the tire reached plaintiff’s shop in the same condition as it was sold and whether it was in the same condition from the time received until the day of the accident. We agree.\nHowever, our examination of defendant’s exception to the court’s instructions, particularly instruction No. 19, reveals it did not adequately advise the trial court of the basis for the exception with sufficient clarity to preserve its contention upon appeal. Bellah v. Brown, 71 Wn.2d 603, 430 P.2d 542 (1967); Franks v. Department of Labor & Indus., 35 Wn.2d 763, 215 P.2d 416 (1950).\nIV. Other Assignments of Error\nThe court refused to instruct upon the doctrine of assumption of risk as applicable to plaintiff’s theory of negligence, whereas it did give an instruction on that doctrine as applicable under plaintiff’s theory of strict liability. We see no distinction. If plaintiff had discovered the defect and was aware of the danger and proceeded to mount the tire he assumed the risk under either theory. There was no evidence that plaintiff was ever aware of a defect in the tire. Plaintiff testified he usually inspected the tires prior to mounting. Even if his testimony was disbelieved by the jury, it would not mean he had discovered a defect, but rather that he did not inspect the tire prior to mounting. Thus, the doctrine of assumption of risk, under the facts of this case, is not applicable under either theory. The giving of this instruction under the doctrine of strict liability, however, was more favorable to defendant than to plaintiff and, hence, cannot be urged as prejudicial error.\nThere was evidence of another tire explosion introduced at the trial to which defendant takes exception. The trial court allowed this testimony under the theory of notice to defendant. After extended argument the court advised counsel they could submit an instruction limiting the jury’s consideration to that theory. There is no such proposed instruction on this matter in the record before this court. The admission of such evidence being a matter within the discretion of the trial court, we do not find an abuse thereof. Blood v. Allied Stores Corp., 62 Wn.2d 187, 381 P.2d 742 (1963).\nDefendant assigns error to a damage instruction adopted from WPI 30.01 given in part as follows:\nIf you find for the plaintiff, your verdict should include the following items:\n(a) Hospitalization expenses;\n(b) Medical and drug expenses;\n(c) Loss of wages; and\n(d) Travel expenses.\n(Italics ours.) The objection is to the word “should”. As stated in 6 Wash. Prac. 146, Note on Use (1967), this phrase, set forth therein in brackets, should only be used where the case contains undisputed items of damage. In the instant case some of the above-mentioned items were disputed. Our examination of the entire record, however, compels us to conclude that in the instant case the instruction, although of questionable propriety in part, did not have a prejudicial effect on the overall jury verdict. An instruction should be read in its entirety and although a particular choice of words may not appear to be desirable or even correct, it is still the net effect of the whole instruction which determines its acceptability. Webley v. Adams Tractor Co., 1 Wn. App. 948, 465 P.2d 429 (1970). While there may have been a dispute as to the amounts recoverable for the items above listed, there can be no dispute that special damages are allowable should the jury find for plaintiff. The challenged instruction informed the jury if they found for plaintiff, they should include special damages; however it also admonished them that plaintiff still had the burden of proving them by a fair preponderance of the evidence. Thus, the giving of the instruction was not reversible error.\nDefendant also contends that the above-quoted portion of the damage instruction constituted an unconstitutional comment on the evidence. Const, art. 4, § 16. The language in Haaga v. Saginaw Logging Co., 169 Wash. 547, 557, 14 P.2d 55 (1932) adequately states the rule in such a situation:\n[I]n order to render [a] statement . . - violative of the constitutional mandate, it must be with reference to some fact adverted to by the judge in his instructions either directly or in such a way as to lead, or tend to lead, the jury to infer that such fact was an established one.\nAny such conclusion in-this case is negated by the court’s admonition concerning plaintiff’s burden of proof relative to the amount of damages, based on evidence and not guess, conjective or speculative. Jankelson v. Cisel, 3 Wn. App. 139, 145, 473 P.2d 202 (1970).\nJudgment affirmed.\nGreen and Evans, JJ., concur.\nPetition for rehearing denied April 19, 1971.\nReview denied by Supreme Court June 22, 1971.\nThe bead is made during the construction of the tire by taking a strand of wire from each of 6 creels (much like fishing creels) and twisting them around each other 5 times to produce a bead of 30 strands of wire. Thereafter the entwined strands are built into the sidewall of the tire.\nIn explaining the reason for the change in specification Mr. Robert W. Ellis, Chief Design Engineer, stated:\nUnderstand our position in development, when we specify the addition of material to a tire, this costs money. Our management necessarily sees and approves these specifications, when we’ve got a factory situation which is in the process of being corrected, but which had not necessarily reached complete handling, to put as a reason on a specification of this type that we are in effect attempting to correct a factory problem, and to satisfy our sales personnel in the field, that something is being done, would not be a satisfactory answer. Whereas, to specify that we were correcting a field condition, which is not completely false, we’ll get a specification like this through without any hitch. . . . [B]asically the complaints were, “We can’t market this new line, the beads don’t look right,” and we had tires sent back where complaints had been made on the condition of the bead, and there was nothing wrong with the beads at .all. We had a witch hunt at the time. “Do something.” So we did something. . . . Q You say you were aware that beads had broken, but you considered it nothing out of the ordinary in relation to your other products? A Yes, sir. Q How did you arrive at the decision to add six more bead wires? A Wires are wound on a mandrel. Now, the simplest way to add additional wires is simply make one more turn, ... so that you will find, I think, . . . it will be from five by six to six by six . . . The first number indicates the number of turns. The second number indicates the strands. This is the simplest way to do it. We simply added one turn of wire to every bead in every tire in the Sure-Grip line. . . . We felt no requirement to spend money on these tires at all. We did this because it was the cheapest thing we could do and still say we were doing something, thereby, get off the hook.\nSee also Jesionowski v. Boston & Me. R.R., 329 U.S. 452, 458, 91 L. Ed. 416, 67 S. Ct. 401, 169 A.L.R. 947 (1947); 9 Wigmore, Evidence § 2509 (3d ed. 1940); W. Prosser, Torts § 40 at 237 (3d ed. 1964).\n“The jury may make the inference of negligence or it may refuse to do so.” Pederson v. Dumouchel, 72 Wn.2d 73, 81, 431 P.2d 973 (1967); Vogreg v. Shepard Ambulance Serv., Inc., 47 Wn.2d 659, 289 P.2d 350 (1955).\nSee also Weggeman v. Seven-Up Bottling Co., 5 Wis. 2d 503, 93 N.W.2d 467, 94 N.W.2d 645 (1958-59) wherein it states:\nIt is not essential that the possibility of other causes of the accident be altogether eliminated, but only that their likelihood be so reduced that the greater probability [of fault] lies at defendant’s door. The evidence must afford a rational basis for concluding that the cause of the accident was probably such that the defendant would be responsible for any negligence connected with it.\nCf. 2 Harper & James, The Law of Torts § 19.7 at 1086 (1956); W. Prosser, Torts § 39 at 229 (3d ed. 1964).\n“You are instructed that the duty of a manufacturer is to exercise reasonable care in the manufacture of an article which unless carefully made he should recognize as involving an unreasonable risk of causing substantial bodily harm to those who lawfully use it for a purpose for which it was manufactured. If the manufacturer fails to exercise this reasonable care, he is liable for bodily harm caused to those who lawfully use the article in a manner and for a purpose for which it was manufactured.” '\nIn Sutton v. Diimmel, 55 Wn.2d 592, 349 P.2d 226 (1960) the trial court held a manufacturer liable for injuries caused by failure to adequately test and inspect a defective brake system."", ""type"": ""majority"", ""author"": ""Munson, C. J.""}], ""attorneys"": [""William H. Mays (of Gavin, Robinson, Kendrick, Redman & Mays), for appellant."", ""Richard B. Price and James R. Thomas (of Wicks, Thomas & Price), for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 79-41245-3.\nDivision Three.\nJanuary 28, 1971.]\nRonald L. Ewer, Respondent, v. Goodyear Tire and Rubber Company, Appellant.\nWilliam H. Mays (of Gavin, Robinson, Kendrick, Redman & Mays), for appellant.\nRichard B. Price and James R. Thomas (of Wicks, Thomas & Price), for respondent.""}, ""cites_to"": [{""cite"": ""349 P.2d 226"", ""year"": 1960, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""55 Wn.2d 592"", ""year"": 1960, ""case_ids"": [1017654], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/55/0592-01""], ""opinion_index"": 0}, {""cite"": ""94 N.W.2d 645"", ""year"": 1958, ""category"": ""reporters:state_regional"", ""reporter"": ""N.W.2d"", ""opinion_index"": 0}, {""cite"": ""93 N.W.2d 467"", ""year"": 1958, ""category"": ""reporters:state_regional"", ""reporter"": ""N.W.2d"", ""opinion_index"": 0}, {""cite"": ""5 Wis. 2d 503"", ""year"": 1958, ""case_ids"": [8679213], ""category"": ""reporters:state"", ""reporter"": ""Wis. 2d"", ""case_paths"": [""/wis-2d/5/0503-01""], ""opinion_index"": 0}, {""cite"": ""289 P.2d 350"", ""year"": 1955, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""47 Wn.2d 659"", ""year"": 1955, ""case_ids"": [5042566], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/47/0659-01""], ""opinion_index"": 0}, {""cite"": ""431 P.2d 973"", ""year"": 1967, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""72 Wn.2d 73"", ""year"": 1967, ""case_ids"": [1091277], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""81""}], ""case_paths"": [""/wash-2d/72/0073-01""], ""opinion_index"": 0}, {""cite"": ""169 A.L.R. 947"", ""year"": 1947, ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R."", ""opinion_index"": 0}, {""cite"": ""329 U.S. 452"", ""year"": 1947, ""weight"": 3, ""case_ids"": [6157903], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""page"": ""458""}], ""case_paths"": [""/us/329/0452-01""], ""opinion_index"": 0}, {""cite"": ""473 P.2d 202"", ""year"": 1970, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""3 Wn. 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+1849665,"{""id"": 1849665, ""name"": ""Robert Carlson et al, Appellants, v. Leonardo Truck Lines, Inc., et al, Respondents"", ""court"": {""id"": 8985, ""name"": ""Washington Court of Appeals"", ""name_abbreviation"": ""Wash. Ct. App.""}, ""analysis"": {""sha256"": ""0b5b1aa34cf64d6f52992fd224ec0428cd24d33ea7478f04e3f6cb45d5f32718"", ""simhash"": ""1:ea2364152726b056"", ""pagerank"": {""raw"": 0.00000004939236647588488, ""percentile"": 0.3097622679932305}, ""char_count"": 20074, ""word_count"": 3396, ""cardinality"": 926, ""ocr_confidence"": 0.708}, ""casebody"": {""judges"": [""McInttjrff, C.J., and Green, J., concur.""], ""parties"": [""Robert Carlson et al, Appellants, v. Leonardo Truck Lines, Inc., et al, Respondents.""], ""opinions"": [{""text"": ""Willis, J.\nIn late 1970, the defendant Leonardo Truck Lines, Inc. (hereafter “L.T.L.”), a trucking concern possessing both interstate and intrastate permits, was in dire financial straits, having a total indebtedness of approximately $250,000 and being pressed for payment by a number of its creditors. Its stock was owned principally by John Leonardo and D. A. Leonardo, with Ernie Marang as a minority stockholder. It had not been able to make expenses in the ordinary course of business for at least 3 years, and its owners had been attempting its sale for about 2 years.\nOn December 19, 1970, D. A. and John Leonardo entered into a written agreement with Robert Hofmann and plaintiffs Robert Carlson and Ralph Huber to sell them all the stock of L.T.L. for $400,000, the agreement reciting that the Leonardos were acting “on behalf of themselves and all stockholders of Leonardo Truck Lines, Inc.” The agreement provided that an initial payment of $200,000 should be made from the proceeds of a Small Business Administration (hereafter “SBA”) loan, to be applied for by the purchasers. Further, the loan was to be obtained on or before March 31, 1971, and the balance of the purchase price was to be paid at the rate of $10,000 per year, plus interest.\nShortly thereafter, the plaintiffs and Mr. Hofmann (hereafter “purchasers”) engaged a Seattle attorney to assist them in making application for an SBA loan. It was agreed by the parties that before SBA would act favorably upon such a loan application it would have to be furnished with certain financial information concerning the L.T.L. corporation, including a year-end financial statement and a CPA audit.\nThe parties are in disagreement as to whether the purchasers were frustrated in their attempts to obtain from the defendants the necessary financial information concerning the corporation; but, in any event, the record fails to disclose that any written application for the loan was ever made.\nSome difficulties arose because Mr. Hofmann sought the right to write checks upon the corporation’s account, but this was rejected by the Leonardos and opposed by Mr. Carlson. The purchasers, however, did receive permission from the Leonardos to open a Seattle office for backhauling freight in otherwise empty L.T.L. trucks to Yakima, which they did for approximately 3 weeks, producing an income thereby of some $1,700.\nOn February 4, 1971, John Leonardo died and subsequently D. A. Leonardo told Mr. Carlson that everything should be held in abeyance until “things settled down.” Soon thereafter, however, it became known to the purchasers that all of the stock of L.T.L. had been sold to Buddy B. Owens for $20,000 plus the assumption by Owens of all corporate indebtedness.\nMr. Carlson testified that he had been in the trucking business for 21 years and had net income from his own trucking business in Seattle of $6,525 in 1970, $9,000 in 1971, and $9,547 in 1972. Mr. Huber testified that he had been in the trucking business for 15 years and at the time of trial was employed as general manager of a trucking company in Seattle. He further testified that his net income from such employment was $11,000 to $12,000 in 1970, $9,737 in 1971, and $14,650 in 1972.\nEvidence was also produced from the records of Washington Utilities and Transportation Commission showing that Buddy Owens reported net operating income before taxes, in his operation of L.T.L., of $16,488 in 1971, and $23,252 in 1972.\nThe trial court granted the defendants’ motion for dismissal, made at the end of the plaintiffs’ case, and in support of its judgment of dismissal entered, among its findings of fact, the following:\n4. That the value of all the capital stock of Leonardo Truck Lines, Inc./or of its assets is not greater than $400,000.00, the purchase price agreed to be paid by the purchasers in the Exhibit 5.\n5. That assuming the agreement between the plaintiffs and defendants, dated December 19, 1970 was breached by defendants because of the latter’s resale of the corporate stock to Buddy B. Owens on February 22, 1971, the plaintiffs have not shown by any evidence that they could have secured the Small Business Administration Loan pursuant to the terms of the agreement dated December 19, 1970 or could have secured the monies called for under said agreement to pay for said stock.\nBased upon its findings, the court entered, among other conclusions of law, the following:\n1. That as a matter of law, the plaintiffs failed to prove any damages.\n2. That the burden is upon plaintiffs to prove by a preponderance of the evidence that they could have obtained the Small Business Administration Loan called for under the agreement or could have obtained the monies called for under said agreement to pay for the stock.\n3. That failing in said proof, the Court finds, as a matter of law, assuming a breach of the agreement between plaintiffs and defendants, that no general or special damages can be causally connected with said breach either by way of loss of profits, loss of bargain, out-of-pocket expenses or general damages.\nIssue No. 1: Did the court err in finding that the corporate stock or the corporate assets did not exceed in value the $400,000 that the purchasers agreed to pay for the stock?\nThis involves a consideration of “the benefit of the bargain” rule of damages which holds that the injured party to a contract resulting from a breach thereof by the other contracting party is entitled to recover the difference between the actual value of the property purchased and the contract price. This is the usual rule of damages applied in breach of contract actions, which has commonly arisen in situations involving fraud or misrepresentation, where it is expressed as being the difference between the actual value of the property and its value as represented. Hunt v. Allison, 77 Wash. 58, 137 P. 322 (1913); Sherrin v. Gevurtz, 142 Wash. 128, 252 P. 683 (1927); Dixon v. MacGillivray, 29 Wn.2d 30, 185 P.2d 109 (1947); Salter v. Heiser, 39 Wn.2d 826, 239 P.2d 327 (1951); Scroggin v. Worthy, 51 Wn.2d 119, 316 P.2d 480 (1957).\nThus, under “the benefit of the bargain” rule, the purchaser has proved no damages if he fails to prove that the actual value of the property is greater than the price he contracted to pay. In this case, L.T.L. was actually bankrupt, unable to pay its day-to-day obligations, it was sold slightly over 2 months after the making of plaintiffs’ contract for a substantially lower price than that agreed to be paid by the plaintiffs, and the record is devoid of any evidence fixing its value at or above $400,000. Thus, there was substantial evidence supporting finding of fact No. 4 that the value of all the stock of L.T.L. was no greater than $400,000.\nIssue No. 2: Did the plaintiffs establish, with reasonable certainty, the amount of profits they lost as a result of nonperformance of the contract by the defendants?\nThe plaintiffs would be entitled to recover, however, if they should establish that they suffered damages which were\n(1) . . . within the contemplation of the parties at the time the contract was made, (2) they are the proximate result of defendant’s breach, and (3) they are proven with reasonable certainty.\nLarsen v. Walton Plywood Co., 65 Wn.2d 1, 15, 390 P.2d 677, 396 P.2d 879 (1964).\nIn determining whether the evidence in this case is sufficient to establish in the plaintiffs a right to recover for loss of profits, we will assume that the first two elements of the quoted rule have been proved and will consider only the third such element, namely, whether loss of profits have been proved with reasonable certainty.\nIt has been held by our court that a recovery in damages may be had for loss of prospective profits where the three elements of the rule as quoted above from Larsen have been established. Thus, in Long v. T-H Trucking Co., 4 Wn. App. 922, 486 P.2d 300 (1971), recovery was allowed for lost profits where the court found that the defendant had substantially hindered the plaintiff’s production of logs, reducing such production from a contemplated 10 truckloads to 3% truckloads per day, where the price was specified in the contract and where expert testimony established the usual cost of production.\nA similar case, Rathke v. Roberts, 33 Wn.2d 858, 207 P.2d 716 (1949), held that the plaintiff could recover damages for loss of profits resulting from the defendant’s breach of a contract to purchase from the plaintiff and have him install certain refrigeration equipment, where evidence was produced of the cost of the equipment as well as the cost of its installation, and the contract fixed the amount which the defendant had agreed to pay. The court said, however, at pages 866-67 quoting from Federal Iron & Brass Bed Co. v. Hock, 42 Wash. 668, 85 P. 418 (1906):\nThe recovery must, of course, be limited to the amount which from all [the] surrounding conditions may be deemed to have been reasonably certain had the breach not occurred.\nRecovery was allowed in Rathke because definite evidence was produced as to the profit which the plaintiff would have made upon performance of the contract.\nOn the other hand, our Supreme Court, in numerous cases, has denied recovery for loss of profits where it determined that they had not been proved with reasonable certainty. Thus, in DeHoney v. Gjarde, 134 Wash. 647, 236 P. 290 (1925), where damages were sought for loss of profits resulting from the interruption of business of a dancing academy caused by the builder’s installation of a leaking roof, the court, in denying recovery, stated at page 667:\n[T]his court is committed to the rule that loss of profits may be recovered, but we have said that the loss must be shown with a reasonable degree of accuracy, and that the testimony establishing the loss must be clear and free from taint of speculation or conjecture.\nIn Matzger v. Arcade Bldg. & Realty Co., 102 Wash. 423, 173 P. 47 (1918), the court said, at page 429:\nTo sustain a verdict for prospective profits, the jury must have some reasonable basis for estimating the worth of the business. From the nature of things, prospective profits cannot be proved to the dollar. Yet the law does demand that there shall be tangible evidence sufficiently clear and convincing to reasonably sustain a verdict.\nIn Pappas v. Zerwoodis, 21 Wn.2d 725, 153 P.2d 170 (1944), a tenant of premises used as a tavern and dance hall sought damages for alleged loss of profits due to the landlord’s breach of a covenant to keep the exterior of the building in good condition. In denying recovery, the court said, at page 733:\n[T]he loss must be shown with a reasonable degree of certainty and accuracy, and the proof establishing the loss must be clear and convincing, free from speculation or conjecture.\nIn California Eastern Airways, Inc. v. Alaska Airlines, Inc., 38 Wn.2d 378, 229 P.2d 540 (1951), the plaintiff leased an airplane to the defendant for 2 weeks. For its own purpose, the defendant installed its own flooring and seats. When the airplane was returned, the plaintiff claimed a balance due on the lease and refused to release the seats. The plaintiff sued for the alleged balance owing on the lease, and the defendant counterclaimed for alleged lost profits while the seats were withheld. The court said, at page 380:\nIt is not necessary that lost profits be susceptible of exact calculation. It is sufficient if there be data from which the profits can be ascertained with a reasonable degree of certainty and exactness. Kruegel v. Kitchen, 33 Wash. 214, 74 Pac. 373; 15 Am. Jur., Damages, 558, § 150; 25 C.J.S. Damages, 516, § 42(a). Thus, it was incumbent upon appellant to prove, preferably by the records of the company, but in any event by competent evidence, and with sufficient certainty to remove it from the realm of speculation, that there were passengers whom it could and would have transported but for want of the seats withheld by respondent, upon which transportation appellant would have made a profit. . . .\n. . . It wholly failed to show the number of passenger fares appellant lost for want of the seats in question. Loss of profits, in this case, must be based on loss of business. Appellant, in not showing any such loss, failed in its proof of damages.\nIn National School Studios, Inc. v. Superior School Photo Serv., Inc., 40 Wn.2d 263, 242 P.2d 756 (1952), which was an action by an employer against a former employee for competing with it in violation of a restrictive covenant in his contract of employment, the court held that the plaintiff did not prove loss of profits with the required reasonable certainty of proof, where its only evidence thereof was the bare, oral statement of its president that it made a 10 percent profit on the dollar volume of the business obtained by the former employee. The court also held that the trial court properly rejected proffered evidence by the employer showing the net profit made by the former employee from business obtained from former customers of the employer. In so ruling, the court said, at page 276:\nSince no similarity in their respective methods of doing business (other than soliciting) was shown to exist, it was not error for the trial court to sustain respondents’ objections to this line of interrogation. In fact, appellant’s president testified that its method of developing film and producing pictures was an exclusive process not used by any competitor. Thus, the determination of respondents’ net profit would have had no probative value in fixing the amount of appellant’s damages.\nThe only evidence which conceivably could have any tendency to prove the amount of profits which the plaintiffs would have made in the conduct of the L.T.L. business was the testimony that Buddy Owens, the purchaser, reported to the Washington Utilities and Transportation Commission that he had net operating incomes, before taxes, of $16,488 in 1971 and $23,252 in 1972. The record is silent as to Owens’ method of operation and as to whether it had any similarity to the method of operation that would have been employed by the plaintiffs. The record is also silent as to the amount of taxes that were payable by Owens upon his operating incomes in the business for the years mentioned. In addition, there is no dispute that the evidence shows that the Leonardos had sustained losses in their operation of the business for several years prior to its sale to Owens.\nThe evidence showing that the plaintiff Carlson had made profits in 1970, 1971 and 1972 in the trucking business which he owned and operated in Seattle, and that the plaintiff Huber had net incomes during the same years from a trucking business which he managed for its owner, with no evidence describing such businesses or their methods of operation, and no proof of any similarity of such businesses to the L.T.L. operation, has no tendency to prove that the plaintiffs would have made a profit in L.T.L., or the amount thereof.\nWe conclude, therefore, that the trial court acted properly in determining that the plaintiffs had failed to establish, with reasonable certainty, that they had suffered a loss of profits, or the amount thereof, because of the defendants’ breach of the contract of sale.\nIssue No. 3: Was the trial court correct in determining that the plaintiffs had the burden of proving that they could have secured the $200,000 required for the initial payment on the contract, either by an SBA loan, or otherwise?\nThe record contains no evidence that the plaintiffs could have secured an SBA loan of $200,000 by March 31, 1971, as required by the contract, or that such sum could have been obtained from some other source. If such testimony was necessary in order to establish the plaintiffs’ right of recovery, the trial court’s dismissal of the action was proper, regardless of the other points previously considered herein.\nThe parties are in disagreement as to whether the plaintiffs were frustrated by the actions of the defendants in the plaintiffs’ efforts to secure the financial information concerning the L.T.L. business necessary for a loan application to SBA. It does not appear that the trial court made a factual finding to resolve such dispute. It did hold, however, that the plaintiffs had failed to sustain the burden of proof resting upon them of establishing that they could have obtained the SBA loan of $200,000, or otherwise obtained such funds, by March 31, 1971, the date fixed by the contract for performance.\n5 S. Williston, A Treatise on the Law of Contracts § 699, at 352-53 (3d ed. W. Jaeger 1961), states the rule as follows:\nIf the promisee could not or would not have performed the condition in any event, the manifestation of unwillingness or inability of the promisor to perform will not give rise to a cause of action because the promisee cannot allege and prove that he would have become entitled to receive performance by complying with the condition, had it not been for the promisor’s misconduct.\n“Where the buyer repudiates, there is no nécessity for the seller to allege a tender, nor his readiness and willingness to perform. He must, of course, prove that he would have been able to make delivery, for otherwise he will fail in his proof of damages; . . .”\n(Italics ours.) In Restatement of Contracts § 306, comment a, (1932), it is stated:\nNo man is compelled to do a useless act, and if performance of a condition will not be followed by performance of the promise which is conditional, it is useless for the intended purpose and it is therefore unnecessary to perform the condition. A promisee in judging whether performance of a condition will not be followed by performance of the promise is justified in taking the other party at his word. Nevertheless, if the condition could not or would not have been performed had there been no repudiation of the promise, the promisor is not precluded from asserting the requirement of the condition. In such a case both parties are free.\n(Italics ours.)\nIn 17 Am. Jur. 2d Contracts § 358 (1964), it is said:\nA repudiation of a contract before the time for performance arrives dispenses with an offer by the other party to perform, if such repudiation is not withdrawn, although such other party’s readiness and willingness to perform are conditions precedent to liability of the repudiator.\n(Italics ours.)\nIn Kane v. Borthwick, 50 Wash. 8, 12, 96 P. 516 (1908), the court gave expression to the same rule, when it said:\nAn actual tender of performance may be excused when there is a willingness and an ability to perform, and actual performance has been prevented or expressly waived by the parties to whom performance is due. It appears, then, that to excuse a failure to make an actual tender, there must be an existing capacity to perform, coupled with a state of facts which establishes the futility of making the tender.”\n(Italics ours.)\nThe plaintiffs place reliance upon Highlands Plaza, Inc. v. Viking Inv. Corp., 72 Wn.2d 865, 435 P.2d 669 (1967), but we believe that decision is not controlling, because although it holds that no tender of performance by the promisee is necessary to his right to recovery against the promisor who has breached the contract, it does not consider a possible application of the rule that the promisee must establish his ability to perform in order to recover damages against a defaulting promisor.\nWe conclude that the trial court correctly ruled that the plaintiffs had the burden of establishing that they had the ability to make the $200,000 payment due upon the contract by March 31,1971, a burden which they failed to sustain.\nJudgment affirmed.\nMcInttjrff, C.J., and Green, J., concur.\nJudge Robert J. Willis is serving as a judge pro tempore of the Court of Appeals pursuant to the Laws of 1973, ch. 114."", ""type"": ""majority"", ""author"": ""Willis, J.""}], ""attorneys"": [""Robert H. Stevenson, for appellants."", ""James S. Scott, Smith & Scott, C. James Lust, and Veli-kanje, Moore, Shore & Lust, for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 945-3.\nDivision Three.\nJuly 1, 1975.]\nRobert Carlson et al, Appellants, v. Leonardo Truck Lines, Inc., et al, Respondents.\nRobert H. Stevenson, for appellants.\nJames S. Scott, Smith & Scott, C. James Lust, and Veli-kanje, Moore, Shore & Lust, for respondents.""}, ""cites_to"": [{""cite"": ""435 P.2d 669"", ""year"": 1967, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""72 Wn.2d 865"", ""year"": 1967, ""case_ids"": [1091347], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/72/0865-01""], ""opinion_index"": 0}, {""cite"": ""96 P. 516"", ""year"": 1908, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""50 Wash. 8"", ""year"": 1908, ""case_ids"": [546077], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""pin_cites"": [{""page"": ""12""}], ""case_paths"": [""/wash/50/0008-01""], ""opinion_index"": 0}, {""cite"": ""242 P.2d 756"", ""year"": 1952, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""40 Wn.2d 263"", ""year"": 1952, ""case_ids"": [4975119], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/40/0263-01""], ""opinion_index"": 0}, {""cite"": ""74 Pac. 373"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""33 Wash. 214"", ""case_ids"": [2447516], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/33/0214-01""], ""opinion_index"": 0}, {""cite"": ""229 P.2d 540"", ""year"": 1951, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""38 Wn.2d 378"", ""year"": 1951, ""case_ids"": [2417693], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/38/0378-01""], ""opinion_index"": 0}, {""cite"": ""153 P.2d 170"", ""year"": 1944, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""21 Wn.2d 725"", ""year"": 1944, ""case_ids"": [2601920], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/21/0725-01""], ""opinion_index"": 0}, {""cite"": ""173 P. 47"", ""year"": 1918, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""102 Wash. 423"", ""year"": 1918, ""case_ids"": [670233], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/102/0423-01""], ""opinion_index"": 0}, {""cite"": ""236 P. 290"", ""year"": 1925, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""134 Wash. 647"", ""year"": 1925, ""case_ids"": [782330], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/134/0647-01""], ""opinion_index"": 0}, {""cite"": ""85 P. 418"", ""year"": 1906, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""42 Wash. 668"", ""year"": 1906, ""case_ids"": [5189720], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/42/0668-01""], ""opinion_index"": 0}, {""cite"": ""207 P.2d 716"", ""year"": 1949, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""33 Wn.2d 858"", ""year"": 1949, ""case_ids"": [4908896], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/33/0858-01""], ""opinion_index"": 0}, {""cite"": ""486 P.2d 300"", ""year"": 1971, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""4 Wn. App. 922"", ""year"": 1971, ""case_ids"": [1843348], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""case_paths"": [""/wash-app/4/0922-01""], ""opinion_index"": 0}, {""cite"": ""396 P.2d 879"", ""year"": 1964, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""390 P.2d 677"", ""year"": 1964, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""65 Wn.2d 1"", ""year"": 1964, ""case_ids"": [1966361], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""15""}], ""case_paths"": [""/wash-2d/65/0001-01""], ""opinion_index"": 0}, {""cite"": ""316 P.2d 480"", ""year"": 1957, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""51 Wn.2d 119"", ""year"": 1957, ""case_ids"": [1005699], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/51/0119-01""], ""opinion_index"": 0}, {""cite"": ""239 P.2d 327"", ""year"": 1951, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""39 Wn.2d 826"", ""year"": 1951, ""case_ids"": [4972823], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/39/0826-01""], ""opinion_index"": 0}, {""cite"": ""185 P.2d 109"", ""year"": 1947, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""29 Wn.2d 30"", ""year"": 1947, ""case_ids"": [2509538], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/29/0030-01""], ""opinion_index"": 0}, {""cite"": ""252 P. 683"", ""year"": 1927, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""142 Wash. 128"", ""year"": 1927, ""case_ids"": [805439], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/142/0128-01""], ""opinion_index"": 0}, {""cite"": ""137 P. 322"", ""year"": 1913, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""77 Wash. 58"", ""year"": 1913, ""case_ids"": [615458], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/77/0058-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""13 Wash. App. 795"", ""type"": ""official""}], ""file_name"": ""0795-01"", ""last_page"": ""805"", ""first_page"": ""795"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T19:47:47.067184+00:00"", ""decision_date"": ""1975-07-01"", ""docket_number"": ""No. 945-3"", ""last_page_order"": 823, ""first_page_order"": 813, ""name_abbreviation"": ""Carlson v. Leonardo Truck Lines, 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+2504228,"{""id"": 2504228, ""name"": ""King County et al., Appellants, v. W. H. Hagen et al., Respondents"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""87f452270c5ca30451ee07f0a5fced65ea12615ff7abb3665f3bac7e9b54a936"", ""simhash"": ""1:af3274fe38b8ce6c"", ""pagerank"": {""raw"": 0.0000004112894380846038, ""percentile"": 0.9101391625534925}, ""char_count"": 22204, ""word_count"": 3974, ""cardinality"": 967, ""ocr_confidence"": 0.638}, ""casebody"": {""judges"": [], ""parties"": [""King County et al., Appellants, v. W. H. Hagen et al., Respondents.""], ""opinions"": [{""text"": ""Hill, J. —\nThis is an appeal from a judgment denying appellant King county’s request (supplemented by that of numerous interveners who are also appellants) for an injunction against the placing of obstructions by respondents on and across what is alleged to be a public road, thereby preventing access to what is known as Franklin dock. The basic question involved is the right of the public to have access by land to a dock on Lake Washington located at the foot of Walthew avenue (also known as Seventy-eighth avenue southeast), extended.\nWalthew avenue, as we will call it because it is generally so referred to in the testimony, appears as a dedicated street in a replat of Island Park filed July 31, 1906, but it did not and could not extend as such beyond the south line of government lot 2, section 13, township 24 north, range 4 east, W. M., which was the south line of the p’latters’ property. To reach the dock in question, Walthew avenue would have to be extended southwesterly beyond the south line of government lot 2 a distance of sixty feet, measured along the center line of such an extension. This would be across a portion of tract 15 of Harry White’s Plot of East Seattle, as shown by the plat thereof recorded on January 2, 1889, and the shorelands of the second class adjacent thereto, now owned by the respondents. The north fine of tract 15 is the north line of government lot 3, section 13, township 24 north, range 4 east, W., M., which is, of course, coincident with the south line of government lot 2.\nAny title which the public may have acquired to travel this extension of Walthew avenue must rest upon prescriptive rights and not upon any grant or dedication. The argument that the extension of Walthew avenue is a dedicated road must rest on the contention that the then existing shore line of Lake Washington, rather than the meander line (which was about ninety-five feet out in the lake, measured along the line between government lots 2 and 3), was the westerly boundary fine of government lots 2 and 3 before the lake was lowered. There is no basis for such a contention. The patent to government lot 3 antedated statehood, and, as the government meander line was farther out than the shore line, the former and not the latter was the westerly boundary line of government lot 3 and of that portion thereof owned by the respondents. Bleakley v. Lake Washington Mill Co., 65 Wash. 215, 118 Pac. 5, and cases there cited.\nWalthew avenue, as platted, reached the lake shore more than thirty feet before it reached the south line of government lot 2, if the distance be measured along its center line. It was only after the lake was lowered, in 1913, uncovering a ninety-five foot strip between the original shore line and the present shore line, measured along the center line of Walthew avenue extended, that it became necessary to cross that part of government lot 3 and the adjacent shore-lands then belonging to predecessors in interest of the respondents in order to reach the lake.\nIt seems that Walthew avenue, which had originally been an old logging road, was the natural route for one Lucas, who had a farm “up on the hill,” to reach the lake. He originally kept a rowboat at the foot of Walthew avenue and used it to transport his produce destined for the Seattle market. Later he built what one witness called a catwalk, leading to a dock some three or four feet above the water where his scow or barge could land. This scow was driven by a gasoline engine, and he could put his horse and buggy or wagon on it and transport them across the lake. Mr. Lucas was drowned in 1907, and for a time after his death, others were afraid to use the dock; as his son testified, “The dock was not safe for the boat to land, because it was made for the scow.”\nWe find no substantial evidence of any public use of - the Lucas or Franklin dock, as we shall hereafter call it, until about 1911, when, as the “movies” would say, “Came the Dawn.” The Dawn in this instance was a small steamer which picked up passengers at various docks on Mercer Island and took them to Roanoke, also on the island, where they could take the ferry which ran between that point and Seattle. At that time, 1911, King county did some work on the dock and constructed a float which, as the lake was lowered, could follow the receding water level. When the lake reached its present level, a new dock was constructed. Just when the present dock was built is not clear. A county record says 1916; witnesses fixed the date by the lowering of the lake, in 1913, and respondents’ witness Walter A. Dearborn testified that the present dock was there in 1915. Whatever the date of its construction, it is clear that the lake reached its present level in 1913, and that, at all times since 1913, it has been necessary to travel over the extension of Walthew avenue to reach either the present dock or the dock and float which antedated the present structure. This extension is approximately sixty feet in length and is across a portion of government lot 3 and the second-class shorelands adjacent thereto belonging to respondents and their predecessors in interest.\nWhile this was not an automobile ferry dock, automobiles could be and were from time to time driven onto it. The witness Alex Voulas testified to having gone down to the dock regularly with his horse and wagon during the period from 1913 to 1923, to get feed and hay which had been unloaded thereon. There was also evidence that some people who used the dock left their cars parked all day near it.\nThere was nothing in the evidence to indicate that, from the time the county built the float in 1911 and the lake was lowered in 1913, anyone who used the dock and the extension of Walthew avenue leading to it had any idea that the use was permissive. It was used as any other portion of Walthew avenue was used, and there was no way of telling where Walthew avenue as dedicated ended and Walthew avenue as extended over the property of the respondents began. It was a use that was open and notorious, and clearly the members of the public using this road considered that they had a right to do so. There was no evidence that the right of the public to use this portion of Walthew avenue was ever challenged or questioned until July 13, 1926, when the King county commissioners recognized that A. C. Girard, a predecessor in interest of the respondents, was the owner of the land occupied by the dock, and leased from him\n“. . . those certain premises in section 13, township 24, North Range 4, East W. M., together with the shore lands of the second class in front of, abutting upon and adjacent thereto, which said land lies within the marginal lines produced into the waters of Lake Washington of Walthew Avenue in the Plat of Island Park, an addition to King County >5\nfor the term of one year, for a consideration of ten dollars. Two subsequent leases were executed, one dated July 31, 1928, for one year, and one dated October 15, 1929, for three years. The consideration in the latter was one hundred fifty dollars. Before the lease last referred to .had expired, the respondents had acquired the property.\nThe dock continued to be used for transportation purposes until the bridge between Mercer Island and Seattle was completed in 1940 and the Dawn came no more. Subsequent to 1940, the extension of Walthew avenue has been used mostly by fishermen and swimmers as a means of access to the dock. The respondents have assumed, since the cessation of the use of the dock for public transportation purposes, that they have the right to prohibit the use of this extension of Walthew avenue by the public, and they have requested people whom they regarded as objectionable to leave the premises. Actual obstruction of the approach by the respondents did not occur until the spring of 1946, and this action was brought to enjoin the obstruction.\nIf King county or the public acquired any right to the area included within the extension of Walthew avenue heretofore referred to, it was subsequent to 1911, when King county built the float, or 1913, when the lowering of the lake was completed, and prior to July 13, 1926, when King county recognized the rights of respondents’ predecessors in interest to the area in question by paying rental therefor. Prior to 1911, the use of the dock apparently was limited to the Lucas family; all of the area in question was under water until the lake was lowered; and, unless prescriptive rights had been- acquired prior to July 13, 1926, the further use of the property could not be said to be adverse. It is clear, however, that if the public or King county had acquired any prescriptive title or right prior to July 13, 1926, recognition of Girard’s rights by the leases referred to did not divest the public (or King county) of any rights it may have acquired. In McInnis v. Day Lbr. Co., 102 Wash. 38, 172 Pac. 844, we said that,\n“. . . having arrived at the conclusion that its prescriptive rights, to the extent recognized by the trial court, were perfected in the year 1910, it would seem to be of no consequence what negotiations, amounting to less than the formal conveyance by respondent of its thus acquired prescriptive right, were had in 1910 and later. It seems to be well settled law that:\n“ ‘Where title has become perfect by adverse possession for the statutory period it is not lost by an admission by the holder that the possession was not adverse.’ 2 C. J. 256.\n“We find a clear statement of the rule announced by Chief Justice Reese, speaking for the supreme court of Nebraska in Towles v. Hamilton, 94 Neb. 588, 143 N.W. 935, as follows:\n“ ‘It is elementary that, where the title has become fully vested by disseizin so long continued as to bar an action, it cannot be divested by parol abandonment or relinquishment or by verbal declarations of the disseizor, nor by any other act short of what would be required in a case where his title was by deed.’ ”\nAnd again, more recently, in Northwest Cities Gas Co. v. Western Fuel Co., 13 Wn. (2d) 75, 123 P. (2d) 771, we said:\n“A prescriptive right, once acquired, cannot be terminated or abridged at the will of the owner of the servient estate, nor even by the oral admission of the easement claimant that his use was not, and is not, adverse. 28 C. J. S. 716, Easements, § 52; McInnis v. Day Lbr. Co., 102 Wash. 38, 172 Pac. 844; Downie v. Renton, 162 Wash. 181, 298 Pac. 454, reversed, on rehearing, on other grounds, 167 Wash. 374, 9 P. (2d) 379.”\nNor would the fact that the dock has not been used for public transportation purposes since 1940 and that it is now used only for recreational purposes such as swimming and fishing, effect any abandonment of the rights of the public to the road leading thereto. It was open to such use as the public chose to make of it until the respondents placed the obstructions on it which this action seeks to enjoin. See Foster v. Bullock, 184 Wash. 254, 50 P. (2d) 892.\nThe crucial question then becomes the character of the use of the extension of Walthew avenue from the time of the lowering of the lake until 1926. It seems to us that from the time the uplands and shorelands over which the extension of Walthew avenue is located were uncovered by the receding waters of Lake Washington, the public use was open, notorious, and under the same claim of right as that to the dedicated portion of Walthew avenue. Such use by the public was certainly an “unfurling of its flag,” to use an oft-quoted expression (see Skoog v. Seymour, 29 Wn. (2d) 355, 187 P. (2d) 304), and was a challenge to the predecessors in interest of the respondents to take steps to protect their rights therein.\nThe open, notorious use by the public of this extension of Walthew avenue for more than the statutory period of ten years raises the presumption that the public use was adverse and places the burden on the respondents to rebut the presumption by showing that the use was permissive. Northwest Cities Gas Co. v. Western Fuel Co., supra, and cases there cited. This the respondents seek to do by taking the position that the land was wild, uncultivated, and unenclosed. That it was uncultivated and unenclosed we will agree, but not that it was wild as that term is used in the cases holding that the use of wild, uncultivated, and unenclosed land for roads or rights of way will be presumed to be permissive. The upland property was platted; settlers were relatively numerous in the vicinity; and the owners of the property involved in this proceeding were living, for at least part of each year, within a few hundred feet thereof. The property itself is an extension of a dedicated street to its terminus at a dock, and from physical appearances no one could tell where the dedicated street ended and the extension thereof began. The rationale of the rule in the cases cited by respondents in support of their position is that travel over wild and unoccupied land is not notice to an absent owner, and that such use by others is not adverse to the true owner’s interest. It is clearly applicable to the facts in State ex rel. Shorett v. Blue Ridge Club, 22 Wn. (2d) 487, 156 P. (2d) 667, and similar cases, but has no applicability to. the present situation.\nRespondents argue that, since their predecessors in interest also used the extension of Walthew avenue and the dock,\n“. . . this element of common use is an indication that it is not hostile. There is no evidence of inconvenience to the landowner, nor of interference with his use of the property. This fact is evidence in itself that the use was exercised in subordination to the property owner’s title.”\nWe cannot follow respondents’ argument on that point. It seems to us that respondents mistake the connotation of the word “hostile” as used in cases of this character. It does not imply enmity or ill will; it is entirely consistent with friendly relationships between users of the roadway and owners of the land over which it runs. It does, however, imply a use inconsistent with the right to exclusive use by the owners of the land. Roesch v. Gerst, 18 Wn. (2d) 294, 138 P. (2d) 846. A somewhat similar situation presented itself in Hamp v. Pend Oreille County, 102 Wash. 184, 172 Pac. 869, L. R. A. 1918E, 400, where a trail across land belonging to the Hamps had been widened to eight feet, not only with their consent but with their assistance. However, the use thereof was held to be adverse. The court said:\n“It is plain from the evidence that the use of the trail during all these years has been open and adverse to the rights of all owners of land across which it runs.”\nThe case of Mason County v. McReavy, 84 Wash. 9, 145 Pac. 993, has some points of similarity. That was an action to compel the removal of an obstruction from one of the streets appearing on the plat of Union City on Hood’s Canal, which had been filed in 1889. The street was actually on tidelands to which the platters had no title. The court said:\n“Subsequently, in the year 1901, the tide lands of the townsite were acquired by the defendant from the state. Since that time it is shown, practically without dispute, that a portion of this street called Canal street has been used by the public as a thoroughfare. Conceding, however, that the original plat of the street was invalid by reason of the fact that the plattors did not own the fee to the land, it was afterwards used as such street more than ten years, the same as it had been previously used. It is true that no public money had been expended upon the street by the county authorities. But this court has held that, in order to constitute a public highway, it is not necessary that public money should be used thereon, provided it has been used by the public as a road or, street for a period of more than ten years.”\nWe hold that not only had the public acquired a prescriptive right to the use of the extension of Walthew avenue by its open, notorious, and adverse use thereof for a period of more than ten years between 1913 and 1926, but also that, during the same period, the extension of Walthew avenue had become a public road and highway within the purview of § 1 of “An Act correcting informalities of record in the establishment of the various public roads and highways in this State,” approved March 6, 1890, and carried into Rem. Rev. Stat. as § 6494 [P.P.C. § 616-1]:\n“All public roads and highways in this state that have been used as such for a period of not less than seven years, and are now so used, where the same have been worked and kept up at the expense of the public, are hereby declared to be lawful roads and highways within the meaning and intent of the laws now existing governing public roads and highways in this state.”\nThis act was repealed in 1937, and Rem. Rev. Stat., Yol. 7A, § 6450-10 [P.P.C. § 608-3], was substituted therefor, and it, in turn, was amended in 1945.\nContrary to the contention of the respondents and the conclusion of the trial court, we have held that prescriptive rights could be acquired under the statute quoted. In Stofferan v. Okanogan County, 76 Wash. 265, 136 Pac. 484, we said:\n“In this state, however, we have repeatedly held that roads may be established by prescription by the use by the public for a period of not less than seven years, where the same have been worked and kept up at the expense of the public, as provided in Rem. & Bal. Code, § 5657 (P. C. 441 § 91); or where not so kept up at the public expense, simply by continued use by the public for a period co-extensive with the period of limitation for quieting title to land, which is, in this state, ten years. Seattle v. Smithers, 37 Wash. 119, 79 Pac. 615; Okanogan County v. Cheetham, supra [37 Wash. 682, 80 Pac. 262, 70 L. R. A. 1027]; State v. Horlacher, 16 Wash. 325, 47 Pac. 748; Smith v. Mitchell, 21 Wash. 536, 58 Pac. 667, 75 Am. St. 858....\n“It is plain that, under the authority of the foregoing decisions, a public highway in this state may be just as effectually established by prescription as by order of the county commissioners on petition.”\n(Rem. & Bal. Code, § 5657, referred to in the quotation, is identical with the statute above set forth.)\nSee, also, Mason County v. McReavy, supra, and Roediger v. Cullen, 26 Wn. (2d) 690, 175 P. (2d) 669, which cite and quote the Stofferan case.\nIn Seattle v. Smithers, 37 Wash. 119, 79 Pac. 615, the court said:\n“The lower court was evidently of the opinion that, before a road could become a public highway by prescription, public work or money must have been expended thereon, under the provisions of Bal. Code, § 3846, because a finding was made to the effect that no work has been done on the road at public expense. But this statute does not apply to roads which have been used adversely for a period of time sufficient to constitute a road by prescription without public expense thereon. It applies to cases only where public work and money have been expended. In such cases seven years’ user is made sufficient. In other cases the prescriptive period is co-extensive with the period of limitation for quieting title to the lands. Wasmund v. Harm, supra [36 Wash. 170, 78 Pac. 777]. The purpose of this statute was evidently to lessen the prescriptive period, when public work and money had been expended. It does not affect the rule in cases where no public work has been done. This being the effect of the statute, it follows that the findings of the trial court show a public highway by prescription.”\n(Bal. Code, § 3846, referred to in the quotation, is identical with the statute above set forth.)\nIt is true that we said, obiter dictum, in State v. Seattle, 57 Wash. 602, 107 Pac. 827, 27 L. R. A. (N.S.) 1188, that the statute referred to was “only a statute of limitation”; but we based the inapplicability of the statute to the situation there presented on the fact that\n“. . . there has been no such work or improvement put upon this land at the expense of the public as to bring it within the provisions of § 5657 [referring to Rem. & Bal. Code, § 5657].”\nIf we concede that it is “only a statute of limitation,” it must be recognized that the periods of adverse possession on which prescriptive rights are based follow, by analogy, the applicable statutes of limitation. Wasmund v. Harm, 36 Wash. 170, 78 Pac. 777; Mason v. Yearwood, 58 Wash. 276, 108 Pac. 608, 30 L. R. A. (N.S.) 1158; Northwest Cities Gas Co. v. Western Fuel Co., supra.\nThe evidence established that the extension of Walthew avenue had been used as a public road and highway for a period of not less than seven years prior to July 13, 1926, and had been worked and kept up at the expense of the public during that period. (In fact, it is clear that it was maintained by the county at least from the completion of the present dock until that dock ceased to be used for public transportation purposes in 1940.)\nThe public had, by July 13, 1926, acquired a prescriptive right to travel over the extension of Walthew avenue to the Franklin dock, which it is conceded is owned by King county, regardless of whether,the prescriptive period is a ten-year period coextensive with the period of limitation for quieting title to land, or the seven-year period referred to in the act of March 6, 1890, which is applicable when the road has been worked and kept up at the expense of the public. As has been heretofore pointed out, nothing occurred on July 13, 1926, or subsequent thereto, which has divested the public of the rights it had then acquired.\nThe judgment is reversed, with instructions to. the trial court to enter an order enjoining respondents’ obstruction of or interference with the use of the extension of Walthew avenue to the Franklin dock. Appellant King county will recover its costs on this appeal.\nMallery, C. J., Millard, and Schwellenbach, JJ., concur,.\nSimpson, J., dissents."", ""type"": ""majority"", ""author"": ""Hill, J. —""}], ""attorneys"": [""Lloyd Shorett, L. C. Brodbeck, John W. Croome, and Robert D. Yeomans, for appellants."", ""Skeel, McKelvy, Henke, Evenson & Uhlmann, W. Paul Uhlmann, and Altha P. Curry, for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 30395.\nDepartment One.\nJune 1, 1948.]\nKing County et al., Appellants, v. W. H. Hagen et al., Respondents.\nLloyd Shorett, L. C. Brodbeck, John W. Croome, and Robert D. Yeomans, for appellants.\nSkeel, McKelvy, Henke, Evenson & Uhlmann, W. Paul Uhlmann, and Altha P. Curry, for respondents.\nReported in 194 P. (2d) 357.""}, ""cites_to"": [{""cite"": ""194 P. (2d) 357"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""30 L. R. A. (N.S.) 1158"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A.N.S."", ""opinion_index"": 0}, {""cite"": ""108 Pac. 608"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""58 Wash. 276"", ""case_ids"": [526360], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/58/0276-01""], ""opinion_index"": 0}, {""cite"": ""27 L. R. A. (N.S.) 1188"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A.N.S."", ""opinion_index"": 0}, {""cite"": ""107 Pac. 827"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""57 Wash. 602"", ""case_ids"": [532276], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/57/0602-01""], ""opinion_index"": 0}, {""cite"": ""78 Pac. 777"", ""weight"": 2, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""36 Wash. 170"", ""weight"": 2, ""case_ids"": [5242488], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/36/0170-01""], ""opinion_index"": 0}, {""cite"": ""175 P. (2d) 669"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""26 Wn. (2d) 690"", ""case_ids"": [2524698], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/26/0690-01""], ""opinion_index"": 0}, {""cite"": ""58 Pac. 667"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""21 Wash. 536"", ""case_ids"": [5132908], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/21/0536-01""], ""opinion_index"": 0}, {""cite"": ""47 Pac. 748"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""16 Wash. 325"", ""case_ids"": [5104803], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/16/0325-01""], ""opinion_index"": 0}, {""cite"": ""70 L. R. 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(2d) 846"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""18 Wn. (2d) 294"", ""case_ids"": [2586662], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/18/0294-01""], ""opinion_index"": 0}, {""cite"": ""156 P. (2d) 667"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""22 Wn. (2d) 487"", ""case_ids"": [2551290], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/22/0487-01""], ""opinion_index"": 0}, {""cite"": ""187 P. (2d) 304"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""29 Wn. (2d) 355"", ""case_ids"": [2508695], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/29/0355-01""], ""opinion_index"": 0}, {""cite"": ""50 P. 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+2514977,"{""id"": 2514977, ""name"": ""Washington Chocolate Company, Respondent, v. Archibald J. Kent, Appellant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""3eff296aca99449f2ec81d3f12d262e5f9f55062fe637d3f7d850e37607bf732"", ""simhash"": ""1:12b0d61dc0405dc4"", ""pagerank"": {""raw"": 0.00000008140420278291571, ""percentile"": 0.4743015905560517}, ""char_count"": 13930, ""word_count"": 2329, ""cardinality"": 726, ""ocr_confidence"": 0.647}, ""casebody"": {""judges"": [""Mallery, C. J., Steinert, Simpson, and Abel, JJ., concur.""], ""parties"": [""Washington Chocolate Company, Respondent, v. Archibald J. Kent, Appellant.""], ""opinions"": [{""text"": ""Millard, J.\nDefendant Kent, a sole trader, doing business as Commercial Warehouse Company, operates a warehouse building containing five stories and basement located on the east of Alaska way between Yesler way and Washington street in Seattle. The building is located just across the street from the water front.\nOn or about September 1, 1942, Washington Chocolate Company, a domestic corporation, rented the north half of the basement, and adjoining space known as the vault, from Kent. The tenancy was an oral month-to-month one at a monthly rental of one hundred dollars. The Washington Chocolate Company is a purchaser and processor of chocolate. For a number of. years, it has been obtaining cocoa beans by importation, has bought them and stored them, pending their eventual processing into chocolate products.\nDuring the existence of the tenancy, plaintiff stored certain cocoa beans in burlap sacks in the rented premises, the manual work of receipt, storage, and periodic withdrawal being performed by individuals employed through defendant Kent. Various shipments into and out of the premises were made from time to time, so that the quantity of cocoa beans stored therein varied from time to time. All cocoa beans so stored by plaintiff were inspected by representatives of plaintiff before storage on the leased premises and, when so stored, were in good condition and not infested with rodents.\nThe other half of the basement and the other floors of the warehouse were leased by Kent to other users of warehouse space. The tenant had no control over any of the approximately ninety per cent of the building not rented by him. Kent maintained his office in the warehouse and at all times had control of the building. The beans had been inspected on their importation by the Federal pure food and drug administration inspector and were inspected on their arrival by representatives of the brokers through whom the purchases were made. During the period of the rental, representatives of the tenant went to the leased premises monthly for purposes of inventory, which involved counting the sacks only, and no signs of rats were observed.\nOn or about June 10, 1944, the leased premises were visited by inspectors of the food and drug department of the Federal security administration, at which time it appeared that the premises and the sacks of cocoa beans stored therein by the tenant were infested by rats, in that rat pellets, rat tracks, and rat nests were present. On or about July 15, 1944, the discovery of rat-infestation was made known to the tenant by the condemning authorities. This was the first knowledge on the part of the tenant of the rat-infestation. The tenant immediately protested to its lessor, who agreed and undertook to remedy the condition of the premises in such manner as to eliminate the condition of infestation described above. The city rat-catcher caught three rats and left with no assurance that the premises were then free of rats or would be so in the future. The landlord did nothing to ratproof the premises except as to one of several pipe holes. He had kept cats, but they merely added to the contamination and were removed.\nSubsequent to July 15,1944, and until the leased premises were abandoned by the tenant the third week of September, 1944, the same condition of rat-infestation continued, by reason of which, on August 19, 1944, there was issued a libel and seizure of one thousand bags of the tenant’s cocoa beans on the premises by the United States government. In that libel action, the tenant appeared as claimant. A decree of condemnation of approximately three hundred sacks of the beans as rodent-infested was issued, and to secure the release of the remainder of the tenant’s stored cocoa beans, the tenant was required to post a cash bond to secure the faithful performance of the segregation and destruction of the contaminated cocoa beans from the remainder of the stored beans. In all, 6,382 pounds of beans, of the market value at that time of $647.50, were destroyed. Service charge of the government agency necessarily incurred and paid amounted to $39.75. Necessary and reasonable court and attorneys’ fees in the condemnation action against the beans amounted to $110.38. The items aggregate $797.63.\nBecause of the continued infestation and unsanitary condition, the tenant, during the latter part of July and during August and September, 1944, proceeded to remove from the premises what undamaged stock remained, which removal was completed in the third week of September and was made with the knowledge of the landlord, who provided the labor necessary therefor.\nPlaintiff brought this action to recover a money judgment against defendant landlord for damages in being constructively evicted from the premises leased by defendant to plaintiff. Defendant, who did not bill plaintiff beyond the month of September, 1944, until this action was instituted, filed his cross-complaint for rental of three months on the ground there was no constructive eviction of plaintiff or liability on defendant’s part for the rat damage to the property of plaintiff.\nThe cause was tried to the court, which found the facts as recited above and denied recovery for rent for the months of September, October, and November, 1944, and for labor supplied in conjunction with the segregation and removal of the beans for destruction. The trial court further found that the existence of the infested condition of the leased premises and the continuation thereof without remedy from July to and through the third week of September, 1944, constituted the existence of and maintenance by defendant of a nuisance in connection therewith, and as the direct and proximate result of the existence of such nuisance plaintiff was constructively evicted from the leased premises. From judgment entered in favor of plaintiff in the amount of $797.63, representing the value of goods destroyed and other costs as itemized above, defendant appealed.\nCounsel for appellant contend that there was no nuisance or constructive eviction. Appellant invokes the rule that, without an express contract to the contrary, a tenant takes the demised premises as he finds them, and that there is no implied warranty on the landlord’s part that they are safe or even fit for the purpose for which they are rented. Howard v. Washington Water Power Co., 75 Wash. 255, 134 Pac. 927, 52 L. R. A. (N.S.) 578; Miller v. Vance Lbr. Co., 167 Wash. 348, 9 P. (2d) 351. Appellant also cites Clark v. Yukon Inv. Co., 83 Wash. 485, 145 Pac. 624, Ann. Cas. 1916E, 625, to the effect that, in the absence of warranty or express covenant to repair, a landlord is under no legal duty to repair the rented premises.\nIt is urged that, while recognizing these principles of law, the trial court erroneously held appellant liable on the basis of nuisance in breaching a covenant of quiet enjoyment and resulting in constructive eviction. Counsel for appellant argue that, before there is a nuisance that breaches the implied covenant of quiet enjoyment which results in constructive eviction, there must be responsibility on the part of the landlord for such nuisance, or at least a failure on his part to perform the duty owed to the tenant.\nThere is substantial evidence supporting the findings that the cocoa beans were not rodent-infested upon their arrival; that respondent was not aware of the rat-infestation until the middle of July, 1944, upon receipt of which information respondent immediately protested to appellant, who undertook to remedy the infestation. Appellant failed to remedy the infestation, and its continuance constituted a nuisance by which respondent was constructively evicted. There is no evidence that the premises were rat-infested when first rented. The action was not for want of repair, but was because of the presence of rats which the landlord was obligated to remove by poisoning, etc.; that is, he owed the legal duty to the tenant to keep the premises free from rats.\nIn all tenancies there is an implied covenant of quiet enjoyment of the leased premises. See annotations in 63 A. L. R. 1258 et seq. Appellant’s position is that this covenant of quiet enjoyment was not breached because the landlord was not responsible for the presence of the rats. The cases upon which appellant relies are distinguishable on a number of grounds: The infestation was of such limited numbers as not to constitute a nuisance. The lease was of an entire structure. The tenant caused the nuisance. No opportunity was given to the lessor to correct the condition. It would have been impossible for the lessor to correct the nuisance without trespass. The nuisance was one outside the premises. The lessor did not have control of the building.\nIn Barnard Realty Co. v. Bonwit, 155 App. Div. 182, 139 N. Y. Supp. 1050, it was held that night noises made by rats in the walls and ceilings of a tenement, coupled with an offensive odor which increased until the premises became untenantable, amounted to a constructive eviction, since the tenant could not make the place habitable by pulling down the walls and ceilings to eliminate the rodents. Jacobs v. Morand, 59 Misc. 200, 110 N. Y. Supp. 208, in which a case of mere bugs and ants was held not to be sufficient to establish a case of constructive eviction, is different from the case of rats, as the tenant may not tear down walls and ceilings in their extermination. The court said:\n“Such tenants have, and can have, control only of the inside of their own limited demised premises. Conditions unknown to the ancient common law are thus created. This requires elasticity in the application of the principles thereof. An intolerable condition which the tenant neither causes nor can remedy, seems to me warrants the application of the doctrine of constructive eviction.”\nIn Batterman v. Levenson, 102 Misc. 92, 168 N. Y. Supp. 197, the court cited Barnard Realty Co. v. Bonwit, supra, and said:\n“It seems now to be recognized that the presence of rats in great numbers in a building rented to several tenants, the control of the lower part of which is retained by the landlord, may constitute such a nuisance as to justify a tenant in abandoning the demised premises, even without direct proof that the rats came from or through a part of the building under the landlord’s control. . . .\n“The duty of the landlord to protect his tenant from annoyance by pests of this nature remained, because the tenant was powerless to protect himself. Had the tenant leased the whole building the case would have been entirely different. So, also, would it have been, if the pest had been of a nature which the tenant could have coped with within his own part of the building.”\nSee, also, Hancock Const. Co. v. Bassinger, 198 N. Y. Supp. 614, to the effect that, where an apartment was infested with numerous bedbugs, a condition not caused by the tenant, and which the tenant could not remedy, and the landlord failed in its attempt to remedy, constructive eviction is established and the tenant is authorized to vacate the apartment prior to the expiration of the term.\nIn Ray Realty Co. v. Holtzman, 234 Mo. App. 802, 119 S. W. (2d) 981, the case of Jacobs v. Morand, supra, is criticized by the Missouri court of appeals, which states that the sounder and more modern view is expressed in Barnard Realty Co. v. Bonwit, supra.\nIn Delamater v. Foreman, 184 Minn. 428, 239 N. W. 148, it is held that, in the absence of a contrary provision in the written lease for an apartment in a multiple apartment building, the landlord impliedly covenants that the premises will be habitable, and that bedbugs coming in great numbers into the apartment through cracks and loose boards in the floor from sources under the jurisdiction of the landlord may cause such distress to the tenant as to constitute constructive eviction, the landlord neglecting his duty in reference thereto, and justify the tenant in vacating the premises. In other words, the rule invoked by appellant does not apply to the lessor of a part of a building, since the tenant does not have control of the building. See, also, Building Ass’n of Duluth Odd Fellows v. Van Nispen, 220 Minn. 504, 20 N. W. (2d) 90, to the effect that the existence of a nuisance and the occurrence of constructive eviction are questions of fact.\nIn the case at bar, a nuisance existed and constructive eviction occurred. See annotations in 20 A. L. R. 1394 et seq., and annotations in 64 A. L. R. 909 et seq., in support of the rule that the presence of rats in great numbers in a building rented by several tenants, control of a portion of which is retained by the landlord, may constitute such a nuisance as to justify a tenant in abandoning the premises on the theory of constructive eviction.\nThe defense of contributory negligence on the part of respondent is without substantial merit. The control of the building was in the landlord and not in the tenant. Storage, movement, record keeping, and discharge of the goods stored by respondent were done under the supervision of appellant. Respondent never had notice or knowledge of the rat-infestation — whenever it may have commenced—until July, 1944, at which time appellant unsuccessfully undertook those measures to remove the rats, which measures appellant suggests respondent should have pursued. The duty, under the facts in the case at bar, was imposed upon appellant landlord to keep the premises tenantable, and those cases where entire houses were leased or where no opportunity to remedy the condition was afforded are not applicable to the facts in the case at bar.\nThe judgment is affirmed.\nMallery, C. J., Steinert, Simpson, and Abel, JJ., concur."", ""type"": ""majority"", ""author"": ""Millard, J.""}], ""attorneys"": [""Kumm & Hatch, for appellant."", ""Emory & Howe, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 29923.\nDepartment One.\nJuly 18, 1947.]\nWashington Chocolate Company, Respondent, v. Archibald J. Kent, Appellant.\nKumm & Hatch, for appellant.\nEmory & Howe, for respondent.\nReported in 183 P. (2d) 514.""}, ""cites_to"": [{""cite"": ""183 P. (2d) 514"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""64 A. L. R. 909"", ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R."", ""opinion_index"": 0}, {""cite"": ""20 A. L. R. 1394"", ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R."", ""opinion_index"": 0}, {""cite"": ""20 N. W. (2d) 90"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.W.2d"", ""opinion_index"": 0}, {""cite"": ""220 Minn. 504"", ""case_ids"": [385499], ""category"": ""reporters:state"", ""reporter"": ""Minn."", ""case_paths"": [""/minn/220/0504-01""], ""opinion_index"": 0}, {""cite"": ""239 N. W. 148"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.W."", ""opinion_index"": 0}, {""cite"": ""184 Minn. 428"", ""case_ids"": [282073], ""category"": ""reporters:state"", ""reporter"": ""Minn."", ""case_paths"": [""/minn/184/0428-01""], ""opinion_index"": 0}, {""cite"": ""234 Mo. App. 802"", ""weight"": 2, ""case_ids"": [1829671], ""category"": ""reporters:state"", ""reporter"": ""Mo. App."", ""case_paths"": [""/mo-app/234/0802-01""], ""opinion_index"": 0}, {""cite"": ""198 N. Y. Supp. 614"", ""category"": ""reporters:state"", ""reporter"": ""N.Y.S."", ""opinion_index"": 0}, {""cite"": ""168 N. Y. Supp. 197"", ""category"": ""reporters:state"", ""reporter"": ""N.Y.S."", ""opinion_index"": 0}, {""cite"": ""102 Misc. 92"", ""case_ids"": [723784], ""category"": ""reporters:state"", ""reporter"": ""Misc."", ""case_paths"": [""/misc/102/0092-01""], ""opinion_index"": 0}, {""cite"": ""110 N. Y. Supp. 208"", ""case_ids"": [7662571], ""category"": ""reporters:state"", ""reporter"": ""N.Y.S."", ""case_paths"": [""/nys/110/0208-01""], ""opinion_index"": 0}, {""cite"": ""59 Misc. 200"", ""case_ids"": [1848884], ""category"": ""reporters:state"", ""reporter"": ""Misc."", ""case_paths"": [""/misc/59/0200-01""], ""opinion_index"": 0}, {""cite"": ""139 N. Y. Supp. 1050"", ""case_ids"": [7659902], ""category"": ""reporters:state"", ""reporter"": ""N.Y.S."", ""case_paths"": [""/nys/139/1050-01""], ""opinion_index"": 0}, {""cite"": ""155 App. Div. 182"", ""case_ids"": [2700027], ""category"": ""reporters:state"", ""reporter"": ""A.D."", ""case_paths"": [""/ad/155/0182-01""], ""opinion_index"": 0}, {""cite"": ""63 A. L. R. 1258"", ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R."", ""opinion_index"": 0}, {""cite"": ""145 Pac. 624"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""83 Wash. 485"", ""case_ids"": [604005], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/83/0485-01""], ""opinion_index"": 0}, {""cite"": ""9 P. (2d) 351"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""167 Wash. 348"", ""case_ids"": [849973], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/167/0348-01""], ""opinion_index"": 0}, {""cite"": ""52 L. R. A. (N.S.) 578"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A.N.S."", ""opinion_index"": 0}, {""cite"": ""134 Pac. 927"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""75 Wash. 255"", ""case_ids"": [622625], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/75/0255-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""28 Wash. 2d 448"", ""type"": ""official""}], ""file_name"": ""0448-01"", ""last_page"": ""455"", ""first_page"": ""448"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T16:46:37.595617+00:00"", ""decision_date"": ""1947-07-18"", ""docket_number"": ""No. 29923"", ""last_page_order"": 469, ""first_page_order"": 462, ""name_abbreviation"": ""Washington Chocolate Co. v. 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+2561330,"{""id"": 2561330, ""name"": ""Northwest Cities Gas Company, Respondent, v. Western Fuel Co., Inc., et al., Appellants"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""b4442c0a50edc668859ac1a6bb39a196f0a8f7a490f09338cb54ac2ab49fdf99"", ""simhash"": ""1:ea3d4daa22feb45a"", ""pagerank"": {""raw"": 0.0000009751822851289756, ""percentile"": 0.9818807969113257}, ""char_count"": 30509, ""word_count"": 5301, ""cardinality"": 1184, ""ocr_confidence"": 0.652}, ""casebody"": {""judges"": [], ""parties"": [""Northwest Cities Gas Company, Respondent, v. Western Fuel Co., Inc., et al., Appellants.""], ""opinions"": [{""text"": ""Steinert, J.\nThis action was instituted by plaintiff Northwest Cities Gas Company, a corporation, to enjoin defendants Western Fuel Co., Inc., a corporation, and James B. Huff, its president, from interfering with plaintiff’s alleged prescriptive easement of right of way across the property of the defendant Western Fuel Co. A temporary restraining order, together with an order to show cause, was issued, and thereafter a trial was had resulting in a decree permanently enjoining defendants from interfering with plaintiff’s use and enjoyment of the claimed right of way. Both defendants have appealed, but the dispute is primarily between the two corporations. Plaintiff corporation will hereinafter be referred to as respondent or as the gas company, and the defendant corporation will be denominated as appellant or as the fuel company. Defendant James B. Huff will be referred to by name.\nRespondent gas company owns a tract of land in the industrial section of the city of Yakima. Upon this property it operates a gas plant which it acquired from Pacific Power & Light Co. in 1929. The power company had previously operated the gas plant on the same premises since 1906. The deed from the power company to the gas company also included a grant of a perpetual right of way, between the land conveyed and a county road to the west, over a twenty-foot strip of ground belonging at the present time to one Goodman. That right of way, however, is not the one claimed by respondent in this action.\nAppellant fuel company owns the land adjoining respondent’s property on the north, and at present maintains a fuel yard upon it. This tract of land formerly belonged to one Mary A. Clerf, who on May 8, 1936, conveyed it to Charles S. Huff and Jessie C. Huff, his wife. At that time, Charles S. Huff, now deceased, was the president of the fuel company; later, his son, James B. Huff succeeded him in office. At all times herein mentioned, Mrs. Clerf appears to have been a resident of Ellensburg, which is about forty miles distant from Yakima.\nOn August 30, 1937, Charles S. Huff and his wife conveyed this latter tract of land to appellant. Both the deed from Mrs. Clerf to the senior Huffs and the deed from the latter to appellant specifically excepted from conveyance and warranty “rights of way for roads, ditches, and pipe lines over and across said premises.”\nSouth First avenue in Yakima approaches appellant’s property from the north and meets the northerly boundary line thereof near its middle, but the street does not extend into or across the tract. Both tracts of land here involved, owned respectively by respondent and appellant, lie between the Northern Pacific Railway tracks on the east and the Union Pacific Railroad tracks on the west. It may be further noted that respondent’s tract of land does not extend as far to the west as does appellant’s tract.\nPrior to 1915, the tract of land formerly owned by Mrs. Clerf and now belonging to appellant was used for the production and storage of ice, and for that purpose an artificial pond was maintained upon it, impounded by a semicircular dike or dam near the eastern boundary of the property. In 1915, the pond was abandoned and was permitted to dry up. From 1906 to 1920, persons going to the gas plant (then owned by Pacific Power & Light Co.) traveled south along south First avenue, crossed the Clerf land over a road running along the top of the dike at the east edge of the pond, and entered the power company’s premises approximately at the northwest corner thereof. Egress from the premises was in the reverse course over the same route. In 1920, a bridge in the middle of the dike collapsed, and as a consequence this particular portion of the route through the Clerf land was abandoned. Shortly thereafter, however, agents of the Pacific Power & Light Co., without permission from Mrs. Clerf, laid a roadway across the dry bed of the pond and hauled in cinders to a depth of about four inches along a strip twelve to fifteen feet wide, in order to make a road passable for trucks. This road crossed Mrs. Clerf’s property in a generally north and south direction and constituted, roughly, an extension of south First avenue. Another road was also early developed across the southwest corner of the Clerf land, leading from the northwest corner of the power company’s premises to a crossing over the Union Pacific Railroad tracks on the west.\nSeven witnesses for respondent testified to continuous use of various roads through the Clerf tract from at least as early as 1920 until the time when appellant purchased and began to fence the property as hereinafter more fully described. The testimony of these witnesses shows that they have all made frequent trips over these routes, sometimes several trips a day, and that for many years respondent has annually transported about four thousand tons of coke over the several roads traversing the Clerf tract. The same witnesses testified further that the north-south route, in its present location, had been in constant use since 1920. They also testified that they had never applied to anyone for permission to cross the Clerf land and had never been forbidden to do so.\nDuring the time prior to the acquisition of the property in question by Charles S. Huff and his wife, the land was also used by various persons as a dumping ground for rocks and dirt which had been removed from excavations in the city of Yakima. It is undisputed that, during all the time prior to 1936, this land was unfenced, uncultivated, and totally unimproved.\nIn 1936 or 1937, shortly after Mrs. Clerf had conveyed the land to Charles S. Huff and his wife, Mr. Huff had the property surveyed and partly leveled and fenced in order to make it usable as a fuel yard. Respondent’s plant superintendent testified to a. conversation with Charles S. Huff at the time the land was being surveyed, in the course of which Mr. Huff told the superintendent that the fence would close the roadway across his land to the west, but added that he was going to leave respondent a forty-foot driveway through to the north. Pursuant to that promise, a lane forty-eight feet wide and fenced on both sides was left open, running approximately through the center of appellant’s property and permitting continued traffic between respondent’s plant and south First avenue. This lane led from the north line of respondent’s tract, across appellant’s property, toward south First avenue and approximated an extension of that street, though of somewhat diminished width.\nFrom the time that the fence was completed, in 1936 or 1937, until the evening of August 23, 1940, a roadway through this lane was used by respondent’s employees and customers. The roadway as actually used was from ten to twenty feet in width and so did not occupy all the space between the fences on the two sides of the lane. There is some dispute in the evidence as to whether or not the road through the lane was the same as the one previously referred to herein as leading in a north-south direction across the Clerf land. Respondent’s witnesses testified that it was the same, whereas appellant’s witnesses testified that the original road was some distance west of the lane. The trial court, after hearing the evidence and viewing the premises, found that the location of the roadway was substantially the same at all times from about 1920 to 1937; that, although the road was then shifted a little to the east, to bring it within .the newly built fences, the change was made by appellant and was acquiesced in by respondent; and that respondent was not thereby deprived of its previously acquired prescriptive rights.\nSometime after the fencing was completed, appellant affixed a sign at the north entrance to the passageway reading “Private Way, Permission to Pass Over Revocable at Any Time.” When respondent’s superintendent observed this sign, he told James B. Huff that the road could not be closed, to which the latter replied that the sign meant just exactly what it said. However, respondent’s employees and customers continued to use the road as before.\nIn August, 1940, a fire of suspicious origin broke out in appellant’s fuel yard and portions of the fences inclosing the lane were burned. Thereafter, on August 23rd, employees of appellant barricaded the north entrance to the passageway and for about twelve hours refused to allow traffic to pass through. This action was thereupon instituted by respondent to establish and protect its alleged prescriptive easement of right of way across appellant’s land. The trial court enjoined appellants perpetually from interfering with respondent’s use and enjoyment of a specifically described roadway forty-eight feet wide, thus confirming respondent’s claim to an easement practically coextensive with the lane as fenced by Charles S. Huff. The action of the court was founded upon the conclusion that a prescriptive right of easement was acquired by respondent and its predecessor in title, Pacific Power & Light Co., during the period from 1920 to 1936, while Mrs. Clerf still owned the land in question, and before it had come into the ownership and possession of appellant.\nThe first question to be decided is whether or not, under the facts as stated, respondent has become entitled by prescription to a right of way of any width whatever over appellant’s property. We preface our decision of that question with a statement of certain principles which either have been definitely established in this jurisdiction or else should, in our opinion, be adopted.\nAn easement of right of way across the land of another, including even the establishment of a public highway over private property, may be acquired by prescription. Wasmund v. Harm, 36 Wash. 170, 78 Pac. 777; Seattle v. Smithers, 37 Wash. 119, 79 Pac. 615; Van De Vanter v. Flaherty, 37 Wash. 218, 79 Pac. 794; Watson v. County Commissioners, 38 Wash. 662, 80 Pac. 201; Scheller v. Pierce County, 55 Wash. 298, 104 Pac. 277; Schulenbarger v. Johnstone, 64 Wash. 202, 116 Pac. 843, 35 L. R. A. (N. S.) 941; Brand v. Lienkaemper, 72 Wash. 547, 130 Pac. 1147; Hendrickson v. Sund, 105 Wash. 406, 177 Pac. 808; Downie v. Renton, 167 Wash. 374, 9 P. (2d) 372, Long v. Leonard, 191 Wash. 284, 71 P. (2d) 1. See, also, 17 Am. Jur. 967, Easements, § 55; 28 C. J. S. 641, Easements, § 6; 4 Tiffany, Real Property (3d ed. 1939), 551, 598, §§ 1194, 1211.\nThe period required in this state to establish such a prescriptive right of way is ten years, by analogy to the provisions of Rem. Rev. Stat., § 156 [P. C. § 8161], which is the statute of limitations relative to actions for the recovery of real property. Wasmund v. Harm, supra; Seattle v. Smithers, supra; Mason v. Yearwood, 58 Wash. 276, 108 Pac. 608, 30 L. R. A. (N. S.) 1158; Berryman v. East Hoquiam Boom & Logging Co., 68 Wash. 657, 124 Pac. 130; Hendrickson v. Sund, supra; Hughes v. Boyer, 5 Wn. (2d) 81, 104 P. (2d) 760. See, also, 17 Am. Jur. 968, Easements, § 55; 28 C. J. S. 659, Easements, § 16.\nPrescriptive rights, however, are not favored in the law, since they necessarily work corresponding losses or forfeitures of the rights of other persons. Downie v. Renton, 162 Wash. 181, 298 Pac. 454 (reversed, on other grounds, on rehearing, 167 Wash. 374, 9 P. (2d) 372); Downie v. Renton, 167 Wash. 374, 9 P. (2d) 372 (reversing the preceding case, on other grounds); Long v. Leonard, supra; 2 Kinney, Irrigation and Water Rights (2d ed. 1912), 1876, § 1048; 28 C. J. S. 645, Easements, § 10.\nWhen one enters into the possession of another’s property there is a presumption that he does so with the true owner’s permission and in subordination to the latter’s title. Long v. Leonard, supra. Accord, Peoples Savings Bank v. Bufford, 90 Wash. 204, 155 Pac. 1068.\nA user which is permissive in its inception cannot ripen into a prescriptive right, no matter how long it may continue, unless there'has been a distinct and positive assertion by the dominant owner of a right hostile to the owner of the servient estate. Scheller v. Pierce County, supra; Schulenbarger v. Johnstone, supra; Buckley v. Dunkin, 131 Wash. 422, 230 Pac. 429. Accord, Long v. Leonard, supra; Leinweber v. Gallaugher, 2 Wn. (2d) 388, 98 P. (2d) 311.\nIt is therefore essential that all of the elements necessary to constitute a permanent valid claim by adverse user amounting to a prescriptive right be shown to be present. See the cases and texts cited in the last three preceding numerical subdivisions.\nThe question of adverse user is a question of fact. While there are no easement cases in this state expressly announcing this rule, we have a number of cases which do apply it in reference to adverse possession, and the rule would seem equally applicable to the issue of adverse user in easement cases. See Mc-Auliff v. Parker, 10 Wash. 141, 38 Pac. 744; Peoples Savings Bank v. Bufford, supra; Murray v. Bousquet, 154 Wash. 42, 280 Pac. 935.\nThe burden of proving a prescriptive right rests upon the one who is to be benefited by the establishment of such right. St. Martin v. Skamania Boom Co., 79 Wash. 393, 140 Pac. 355; Downie v. Renton, on rehearing, supra; Long v. Leonard, supra; Rogers v. Cation, 9 Wn. (2d) 369, 115 P. (2d) 702. Accord, Skansi v. Novak, 84 Wash. 39, 146 Pac. 160; Peoples Savings Bank v. Bufford, supra.\nTo establish a prescriptive right of way over the land of another person, the claimant of such right must prove that his use of the other’s land has been open, notorious, continuous, uninterrupted, over a uniform route, adverse to the owner of the land sought to be subjected, and with the knowledge of such owner at a time when he was able in law to assert and enforce his rights. Wasmund v. Harm, supra; Scheller v. Pierce County, supra; Schulenbarger v. Johnstone, supra; Brand v. Lienkaemper, supra; Buckley v. Dunkin, supra; Long v. Leonard, supra; Hughes v. Boyer, supra. Accord, Downie v. Renton, 162 Wash. 181, 298 Pac. 454; Downie v. Renton, 167 Wash. 374, 9 P. (2d) 372. See, also, 17 Am. Jur. 971, Easements, § 59; 28 C. J. S. 645, Easements, § 10.\nHowever, proof that the use by one of another’s land has been open, notorious, continuous, uninterrupted, and for the required time, creates a presumption that the use was adverse, unless otherwise explained, and, in that situation, in order to prevent another’s acquisition of an easement by prescription, the burden is upon the owner of the servient estate to rebut the presumption by showing that the use was permissive. Wendler v. Woodard, 93 Wash. 684, 161 Pac. 1043; 2 Thompson, Real Property (Perm, ed. 1939) 95, § 512; 4 Tiffany, Real Property (3d ed. 1939) 563, § 1196a; 17 Am. Jur. 981, Easements, § 72; 28 C. J. S. 736, Easements, § 68. Accord, Lechman v. Mills, 46 Wash. 624, 91 Pac. 11, 13 L. R. A. (N. S.) 990, 13 Ann. Cas. 923; Berryman v. East Hoquiam Boom & Logging Co., supra; Ochfen v. Kominsky, 121 Wash. 60, 207 Pac. 1050. Cf., Long v. Leonard, supra.\nThis last mentioned rule does not apply, however, to vacant, open, uninclosed, unimproved lands. In such cases, mere use of a way over the land of another, in the manner and for the time referred to in the last preceding rule, will not of itself give rise to a presumption that the use has been adverse, or, as sometimes expressed, to a presumption of a grant. Courts do not, in such cases, infer adverse user, but require evidence of facts or circumstances indicating that the user was indeed adverse and not permissive. 28 C. J. S. 672, 737, Easements, § § 18 (i), 68(a); 2 Thompson, Real Property (Perm. ed. 1939) 111, § 523; 4 Tiffany, Real Property (3d ed.) 565, § 1196a; note (1919) 1 A. L. R. 1368.\nThus, in Watson v. County Commissioners, supra, this court said:\n“While we do not now hold that a right of way by prescription cannot be acquired over wüd, unoccupied prairie lands, we do hold that, in order to give a prescriptive right, the use must at least be such as to convey to the absent owner reasonable notice that a claim is made in hostility to his title. It seems to us that any other rule amounts to a practical confiscation of private property for public purposes.” (Italics ours.)\nIn Schulenbarger v. Johnstone, supra, this court seems to have gone even further by saying:\n“It can hardly be contended that it was ever the intent of the law to hold that a private easement could be created over the lands of another at a time when they were open and uninclosed. It has never been so held, although the right be asserted by the public, unless under some controlling circumstances such as the expenditure of public moneys under the supervision of the road overseer, or some element of acquiescence on the part of the owner as instanced in the case of State v. Horlacher, 16 Wash. 325, 47 Pac. 748 [where this court upheld a judgment convicting the defendant upon a charge of obstructing a public highway which the county had acquired by prescription,\nand upon which the county had expended money for several years].” (Italics ours.)\nWe do not now agree with that part of the Schulenbarger opinion which we have italicized. The books reveal many cases wherein, under particular sets of facts, private easements over the lands of others have been acquired by prescription, at a time when such lands were open and uninclosed. While there has been a wide divergence of opinion upon the subject, the prevailing view, and the principle which we now adopt, is that such prescriptive rights may be obtained when the facts and circumstances are such as to show that the user was adverse and hostile to the rights of the owner, or that the owner has indicated by some act his admission that the claimant has a right of easement. 2 Thompson, Real Property (Perm. ed. 1939) 111, § 523; 17 Am. Jur. 980, Easements, § 71; 28 C. J. S. 672, Easements, § 18 (i); Note (1919) 1 A. L. R. 1368.\nAn adverse user will not ripen into a prescriptive right unless the owner of the servient estate knows of, and acquiesces in, such user, or unless the user is so open, notorious, visible, and uninterrupted that knowledge and acquiescence on his part will be presumed. Downie v. Renton, on rehearing, supra; see, also, 2 Thompson, Real Property (Perm. ed. 1939) 94, § 512; 17 Am. Jur. 976, Easements, § 65; 28 C. J. S. 647, Easements, § 12.\nFailure on the part of the owner of the servient estate to interrupt the user of a right of way across his land by another is strong evidence that the parties thought that the way was used as a matter of right. Wasmund v. Harm, supra; Long v. Leonard, supra. See, also, Lechman v. Mills, supra.\nIt is not necessary to the establishment of a prescriptive right that the claimant make declarations of an adverse intent during the period relied upon to establish such right, or that he testify later that his intent was of that character; the intentions and attitudes of the parties may be shown by evidence as to their conduct relative to the use of the right of way in question. Wasmund v. Harm, supra; Hughes v. Boyer, supra.\nIn determining whether or not the user of another’s land has been adverse and whether or not the latter had the requisite notice thereof, the nature and location of the property involved are material and important considerations. Downie v. Renton, on rehearing, supra. Accord, Murray v. Bousquet, supra.\nA prescriptive right, once acquired, cannot be terminated or abridged at the will of the owner of the servient estate, nor even by the oral admission of the easement claimant that his use was not, and is not, adverse. 28 C. J. S. 716, Easements, § 52; McInnis v. Day Lbr. Co., 102 Wash. 38, 172 Pac. 844; Downie v. Renton, 162 Wash. 181, 298 Pac. 454, reversed, on rehearing, on other grounds, 167 Wash. 374, 9 P. (2d) 379.\nWe have enumerated and set forth the foregoing principles, not as a compendium of the general law of easements, but, as said before, rather as a statement of principles which either have been urged upon us by the parties herein, or else are necessary to a determination of the present issue.\nAppellant concedes (1) that an easement of right of way may be acquired by prescription; (2) that the period required for the establishment of such prescriptive right is, in this state, ten years; and (3) that the use of appellant’s land by respondent and its predecessor in title, from 1920 to 1936, was continuous and was sufficient to satisfy this temporal requirement. There is no contention in this case, by either party, that the question of adverse user is not one of fact; on the contrary, each party vigorously contends that the evidence in the case is decisive of that question in its favor. With reference to the other principles above noted, our discussion proceeds upon the theory (1) that prescriptive rights are not favored in law; (2) that a user which is permissive in its inception confers no absolute right, no matter how long it may be continued; (3) that it is essential that all of the elements necessary to constitute a permanent, valid claim by adverse user amounting to a prescriptive right be shown to be present; (4) that the burden of proving a prescriptive right of easement over appellant’s land was upon the respondent; (5) that respondent was required to prove that its use of appellant’s land for the required period was open, notorious, continuous, uninterrupted, over a uniform route, adverse to the owner, and with the knowledge of such owner at a time when he or she was able in law to assert and enforce his or her right; (6) that respondent’s user of the Clerf land did not ripen into a prescriptive right unless such user was with the knowledge and acquiescence of Mrs. Clerf or else was so open, notorious, visible, and uninterrupted that her knowledge and acquiescence is to be presumed; and (7) that no declaration of an intention on respondent’s part to use appellant’s land adversely was necessary to the establishment of the right here claimed.\nUpon the record in this case, it is beyond cavil that the user of the north-south roadway through appellant’s land from 1920 to 1936 was open, notorious, continuous, uninterrupted, and at a time when Mrs. Clerf, then owner of the land, was able in law to assert and enforce her rights. The evidence also preponderates in favor of the trial court’s finding that during that period of time the user was exercised over a uniform route. If, by the end of that period, a prescriptive right of easement was in law acquired by respondent, no subsequent act of appellant, who succeeded to the title of Mrs. Clerf, could in any way affect. the right that respondent had previously acquired. All the evidence in the case is to the effect that respondent’s original entry upon Mrs. Clerf’s land was made without consulting her or anyone else at all. In fact, there is no evidence that Mrs. Clerf had any actual knowledge whatever that respondent or its predecessor had entered her land. Hence there is no room for any presumption that the original entry was made with her permission or in subordination to her title. However, the continued use of her land by respondent was so open, notorious, visible, and uninterrupted that it must be presumed that she, as the owner, became aware of it, especially since her land was located in an industrial section of a thriving city. Furthermore, as will be pointed out later, the evidence indicates that by her own act Mrs. Clerf indirectly recognized respondent’s acquired prescriptive right.\nThis leaves, for determination, only the question as to whether or not the evidence was sufficient to prove that the user of the land by respondent and its predecessor in title was adverse to Mrs. Clerf. We arrive at a decision of that question by considering the facts and circumstances in connection with the user of the land.\nIn the first place, the acts of the power company, respondent’s predecessor in title, constituted more than a mere use of the land for occasional travel over an undefined route. On the contrary, its acts were of such a nature as to indicate a hostile intent. The company deliberately laid out a definite road across the premises; it improved the road and made repairs from year to year; it used the road regularly for hauling heavy loads of coke from its plant; and, in addition, it encouraged the public to use that method of ingress and egress to and from its premises. In short, the power company made the same use of appellant’s land, to the extent noted, as it would have made if the land had been its own. Respondent gas company, successor to the power company, in turn continued to make the same use of the land during the remainder of the time that it was owned by Mrs. Clerf. On the other hand, so far as the record shows, Mrs. Clerf not only made no objection to the nature or extent of the use, but by her own deed to Charles S. Huff and his wife expressly excepted from the conveyance and warranty “rights of way for roads.” The deed which appellant in turn accepted from the Huffs contained the same exception. These facts alone constitute strong evidence that the user was considered by the owners of the servient estate as being one of right, and not one by permission. That evidence was not rebutted. Mrs. Clerf was not called as a witness to explain her acts or omissions, nor was any reason given for the failure to call her. In addition to all this, when the question first became acute, in 1936 or 1937, appellant did not take any positive steps to interfere with respondent’s acquired right, but rather, made provision for its continuance along, and through, a well-defined lane. We are convinced that the proof in this case was ample to establish an adverse user of the land in favor of respondent.\nThe second question presented upon the appeal relates to the width of the right of way to which respondent is now entitled.\nThe evidence shows that the roadway in use from 1920 to 1936 did not exceed twenty feet in width, whereas the fenced lane running through appellant’s property has a width of approximately forty-eight feet. The trial court granted an easement of the latter width, basing its decision on findings that Charles S. Huff had stated in 1937 that he was going to leave a forty-foot driveway across the land, that he had thereafter constructed and left open a lane through the property measuring, on the average, forty-eight feet in width, and that for the next three years he and appellant had acquiesced in the use of a roadway running through the lane. We are unable to agree with the court’s conclusion that, upon these facts, respondent was entitled to a judgment “quieting its prescriptive title to a right of way across all of that portion of defendant’s [appellant’s] land included within the fences erected in 1937.”\nWe have no cases in this state bearing directly upon the question under consideration, but by the great weight of authority the applicable rule, as stated in 28 C. J. S. 751, Easements, § 74, is:\n“Where an easement is acquired by prescription, the extent of the right is fixed and determined by the user in which it originated, or, as it is sometimes expressed, by the claim of the party using the easement and the acquiescence of the owner of the servient tenement. While a prescriptive right to an extended easement may be acquired by excessive user, . . . yet an easement acquired by prescription cannot be extended except by an adverse user which has been acquiesced in for the requisite length of time, or by the acquisition by some other title of additional rights.” (Italics ours.)\nSee, also, 28 C. J. S. 768, Easements, § 89, and 17 Am. Jur. 997, Easements, § 100.\nRespondent cites a number of authorities dealing with the “re-location” of a right of way acquired either by prescription or by grant. Those authorities, however, do not sustain respondent’s contention in this case. It has hereinbefore been shown that, by 1936 or 1937 when the fences were built, respondent had already acquired a prescriptive easement of right of way across appellant’s land by means of a roadway not more than twenty feet in width. The user relied upon to establish the right of way was limited to that •width, and that user determines the extent of the right acquired. Respondent could therefore have resisted any attempt to interfere with the right then enjoyed, and could even have resisted any attempt to compel a shift in the location of the right of way then used. Instead, it acquiesced in the erection of the fences which cut off the roadway theretofore used and tacitly accepted, in its place, a new right of way within the lane inclosed by Huff’s fences.\nSince Charles S. Huff could not have contested respondent’s right to use the existing roadway, his successor in interest, the appellant, cannot claim that respondent’s acquiescence in the shifting of the location of the roadway to conform with Huff’s plans has in any way impaired respondent’s previously matured prescriptive right. Nor can respondent, on the other hand, be heard to say that by acquiescing in this change of location it has acquired a more extended right than it had previously possessed. Respondent could not have acquired an enlarged right of way except by express grant or by prescription based on an extended user for an additional ten years, and hence it cannot claim such an augmented right merely on the basis of Charles S. Huff’s action in fencing off a lane wider than the roadway which it had previously acquired the right to use. In fact, respondent has never used the full width inclosed by the fences, but has continued to use a roadway not more than twenty feet wide. The shifting of the roadway to make it more direct and to bring it within the lane fenced off by Charles S. Huff accomplished that and nothing more. Each party is therefore estopped by its acquiescence to object to the continued use of the right of way as now located, and neither can claim that the other’s rights have been impaired by this change in location.\nThe cause will be remanded to the superior court with direction to enter a decree establishing in respondent a prescriptive easement of right of way across appellant’s premises, running through the fenced lane thereon and having a width of not more than twenty feet.\nAll Concur."", ""type"": ""majority"", ""author"": ""Steinert, J.""}], ""attorneys"": [""Velikanje & Velikanje, for appellants."", ""Rigg, Brown & Halverson and Paul M. Goode, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 28439.\nEn Banc.\nMarch 27, 1942.]\nNorthwest Cities Gas Company, Respondent, v. Western Fuel Co., Inc., et al., Appellants.\nVelikanje & Velikanje, for appellants.\nRigg, Brown & Halverson and Paul M. Goode, for respondent.\nReported in 123 P. 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+2580941,"{""id"": 2580941, ""name"": ""The State of Washington, Respondent, v. Marvin McCollum, Appellant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""63ae3cbbab7882e013715ac243e0d330e866ce97a5e397ded9c5a453e39124af"", ""simhash"": ""1:b977a4575e8ec74b"", ""pagerank"": {""raw"": 0.0000003301934640278364, ""percentile"": 0.8719253516324696}, ""char_count"": 205033, ""word_count"": 36801, ""cardinality"": 4862, ""ocr_confidence"": 0.69}, ""casebody"": {""judges"": [""Beals, Blake, and Grady, JJ., concur."", ""Jeffers, J., concurs with Steinert, J."", ""Simpson, C. J., concurs with Millard, J."", ""Simpson, C. J., concurs with Millard, J.""], ""parties"": [""The State of Washington, Respondent, v. Marvin McCollum, Appellant.""], ""opinions"": [{""text"": ""Mallery, J.\nThe only questions presented by this appeal arise out of the denial of defendant’s motion to suppress the search and seizure of a pistol, and its admission in evidence over defendant’s objection.\nThe defendant lived a short distance from the complaining witness, Mrs. Violet Barnes. The two had been close friends for some time. On the evening of March 30, 1942, defendant went to the home of Mrs. Barnes. He had been drinking. At the time, she was entertaining her mother and some friends. She met him at the front door and refused to admit him. He said to her, “You can’t do this to me,” and he pulled a small automatic pistol from his pocket. Mrs. Barnes was not immediately frightened and told him to put the pistol away and go home; whereupon, he pointed the pistol at her and, repeating the statement, “You can’t do this to me,” added, “I’ll shoot you.” Her testimony then is as follows:\n“Q. What, if anything, did you do? A. Well, I got frightened, and I ran through the bedroom. I have two doors there—and I ran right around again, and came right back to the door; and by that time he kind of went back like this, and I slammed the door shut.”\nDefendant left. A few moments later, he called Mrs. Barnes by telephone. A guest answered the telephone, and defendant asked the guest to tell Mrs. Barnes that he had been shot and that he wished Mrs.- Barnes to come over to his home and take care of him. She did not do so.\nShortly after this telephone conversation, police officers, having a report of a shot having been fired, called on defendant at his home, where they found him wearing a bathrobe, and intoxicated. He denied having heard any shot, and the officers left. Later the same evening, having received a report of the happenings at Mrs. Barnes’ house, the chief of police and another officer called upon defendant and inquired specifically if he owned or had in his possession a small automatic pistol. He denied that he did, and showed the officers a rifle; whereupon, the officers left without making any search of the premises. Defendant had, in fact, shot himself in the thigh. Still later, on the same evening, he called a doctor, who had him taken to the hospital.\nThe next day, March 31st, a formal warrant of arrest was read to defendant at the hospital, charging him with the crime of second-degree assault committed upon Mrs. Barnes. The same day, the police officers had a number of conversations with the defendant, in which defendant admitted, in substance, most of the foregoing facts. He claimed that the so-called assault was all in the nature of a lark or a joke. He told the officers that he owned a small automatic pistol; that he had had it with him when he called upon Mrs. Barnes, but that it was not loaded at that time. He said that, after he returned from Mrs. Barnes’ home, he had loaded the pistol and had accidently shot himself.\nThe following day, April 1st, a formal information was filed against defendant in the superior court, and his house was searched by the chief of police. The pistol was found on a shelf in the basement. It was loaded, but an empty cartridge was jammed in the mechanism. The pistol was identified by the complaining witness and admitted in evidence over the objection of defendant. His motion to suppress was denied. The police made no report of the discovery to the defendant. It was not shown that he learned that the police had possession of the pistol until after the trial had begun. Consequently, it is assumed that his motion to suppress during the course of the trial was timely.\nThe only witness who testified for the defense was the defendant himself. He told the same story of the affair as he had told the police at the hospital. He reasserted that the whole affair was a joke and intended as such. He denied actually pointing the pistol at Mrs. Barnes or saying, “I’ll shoot you.”\nDefendant invokes Rem. Rev. Stat., § 2240-1 [P. C. § 9358-1]. This statute makes it unlawful for police officers to enter and search a private dwelling without authority of a search warrant issued upon a complaint as by law provided.\nThe question of the necessity for a search warrant in this kind of a case was passed upon by this court in State v. Much, 156 Wash. 403, 287 Pac. 57. The rule therein laid down was adhered to in State v. Thomas, 183 Wash. 643, 49 P. (2d) 28, in which this court said (p. 646):\n“In State v. Much, 156 Wash. 403, 287 Pac. 57, where the defendant was charged with murder, officers went to his home and, digging in his yard, found letters and money which were introduced in evidence against him at the trial. It was contended that these articles should not be received in evidence, for the reason that they were procured by the officers without authority of a search warrant, in contravention of his constitutional right. Commenting upon this contention, the court said:\n“ ‘It is contended by appellant that these articles should not have been received in evidence for the reason that they were procured by the officers without the authority of a search warrant in contravention of his constitutional rights, both under the Federal and state constitutions.\n“ ‘No statute has been cited, and we can find none, in this state authorizing the issuance of search warrants for the evidence of the instruments of a murder. Several statutes exist providing for and requiring search warrants for the search and seizure of intoxicating liquor, stolen goods, counterfeit coin, gaming apparatus and the like, but none conferring jurisdiction upon any magistrate to issue search warrants, the subject-matter of which is the evidence or instruments of murder. There were circumstances indicating the guilt of appellant at the time of his arrest, and the searches were made by the officers after the arrest.\n“ ‘It is only unreasonable searches and seizures, without probable cause, that are forbidden. Carroll v. United States, 267 U. S. 132. That the searches having been made upon probable cause, uncovered more and convincing evidence of the guilty connection of appellant with the heinous crime, is his misfortune; but it in no wise renders the evidence, so discovered, incompetent.’ ”\nEarlier in the opinion, the court said:\n“The appellant invokes Rem. Rev. Stat., § 2240-1 [P. C. § 9358-1]. This statute makes it unlawful for police officers to enter and search a private dwelling without the authority of a search warrant issued upon a complaint as by law provided. The statute, of course, has no application to> a search made as incident to a lawful arrest(Italics ours.)\nUntil'these cases are overruled by this court, they determine this point of law against appellant.\nAppellant further contends that the instant search was not incident to the arrest because he was arrested while in the hospital, and was not present when the search was made. We have held differently. In State v. Evans, 145 Wash. 4, 258 Pac. 845, this court sustained a search, where the defendant was not arrested in his home, and the search was made later in his absence, while he was at the police station.\nWebster’s New International Dictionary gives the following definition of the word “incident”:\n“2. Law. Dependent on, or appertaining to, another thing (the principal); directly and immediately pertinent to, or involved in, something else, though not an essential part of it.”\nUnder the authority of State v. Evans, supra, incident to does not mean: “Coincidentally with, or aiding the course of, an arrest.”\nMuch of the scientific investigation of murders and other felonies would be unlawful if the police were powerless to act without a search warrant, in view of the fact that search warrants cannot be issued for such purpose.\nDefendant further contends that the admission of the pistol containing a jammed cartridge is prejudicial error, in view of defendant’s testimony that the pistol was empty when he went to the complaining witness’ home, and, therefore, not being in the same condition as when found by the officers, was inadmissible in evidence. Whether the pistol was loaded or not, is immaterial if the person at whom it was pointed did not know that it was not loaded, since the controlling factor is the state of mind of the assaulted person. Peasley v. Puget Sound Tug & Barge Co., 13 Wn. (2d) 485, 125 P. (2d) 681; Howell v. Winters, 58 Wash. 436, 108 Pac. 1077; Allen v. Hannaford, 138 Wash. 423, 244 Pac. 700.\nThe display of a pistol before the jury and its admission in evidence in the state’s case in chief, could conceivably have great weight with the jury. It cannot be said, as a matter of law, that it did not influence the jury. It was therefore either not error or it was prejudicial error. We hold that it was not error.\nThe judgment is affirmed.\nBeals, Blake, and Grady, JJ., concur."", ""type"": ""majority"", ""author"": ""Mallery, J.""}, {""text"": ""Steinert, J.\n(concurring in the result)—I concur in the affirmance of the judgment, but not upon the ground nor upon the line of reasoning assigned in the majority opinion. I do not agree that the search of appellant’s home without a search warrant was lawful merely because an information charging him with the crime of second-degree assault had been filed against him prior to the time of the search. Nor do I agree that the search was in any sense incidental to the arrest, the search having been made while appellant was confined in a hospital, away from the vicinity of his home, and having been conducted the day after his arrest, and without his knowledge or consent. For these reasons, I think that the pistol, which was uncovered by the search, should not have been admitted in evidence.\nThe admission of that evidence, however, was not, in my opinion, prejudicial to the appellant’s defense. He admitted that he owned a pistol which was of an automatic type, and that he had it with him when he called at the home of the prosecuting witness. The evidence discloses, the verdict establishes, and the majority opinion states that appellant pointed the pistol at the witness and threatened to shoot her. Whether or not the pistol was loaded is wholly immaterial, so long as the witness was put in fear, as she was, by his act and threat. His admissions and the testimony of the state’s witnesses were alone sufficient to convict appellant of the crime. His only defense was that the whole affair was a joke. The jury evidently thought otherwise and, in my opinion, was fully justified in coming to that conclusion.\nRegardless of the admission of the pistol in evidence, the jurors could not, upon their oaths, and under the instructions given them by the court, have done otherwise than find the appellant guilty of the offense charged. The pistol itself established nothing beyond what the other evidence in the case established, and I am unwilling to believe that the jury was induced to find the appellant guilty of pointing the pistol merely because the pistol was displayed in court at the time of the trial. While appellant does not so state the proposition, his claim of prejudice amounts, in effect, simply to this: If the jury had not seen the pistol in court, it might not have found him guilty even though the evidence warranted no other conclusion; or, further, had the pistol not been brought into court, he might have had the benefit of perjuring himself by denying that he ever owned a pistol or that he had one with him when he went to the home of the prosecuting witness. No such safeguard against conviction of a crime is provided or intended by the criminal law.\nI am convinced that, while the admission of the pistol in evidence was erroneous, that circumstance did not, under the facts positively established, constitute prejudice in fact or in law.\nFor these reasons alone, I concur in the affirmance of the judgment.\nJeffers, J., concurs with Steinert, J."", ""type"": ""concurrence"", ""author"": ""Steinert, J.""}, {""text"": ""Millard, J.\n(dissenting)—Defendant was, by information, charged with the crime of feloniously assaulting the prosecuting witness with a pistol. When counsel for the state offered the pistol in evidence, defendant’s then counsel claimed surprise, objected to introduction of the article in evidence, and moved its suppression on the ground that the evidence had been obtained from the home of appellant without his consent and without a search warrant. The objection was overruled, the motion was denied on the ground that it was not timely, and the pistol was admitted in evidence. Trial to a jury resulted in a verdict of guilty. Defendant appealed from the judgment and sentence entered against him upon the verdict.\nAppellant committed the assault (pointed pistol at the prosecuting witness) 8:15 p. m., March 30, 1942, in the home of the prosecuting witness, 2710 Oakes avenue, Everett, Washington. Very shortly thereafter, appellant returned to his own home at 2601 Oakes avenue, Everett, Washington, where he accidently shot himself in the left leg. He immediately telephoned the information to the prosecuting witness, who at once notified the police. That evening, two local policemen called at the home of appellant, whom they did not then arrest, and learned that he was under the influence of intoxicating liquor. Later the same night (March 30, 1942), appellant was placed in a local hospital to receive treatment for the wound in his leg. March 31, 1942, the day subsequent to the alleged commission of the assault, appellant, on justice court warrant issued against him, was placed under arrest at the hospital for assault alleged to have been committed by him the night before at the home of the prosecuting witness.\nApril 1, 1942, a local policeman, accompanied by the prosecuting witness, searched appellant’s apartment (his home) without his consent or knowledge and without a search warrant, while appellant was absent therefrom in a local hospital. A thorough search of the rooms on the main floor of appellant’s home was fruitless; whereupon, the searching parties—without a search warrant and without permission of appellant, in hope of finding evidence in that home, where the offense was not committed and where appellant was not arrested—unlocked door to basement of home and diligently searched that portion of appellant’s home, where they found a pistol.\nAppellant’s present counsel, who did not represent appellant in the trial court, insists that, as neither he nor appellant was aware, until the pistol was offered in evidence, that appellant’s home had been entered and the pistol found therein, the motion to suppress was timely and that the evidence should have been suppressed for the reason that it was obtained without a search warrant.\nCounsel for the state admit in this court that the motion to suppress was timely made, but argue that, as the search of appellant’s home was incidental to a lawful arrest, the search was “lawful and not an unreasonable one”; therefore, the pistol found on that search was admissible in evidence under authority of State v. Much, 156 Wash. 403, 287 Pac. 57, and other cases.\nIn argument for new trial, counsel for appellant contended that the trial court erred in admitting the pistol in evidence. In its memorandum decision, the court correctly conceded, as follows, that the objection to the admission of the pistol in evidence was timely:\n“Defendant was arrested on a warrant at the hospital, which hospital was located some distance from his home. On the following day police officers of the City of Everett along with the prosecuting witness went to the home of defendant and, upon search of the basement, found the gun admitted in evidence. The officers had no search warrant or process of any kind authorizing a search of defendant’s home. During the course of the trial and at the time the gun was first offered in evidence, defendant’s attorney objected and I ruled that the objection was not timely in that no motion had been made for suppression of evidence. Without objection the officer was cross-examined and the facts heretofore recited were brought to light. Defendant’s counsel then renewed his objection to the admission of the gun. This last objection was overruled and upon motion for new trial defendant now asserts that the court erred in admitting the gun in evidence.\n“Whether or not the objection is made in timely manner is the first question presented. The evidence of the State’s witnesses disclosed that defendant was under arrest at the hospital in Everett at the time the search was made, that such arrest was lawful and that the search was made the day after the arrest at the hospital. The record does not disclose whether there was anybody at home at the time of the search and does not disclose whether or not some person may have given consent to a search of the house. Under the record as it stands, however, I am inclined to the belief that the objection to the admission of the gun was made in timely manner under the holding of our court in the case of State v. Raum, 172 Wash. 680.”\nThe trial court expressed the view that the search was legal, as it was made incident to a lawful arrest; therefore, the pistol obtained on that search was admissible in evidence.\nIn State v. Raum, 172 Wash. 680, 21 P. (2d) 291, which is determinative of the question whether appellant timely objected to admission of the pistol in evidence, we held, in conformity to rule enunciated in State v. Dersiy, 121 Wash. 455, 209 Pac. 837, 215 Pac. 34, that, where the admitted facts show—as they do in the case at bar—that the articles were obtained on an unlawful search, it is error to admit the articles in evidence, over objection first made when the articles are offered in evidence, since there is no collateral issue of fact to be tried, and nothing for the court to do but sustain the objection.\nThe founding fathers were aware of the ills to which a republican form of government is peculiarly heir. They were mindful of the fact that a free people too soon forget the fathers’ sacrifices which made the heritage of liberty possible, and that, through the years, as they prosper, the people grow more indifferent to, and heedless of, the fundamental principles of government, and fall an easy prey to the slow and insidious encroachment from within upon natural and constitutional rights.\n\""... the little rift within the lute\nThat bye and bye will make the music mute; And, slowly widening,\nEver silence all.”\n• The fathers, warning us—some of our present day members of Congress aíre tardily endeavoring to awaken the American people from their Utopian dream and challenging them to recapture their constitutional rights—that individual rights and free government would be lost if we were not heedful of the basic principles, wrote\n“A frequent recurrence to fundamental principles is essential to the security of individual rights, and the perpetuity of free government.” Art. I, § 32, Washington constitution.\nArt. I, § 7, Washington constitution, provides that no person shall be disturbed in his private affairs, “or his home invaded, without authority of law.”\nClearly, the foregoing provision is mandatory, in view of Art. I, § 29, of our state constitution, which reads as follows:\n“The provisions of this constitution are mandatory, unless by express words they are declared to be otherwise.”\nRem. Rev. Stat., § 2240-1 prohibits the search of any private dwelling-house without the authority of a search warrant.\nThe constitutional (Art. I, § 7, Washington constitution) and statutory (Rem. Rev. Stat., § 2240-1) prohibition against the invasion of private dwellings, is declaratory of the common-law right of the citizen not to be subjected to search or seizure without warrant.\nSearches and seizures without warrants are out of harmony with the traditions of our government.\n“Except in the case of stolen goods, there is no power at common law to issue a warrant authorizing the search of a house [see Entick v. Carrington (decided 1765), 19 State Tr., 1029, 1067]. But provision is made by statute for the issue of a search warrant in certain specified cases.” 9 Halsbury’s Laws of England (2d ed., 1933), p. 101, § 131.\nIn the notes to the foregoing section is a list of the statutes which authorize issuance of a search warrant.\nEntick v. Carrington, XIX State Trials 1030, was an action of trespass by plaintiff against Carrington and three other messengers in ordinary to the king, tried during the sixth year (1765) of the reign of George III. The compiler entitled the cause “The Case of Seizure of Papers,” for the reason that the chief point adjudged was that a warrant to search for and seize the papers of the accused, in the case of a seditious libel, is contrary to law. One of the defenses of the defendants in the case was that they seized the papers of the plaintiff by virtue of a warrant issued by one of the principal secretaries of state in the king’s name, authorizing them to seize and apprehend the plaintiff and his books and papers, plaintiff being alleged to have written certain seditious papers which grossly and scandalously reflected upon the king and upon parliament.\nCounsel for plaintiff argued that a power to issue such a warrant was contrary to the genius of the law of England. In holding that the search and seizure were -unlawful, the court used the following language which is apt in the case at bar:\n“What would the parliament say, if the judges should take upon themselves to mould an unlawful power into a convenient authority, by new restrictions? . That would be, not judgment, but legislation.”\nThe English people were so jealous of their rights and so apprehensive of encroachment by the government upon their liberties that, while, at the common law, a private person had the power to arrest, without a warrant, one whom he had a reasonable cause for suspecting of having committed treason or felony, the king had no power to arrest or order the arrest of such a person. 9 Halsbury’s Laws of England (2d ed.) p. 85. See, also, 2 Coke’s Institutes 186, 187, and case of Lord Kimbolton and the Five Members, 4 State Trials 83, in the year 1641.\nIt is true that, wherever a valid arrest is made, property found within certain legal limitations, in connection with such arrest, which tends to prove the commission of the crime charged, may be held by the arresting officer for evidence in prosecution of the defendant. The rule that if the arrest is lawful the seizure is lawful is, according to the best considered cases and texts, restricted to property seized by a search of the person or the room where the arrest took place, which property must be of an evidentiary nature, tending to establish the commission of crime. Cornelius, Search & Seizure (2d ed.), p. 171, § 46.\n“While it is well settled that incidental to a lawful arrest an officer has the right to search the person of the individual arrested and seize any evidence tending to establish ‘crime,’ whether it be the one for which the arrest was made or any other, the cases do not so clearly define how far an officer may go, in searching the room, premises or effects of the person arrested. The following principles, however, are well settled: (1) If the arrest is made outside the home or rooming place of the arrested party the officer has no right to go to the place where he resides and make a search for incriminating evidence [Amos v. United States, 255 U. S. 313, 65 L. Ed. 654, 41 S. Ct. 266; Gouled v. United States, 255 U. S. 298, 65 L. Ed. 647, 41 S. Ct. 261; Silverthorne Lumber Co. v. United States, 251 U. S. 385, 64 L. Ed. 319, 40 S. Ct. 182, 24 A. L. R. 1426; Flagg v. United States (C. A. A.), 233 Fed. 481; United States v. Mounday, 208 Fed. 186; United States v. Mills, 185 Fed. 318; State v. Rowley, 197 Iowa 977, 187 N. W. 7]; (2) the officers may seize any articles of an incriminating nature visible to them m the rooms where the arrest is made; (3) the officers have no right to search any part of the residence of person except the room where the arrest is made.\n“So far as a private residence is concerned the Supreme Court of the United States has held such a place can not be searched without a search warrant and that even probable cause to believe that contraband is contained therein would not be sufficient to justify a search thereof without a warrant. And because a defendant is lawfully arrested at the home of another this gives the officers no right to take the defendant to his home several blocks distant and search it.” Cornelius, Search and Seizure (2d ed.), p. 177, § 50. (Italics mine.)\nThe fourth amendment to the United States constitution provides:\n“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”\nIn Agnello v. United States, 269 U. S. 20, 70 L. Ed. 145, 46 S. Ct. 4, 51 A. L. R. 409, the United States supreme court held that the search without a search warrant of the premises of one (Agnello) of several conspirators who violated the anti-narcotic act, who had been placed under arrest at the residence of one of them, violated the fourth amendment. The court said:\n“We think there is no state statute, authorizing the search of-a house without a warrant; and, in a number of state laws recently enacted for the enforcement of prohibition in respect of intoxicating liquors,- there are provisions similar to those in § 25 of the National Prohibition Act. Save in certain cases as incident to arrest, there is no sanction in the decisions of the courts, federal or state, for the search of a private dwelling house without a warrant. Absence of any judicial approval is persuasive authority that it is unlawful. See Entick v. Carrington, 19 Howard’s State Trials, 1030, 1066. Belief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search of that place without a warrant. And such searches are held unlawful notwithstanding facts unquestionably showing probable cause. See Temperani v. United States, 299 Fed. 365; United States v. Rembert, 284 Fed. 996, 1000; Connelly v. United States, 275 Fed. 509; McClurg v. Brenton, 123 Ia. 368, 372; People v. Margolis, 220 Mich. 431; Childers v. Commonwealth, 198 Ky. 848; State v. Warfield, 184 Wis. 56. The search of Frank Agnello’s house and seizure of the can of cocaine violated the Fourth Amendment.\n“It is well settled that, when properly invoked, the Fifth Amendment protects every person from incrimination by the use of evidence obtained through search or seizure made in violation of his rights under the Fourth Amendment. Boyd v. United States, supra [116 U. S. 616], 630, et seq.; Weeks v. United States, supra [232 U. S. 383], 398; Silverthorne Lumber Co. v. United States, supra [251 U. S. 385], 391, 392; Gouled v. United States, supra [255 U. S. 298], 306; Amos v. United States, 255 U. S. 313, 316.”\nThe court, addressing itself to the rule as to the scope of search incidental to arrest, said that the right to seize any article of an incriminating nature in the rooms where the arrest is made\n“. . . does not extend to other place. Frank Agnello’s house was several blocks distant from Alba’s house, where the arrest was made. When it was entered and searched, the conspiracy was ended and the defendants were under arrest and in custody elsewhere. That search cannot be sustained as an incident of the arrests. See Silverthorne Lumber Co. v. United States, 251 U. S. 385, 391; People v. Conway, 225 Mich. 152; Gamble v. Keyes, 35 S. D. 645, 650.”\nThe fourth amendment to the United States constitution, which provides that the right of the people to be secure in their homes against unreasonable searches and seizures—a right which existed as a common-law right prior to the adoption of the Federal constitution— shall not be restricted, has been, as stated above, interpreted by the United States supreme court, which holds, true to Anglo-Saxon traditions, that a man’s home is his castle and cannot be searched without a search warrant. The belief, however well founded, that the criminal evidence sought is hidden in a dwelling-house, an apartment, a hotel room, or whatever may be one’s home, would not justify a search of the place without a warrant. Agnello v. United States, supra.\nThe pistol should not have been received in evidence, for the reason that it was obtained by the local police officer without the authority of a search warrant in contravention of Art. I, § § 7 and 9, Washington constitution (which specifically prohibits—in harmony with the fourth and fifth amendments to the United States constitution and declaratory of the common law—invasion of any person’s home without authority of law and guarantees immunity from self-incrimination) and the statute (Rem. Rev. Stat., § 2240-1) which provides,\n“It shall be unlawful for any policeman or other peace officer to enter and search any private dwelling-house or place of residence without the authority of a search-warrant issued upon a complaint as by law provided.”\nIn Corpus Juris (56 C. J. 1187) it is stated that the general rule is that the constitutional or statutory guaranties do not prohibit all searches and seizures without a warrant, for the reason that their prohibition is directed against all unreasonable searches and seizures.\nOur statute and constitution are not so limited. The interpretation of the qualifying language “unreasonable searches and seizures” by the editor of Corpus Juris is illogical and is contrary to the interpretation by the United States supreme court of the fourth amendment to the United States constitution. See Agnello v. United States, supra.\nIn State v. DeFord, 120 Ore. 444, 250 Pac. 220, which is followed by State v. Lee, 120 Ore. 643, 253 Pac. 533— the Oregon constitution contains the language “unreasonable search or seizure”—the Oregon supreme court applied the rule announced in 56 C. J. 1187, on the ground that, if the possession of a warrant were the test of reasonableness, the force and effect of the word “unreasonable” in the constitutional provision would be lost.\nIn State v. McDaniel, 115 Ore. 187, 231 Pac. 965, 237 Pac. 373, which is not discussed in State v. DeFord, supra, and State v. Lee, supra, is the following logical discussion of the question:\n“Our attention is called to the proposition that the Constitution is addressed only to the legislature, and there being no law of the state authorizing unconstitutional searches, the officers, at most, were trespassers, and the remedy is against them. But the Constitution is addressed not only to the legislature, but to every officer of the state, including the judiciary. It is said by the Supreme Court of the United States, in the case whose reasoning is adopted by this court in the Laundy case, ‘The Fourth Amendment was intended to secure the citizen in person and property against unlawful invasion of the sanctity of his home by officers of the law acting under the legislature or judicial sanction. This protection is equally extended to the action of the government, and officers of the law acting under it. To sanction such proceedings would be to affirm by judicial decision a manifest neglect if not an open defiance of the prohibitions of the Constitution, intended for the protection of the people against such unauthorized action.’ Weeks v. United States, supra, p. 394 [232 U. S. 383, 58 L. Ed. 652, 34 S. Ct. 343]; Boyd v. United States, supra [116 U. S. 616, 29 L. Ed. 746, 6 S. Ct. 524]; Adams v. New York, 192 U. S. 585 (48 L. Ed. 575, 24 Sup. Ct. Rep. 372, see, also, Rose’s U. S. Notes).\n“Besides, the trespass of the officers and the remedy against them has no relation to the competency of the evidence, which is the question here. . That is to be determined upon its own merits. If the evidence is made competent by the trespass and the remedy against the trespasser, every confession wrung by an officer from a defendant by force and duress would have to be admitted because the defendant had a remedy against the officer.\n“Another question meets us. May a search, without a warrant, be reasonable? It is said that a search with a warrant may be unreasonable, and a search without a warrant be reasonable and lawful, if reasonable. The first proposition is a legal impossibility. An officer with a warrant duly issued who follows its commands cannot make an unreasonable search. It is reasonable because it is lawful. He may exceed his authority, and the search be unreasonable, but in that case he is no longer with a warrant. He loses its protection. It dies in his hands, and he is a trespasser ab initio.\n“Nor is the second proposition any sounder. If he makes a search without a warrant, however polite, gentle, or considerate he may be, the search is unreasonable, because it is unlawful. The standard of reasonableness is not the conduct of the officer, but the possession of the warrant.”\nThe constitution of Kentucky provides that the people shall be secure in their persons, houses, and possessions from unreasonable search and seizure. In Youman v. Commonwealth, 189 Ky. 152, 224 S. W. 860, 13 A. L. R. 1303, it was held that, while it might be thought, in view of the use of the word “unreasonable” in the constitution, a reasonable search and seizure, as one that was not unreasonable, would be allowed without a warrant, but that there was no foundation for such construction; that the constitutional provision does not permit any kind or character of search of houses, papers, or possessions without a search warrant.\n“The common-law maxim, ‘Every man’s house is his castle,’ is guaranteed by the constitutional provision of ‘the right of the people to be secure in their person, houses, papers and effects against unreasonable searches and seizures,’ and that ‘no warrant shall issue except upon probable cause, supported by oath or affirmation, describing the place to be searched and the person or things to be seized.’ it was said by Lord Chatham that ‘the poorest man in his cottage may bid defiance to all the forces of the crown; it may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the king may not enter, and all his forces dare not cross the threshold of the ruined tenement.’ ” Bessemer v. Eidge, 162 Ala. 201, 204, 50 So. 270, 272.\nSee, also, 56 C. J. 1190, § 80, to the effect that the search of one’s home without a warrant is unreasonable and abhorrent to our laws, and that, under the Federal constitution, no search of a private residence, without invitation or consent, can be made without a search warrant, except when such a search is incident to a lawful arrest. In State v. Slat, 98 W. Va. 448, 127 S. E. 191, it was held that a search of a person’s house without a valid search warrant is “unreasonable search” within Art. Ill, § 6 of the constitution of West Virginia, which provides that the rights of the citizens to be secure in their houses against unreasonable searches and seizures shall not be violated.\nAs stated in Agnello v. United States, supra, the right of the people to be secure in their persons, houses, and effects against unreasonable searches and seizures was not created by the fourth amendment to the United States constitution, but existed as a common-law right before the constitution was adopted.\n“It would seem as if, at this late day, these Amendments, which paraphrase the language of a more venerable Bill of Rights, would have had their intendments so fixed and determined by a chain of judicial construction, that little room would any longer exist for a reasonable doubt as to their cogency in any given case. But the case at bar seems to prove the contrary. The natural desire on the part of administrative officials to enforce the penal laws, and of the judiciary to lend vitality to such efforts, has created a shadowy terra incognita, wherein the interests of criminal justice collide with rooted constitutional immunities. Upon this region a great deal of casuistry has been expended in an endeavor to inhibit these immunities from defeating the immediate ends of justice.” United States v. Di Corvo, 37 F. (2d) 124.\nThe fourth amendment to the United States constitution applies solely to the Federal government and its agencies. This state is limited in regard to searches and seizures only by our own constitutional provisions, Art. I, § 7. The rights and privileges saved to individuals by the state constitution cannot be lessened by the state legislature. Art. I, § 7, Washington constitution, limits the authority of our state legislature to enactments providing for searches and seizures, but it is implicit therein that the search and seizure must be reasonable. The legislature prohibited (Rem. Rev. Stat., § 2240-1) the search of any private dwelling house without the authority of a search warrant. Of course, the legislature could not authorize unreasonable searches and seizures. State ex rel. American Mfg. Co. v. Anderson, 270 Mo. 533, 194 S. W. 268, L. R. A. 1917E, 833. Statutes which authorize invasion of private premises and the sanctity of the home by search and seizure proceedings are to be strictly construed. Hart v. State, 89 Fla. 202, 103 So. 633; People v. Moten, 233 Mich. 169, 206 N. W. 506.\nIn Cornelius on Search and Seizure (2d ed.) § 138, pp. 315-317, the learned author discusses the subject of statutory prohibitions against the search of private dwellings without warrant. In his forecast, as follows, that we would follow the plain, unambiguous statutory mandate (Rem. Rev. Stat., § 2240-1), the author was not afforded the light of the later opinion of this court in State v. Much, supra, where, in our endeavor to vitalize the efforts of the representatives of another branch of our government to further the ends of justice (convict and execute a cold-blooded murderer), we emasculated the statute, disregarded our constitution, and deprived the defendant of the protection which he should have been afforded under the constitution and the statute:\n“Washington also has a drastic statute on the subject making it a gross misdemeanor for an officer to illegally search a dwelling house without the authority of a search warrant and it would seem from the language of the Washington statute that any search of a dwelling house without the authority of a search warrant, would he illegal\"" (Italics mine.)\nAll illegal searches and seizures are “unreasonable” under Art. I, § 7, of our state constitution, while, of course, searches and seizures with authority of law are reasonable. In other words, under Art. I, § 7, Washington constitution, and Rem. Rev. Stat., § 2240-1, searches and seizures without a search warrant are illegal unless incidental to lawful arrest.\nIn State v. Much, 156 Wash. 403, 287 Pac. 57, we held that the trial court properly received in evidence articles which had been obtained by the officers without the authority of a search warrant. The unsound reason given for disregarding the statute (Rem. Rev. Stat., §2240-1), Art. I, §7, Washington constitution, and the overwhelming weight of authority, was that, there being no statute requiring the issuance of a search warrant to search for evidence of a murder, it was not error to receive in evidence articles belonging to the victim, .indicating the guilt of the accused, found on a search of the premises of the accused two or three days after his arrest outside his home; since only unreasonable searches without probable cause are forbidden. Obviously, the holding is so patently erroneous that it is hardly necessary to discuss it. The case should be overruled.\nIn State v. Evans, 145 Wash. 4, 258 Pac. 845, defendant, who was suspected of having committed a murder in a certain rooming house, was arrested on the street while on his way from the scene of the alleged crime to a room at a hotel in the same town. Following the arrest, he was taken to the police station and subjected to an examination, in the progress of which he made known the place of his room at the hotel. Police officers, without a search warrant, immediately went and searched the room, finding therein a pistol holster which fitted the automatic pistol taken from defendant’s person. On the trial, the holster was .admitted in evidence over defendant’s objection that it had been obtained by an unlawful search. On appeal we held: (1) that the great weight of evidence sustained the trial court’s finding that the defendant had consented to the search; and (2), by way of a full paragraph of dictum, that, even if the search of the room had been made without defendant’s consent, we would hold the search lawful as incident to the arrest.\nIn State v. Evans, supra, again the interests of criminal justice collided with statutory and rooted common-law and constitutional immunities—protection against unlawful searches and compulsory evidence. The following dictum, which is unsound and is not, ás implied therein, supported, by the weight of authority, improperly manifests willingness of a court to deny these immunities if by upholding same the immediate ends of justice might be defeated.\n“But were it the fact that the search had been made without the consent of the appellant, we are not willing to hold that the search of his room was unlawful, or the evidence obtained by the search inadmissible. A heinous crime had been committed. The appellant was under arrest as the perpetrator of the crime. There was then in the possession of the officers making the arrest persuasive evidence tending to show that the appellant was guilty of the crime. In so far as our examination of the cases has extended, all of the cases hold, even those which adhere most strictly to the rule that evidence obtained by an unlawful search is inadmissible as evidence, that, where the accused is arrested in his home, or place of residence, a search of the home or place of residence may be lawfully made for evidence of his guilt. In this instance, the defendant was on his way to his place of residence when arrested, and the fact that he was caught before he reached the place ought not to require the application of a different rule.” State v. Evans, 145 Wash. 4, 13, 258 Pac. 845.\nA just criticism of State v. Evans, supra, in 3 Wash. L. Rev., pp. 59-61, reads as follows:\n“The foregoing decision is undoubtedly correct on the first ground [defendant’s consent to the search] stated, since consent waives the requisite of a search warrant. 24 R. C. L. 723; State v. Tucker, 137 Wash. 162. But the holding next suggested in the paragraph of dictum is without support in the authorities (the court cites none) and is squarely contrary to the epochal decision rendered two years earlier by the Supreme Court of the United States in Agnello v. United States, 269 U. S. 20, 46 Sup. Ct. 4, 70 L. Ed. 145 (1925). In that case, the defendant, in company with persons suspected of a felony under the federal antinarcotic act, was observed to leave his home and go to the home of one Alba, where he was arrested while delivering some narcotics. While the defendant was being taken to the police station, certain of the revenue agents and police officers, without a search warrant, went to defendant’s house, several blocks from the scene of his arrest, and on search found a can of cocaine, which, over defendant’s objection, was admitted in evidence at the trial. It was held by the United States Supreme Court, reversing both federal courts below, that the ‘search cannot be sustained as an incident to the arrest.’ The Court speaking through Mr. Justice Butler, says: ‘While the question has never been directly decided by this court, it has always been assumed that one’s house cannot lawfully be searched without a search warrant, except as an incident to a lawful arrest therein . . . The search of a private dwelling without a warrant is, in itself, unreasonable and abhorrent to our laws . . . The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime, and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits, or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted . . . But the right does not extend to other places . . . Belief, however well founded, that an article is concealed in a dwelling house, furnishes no justification for a search without a warrant. . . . The search of Frank Agnello’s house and seizure of the can of cocaine violated the Fourth Amendment.’ Further authorities are collected in 32 A. L. R. 697; 51 A. L. R. 434. It has even been held that where a person is arrested on his premises just outside of his house, the house cannot be searched as an incident to the arrest without a warrant. United States v. Steck, 19 F. (2d) 161 (1927). It is to be noted that in the Agnello case, supra, the officers who observed the defendant coming from his house to the scene of the crime where he produced the cocaine had reasonable ground upon which they might have asked for a search warrant, whereas in the instant case in this state where the defendant was arrested with a revolver in his possession while on his way from the scene of the murder to his home (of the location of which the officers had no knowledge until told by the defendant) had no particular grounds to suspect that his room contained any evidence of crime, but were merely engaged in a fishing expedition, and probably could not have sufficiently described any item to be searched for had they been required to ask for a warrant.\n“In view of the fact that Rem. Comp. Stat., [Rem. Rev. Stat.] § 2240-1 makes it ‘unlawful for any policeman or other peace officer to enter and search any private dwelling-house or place of residence without the authority of a search warrant issued upon a complaint as by law provided’ (see later case of State v. Buckley [145 Wash. 87, 258 Pac. 1030], where both this statute and Agnello v. U. S. were cited with approval), and in view of the fact that an examination of the briefs in the instant case does not show that the decision of Agnello v. U. S. was before the court, it is to be hoped that the broad dictum in the instant case will not become the law of this state without re-examination of the question and a full examination of the authorities bearing on it. Considering the state of the authorities that have squarely passed on the question, the dictum does not appear to be a safe one for peace officers to follow.”\nOn pages 1418 et seq., 74 A. L. R. (which annotation supplements annotations in 3 A. L. R. 1514, 13 A. L. R. 1316, 27 A. L. R. 709, and 39 A. L. R. 811), will be found interesting reviews of the cases concerned with the questions of constitutional guaranties against unreasonable searches and seizures, as applied to search for, or seizure of, intoxicating liquor.\nIn 24 A. L. R. 1408 and 32 A. L. R. 408, the authorities on the subject of admissibility of evidence obtained by illegal search and seizure are reviewed. The .general question of the right of search and seizure incidental, to lawful arrest without a search warrant, is treated in annotations in, 32 A. L. R. 680, supplemented by annotations following Henderson v. United States, 12 F. (2d) 528, 51 A. L. R. 420.\nState v. Thomas, 183 Wash. 643, 49 P. (2d) 28, is not in point. We held in that case that Rem. Rev. Stat., § 2240-1 had no application to a search made as an incident to a lawful arrest. State v. Beaupre, 149 Wash. 675, 271 Pac. 26, should be overruled. It is bottomed on dictum in State v. Evans, 145 Wash. 4, 258 Pac. 845, which was correct in result for the reason that defendant consented to the search. In State v. Gunkel, 188 Wash. 528, 63 P. (2d) 376, we held that, where objection to receiving in evidence articles unlawfully seized was not made until three months after the seizure, the objection was not timely. That case is not in point.\nWe should overrule State v. Much, supra, frankly acknowledging that it is not founded on sound reason, and declare the true doctrine as we should have done in that case. The case at bar is one in which personal liberty is involved; therefore, the doctrine of stare decisis may not be successfully invoked to prevent overruling State v. Much, supra (that decision does not constitute a rule of property), which was decided contrary to our statute, to our constitution, to the common law, and to all respectable authorities.\n“Infallibility is to be conceded to no human tribunal. A legal principle, to be well settled, must be founded on sound reason.” Leavitt v. Morrow, 6 Ohio St. 71, 78, 67 Am. Dec. 334.\nSee, also, Powell v. Superior Portland Cement, Inc., 15 Wn. (2d) 14, 129 P. (2d) 536.\nThe motion to suppress as evidence the pistol which was unlawfully seized was timely made by appellant. The admission in evidence against the accused in a criminal case of an article obtained by an illegal search of his home contravenes the guaranty of Art. 1, § 7, Washington constitution, and of the statute (Rem. Rev. Stat, §2240-1).\nThe judgment should be reversed and the cause remanded for a new trial.\nSimpson, C. J., concurs with Millard, J."", ""type"": ""dissent"", ""author"": ""Millard, J.""}, {""text"": ""Robinson, J.\n(concurring in the result)—While I emphatically agree with Judge Millard that the search and seizure in this cause was unreasonable and unlawful, I also agree with Judge Steinert that, under the circumstances shown, the error in admitting the pistol in evidence was harmless. I accordingly vote to affirm the judgment.\n[En Banc. September 27, 1943.]\nPetition for Rehearing Denied."", ""type"": ""concurrence"", ""author"": ""Robinson, J.""}, {""text"": ""Millard, J.\n(dissenting)—Each of nine judges of this court was elected, and qualified, for a term of six years under Art. IV, § 3, of our state constitution. Each of those judges holds the office for the term of six years, unless he dies, resigns, or is removed by impeachment proceedings prior to the expiration of that term. The limits of the term cannot be increased during that six-year term, nor may the legislature, other than by impeachment proceedings, shorten that term of office. Pursuant to Laws of 1941, chapter 201, one judge of this court became a member for such period of time as one of the nine judges is absent from this state in the active service of the United States. The questions whether that statute is constitutional and/or whether we have at this time a membership on this court of nine or ten judges is not now material.\nThis cause was heard by the court En Banc, with eight of the nine elected judges and the appointed judge sitting. Two of those nine judges were of the view that the admission in evidence of the pistol was prejudicial. Three judges concluded that the admission in evidence of the pistol constituted error but was not prejudicial. Four judges deemed no error was committed in admitting the pistol in evidence, but expressed the opinion that, if the admission of such evidence was erroneous, it was clearly prejudicial and entitled the appellant to a new trial; that is, five judges held that the search violated the constitutional rights of appellant and six of the judges expressed the opinion that, if it were error to admit the pistol in evidence, such error was prejudicial. The opinion is of no value as a precedent as there is not a constitutional majority of this court in agreement on the determinative question before us.\nThere is not an English speaking court in the world which holds that evidence taken without a search warrant, as in the case at bar, is admissible against the defendant. All the cases hold that in such cases the defendant’s conviction has no sufficient foundation to support it without the use of evidence which had been unlawfully obtained; therefore, the judgment of conviction must be reversed.\nThe only authority upon which the so-called majority opinion in the case at bar is based is our opinion in State v. Much, 156 Wash. 403, 287 Pac. 57, in which we disregarded the provision of the constitution securing the right of the people against unlawful searches and seizures and heeded not the constitutional provision that no person shall be compelled in any criminal case to be a witness against himself. In State v. Much, supra, we held that Rem. Rev. Stat, §§ 2237 to 2240-1, inclusive, which provided for the issuance of search warrants in certain cases and that it was unlawful to enter and search any private dwelling house or place of residence without the authority of a search warrant, should be construed together; hence, no statutory authority existed for the issuance of a search warrant in a murder case. We said, in effect, that, as we had no statute authorizing the issuance of search warrants for the evidence of the instruments of a murder, the constitutional prohibition against the invasion of one’s home without authority of law should be disregarded; otherwise, the law against the commission of the crime of murder could not be enforced.\nConstitutional limitations and guarantees should not be contravened and treated as mere scraps of paper on the ground that a law cannot be enforced if the constitution is followed. This should be a government of laws, and not of men. Conceding, arguendo, that there is no statutory authority for the issuance of a search warrant in a murder case, that lack constitutes no justification for the unlawful seizure of appellant’s pistol and admitting it in evidence against him.\nIn Jokosh v. State, 181 Wis. 160, 193 N. W. 976, is the following language which, except that the end sought was the enforcement of the prohibition law, is apt in the case at bar:\n“It is also said that, if searches such as this cannot be made, the prohibition law cannot be enforced. This may be true in part or it may be true in whole. The answer is that an article of the constitution having its origin in the spirit if not in the letter of the Magna Carta prevents it, and that it is the duty of the court to sustain and enforce the constitution in its entirety, and not to permit what may seem to be presently a desirable mode of procedure to annul such fundamental portions of our organic law as the freedom from unlawful searches. The importance of such a provision may be lost sight of in times of peace in a well organized and well administered state, but in times of stress or dissensions its value is as great as those who inserted it in the constitution conceived it to be.”\nIn Hoyer v. State, 180 Wis. 407, 193 N. W. 89, deputy-sheriffs, without a-search warrant, opened the door of defendant’s automobile and removed bottles of intoxicating liquor from the car which they seized together with the liquor. Defendant was convicted of the crime of unlawful transportation of intoxicating liquors. On appeal, the supreme court of Wisconsin held that the intoxicants taken without a search warrant were not admissible in evidence against defendant as being in violation of the constitutional provision securing the right against unreasonable searches and seizures and •also in contravention of the constitutional provisions that no person shall be compelled in a criminal case to be a witness against himself. The judgment was reversed, the court stating:\n“For ourselves we elect to stand, as this court has heretofore stood, with the federal and other courts which consider these provisions of the Bill of Rights as embodied in constitutions to be of substance rather than mere tinsel. We hold, therefore, that the evidence challenged in this case was taken by the officers by unlawful search and seizure and contrary to sec. 11, art. I, Wis. Const. . . .\n“This court squarely aligned itself with rulings of the United States supreme court in Thornton v. State, 117 Wis. 338, 341, 93 N. W. 1107, and State v. Murphy, 128 Wis. 201, 207, 107 N. W. 470, each of which cited with approval Boyd v. U. S., 116 U. S. 616, 6 Sup. Ct. 524, and Bram v. U. S., 168 U. S. 532, 18 Sup. Ct. 183, infra.\n“We firmly believe as to each of these provisions that which was said as to the right of exemption from compulsory self-incrimination in Twining v. New Jersey, 211 U. S. 78, at p. 91 (29 Sup. Ct. 14) :\n“ Tt was generally regarded then [referring to the adoption of the several constitutions], as now, as a privilege of great value, a protection to the innocent though a shelter to the guilty, and a safeguard against heedless, unfounded, or tyrannical prosecutions.’\n“The two constitutional provisions here invoked are quite closely interwoven, and generally, as in this case, that which is obtained by unlawful search and seizure is subsequently attempted to be used to incriminate him from whom obtained, the one violation being but a preface to the other. This view has been very fully and clearly discussed by Anderson, J., in Tucker v. State, 128 Miss. 211, 90 South. 845, and many authorities are there cited.\n“In Lang v. State, 178 Wis. 114, 189 N. W. 558, this court very recently set aside a conviction for murder because there were used in evidence against defendant, statements, miscalled a confession, extorted from him by resort to personal violence and methods declared to savor of the rack and thumb-screw. It is needless, perhaps, to say that we are still in accord with the views there expressed by Mr. Justice Jones, speaking for this court. The statements in that case obtained from the defendant were held inadmissible because of no probative force. But this court also there stated that other cases place the rejection of such evidence on the ground that it is a violation of the constitutional guaranty against the compulsory giving of evidence against oneself, citing to that effect Bram v. U. S., 168 U. S. 532, 18 Sup. Ct. 183, supra. That view seems tacitly, if not expressly, approved in the case of Weeks v. U. S., 232 U. S. 383, 393, 34 Sup. Ct. 341, and expressly so approved in Goulet v. U. S., 255 U. S. 298, 306, 41 Sup. Ct. 261, infra, as well as in Silverthorne L. Co. v. U. S., 251 U. S. 385, 391, 40 Sup. Ct. 182.\n“We see no reason in logic, justice, or in that innate sense of fair play which lies at the foundation of such guarantees, why a court of justice, rejecting as abhorrent the idea of the use of evidence extorted by violation of a defendant’s right to be secure in person and exempt from self-incrimination though it may result in murder going unwhipt of justice, should yet approve of the use, in the same, court of justice, by state officers, of that which has been obtained by other state officers through, and by, a plain violation of constitutional guarantees of equal standing and value, though thereby possibly a violation of the prohibition law may go unpunished.\n“Sec. 11, art I, Wis. Const., supra, is a pledge of the faith of the state government that the people of the state, all alike (with no express or possible mental reservation that it is for the good and innocent only), shall be secure in their persons, houses, papers, and effects against unreasonable search and seizure. This security has vanished and the pledge is violated by the state that guarantees it when officers of the state, acting under color of state-given authority, search and seize unlawfully. The pledge of this provision and that of sec. 8 are each violated when use is made of such evidence in one of its own courts by other of its officers. That a proper result—that is, a conviction of one really guilty of an offense—may be thus reached is neither an excuse for nor a condonation of the use by the state of that which is so the result of its own violation of its own fundamental charter. Such a cynical indifference to the state’s obligations should not be judicial policy.\n“Such constitutional provisions here invoked are not grants of rights of action for trespass against official or individual violators of such guaranteed rights, for other provisions of the constitution give such remedies. To say, then, that when the state itself has thus violated its own pledges it may use the results thereby obtained for its own purpose, become a party to the trespass by ratification, trace its title through wrongful' acts of its officers, remain itself immune in its sovereignty from legal liability, and then relegate the individual whose rights are thus swept away and made valueless in and by a court of justice to his bootless and fruitless action of trespass against such trespassing state officials as individuals, is to gibe and to jeer.\n“No statute of limitations has or can run against such guarantees. The wisdom or propriety of them is not for the courts or state officials to question or debate any more than may such courts or officials question the wisdom or propriety of any other such provisions. Constitutional provisions of later date acquire no priority in value over their elders, and the efficacy of any such provision does not diminish in comparison with others in any proportion based upon their respective perspectives. Zeal for the enforcement of one provision should not succumb to the temptation to breach the fidelity owed to another coequal provision. Lang v. State, 178 Wis. 114, 189 N. W. 558. While they stand as they have so long stood the courts are pledged to support and uphold them, be the consequences what they may.”\nI am not unmindful of the doctrine of stare decisis and am more or less familiar with our utterances respecting that principle. In Schramm v. Steele, 97 Wash. 309, 166 Pac. 634, we quoted with approval the following language from the supreme court of Indiana:\n“ ‘Much as we respect the principle of stare decisis, we cannot yield to it when to yield is to overthrow principle and do injustice. Reluctant as we are to depart from former decisions we cannot yield to them, if, in yielding, we perpetuate error and sacrifice principle. We have thought it wisest to overrule outright rather than to evade, as is often done, by an attempt to distinguish where distinction there is none.’ Paul v. Davis, 100 Ind. 422, 428.”\nThe following language of the United States supreme court in the Genesee Chief v. Fitzhugh, 12 How. (U. S.) 443, 455, 13 L. Ed. 1058, is pertinent:\n“It is the decision in the case of the Thomas Jefferson which mainly embarrasses the court in the present inquiry. We are sensible of the great weight to which it is entitled. But at the same time we are convinced that, if we follow it, we follow an erroneous decision into which the court fell, when the great importance of the question as it now presents itself could not be foreseen; and the subject did not therefore receive that deliberate consideration which at this time would have been given to it by the eminent men who presided here when that case was decided.”\nThe foregoing language was quoted with approval in Pollock v. Farmers’ Loan & Trust Co., 157 U. S. 429, 576, 39 L. Ed. 759, 15 S. Ct. 673, where the United States supreme court said:\n“Manifestly, as this court is clothed with the power, and entrusted with the duty, to maintain the fundamental law of the Constitution, the discharge of that duty requires it not to extend any decision upon a constitutional question if it is convinced that error in principle might supervene.”\nIt is the duty of this court to maintain the fundamental law of the constitution, hence it follows that we should overrule the erroneous decision in State v. Much, supra. From January 1, 1915, to December 31, 1942, we challenged and/or overruled three hundred and eighty-seven of our opinions.\nWe filed opinions in 13,902 causes from January 1, 1915, to and including July 13, 1943, and of 13,464 of those opinions (the years 1942 and 1943 are excluded) 3,980 opinions were not unanimous.\nYear Opinions Not Unanimous Year Opinions Not Unanimous\n1915 622 190 1930 503 147\n1916 628 233 1931 569 165\n1917 572 172 1932 489 125\n1918 635 194 1933 485 180\n1919 521 145 1934 405 107\n1920 [ XXX XX XXXX ] 427 150\n1921 548 134 1936 383 129\n1922 615 163 1937 347 113\n1923 656 207 1938 359 91\n1924 515 175 1939 317 78\n1925 629 185 1940 319 109\n1926 548 113 1941 297 99\n1927 617 160 1942 274\n1928 504 172 1943 164\n1929 472 164\nI cite some of our opinions, as follows, to show that, while we greatly respect the doctrine of stare decisis, we will depart from former decisions when to yield to them we perpetuate error and sacrifice principle:\nThompson v. Caton, 3 Wash. Terr. 31, 13 Pac. 185, criticised (overruled) by Benham v. Ham, 5 Wash. 128, 131, 31 Pac. 459. Smith v. Taylor, 2 Wash. 422, 27 Pac. 812, criticised by O’Connor v. Slatter, 46 Wash. 308, 311, 89 Pac. 885, for remarks “not necessary to a decision in that case.”\nSpithill v. Jones, 3 Wash. 290, 28 Pac. 531, criticised in McKinley v. Morgan, 36 Wash. 561, 564, 79 Pac. 45, as “a case with which this court has never been entirely satisfied, and we do not care to extend the doctrine there announced.” In Nelson v. Denny, 26 Wash. 327, 67 Pac. 78, we held that an order vacating a judgment is not an appealable order. In dissenting opinion, it was observed that this court did not formerly seem to treat the cases cited from the first of Washington as conclusive upon the question even under the old statute; that in Northern Pac. & P. S. S. R. Co. v. Black, 3 Wash. 327, 28 Pac. 538, concurred in by the full court, the right of an appeal from an order vacating a judgment was referred to as still an open question; that in Marston v. Humes, 3 Wash. 267, 28 Pac. 520, a proceeding brought to review an order vacating a judgment, a grave constitutional question was determined; and in Reitmeir v. Siegmund, 13 Wash. 624, 43 Pac. 878, we held that an order vacating a judgment is appealable and decided the case on its merits.\nElwell v. Puget Sound & C. R. Co., 7 Wash. 487, 35 Pac. 376, criticised in Miller v. Washington Southern R. Co., 11 Wash. 414, 39 Pac. 673, as in conflict with Duggan v. Pacific Boom Co., 6 Wash. 593, 34 Pac. 157; Carrigan v. Port Crescent Imp. Co., 6 Wash. 590, 34 Pac. 148; Tootle v. First Nat. Bank, 6 Wash. 181, 33 Pac. 345, and Seal v. Puget Sound Loan & Inv. Co., 5 Wash. 422, 32 Pac. 214.\nThe statement in Guley v. Northwestern Coal & Transp. Co., 7 Wash. 491, 35 Pac. 372, that\n“Where the clear weight of the evidence is with either side, there is no substantial conflict, and the court should take the decision of the case from the jury”\nis criticised in Tacoma v. Tacoma Light & Water Co., 17 Wash. 458, 480, 50 Pac. 55, as contrary to the true rule that when there is any evidence to warrant the verdict and the trial court has refused to set it aside, it will not be reversed on appeal. The opinion was again criticised on the same ground in Pronger v. Old Nat. Bank, 20 Wash. 618, 624, 56 Pac. 391, where we held that a judgment founded on the verdict of a jury will not be reversed, where there is a substantial conflict in the evidence, merely because the appellate court may be of the opinion that the weight of the evidence is contrary to the conclusion necessary to be reached in order to sustain the judgment.\nState ex rel. Bartelt v. Liebes, 19 Wash. 589, 54 Pac. 26, criticised Sears v. Williams, 9 Wash. 428, 37 Pac. 665, 38 Pac. 135, 39 Pac. 280, as announcing a doctrine opposed to reason and the great weight of authority.\nIn Denney v. Parker, 10 Wash. 218, 38 Pac. 1018, the compromise of a claim by an administrator pending a lawsuit was affirmed. In Ward v. Magaha, 71 Wash. 679, 685, 129 Pac. 395, we criticised the opinion in the foregoing case as not resting upon authority and observed,\n“There is now no reason for ignoring our statutes and allowing an administrator to waive a right, or admit, by his action or inaction, a claim against an estate. The reasons stated in the Denney case are unsound. The case seems to have proceeded upon the theory that the probate court was something ‘over the hills and far away,’ whereas it was the same court in which the action was pending, and with full power in the same judge to discontinue the action at law until the probate record could be made up.”\nState v. O’Hare, 36 Wash. 516, 519, 79 Pac. 39, criticises State v. Cochran, 10 Wash. 562, 39 Pac. 155, for failure to hold that the crime of seduction under Bal. Code § 7066, is not limited only to those cases where there was a promise of marriage, as any seductive arts or promises, where the female involuntarily and reluctantly yields thereto, are sufficient.\nTacoma v. Krech, 15 Wash. 296, 46 Pac. 255, 34 L. R. A. 68, which held that an ordinance prohibiting barbers from pursuing their ordinary calling on Sunday was unconstitutional, was overruled by State v. Nichols, 28 Wash. 628, 69 Pac. 372, a prosecution for violation of the Sunday closing law (Bal. Code § 7152). In State v. Bergfeldt, 41 Wash. 234, 240, 83 Pac. 177, we held that a statute (Laws of 1903, p. 68) prohibiting the business of barbering on Sunday was constitutional and stated that Tacoma v. Krech, supra, was properly overruled. (See Patton v. Bellingham, 179 Wash. 566, 38 P. (2d) 364.)\nJudge Rudkin refused to concur in the per curiam opinion, which states,\n“He thinks the act in question without right and without reason, denies to an inconsiderable portion of our population the right to pursue their ordinary calling on Sunday, while that privilege or immunity is enjoyed by every other laborer and artisan in the state; that while, in a technical sense, the act applies to all persons within the state, yet in its practical operation, it affects ' barbers alone, and denies to them that equality before the law which our constitutions were established to maintain.”\nIn State ex rel. Fuller v. Superior Court, 31 Wash. 96, 71 Pac. 722, we held that the fact that the superior court has no jurisdiction to try and determine an appeal from a justice of the peace is not ground for the issuance of a writ of prohibition, where the amount in controversy is less than two hundred dollars, since the judgment of the superior court is conclusive in such cases, under the constitutional provisions limiting the appellate jurisdiction of the supreme court. In answer to the argument of relator that State ex rel. Alladio v. Superior Court, 17 Wash. 54, 48 Pac. 733, sustained the contention that the writ of prohibition will issue from this court to a superior court to prevent its trying a case which is without its jurisdiction, we said:\n“The question discussed in that case was the legality of the notice of appeal and its proper service. It is true it was stated in that case that this court had previously decided that it had authority to issue the writ in such case, as it no doubt had in some of the earlier cases. But those cases have been overruled since that time by this court in many instances. In State ex rel. McIntyre v. Superior Court of Spokane County, 21 Wash. 108, (57 Pac. 352), this question was squarely presented in a mandamus case where the case of State ex rel. Shannon v. Hunter, 3 Wash. 92 (27 Pac. 1076) was overruled in this particular, and the court, in concluding its argument, said:\n“ ‘It is true that the constitution (art. 4, § 4) provides that the supreme court shall have original jurisdiction in habeas corpus, quo warranto and mandamus as to all state officers; but that provision must be construed in relation to the other provision just mentioned, which was intended as a limitation upon the jurisdiction of the supreme court. [The provision referred to was the constitutional provision that this court shall not have appellate jurisdiction where the amount in controversy does not exceed the sum of $200, with certain exceptions.] It certainly was not the intention of the framers of the constitution, and would not be in harmony with any consistent theory of adjudication, to hold that a litigant could obtain the opinion of this court by mandamus upon a question of law, where he would be precluded from obtaining it upon appeal; . . . The idea of the constitution evidently is that cases involving small amounts can safely be entrusted to the final judgment of the superior court, and that as to such cases the superior court is the court of final determination.’\n“This case was followed by State ex rel. Gillette v. Superior Court of Spokane County, 22 Wash. 496 (61 Pac. 158), which was an application for a writ of review, and the court in that case, in refusing the writ, said:\n“ ‘The constitution provides that, except in certain cases specifically mentioned, the appellate jurisdiction of this court shall not extend to cases where the original amount in controversy or the value of the property does not exceed the sum of $200, and we have frequently decided that a party litigant cannot by indirection obtain a review of his cause which he cannot obtain directly by appeal. It was evidently the intention of the constitution makers that the superior court should have exclusive jurisdiction in actions where the original amount in controversy did not exceed $200.’\n“It is argued by the petitioner that these cases are not in point for the reason that one was an application for a writ of review, and the other for a writ of mandamus. But this argument is not sound. If we should grant the writ of prohibition in this case, it would, in effect, be a review of the judgment of the superior court on a question of statutory law, and the result would be (what we said in the case above cited should not be) that the relator would obtain by indirection what he could not obtain directly by appeal, viz., the judgment of this, court on the action of the judge of the superior court in a cause involving less than $200. Prohibition is the counterpart of mandamus.”\nSee North Bend Stage Line v. Department of Public Works, 170 Wash. 217, 16 P. (2d) 206, and Kitsap County Transportation Co. v. Department of Public Works, 170 Wash. 396, 16 P. (2d) 828, in which we held that chapter 119, Laws of 1931, which assumed to confer upon this court the exclusive reviewing jurisdiction therein described and assumed to deprive the superior court of its review and certiorari jurisdiction, was unconstitutional. Nevertheless, although we were without jurisdiction, which necessitated dismissal of the proceeding in each case, we reviewed the order of the department sought to be appealed direct to this court, giving as reason for our disregard of the constitution, that the time for taking an appeal to the superior court had passed and the injured party had lost its right of appeal.\nIn Ethredge v. Diamond Drill Contracting Co., 196 Wash. 483, 83 P. (2d) 364, upon objection of appellant the trial court rejected testimony offered by respondent. Respondent’s offer of proof was rejected a second time upon appellant’s objection. On appeal, we reversed the judgment solely on the ground that the trial court erred in rejecting respondent’s offer of proof, despite the fact that any question as to the correctness of that ruling was not before us and there were no assignments of error entitling appellant to reversal of the judgment. In the dissenting opinion is the observation:\n“Clearly, the trial court did not err in rejecting respondent’s offer of proof; however, any question as to the correctness of that ruling is not before us. There is no cross-appeal in the case at bar, hence we may review only the questions — no constitutional or jurisdictional question is presented — properly raised by appellant.”\nIn State ex rel. Denny v. Bridges, 19 Wash. 44, 52 Pac. 326, 40 L. R. A. 593, we said:\n“The word ‘navigation,’ as used in the first section of the article of the constitution quoted [art. 15, § 1], is clearly used as a qualification of the word ‘commerce.’ ”\nIn State ex rel. Hulme v. Grays Harbor & P. S. R. Co., 54 Wash. 530, 103 Pac. 809, we criticised that statement as dictum and not a sound interpretation of that clause of the constitution.\nIn Tacoma Bituminous Paving Co. v. Sternberg, 26 Wash. 84, 88, 66 Pac. 121, we criticised the citation of the “virtually overruled” case, Philadelphia Mortgage & Trust Co. v. New Whatcom, 19 Wash. 225, 52 Pac. 1063, as authority.\nIn Seattle v. Smyth, 22 Wash. 327, 60 Pac. 1120, 79 Am. St. 939, which was overruled sub silentio by State v. Buchanan, 29 Wash. 602, 70 Pac. 52, we held that a city ordinance which makes it unlawful for any contractor upon any of the public works of a city to require or permit any day laborer or mechanic to work more than eight hours in any one calendar day\n“ ... is unconstitutional, on the ground that it interferes with the right of persons to contract with reference to their services, where such services are neither unlawful nor against public policy.”\nIn In re Broad, 36 Wash. 449, 455, 78 Pac. 1004, we criticised the foregoing and held that a like ordinance of the city of Spokane was constitutional.\nIn Northern Pac. R. Co. v. Hasse, 28 Wash. 353, 356, 68 Pac. 882, contrary to and criticising our opinion in Northern Counties Inv. Trust v. Enyard, 24 Wash. 366, 64 Pac. 516, we held that, where a homestead entry was made upon land through which a railroad company was entitled by 1864 act of congress to a right of way four hundred feet wide, the land enclosed and cultivated by the entryman, and the enclosure forcibly broken by the railroad company for the construction of its line of railway, the attitude of the parties was hostile from the inception of the right, and the occupation and cultivation thereafter by the entryman of such portions of the right of way as were not in actual use by the railway would constitute adverse possession.\nIn Spokane Grain & Fuel Co. v. Lyttaker, 59 Wash. 76, 109 Pac. 316, we held that the constitutional provision (Art. II, § 37) that no act shall be revised or amended by mere reference to its title, but the act shall be set forth in full as amended, does not apply to an act complete and perfect in itself, although it amends by implication or is a substitute for a section in a former law on the same subject; and, hence, is not violated by the act of 1909, entitled an act relating to materialmen’s liens and the enforcement thereof, providing for the service upon the owner of duplicate statements of all materials furnished for the construction of buildings, etc. We criticised Copland v. Pirie, 26 Wash. 481, 67 Pac. 227, 90 Am. St. 769, upon which appellants largely relied, as follows:\n“It must be conceded that their contention finds support in that decision. It was there held that the act of 1897 (Laws 1897, p. 93, relating to exemptions of personal property was amendatory of section 486 of Hill’s Statutes and Codes (Rem. & Bal. Code, § 563), and was therefore void, because not enacted according to the requirements of the constitution. If the act of 1897 was strictly amendatory in its character, the conclusion of the court was unavoidable, but the legislature in its wisdom did not see fit to enact it in that form, and it may well be doubted whether the court did not go too far in limiting and restricting the legislature as to the mode it might pursue in the enactment of laws. Lockhart v. City of Troy, supra.\n“In the course of its opinion in the case cited this court said:\n“ ‘In construing similar constitutional provisions the courts seem generally to have held that this requirement does not apply to supplemental acts not in any way modifying or altering the original act, nor to those merely adding sections to an existing act, nor to acts complete in themselves, not purporting to be amendatory, but which by implication amends other legislation on the same subject.’\n“The rule there stated is no doubt the correct one, but was not the act of 1897 a supplementary act within the meaning of that rule? It' in no wise altered or amended existing laws, but simply increased the existing exemptions, by adding a new exemption of a different kind. The decision in Copland v. Pirie was controlled largely by the decision of the United States district court for this district, in In re Beulow, 98 Fed. 86, construing the same statute. That court proceeded upon the theory that ‘The new act is not complete, but refers to a prior statute, which is changed, but not repealed by the new act, so that the full declaration of the legislative will on the subject can only be ascertained by reading both statutes, the very obscurity and the tendency to confusion will be found which constitutes the vice prohibited by this section of the constitution.’ But how often must we look to two or more acts to ascertain the full declaration of the legislative will? No one will for a moment doubt the power of the legislature to exempt homesteads by one act, household goods by another, farming implements by a third, and so on; yet the full declaration of the legislative will on the subject of exemptions could only be gathered by referring to these several acts. Followed to its logical conclusion, this argument would compel the legislature to embody in a single enactment, or in amendments thereto, all legislation relating to a single subject. Such was not the object or purpose of the provision in question. So long as a legislative act is complete in itself and does not tend to mislead or deceive, it is not violative of the constitution.”\nIn State ex rel. Ide v. Coon, 40 Wash. 682, 82 Pac. 993, we held that where the amount in controversy is less than two hundred dollars, an appeal does not lie from a judgment of the superior court awarding a writ of mandate to compel the city officers to issue a warrant to pay a judgment, although the judgment was one entered by the supreme court for costs against the state, in an action prosecuted by the city, and the legal contention was involved that the city was not liable on the judgment. In criticising State ex rel. Dudley v. Daggett, 28 Wash. 1, 68 Pac. 340, which was overruled by State ex rel. Plaisie v. Cole, 40 Wash. 474, 82 Pac. 749, we said:\n“The main contention of appellants is that the mandamus proceeding in this case was a proceeding to enforce an execution on the judgment of this court, and not in any sense a civil action for the recovery of money; that the judgment of this court, having been a judgment for costs against the state, it cannot be recovered against the city; and that this court has power and jurisdiction at all times and under all circumstances to enforce its judgments; and the case of State ex rel. Jefferson County v. Hatch, 36 Wash. 164, 78 Pac. 796, is cited to sustain the contention. But that case, it seems to us, is not in point, for the reason that it was a direct application in this court to compel an obedience to the judgment of this court. The case of State ex rel. Plaisie v. Cole, supra, was a mandamus case to compel a justice of the peace to grant a change of venue, and we held there that, inasmuch as the amount in controversy in the original action was less than $200, this court would not take jurisdiction of the appeal under the constitutional provision above referred to, and the case of State ex rel. Dudley v. Daggett, 28 Wash. 1, 68 Pac. 340, was overruled. In that case it was held that, where a mandamus was sought for the purpose of compelling the proper city officers to issue a warrant for the payment of an officer’s salary the amount involved being less than $200, this court would take jurisdiction of an appeal in the case on the ground that mandamus is not a civil action at law for the recovery of money, within the meaning of the constitutional provision limiting the jurisdiction of this court. The court then returned to the announcement made in its former decisions, viz., State ex rel. McIntyre v. Superior Court, 21 Wash. 108, 57 Pac. 352, and State ex rel. Wallace v. Superior Court, 24 Wash. 605, 64 Pac. 778, where the doctrine was announced that the constitutional limitation applied to cases that were brought in the form of mandamus the same as any other civil action.”\nBall v. Clothier, 34 Wash. 299, 75 Pac. 1099, in which we held that, where publication for “three consecutive weeks” is required, there must be a lapse of not less than twenty-one days between the day of first publication of the notice and the day of sale or other appointed act or event, and implied a preference for the statutory-week method of computation, criticised in King County v. Seattle, 7 Wn. (2d) 236, 239, 109 P. (2d) 530.\nIn Pioneer Sand & G. Co. v. Seattle Const. & Drydock Co., 102 Wash. 608, 619, 173 Pac. 508, we criticised Peterson v. Sloss, 39 Wash. 207, 81 Pac. 744, as follows:\n“In that case, the court, while applying the correct rule of law applicable to the facts, appears to have lost sight of our statute with reference to the conveying of an after-acquired title, and to have indulged in some expressions which seem to indicate that a conveyance made by a party before he acquires title to the property conveyed is without the chain of title, and the record thereof might not be constructive notice to persons dealing with the property. Of course, all such expressions in that opinion are obiter only, and no one should be misled thereby. It would seem to be necessary, in view of the statute referred to, for one to limit the search of the records only at his own peril. And assuredly he should be required to take notice of all instruments filed of record, executed by or on behalf of any person having preference rights or vested interests.”\nIn Puget Mill Co. v. Duecy, 1 Wn. (2d) 421, 427, 96 P. (2d) 571, we criticised State ex rel. Atkinson v. Evans, 46 Wash. 219, 89 Pac. 565, 10 L. R. A. (N. S.) 1163, as follows:\n“In State ex rel. Atkinson v. Evans, 46 Wash. 219, 89 Pac. 565, 10 L. R. A. 1163, there is language tending to commit us to the rule that the term ‘minerals’ as used in § 33 of Art. II, of our constitution means, at least primarily, all substances (other than the agricultural surface of the ground) which may be extracted from the earth for profit, whether it be solid as stone or liquid as, for example, petroleum oil, etc. .That is a too liberal construction, as it is clear that the term ‘minerals’ does not include everything embraced in the mineral kingdom as distinguished from what belongs to the animal and vegetable kingdoms; since, if it did, it would include the soil itself. See Annotation 17 A. L. R. 156 et seq. The better rule is that each case must be decided on the language of the grant or reservation, the surrounding circumstances, and the intention of the grantor if it can be ascertained. The complaint in the case at bar does not disclose what the language of the contracts was other than that those contracts contained a provision reserving in the seller absolute rights to the ‘minerals.’\n“In determining the meaning of the term ‘minerals,’ as employed in grants and reservations, it is essential that the court have before it all of the provisions of the instrument making the conveyance and containing the reservation; otherwise, the intention of the parties as to what was being conveyed and what was reserved can not be ascertained.”\nIn State ex rel. Mountain Timber Co. v. Superior Court, 77 Wash. 585, 590, 137 Pac. 994, we criticised as not legally accurate the statement in Sultan R. & Timber Co. v. Great Northern R. Co., 58 Wash. 604, 109 Pac. 320, 1020, that “the constitution, art. 1, § 16, grants the right to take private property for private ways of necessity; . . . ”\nBlinn v. Grindle, 71 Wash. 120, 127 Pac. 840, criticised in State ex rel. Dahl v. Superior Court, 13 Wn. (2d) 626, 631, 126 P. (2d) 199, for unnecessary expression (dictum) respecting time action would be deemed commenced.\nIn re Hoscheid’s Estate, 78 Wash. 309, 139 Pac. 61, criticised in King County v. Seattle, 7 Wn. (2d) 236, 239, 109 P. (2d) 530, respecting methods of computation when a statute requires publication of a notice once a week for a designated period.\nWhite v. Powers, 89 Wash. 502, 154 Pac. 820, criticised in Strandberg v. Stringer, 125 Wash. 358, 365, 216 Pac. 25, as not in accord with the statute in holding that it is necessary for the sheriff, when the mortgagor cannot be found in the county where the foreclosure proceedings are had, to make some form of return showing the fact before he can lawfully proceed with the sale.\nState ex rel. Secord v. Brinker, 99 Wash. 222, 169 Pac. 317, criticises our holding in State ex rel. Griffith v. Superior Court, 96 Wash. 41, 164 Pac. 516, that certiorari lies to review the denial of a motion for change of venue of an action commenced in the wrong county to which the defendant was entitled as a matter of right.\nFremont State Bank v. Vincent, 112 Wash. 493, 192 Pac. 975, criticised in Duke v. Johnson, 123 Wash. 43, 56, 211 Pac. 710.\nWyant v. Independent Asphalt Co., 118 Wash. 345, 203 Pac. 961, criticised in King County v. Seattle, 7 Wn. (2d) 236, 239, 109 P. (2d) 530.\nDevoto v. United Auto Transp. Co., 128 Wash. 604, 223 Pac. 1050, criticised in Morehouse v. Everett, 141 Wash. 399, 411, 252 Pac. 157.\nIn re Hunter’s Estate, 147 Wash. 216, 265 Pac. 466, criticised in In re McIntyre’s Estate, 178 Wash. 81, 85, 34 P. (2d) 432.\nPeizer v. Seattle, 174 Wash. 95, 24 P. (2d) 444, criticised in Crown v. Miller, 199 Wash. 354, 364, 91 P. (2d) 713.\nState v. West, 197 Wash. 595, 86 P. (2d) 192, criticised in State v. Currie, 200 Wash. 699, 702, 94 P. (2d) 754, for suggesting that in an exceptional case we may have the power to disregard one of our rules respecting the perfecting of an appeal in a criminal case.\nFoster v. Brady, 198 Wash. 13, 86 P. (2d) 760, criticised in In re Schafer’s Estate, 8 Wn. (2d) 517, 521, 113 P. (2d) 41. Boyer v. Fowler, 1 Wash. Terr. 101, questioned in Meigs v. Keach, 1 Wash. Terr. 305, 307. Brown Bros. & Co. v. Forest, 1 Wash. Terr. 201, questioned in Morgan v. Bankers’ Trust Co., 63 Wash. 476, 479, 115 Pac. 1047. Andrews v. Andrews, 3 Wash. Terr. 286, 14 Pac. 68, questioned in Schramm v. Steele, 97 Wash. 309, 312, 166 Pac. 634.\nCline v. Mitchell, 1 Wash. 24, 23 Pac. 1013, criticised in Stone-Easter v. Seattle, 121 Wash. 520, 526, 209 Pac. 687, 215 Pac. 56, on question whether sureties on cost bond in the superior court are necessary parties to an appeal by the adverse party from a judgment in favor of the principal on the cost bond and is such surety entitled to notice of appeal.\nBrown v. Rauch, 1 Wash. 497, 20 Pac. 785, challenged in Washington Trust Co. v. Local etc. Tel. Co., 73 Wash. 627, 629, 132 Pac. 398, as opposed to the great weight of authority.\nNorthern Pac. R. Co. v. O’Brien, 1 Wash. 599, 21 Pac. 32, criticised (in fact, overruled) by Grim v. Olympia Light & Power Co., 42 Wash. 119, 123, 84 Pac. 635, where we held that a motorman assumes the risk of injury from collision with another streetcar happening through failure of the other motorman to stop the car upon a foggy morning, where fogs were of frequent occurrence.\nAnderson v. State, 2 Wash. 183, 26 Pac. 267, questioned in State v. Armstrong, 87 Wash. 275, 277, 151 Pac. 775, as having long since ceased to be an authority and in conflict with our repeated holdings that affidavits in support of a motion for a new trial cannot be considered upon appeal unless they are made a part of the record by a bill of exceptions or a statement of facts.\nWilson v. Seattle, 2 Wash. 543, 27 Pac. 474, questioned in Seattle v. Doran, 5 Wash. 482, 484, 32 Pac. 105, 1002.\nMarston v. Humes, 3 Wash. 267, 28 Pac. 520, questioned in In re Shilshole Avenue, 101 Wash. 136, 138, 172 Pac. 338, and held to have “been many times overruled” if taken for authority for the proposition that, outside of the general statute of limitations, there is no limitation as to the time within which a party may be relieved from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect.\nHolding in North Yakima v. Superior Court, 4 Wash. 655, 30 Pac. 1053, respecting venue of actions against a county, questioned in State ex rel. King County v. Superior Court, 104 Wash. 268, 269, 176 Pac. 352.\nIn re Barker’s Estate, 5 Wash. 390, 31 Pac. 976, questioned in In re Harper’s Estate, 168 Wash. 98, 102, 10 P. (2d) 991, 15 P. (2d) 1119, as valid authority as it was expressly overruled, (as were Bower v. Bower, 5 Wash. 225, 31 Pac. 598; Hill v. Hill, 7 Wash. 409, 35 Pac. 360; and Purdy v. Davis, 13 Wash. 164, 42 Pac. 520), in Gehlen v. Gehlen, 77 Wash. 17, 137 Pac. 312, on question whether children of a testator can be disinherited by naming them as a class, instead of naming them specifically by each of their individual names, or by terms of individual identification.\nIn Welch v. Creech, 88 Wash. 429, 442, 153 Pac. 355, we reviewed McKenzie v. Oregon Imp. Co., 5 Wash. 409, 31 Pac. 748, and said:\n“That case was a civil action upon a promissory note. The execution of the note was admitted. The defendant tendered the issue of no consideration. Upon this sole issue he necessarily had the burden of proof, and was bound to sustain it by a preponderance of the evidence. It was the affirmative of the only issue before the court.\n“In the McKenzie case, the execution of the note was admitted. In this case, an unlawful killing is not admitted. The presumption did not operate as an admission. An admission is evidence. A presumption is not. An admission changes the burden of proof in the sense that the plea of confession and avoidance must be sustained by the weight or preponderance of evidence. A presumption simply changes the order of proof to the extent that one upon whom it bears must meet or explain it away. When such explanation is made, the duty is upon a plaintiff to take up the burden which the law has cast upon him and sustain the issue by a preponderance of the evidence. It neither depends upon evidence nor is it sustained by evidence. It follows that, when the defendant has balanced that presumption by a reasonable and unimpeached explanation, he is entitled to a verdict, unless there is a showing by independent testimony of an unlawful killing. Wharton, Criminal Evidence (10th ed.), § 334.\n“The distinction between burden of proof and preponderance of evidence is well stated in the case of Smith Sand & Gravel Co. v. Corbin, 75 Wash. 635, 135 Pac. 472, where it is said:\n“ ‘Prima facie case means only that the case has proceeded upon sufficient proof to that stage where it must be submitted to the jury, and not decided against the plaintiff as a matter of law. A prima facie case does not necessarily mean that judgment goes in favor of the plaintiff as a matter of law. The jury are still the judges of the sufficiency of the showing to call for a verdict in plaintiff’s favor, and where there is no affirmative defense, strictly speaking, the jury are to measure plaintiff’s rights, having in view that he has the burden of proof.’\n“In this case there is no affirmative defense, strictly speaking. The general issue is whether the act of killing was unlawful, and the defendant had the right, under that general issue, to submit any evidence which tended to sustain his defense, whether it be non est factum or self-defense. To repeat, it is only in those cases where there is an affirmative defense resting upon facts which are not dependent upon, or do not grow out of, the res gestae, and which are pleaded as a separate and affirmative defense, that a defendant is bound to sustain his case by a preponderance of the evidence. In either a civil or criminal case, a defendant is never called upon to prove by a preponderance anything that is competent to be proved under the general issue.”\nThe holding in Traders’ Bank of Tacoma v. Bokien, 5 Wash. 777, 32 Pac. 744, that notice of appeal must be served on all parties who appear in an action was questioned—overruled—in Deno v. Standard Furniture Co., 190 Wash. 1, 3, 66 P. (2d) 1158.\nThe rule enunciated in Wood v. Nichols, 6 Wash. 96, 32 Pac. 1055, 35 Pac. 140, that a plaintiff could not maintain a suit to rescind a sale of real property, because he had not tendered back all of the money he had received on the purchase price, was sub silentio overruled in subsequent cases, and again questioned in Cain v. Norman, 140 Wash. 31, 35, 248 Pac. 71.\nOur decision in State ex rel. Stearns v. Smith, 6 Wash. 496, 33 Pac. 974, which construes the meaning of the term “state officers,” as used in § 4, Art. IV, of the constitution, to include only those heads of executive departments recognized eo nomine as executive officers in Art. Ill of the constitution, is questioned in State ex rel. North Coast Fire Ins. Co. v. Schively, 68 Wash. 148, 149, 122 Pac. 1020, and the construction held too narrow.\nIn McDonough v. Craig, 10 Wash. 239, 245, 38 Pac. 1034, we questioned the conclusions announced in Commercial Bank v. Scott, 6 Wash. 499, 33 Pac. 829, 34 Pac. 434, and held that, in an action upon a negotiable promissory note executed by the husband alone for what is alleged to be a community debt, the wife is a proper party defendant; and, upon a verdict or finding in favor of the plaintiff upon such issue, he is entitled to have the debt adjudged as that of the community.\nMoore v. Brownfield, 7 Wash. 23, 34 Pac. 199, and Johnson v. Conner, 48 Wash. 431, 93 Pac. 914, which were overruled by McNaught-Collins Imp. Co. v. May, 52 Wash. 632, 101 Pac. 237, and State v. Sturtevant, 76 Wash. 158, 135 Pac. 1035, 138 Pac. 650, questioned by Skansi v. Novak, 84 Wash. 39, 46, 146 Pac. 160, in which we held that an entry on and possession of land, under the mistaken belief that it is public land, will not have the effect of disseizing the true owner, as such possession is subservient to the public right; hence, it is not hostile or adverse to the true owner.\nIn Philips & Co. v. Bergman, 130 Wash. 346, 347, 227 Pac. 321, in which we held that the husband’s contract to pay an agent’s commission for securing a loan on community property to pay a community debt, the loan also being a community debt, is binding upon the wife as a community debt, we questioned McGlauflin v. Merriam, 7 Wash. 111, 34 Pac. 561, which was sub silentio overruled by Philips & Co. v. Langlow, 55 Wash. 385, 104 Pac. 610, and Philips & Co. v. Mercy, 126 Wash. 376, 218 Pac. 4, 222 Pac. 902.\nRomine v. State, 7 Wash. 215, 34 Pac. 924, in which we held that, when the state prosecutes an appeal from an adverse judgment in the trial court, it is liable for costs if the appeal proves unsuccessful, questioned—overruled—by Washington Recorder Pub. Co. v. Ernst, 1 Wn. (2d) 545, 551, 97 P. (2d) 116, in which we held that, in the absence of a statute creating such liability, the state is not liable for costs in actions to which it is a party in its own courts.\nHill v. Hill, 7 Wash. 409, 35 Pac. 360, questioned— overruled—by In re Harper’s Estate, 168 Wash. 98, 102, 10 P. (2d) 991, 15 P. (2d) 1119. The question raised was whether the children of a testator may be disinherited by naming them as a class.\nGuley v. Northwestern Coal & Transp. Co., 7 Wash. 491, 35 Pac. 372, criticised as follows by Money v. Seattle R. & S. R. Co., 59 Wash. 120, 124, 109 Pac. 307, on the question of right of this court to reverse a case for refusal of a new trial on the ground of insufficiency of the evidence:\n“The Guley case has been criticized in this court in respect to the question we are considering until it is no longer authority on the subject. Where there is a substantial conflict in the evidence, and the trial court has refused a new trial and has instructed the jury that the weight of the evidence does not necessarily depend upon the relative number of witnesses testifying for or against a given issue, and that they are the sole judges of the credibility of the witnesses and the weight of the testimony, it would involve a legal absurdity for this court to reverse the judgment entered upon the verdict on the ground of the insufficiency of the evidence. To believe one witness and to disbelieve another or others is one of the admitted functions of the jury, and in this respect it cannot be censored or controlled by the courts. While it is true that verdicts must be based upon evidence, it is likewise true that the trial judge is not required to grant a new trial in every case where his opinion upon the facts differs from the opinion of the jury as expressed in the verdict.”\nSee, also, Armstrong v. Modern Woodmen of America, 93 Wash. 352, 354, 160 Pac. 946, which criticises Guley v. Northwestern Coal & Transp. Co., supra, as follows:\n“It is true that in that case is found a declaration that where the clear weight of the evidence is with either side, there is no substantial conflict, and the court should take the decision of the case from the jury, but that decision is no longer authority.”\nBaer v. Choir, 7 Wash. 631, 32 Pac. 776, 36 Pac. 286, criticised by Felker v. New Whatcom, 16 Wash. 178, 184, 47 Pac. 505, on question whether it is necessary that property assessed for a street improvement should be listed in the name of the owner.\nState v. Butler, 8 Wash. 194, 35 Pac. 1093, 40 Am. St. 900, 25 L. R. A. 434, in which we held that solicitation to commit adultery is not indictable as an attempt to commit the crime of adultery, cited as analogous and sustaining authority in State v. Awde, 154 Wash. 463, 282 Pac. 908, where we held there cannot be any such offense under our statute (Laws of 1909, p. 955, § 217, and p. 893, § 12) as an attempt to become a common gambler.\nWebb v. Spokane County, 9 Wash. 103, 37 Pac. 282, which held that a physician, employed by the county commissioners for a term of one year to attend the poor of the county, and who had accepted the employment and entered upon the discharge of his duties, could not be discharged by the county, even if the employment extended beyond the terms of the commissioners, criticised by King County v. U. S. M. & S. Ins. Co., 150 Wash. 626, 633, 274 Pac. 704.\nCurry v. Catlin, 9 Wash. 495, 37 Pac. 678, 39 Pac. 101, criticised by Merritt v. Newkirk, 155 Wash. 517, 524, 285 Pac. 442, in matter of right of a judgment creditor of the husband to maintain a proceeding to make the judgment conclusive against the marital community.\nCompton v. Westerman, 150 Wash. 391, 396, 273 Pac. 524, reiterates rule enunciated in Ward v. Magaha, 71 Wash. 679, 129 Pac. 395 (which overruled Neis v. Farquharson, 9 Wash. 508, 37 Pac. 697), that the bar of the statute of nonclaim in the settlement of estates may be raised at any time.\nMcMaster v. Advance Thresher Co., 10 Wash. 147, 38 Pac. 760, overruled by State ex rel. Seattle Baseball Club v. Superior Court, 193 Wash. 326, 75 P. (2d) 929, and criticised by State ex rel. U. S. Trust Co. v. Phillips, 12 Wn. (2d) 308, 319, 121 P. (2d) 360, in which we held that, when a corporation has been sued in the wrong county, the corporation should not seek a writ of prohibition against the court wherein the action was erroneously commenced, but should seasonably apply for a change of venue to the proper county, under the same rules as are applicable to a natural person.\nWoodbury v. Henningsen, 11 Wash. 12, 39 Pac. 243, which was overruled sub silentio by Teater v. Kings, 35 Wash. 138, 76 Pac. 688, and Bain v. Thoms, 44 Wash. 382, 87 Pac. 504, on the question of what constitutes a general and what constitutes a special appearance, criticised by Matson v. Kennecott Mines Co., 101 Wash. 12, 23, 171 Pac. 1040.\nGlover v. Rochester-German Ins. Co., 11 Wash. 143, 39 Pac. 380, which held, in the matter of statutory arbitration and award, that an independent suit would lie to set aside a filed award and to enforce demands in disregard of it, criticised by State ex rel. Fancher v. Everett, 144 Wash. 592, 595, 258 Pac. 486, which states that the case was overruled by Dickie Mfg. Co. v. Sound Const. & Engr. Co., 92 Wash. 316, 159 Pac. 129.\nDewey v. South Side Land Co., 11 Wash. 210, 39 Pac. 368, questioned—overruled—by Deno v. Standard Furniture Co., 190 Wash. 1, 3, 66 P. (2d) 1158, which modifies the rule that notice of appeal must be served on all parties who appear in the action.\nWashington Cent. Imp. Co. v. Newlands, 11 Wash. 212, 39 Pac. 366, which enunciated the rule that, where one is in a position to ascertain the truthfulness of representations made by the defendant, and no fiduciary relationship exists, it is the plaintiff’s duty to ascertain whether the representations are true, questioned—overruled—by Fischer v. Hillman, 68 Wash. 222, 226, 122 Pac. 1016 (action for rescission of land contracts on ground of fraud), where we held that that rule had been mitigated by our later decisions, and,\n“ . . . as we view it now, was probably not fully justified by the authorities extant at the time it was announced. It has been supplanted by the more reasonable and humane rule that a party will not be allowed to shield himself because the party with whom he was dealing was careless or too confiding, and that, while the state cannot stand in loco parentis to all its citizens, the crafty and designing will not be allowed, by cunning artifice tending to deceive the simple minded, to rob them of what justly belongs to them.”\nElderkin v. Peterson, 8 Wash. 674, 36 Pac. 1089, and Birge v. Browning, 11 Wash. 249, 39 Pac. 643, which sustain the doctrine of nonliability of the subscriber even as against the rights of creditors unless the full amount of the capital stock had been subscribed, and were sub silentio overruled by Cox v. Dickie, 48 Wash. 264, 93 Pac. 523, questioned by National Realty Co. v. Neilson, 73 Wash. 89, 95, 131 Pac. 446.\nHays v. Dennis, 11 Wash. 360, 39 Pac. 658, questioned by Strickland v. Rainier Golf & Country Club, 156 Wash. 640, 643, 287 Pac. 900.\nWillamette Casket Co. v. Cross Undertaking Co., 12 Wash. 190, 40 Pac. 729, questioned, as follows, by Olsen v. Smith, 84 Wash. 228, 231, 146 Pac. 572:\n. “The appellant’s argument, based upon our recent decision in Pacific Coast Biscuit Co. v. Perry, 77 Wash. 352, 137 Pac. 483, overruling Willamette Casket Co. v. Cross Undertaking Co., 12 Wash. 190, 40 Pac. 729, is therefore stillborn. It lacks the vitalizing element of analogy in the relation of the parties there and the parties here to the respective subject-matters. In the Perry case, we held that, though Rem. & Bal. Code, § 3660 (P. C. 340, § 67), provides that a chattel mortgage is void as against creditors unless recorded, an unrecorded chattel mortgage is valid as between the parties and creditors subsequent to its execution who had acquired no specific lien upon the property up to the time when the mortgage was finally filed for record. This, on the specific ground that the belated filing of the old mortgage had the same effect, as against general creditors, that a new mortgage executed and filed on that day would have had. It therefore took precedence over the claims of general creditors who had acquired no lien upon any specific property, though they had extended a general credit in the intérval between the making and the filing of the chattel mortgage. The clear inference from this reasoning is that had these general creditors acquired, in the interim, any sort of lien upon the specific property, they would have been preferred to the lien of the chattel mortgage. In the case here, the laborers had acquired, in the interim, subsisting rights of liens upon the specific property. They do not fall within the statutory nonpreferred class of lienless general creditors.”\nBower v. Bower, 5 Wash. 225, 31 Pac. 598; In re Barker’s Estate, 5 Wash. 390, 31 Pac. 976; Hill v. Hill, 7 Wash. 409, 35 Pac. 360; and Purdy v. Davis, 13 Wash. 164, 42 Pac. 520, overruled by Gehlen v. Gehlen, 77 Wash. 17, 137 Pac. 312. See In re Harper’s Estate, 168 Wash. 98, 102, 10 P. (2d) 991, 15 P. (2d) 1119.\nState v. Murphy, 13 Wash. 229, 43 Pac. 44, overruled by State v. Ash, 68 Wash. 194, 122 Pac. 995, 39 L. R. A. (N. S.) 611, and questioned by State v. Hiatt, 187 Wash. 226, 236, 60 P. (2d) 71, where we held that a verdict of guilty of manslaughter is not an acquittal of the higher degrees of homicide, and, on reversal, the defendant may be again tried.\nIn Olive Co. v. Meek, 103 Wash. 467, 468, 175 Pac. 33, (Judge Holcomb speaking for the court) we held, questioning Powell v. Pugh, 13 Wash. 577, 43 Pac. 879, that the principle of stare decisis will not be invoked when to do so perpetuates injustice and impairs statutory rights of property. In Culliton v. Chase, 174 Wash. 363, 25 P. (2d) 81, this court, speaking through Judge Holcomb, said:\n“In future cases, even a dissenting justice should be bound by the decision of the majority until and unless authoritatively overruled or reversed by some higher tribunal.”\nSee Jensen v. Henneford, 185 Wash. 209, 225, 53 P. (2d) 607.\nIn Weiss v. Swedish Hospital, 16 Wn. (2d) 446, 133 P. (2d) 978, we refused to abrogate the judicially promulgated rule as to nonliability of hospitals for torts, despite the clear, cogent, convincing reasons advanced for such abrogation in concurring opinion in Miller v. Sisters of St. Francis, 5 Wn. (2d) 204, 105 P. (2d) 32. The opinion was filed too late in 1941 to write an opinion and bring the question to attention of the 1941 session of the legislature. The opinion was not written until too late in 1943 to afford time for consideration of that important question by the 1943 session of the legislature.\nIn Tacoma v. Fox, 158 Wash. 325, 290 Pac. 1010, we overruled State ex rel. Richey v. Smith, 42 Wash. 237, 84 Pac. 851, 114 Am. St. 114, 7 Ann. Cas. 577, 5 L. R. A. (N. S.) 674 (written a quarter of a century earlier), and held that a city ordinance which prohibited engaging in the trade of a journeyman plumber without first obtaining a license upon establishing competency before an examining board, is within the police power of the city as a regulation for the preservation of the health and welfare of the public.\nIn Parrish v. West Coast Hotel Co., 185 Wash. 581, 55 P. (2d) 1083, 300 U. S. 379, 81 L. Ed. 703, 57 S. Ct. 578, we sustained the constitutionality of Laws of 1913, chapter 174, fixing a minimum wage for women and children, in defiance of the United States supreme court’s declaration that such statutes were invalid as they authorized an unconstitutional interference with the freedom of contract.\nPowell v. Superior Portland Cement, Inc., 15 Wn. (2d) 14, 129 P. (2d) 536, overruled our prior opinions (see Hardin v. Olympic Portland Cement Co., 89 Wash. 320, 154 Pac. 450, and Bartel v. Ridgefield Lbr. Co., 131 Wash. 183, 229 Pac. 306, in which we reviewed the authorities) and, contrary to the so-called (the numerical) weight of authority, held that one who purchases property in an industrial community is not entitled to compensation because of dust inseparable from industrial activity in that community.\nIn State v. Much, 156 Wash. 403, 287 Pac. 57, followed by State v. McCollum, 17 Wn. (2d) 85, 136 P. (2d) 165, we received in evidence articles procured by the officers without the authority of a search warrant in contravention of the defendant’s constitutional rights (Washington state const., Art. I, §7), and in defiance of the statute (Rem. Rev. Stat., § 2240-1 [P. C. § 9358-1]), which prohibits the entry and search of any private dwelling-house or place of residence without the authority of a lawfully issued search warrant. Our research has not disclosed that any English speaking court, other than this court, has ever held, in the face of such constitutional and/or statutory prohibitions as ours, that the introduction in evidence of articles obtained as in the two cases cited, was not prejudicially erroneous, entitling the defendant to a new trial.\nSafeway Stores v. Retail Clerks’ Union, 184 Wash. 322, 51 P. (2d) 372; Blanchard v. Golden Age Brewing Co., 188 Wash. 396, 63 P. (2d) 397; Adams v. Building Service Employees Union, 197 Wash. 242, 84 P. (2d) 1021; Fornili v. Auto Mechanics’ Union, 200 Wash. 283, 93 P. (2d) 422; United Union Brewing Co. v. Beck, 200 Wash. 474, 93 P. (2d) 772; Bloedel Donovan Lbr. Mills v. International Wood Workers, 4 Wn. (2d) 62, 102 P. (2d) 270; and Shively v. Garage Employees, 6 Wn. (2d) 560, 108 P. (2d) 354, which held contrary to Meadowmoor Dairies v. Milk Wagon Drivers’ Union, 371 Ill. 377, 21 N. E. (2d) 308, and Swing v. American Federation of Labor, 372 Ill. 91, 22 N. E. (2d) 857, 312 U. S. 321, 61 S. Ct. 568, were overruled by O'Neil v. Building Service etc. Union, 9 Wn. (2d) 507, 115 P. (2d) 662.\nPurdy v. State, 199 Wash. 638, 92 P. (2d) 880, and the cases Upon which it rests (Snively v. State, 167 Wash. 385, 9 P. (2d) 773; Smith v. State, 184 Wash. 58, 50 P. (2d) 32; Lefevre v. Washington Monument & Cut Stone Co., 195 Wash. 537, 81 P. (2d) 819; Best v. State, 153 Wash. 168, 279 Pac. 388; and Proctor v. Sim, 134 Wash. 606, 236 Pac. 114), overruled by Washington Security Co. v. State, 9 Wn. (2d) 197, 114 P. (2d) 965.\nCerf, Schloss & Co. v. Wallace, 14 Wash. 249, 44 Pac. 264, questioned by Armour & Co. v. Becker, 167 Wash. 245, 250, 9 P. (2d) 63.\nTacoma v. Krech, 15 Wash. 296, 46 Pac. 255, 34 L. R. A. 68, overruled by State v. Nichols, 28 Wash. 628, 69 Pac. 372, which held Sunday laws were valid, and criticised by Seattle v. Gervasi, 144 Wash. 429, 430, 258 Pac. 328.\nCornell University v. Denny Hotel Co., 15 Wash. 433, 46 Pac. 654, which held that notice of appeal must be served on all parties who appeared in the action, questioned—overruled—by Deno v. Standard Furniture Co., 190 Wash. 1, 3, 66 P. (2d) 1158.\nJones v. St. Paul M. & M. R. Co., 16 Wash. 25, 47 Pac. 226, questioned—overruled—by Sholin v. Skamania Boom Co., 56 Wash. 303, 308, 105 Pac. 632. We said:\n“In Jones v. St. Paul M. & M. R. Co., supra, this court followed the extreme views of the supreme judicial court of Massachusetts, and held that the owner of a steamboat accustomed to navigate a river could not recover damages caused by an obstruction to navigation, compelling him to tie up his boat for several days. This case is in conflict with many decisions of this court and is opposed to the weight of authority.”\nState ex rel. Denny v. Bridges, 19 Wash. 44, 52 Pac. 326, 40 L. R. A. 593, criticised by State ex rel. L. A. Conner Co. v. Superior Court, 184 Wash. 127, 133, 50 P. (2d) 527, in which we stated the Denny case was expressly overruled by State ex rel. Bloedel-Donovan Lbr. Mills v. Savidge, 144 Wash. 302, 258 Pac. 1.\nState ex rel. Grinsfelder v. Spokane St. R. Co., 19 Wash. 518, 53 Pac. 719, 67 Am. St. Rep. 739, 41 L. R. A. 515, questioned by Schwede v. Hemrich Bros. Brewing Co., 29 Wash. 21, 26, 69 Pac. 362.\nState v. McCormick, 20 Wash. 94, 54 Pac. 764, where we held that a new trial should be granted because, with the consent of the court, the bailiff was permitted to hand a juror two unopened letters, questioned by State v. Adamo, 128 Wash. 419, 423, 223 Pac. 9, as having been, in effect, repudiated in State v. Pepoon, 62 Wash. 635, 114 Pac. 449.\nIn Catlin v. Mills, 140 Wash. 1, 5, 247 Pac. 1013, we questioned Stubblefield v. McAuliff, 20 Wash. 442, 55 Pac. 637, and held that a payment of interest by the husband upon a community note after the statutory period of limitation had run revives the note as against the community in view of Rem. Comp. Stat., § § 6892, 6893, conferring upon the husband the management and control of the community property and making him the community agent. We said:\n“Some justification for the contrary view is discoverable in the early case in this court of Stubblefield v. McAuliff, 20 Wash. 442, 55 Pac. 637, the syllabus of which makes the statement that where a note secured by a mortgage on community realty has been executed by a man and wife, payments of interest by the husband without the authority of the wife, after maturity of the note, does not extend the time of running of the statute of limitations as against her. The opinion itself does not justify this syllabus, for, from the opinion, it appears that the note was the separate obligation of the husband and that the community had mortgaged community property to secure that obligation, and that what was decided was that, where the property of the community had been mortgaged to secure the separate debt of the husband, the wife then occupied merely the position of a surety and was not bound by the husband’s act in renewing his separate obligation. That conclusion may be correct. But in so far as there may be contained in the Stubblefield case language covering the situation in the case at bar, such language does not express the opinion of this court and the case is no authority for a rule differing from that stated in this opinion.”\nKiser v. Douglas County, 70 Wash. 242, 243, 126 Pac. 622, criticises Hoexter v. Judson, 21 Wash. 646, 59 Pac. 498, and Rose v. Pierce County, 25 Wash. 119, 64 Pac. 913, for holding that a claim or demand of a purely equitable nature and upon which a prayer for a restraining order is based, requires presentation to the county commissioners for allowance before any action can be brought thereon.\nWhite v. Miley, 137 Wash. 80, 84, 241 Pac. 670 (an action in replevin), criticises Dow v. Dempsey, 21 Wash. 86, 57 Pac. 355, as follows:\n“It is said, however, by the respondents that, in no event, will this replevin action lie, for the reason that the appellant knew that the respondents did not have possession of the hooks when this action was brought; and the case of Dow v. Dempsey, 21 Wash. 86, 57 Pac. 355, is cited to that effect. . . . This court has modified the rule as originally announced in the case of Dow v. Dempsey, supra, and has held in Andrews v. Hoeslich, 47 Wash. 220, 91 Pac. 772, 125 Am. St. 896, 18 L. R. A. (N. S.) 1265, and Gourley v. Smith, 78 Wash. 286, 139 Pac. 58, in the former of which cases many authorities are cited,\n“ ‘. . . that the rule that an action to recover the possession of personal property does not lie against one not in possession of the property does not obtain where the defendant had been in possession and wrongfully disposed of the property prior to the commence* ment of the action, without the knowledge of the plaintiff at the time.’ ”\nMcDonald v. Davey, 22 Wash. 366, 60 Pac. 1116, sub silentio overruled by Armour & Co. v. Western Const. Co., 36 Wash. 529, 78 Pac. 1106, questioned by Forsyth v. New York Indemnity Co., 159 Wash. 318, 323, 293 Pac. 284. See, also, Puget Sound State Bank v. Gallucci, 82 Wash. 445, 144 Pac. 698, Ann. Cas. 1916A 767, and Title G. & S. Co. v. First Nat. Bank, 94 Wash. 55, 162 Pac. 23.\nNorthern Pac. R. Co. v. Nelson, 22 Wash. 521, 61 Pac. 703, questioned by State ex rel. Roseburg v. Mohar, 169 Wash. 368, 376, 13 P. (2d) 454, in the following language:\n“The case cited does support appellant’s contention, but, unfortunately for him, that case was reversed on appeal to the United States supreme court, where it was held that the date of filing the map of definite location, and not the date of filing the map of general route, marked the time as of which rights to the property were to be determined. Nelson v. Northern Pacific Railway Co., 188 U. S. 108, 47 L. Ed. 506, 23 S. Ct. 302. We are, of course, controlled by that decision.”\nBancroft-Whitney Co. v. Gowan, 24 Wash. 66, 63 Pac. 1111, sub silentio overruled by Nettleton v. Evans, 67 Wash. 227, 121 Pac. 54, and Roche Fruit & Produce Co. v. Vaught, 143 Wash. 601, 255 Pac. 955, questioned, and expressly overruled, by Spokane Security Finance Co. v. Crowley Lbr. Co., 152 Wash. 697, 698, 279 Pac. 103, in which we held that a chattel mortgage, giving the mortgagee a present right of possession, does not entitle him to maintain an action of replevin; however, a mortgagee of chattels may maintain an action for the conversion of the mortgaged property.\nState v. Boyce, 24 Wash. 514, 64 Pac. 719, and State v. Farris, 26 Wash. 205, 66 Wash. 412, questioned by State v. Riley, 36 Wash. 441, 447, 78 Pac. 1001, in which we held that jurors who have formed opinions regarding the guilt or innocence of the accused, which it would take evidence to remove, are disqualified, notwithstanding that they can, or believe they can, disregard such opinions and try the case according to the law and the evidence, and overruling challenges for cause to such jurors deprives the accused of a trial before a fair and impartial jury.\nState v. Bliss, 27 Wash. 463, 68 Pac. 87, sub silentio overruled by State v. Butts, 42 Wash. 455, 85 Pac. 33, and State v. McCormick, 56 Wash. 469, 105 Pac. 1037, questioned and expressly overruled by State v. Laws, 61 Wash. 533, 534, 112 Pac. 488, in which we held that an information is not bad for duplicity in that it charges the stealing of specified articles from the persons of, and belonging to, two parties, where prima facie, both occurred at the same time and place and constituted but a single transaction.\nState v. Farris, 26 Wash. 205, 66 Pac. 412, questioned by State v. Riley, 36 Wash. 441, 447, 78 Pac. 1001.\nCopland v. Pirie, 26 Wash. 481, 67 Pac. 227, 90 Am. St. 769, and State ex rel. Arnold v. Mitchell, 55 Wash. 513, 104 Pac. 791, questioned by In re Peterson’s Estate, 182 Wash. 29, 32, 45 P. (2d) 45, as having been overruled, as pointed out in Holzman v. Spokane, 91 Wash. 418, 157 Pac. 1086.\nIn re Alfstad’s Estate, 27 Wash. 175, 67 Pac. 593, questioned by In re Kelley, 193 Wash. 109, 113, 74 P. (2d) 904.\nState ex rel. Dudley v. Daggett, 28 Wash. 1, 68 Pac. 340, in which the court assumed jurisdiction of an appeal from a judgment in a mandamus action where the amount was less than two hundred dollars, overruled by State ex rel. Plaisie v. Cole, 40 Wash. 474, 82 Pac. 749, and questioned by Smith v. Baughman, 192 Wash. 51, 72 P. (2d) 295.\nIn re Macdonald’s Estate, 29 Wash. 422, 69 Pac. 1111, which held that, where an estate is being administered under a nonintervention will, it was not a condition precedent to a suit to file a claim against an estate, questioned by Horton v. McCord, 158 Wash. 563, 566, 291 Pac. 717, as of no controlling force under our probate code of 1917 as pointed out in Davis v. Shepard, 135 Wash. 124, 237 Pac. 21. See Alexander v. Highfill, 118 Wash. Dec. 682, 140 P. (2d) 277.\nWalters v. Field, 29 Wash. 558, 70 Pac. 66, criticised by Matson v. Kennecott Mines Co., 101 Wash. 12, 24, 171 Pac. 1040.\nBurgert v. Caroline, 31 Wash. 62, 71 Pac. 724, 96 Am. St. 889, sub silentio overruled by Vietzen v. Otis, 63 Wash. 411, 115 Pac. 858, and questioned by Olson v. Chapman, 4 Wn. (2d) 522, 535, 104 P. (2d) 344.\nIn Hynek v. Seattle, 7 Wn. (2d) 386, 111 P. (2d) 247, the dissenting judges contended that the majority abandoned the rule that where, ~ on a controverted question of fact, there is evidence, or there are justifiable inferences from evidence, upon which reasonable minds might reach different conclusions, the question becomes one of fact for the jury, and not for the court to decide and disregarded Rieger v. Kirkland, 7 Wn. (2d) 326, 111 P. (2d) 241; Art. I, § 21, state constitution; Hoyer v. Spokane United Railways, 153 Wash. 450, 279 Pac. 742; Hohman v. Seattle, 179 Wash. 663, 38 P. (2d) 242; and other opinions of this court. See Hines v. Chicago, M. & St. P. R. Co., 105 Wash. 178, 177 Pac. 795; Poland v. Seattle, 200 Wash. 208, 93 P. (2d) 379; Beck v. Dye, 200 Wash. 1, 92 P. (2d) 1113, 127 A. L. R. 1022.\nState v. Croney, 31 Wash. 122, 71 Pac. 783, questioned by State v. Riley, 36 Wash. 441, 447, 78 Pac. 1001, in which we stated that we had not intended to lay down the rule that jurors who had both formed and expressed an opinion upon the question of the guilt of the defendant were not subject to challenge for actual bias.\nBolton v. LaCamas Water Power Co., 10 Wash. 246, 38 Pac. 1043, which held that the homestead was the separate property of the surviving spouse to whom patent was issued, we stated in Davies v. Metropolitan Life Ins. Co., 189 Wash. 138, 140, 63 P. (2d) 529, was\n“. . . for a long time of doubtful authority, for possibly two reasons: (a) It was handed down by a divided court; (b) subsequently, in two cases (Ahern v. Ahern, 31 Wash. 334, 71 Pac. 1023, 96 Am. St. 912; Cox v. Tompkinson, 39 Wash. 70, 80 Pac. 1005), the court held homesteads to be community property under states of facts very similar to those with which we are here confronted.\n“But in Cunningham v. Krutz, 41 Wash. 190, 83 Pac. 109, 7 L. R. A. (N. S.) 967, this court again held that a homestead was the separate property of the surviving husband, to whom patent issued. This decision was based primarily upon the decision of the United States supreme court in McCune v. Essig, 199 U. S. 382, 26 S. Ct. 78.”\nAhern v. Ahern, 31 Wash. 334, 71 Pac. 1023, 96 Am. St. 912, and Cox v. Tompkinson, 39 Wash. 70, 80 Pac. 1005, in conflict with Bolton v. LaCamas Water Power Co., 10 Wash. 246, 38 Pac. 1043, and Cunningham v. Krutz, 41 Wash. 190, 83 Pac. 109, 7 L. R. A. (N. S.) 967. See Davies v. Metropolitan Life Ins. Co., 189 Wash. 138, 140, 63 P. (2d) 529.\nIn Stone-Easter v. Seattle, 121 Wash. 520, 526, 209 Pac. 687, 215 Pac. 56, we held that, the supreme court not having appellate jurisdiction where the original amount in controversy does not exceed two hundred dollars, sureties on a cost bond in the superior court for two hundred dollars,’ not being entitled to appeal to the supreme court in case of judgment against them, are not necessary parties to an appeal by the adverse party from a judgment in favor of the principal on the cost bond. We criticised prior cases as follows:\n“It must be conceded that the decisions heretofore rendered by this court in the following cost bond cases, if to be followed, without thought of the constitutional limitation upon the appellate jurisdiction of this court, are all but conclusive in support of the decision rendered by the Department of this court on October 13, 1922. Cline v. Mitchell, 1 Wash. 24, 23 Pac. 1013, involving the claimed rights of sureties upon a justice court cost bond for the sum of $100, as prescribed by § 1859, Code of 1881, then in force; and Pierce v. Commercial Investment Co., 31 Wash. 655, 72 Pac. 473; O’Connor v. Lighthizer, 34 Wash. 152, 75 Pac. 643; Aetna Ins. Co. v. Thompson, 34 Wash. 610, 76 Pac. 105; Brockway v. Abbott, 34 Wash. 700, 74 Pac. 1069; Trumbull v. Jefferson County, 37 Wash. 604, 79 Pac. 1105; and Shippen v. Shippen, 91 Wash. 610, 158 Pac. 247, involving superior court cost bonds securing costs ‘not exceeding the sum of two hundred dollars,’ as provided by § 495, Rem. Comp. Stat. [P. C., § 7476], in force during the time of the rendering of all of those decisions.”\nWax v. Northern Pac. R. Co., 32 Wash. 210, 73 Pac. 380, questioned—overruled—by Deno v. Standard Furniture Co., 190 Wash. 1, 3, 66 P. (2d) 1158.\nState v. Durbin, 32 Wash. 289, 73 Pac. 373, questioned, as follows, by State v. Wickstrom, 92 Wash. 503, 506, 159 Pac. 753.\n“The case of State v. Durbin, 32 Wash. 289, 73 Pac. 373, is cited as sustaining the contention that the dismissal of the action in the justice court bars further prosecution, because it was there held that, where a defendant had been charged with a minor offense which was included within a greater, and the action dismissed, a subsequent prosecution for the greater offense, upon the trial of which the defendant might be convicted of the minor with which he had been previously charged, could not be maintained. It must be admitted that the case supports this contention if the statute there being construed was the same as the present statute, and if that decision has not been subsequently modified. The statute upon which that case was based is general in its terms, while the present statute is specific and definite, and provides in express language when a dismissal will work a bar and when it will not. The difference in language in the two statutes is such that the holding in that case would not now be controlling.”\nDavis v. Tacoma R. & P. Co., 35 Wash. 203, 77 Pac. 209, 66 L. R. A. 802, questioned—overruled—by Deno v. Standard Furniture Co., 190 Wash. 1, 3, 66 P. (2d) 1158.\nState v. Ide, 35 Wash. 576, 77 Pac. 961, 102 Am. St. 914, 67 L. R. A. 280, which held that an ordinance levying an annual street poll tax was invalid, overruled by Tekoa v. Reilly, 47 Wash. 202, 91 Pac. 769, 13 L. R. A. (N. S.) 901, and questioned by State ex rel. McMannis v. Superior Court, 92 Wash. 360, 362, 159 Pac. 383.\nIn re Sullivan’s Estate, 36 Wash. 217, 78 Pac. 945, which held that an allowance for attorney’s fees cannot be made to the attorney, but must be made to the administrator or executor, explained as follows in In re Peterson’s Estate, 12 Wn. (2d) 686, 730, 123 P. (2d) 733:\n“That case was decided, however, before the enactment of our present statutory provision, Rem. Rev. Stat., § 1528 [P. C. § 9790], which declares that:\n“ ‘. . . In all cases where it is necessary for such executor or administrator to employ an attorney, such attorney shall be allowed such compensation as to the court shall seem just and reasonable.’ (Italics ours.)”\nTrumbull v. Jefferson County, 37 Wash. 604, 79 Pac. 1105, questioned by Stone-Easter v. Seattle, 121 Wash. 520, 526, 209 Pac. 687, 215 Pac. 56.\nWest Seattle v. West Seattle Land & Imp. Co., 38 Wash. 359, 80 Pac. 549, explained by Gustaveson v. Dwyer, 83 Wash. 303, 305, 145 Pac. 458, where we held that the immunity which protects taxes from the operation of the statute of limitations extends to property acquired by the county at a tax sale.\nMullin v. Northern Pac. R. Co., 38 Wash. 550, 80 Pac. 814, which restricts the doctrine of nonliability of the master for negligent acts of fellow servants, questioned —overruled—by Grim v. Olympia Light & Power Co., 42 Wash. 119, 124, 84 Pac. 635.\nAnderson v. Hilker, 38 Wash. 632, 80 Pac. 848, questioned by Davis v. Thurston County, 119 Wash. 414, 418, 205 Pac. 840.\nSmith v. St. Paul, M. & M. R. Co., 39 Wash. 355, 81 Pac. 840, 109 Am. St. 889, 70 L. R. A. 1018, which was sub silentio overruled by DeKay v. North Yakima & V. R. Co., 71 Wash. 648, 129 Pac. 574, questioned by Taylor v. Chicago, M. & St. P. R. Co., 85 Wash. 592, 595, 148 Pac. 887, where we held that the jarring of buildings, the casting of smoke, sparks, and soot on premises, and the emission of gases and fumes, necessarily incident to the ordinary operation of a railroad through a city, which results in depreciating the válue of neighboring property is damnum absque injuria, in the absence of negligence on the part of the railroad company. Cf. Powell v. Superior Portland Cement, Inc., 15 Wn. (2d) 14, 129 P. (2d) 536, Hardin v. Olympic Portland Cement Co., 89 Wash. 320, 154 Pac. 450, and Bartel v. Ridgefield Lbr. Co., 131 Wash. 183, 229 Pac. 306.\nJensen v. Cooks’ & Waiters’ Union, 39 Wash. 531, 81 Pac. 1069, 4 L. R. A. (N. S.) 302; St. Germain v. Bakery & Confectionery Workers’ Union, 97 Wash. 282, 166 Pac. 665, L. R. A. 1917F, 824; Baasch v. Cooks Union, 99 Wash. 378, 169 Pac. 843; and Danz v. American Federation of Musicians, 133 Wash. 186, 233 Pac. 630, in which we held “picketing,” peaceful or otherwise, to be unlawful, are in conflict with Adams v. Local No. 400 of Cooks, etc., 124 Wash. 564, 215 Pac. 19, and Sterling Chain Theaters v. Central Labor Council, 155 Wash. 217, 283 Pac. 1081, and were, in effect, overruled by Kimbel v. Lumber & Sawmill Workers’ Union, 189 Wash. 416, 65 P. (2d) 1066. Cf. Yakima v. Gorham, 200 Wash. 564, 94 P. (2d) 180.\nState v. Strodemier, 41 Wash. 159, 83 Pac. 22, 111 Am. St. 1012, questioned by State v. Navone, 180 Wash. 121, 131, 39 P. (2d) 384.\nCunningham v. Krutz, 41 Wash. 190, 83 Pac. 109, 7 L. R. A. (N. S.) 967, and Bolton v. LaCamas Water Power Co., 10 Wash. 246, 38 Pac. 1043, in which we held that a homestead was the separate property of the surviving spouse to whom patent was issued, are in conflict with Ahern v. Ahern, 31 Wash. 334, 71 Pac. 1023, 96 Am. St. 912, and Cox v. Tompkinson, 39 Wash. 70, 80 Pac. 1005. See Davies v. Metropolitan Life Ins. Co., 189 Wash. 138, 140, 63 P. (2d) 529.\nPostel v. Seattle, 41 Wash. 432, 83 Pac. 1025, which was sub silentio overruled by Kincaid v. Seattle, 74 Wash. 617, 134 Pac. 504, 135 Pac. 820, questioned by Casassa v. Seattle, 75 Wash. 367, 370, 134 Pac. 1080; Wong Kee Jun v. Seattle, 143 Wash. 479, 505, 255 Pac. 645; and State v. Williams, 12 Wn. (2d) 1, 12, 120 P. (2d) 496.\nState ex rel. Richey v. Smith, 42 Wash. 237, 84 Pac. 851, 114 Am. St. 114, 7 Ann. Cas. 577, 5 L. R. A. (N. S.) 674, which was overruled by Tacoma v. Fox, 158 Wash. 325, 290 Pac. 1010, we held in Lund v. Bruflat, 159 Wash. 89, 90, 292 Pac. 112, was no longer authority.\nState ex rel. Dill v. Martin, 45 Wash. 76, 87 Pac. 1054, in which costs were allowed against the state to the prevailing parties on appeal, questioned by Washington Recorder Pub. Co. v. Ernst, 1 Wn. (2d) 545, 551, 97 P. (2d) 116.\nBrandt v. Little, 47 Wash. 194, 91 Pac. 765, 14 L. R. A. (N. S.) 213, questioned as follows by John Hancock Mut. Life Ins. Co. v. Gooley, 196 Wash. 357, 377, 83 P. (2d) 221:\n“Respondent’s main reliance is upon the case of Brandt v. Little, 47 Wash. 194, 91 Pac. 765, 14 L. R. A. (N. S.) 213, which was an action in equity to vacate a judgment, upon the ground that in the original action no process was served upon the plaintiff in the case cited, who was one of the defendants in the original suit. A demurrer was sustained to the complaint attacking the judgment in the prior cause, upon the’ ground that the complaint contained no allegation to the effect that any defense upon the merits to the original cause of action existed. On appeal from the judgment dismissing the action, this court affirmed the judgment of the trial court, stating the general rule to be that,\n“ ‘In cases where an independent action is brought in equity to set aside the judgment complained of— especially where the defect of jurisdiction does not appear upon the face of the record—it is necessary to make a showing that the party has, or at the time of the entering of the judgment complained of did have, a good and sufficient defense, in whole or in part, to the action, and that a different result would or should have been obtained had the complainant had an opportunity to defend in said action.’\n“It was held that the rule was applicable to the case then before the court.\n“The Brandt case was considered by this court in the case of Lushington v. Seattle Auto & Driving Club, supra. It was there distinguished, this court saying:\n“ ‘It is true that the Brandt case contains some expressions which might give color to appellant’s contention, but when we remember that that was an equity case, and that the rule for vacating or modifying judgments in equity still prevails, although possibly without reason under our present forms of practice, and that the original distinctions affecting procedure in vacating judgments at law and in equity have been preserved, it will be understood that that case cannot be held to be controlling in this one.’ ”\nSeattle v. Northern Pac. R. Co., 47 Wash. 552, 92 Pac. 411, questioned by Seattle v. John C. Regan & Co., 52 Wash. 262, 268, 100 Pac. 731.\nHousekeeper v. Livingstone, 48 Wash. 209, 93 Pac. 217, questioned as follows by Stimson Mill Co. v. Feigenson Engr. Co., 100 Wash. 172, 180, 170 Pac. 573:\n“Housekeeper v. Livingstone, 48 Wash. 209, 93 Pac. 217, is cited as authority to the effect that, where improvements are made upon leased ground with the knowledge of the owner of the fee, his interest will be subject to a lien unless he expressly notifies the lien claimant to the contrary. But the rule in that case was overcome—indeed, we may assume that the decision of the court prompted the legislature to pass an act putting the burden of written notice upon a materialman. The act provided that ‘no materialman’s lien shall be enforced unless the provisions of this act have been complied with.’ Laws of 1909, p. 71, § 1; Laws of 1911, p. 376, § 1 (Rem. Code, § 1133).”\nIn Skansi v. Novak, 84 Wash. 39, 146 Pac. 160, we questioned Johnson v. Conner, 48 Wash. 431, 93 Pac. 914, and Moore v. Brownfield, 7 Wash. 23, 34 Pac. 199, which were overruled, in so far as they hold the contrary, by McNaught-Collins Imp. Co. v. May, 52 Wash. 632, 101 Pac. 237, and State v. Sturtevant, 76 Wash. 158, 135 Pac. 1035, 138 Pac. 650, and held that an entry on and possession of land, under the mistaken belief that it is public land, will not have the effect of dis-seizing the true owner; that such possession is subservient to the public right, hence it is not hostile or adverse to the true owner.\nState v. Preston, 49 Wash. 298, 95 Pac. 82, questioned by State v. Smiley, 167 Wash. 342, 345, 9 P. (2d) 370, in which we held that an instruction which used the phrase “gambling games” instead of “gambling resorts” was not erroneous.\nCable v. Spokane & I. E. R. Co., 50 Wash. 619, 97 Pac. 744, 23 L. R. A. (N. S.) 1224, reviewed as follows by Haaga v. Saginaw Logging Co., 169 Wash. 547, 551, 14 P. (2d) 55:\n“In the Cable case, the court recognized the rule that, ordinarily, the contributory negligence of the driver is not imputable to the passenger, unless the latter has, or is in a position to have, and exercise some control over the driver, but the court nevertheless held that the plaintiff, a girl seventeen years of age, was subject to the general rule of ‘stop, look and listen,’ and in the absence of any showing that she endeavored to stop the horse which her father was driving, or do something for her own protection, or that she was prevented from so doing, she would be subject to the rule. However, the strict application of the rule was later ameliorated by this court in Wilson v. Puget Sound Electric Railway, 52 Wash. 522, 101 Pac. 50, 132 Am. St. 1044, in the following language:\n“ ‘It would certainly be an extreme case where the court would be warranted in announcing, as a rule of law, that a passenger in an automobile was required to warn, advise, or direct its driver, or to apply to such passenger the doctrine of “stop, look and listen.” We are impressed with the statement of the learned counsel of the respondent, that ordinarily the only obligation on such passenger is to “sit tight.” ’\n“It is but fair to say that in the Sadler case, supra, this court, referring to the Wilson case, repudiated the ‘sit tight’ doctrine except in emergency cases, although it did not overrule the decision itself.”\nState v. Pilling, 53 Wash. 464, 102 Pac. 230, 132 Am. St. 1080, questioned by State v. Bradley, 190 Wash. 538, 543, 69 P. (2d) 819.\nState v. Burns, 54 Wash. 113, 102 Pac. 886; State v. Preston, 49 Wash. 298, 95 Pac. 82; and State v. Gaasch, 56 Wash. 381, 105 Pac. 817, questioned by State v. Smiley, 167 Wash. 342, 345, 9 P. (2d) 370.\nState ex rel. Arnold v. Mitchell, 55 Wash. 513, 104 Pac. 791, and Copland v. Pirie, 26 Wash. 481, 67 Pac. 227, 90 Am. St. 769, questioned by In re Peterson’s Estate, 182 Wash. 29, 32, 45 P. (2d) 45, as no longer the law of this state, as was pointed out in Holzman v. Spokane, 91 Wash. 418, 157 Pac. 1086.\nState v. Gaasch, 56 Wash. 381, 105 Pac. 817, questioned by State v. Smiley, 167 Wash. 342, 345, 9 P. (2d) 370.\nState ex rel. Chealander v. Carroll, 57 Wash. 202, 106 Pac. 748, questioned by State ex rel. Huff v. Reeves, 5 Wn. (2d) 637, 642, 106 P. (2d) 729, as having been expressly overruled by State ex rel. McAulay v. Reeves, 196 Wash. 1, 81 P. (2d) 860.\nState v. Seattle, 57 Wash. 602, 107 Pac. 827, 27 L. R. A. (N. S.) 1188, and O’Brien v. Wilson, 51 Wash. 52, 97 Pac. 1115, questioned by Gustaveson v. Dwyer, 83 Wash. 303, 305, 145 Pac. 458, in which, in the view of the dissenters, we extended the immunity which protects taxes from the operation of the statute of limitations to property acquired by the county at a tax sale.\nState v. McFarland, 60 Wash. 98, 110 Pac. 792, questioned in concurring opinion in Austin v. Seattle, 176 Wash. 654, 662, 30 P. (2d) 646, as out of harmony with the general rule in holding penal provisions of hotel inspection fee statute invalid on the ground that the inspection fee constituted a “debt” within the meaning of the constitutional provision prohibiting imprisonment for debt.\nIn Ransom v. Joseph E. Wickstrom & Co., 84 Wash. 419, 422, 146 Pac. 1041, where we held that the objection that a corporation, appearing as an adverse claimant to property levied upon, had not paid its annual license fee, is waived if not raised in trial court by demurrer, answer or reply; and it is not raised by motion for a new trial in the absence of a showing that the objection was advanced at that time, we questioned, as follows, North Star Trading Co. v. Alaska-Yukon-Pacific Exposition, 63 Wash. 376, 115 Pac. 855, which held, in effect, that this question might be effectually raised for the first time on appeal:\n“That decision was overruled on a rehearing by the court En Banc, the question being reported in 68 Wash. 457, 123 Pac. 605. We there held that an objection because of the failure to allege payment of the license fee, if not raised in the trial court by demurrer, answer or reply, would be considered waived. See, also, Rothchild Brothers v. Mahoney, 51 Wash. 633, 99 Pac. 1031; Eastman & Co. v. Watson, 72 Wash. 522, 130 Pac. 1144. In the last case we said:\n“ ‘If the action is brought when the fee is in default, the action may be abated, upon proper showing, until the fee is paid. If no showing is made, the defendant waives the question.’\n“The appellant urges that this was a statutory proceeding by affidavit to which no answer was required. The sufficiency of the affidavit was, however, in issue from the start. The appellant could and should have raised the question by a demurrer, either written or oral. It is also urged that the motion for a new trial was broad enough to include this objection. It is not pretended, however, that the objection now urged was ever advanced in the trial court even in argument. In the absence of such a showing, on the authority of the foregoing decisions, we must treat the objection as waived.”\nNorthwestern Mut. Life Ins. Co. v. Chehalis County Bank, 65 Wash. 374, 118 Pac. 326, questioned by Elsom v. Gadd, 93 Wash. 603, 605, 161 Pac. 483, 162 Pac. 867.\nIn Puget Mill Co. v. Kerry, 183 Wash. 542, 559, 49 P. (2d) 57, we held, consistent with Delano v. Tennent, 138 Wash. 39, 244 Pac. 273, 45 A. L. R. 766, which overruled sub silentio Harvard Inv. Co. v. Smith, 66 Wash. 429, 119 Pac. 864, that the assignee of a lease, who had expressly assumed the burden thereof, is liable for the full term of the lease.\nShea v. Skagit County, 68 Wash. 233, 122 Pac. 1061, questioned by Grant v. Evans, 163 Wash. 484, 486, 1 P. (2d) 852, as no longer authoritative;—“not in harmony with earlier and later cases decided by this court.”\nCollignon & Co. v. Hammond Milling Co., 68 Wash. 626, 123 Pac. 1083, questioned, as follows, by Northern G. W. Co. v. Northwest Trading Co., 117 Wash. 422, 425, 201 Pac. 903, 204 Pac. 202:\n“It is appellant’s argument that this case is governed by what this court said in the case of Collignon & Co. v. Hammond Milling Co., 68 Wash. 626, 123 Pac. 1083; and it quotes that part of the opinion which follows:\n“ ‘There is nothing in a c. i. f. sale differentiating it from other sales, so far as the question under consideration is concerned. The distinguishing feature of such a sale is that the contract price includes the costs of insurance and the freight to destination in addition to the invoice cost of the goods. An offer and acceptance on that basis, therefore, does not, more than in other sales, determine as between buyer and seller when or where the title to the goods passes from buyer to seller. That depends upon the intention of the parties to be determined as in other cases.’\n“The expression of this court in that case is, if read literally, not supported by the authorities and has, in fact, been overruled by our decision in Andersen, Meyer & Co. v. Northwest Trading Co., 115 Wash. 37, 196 Pac. 630, where we had under consideration a ‘c. i. f.’ contract. In the Collignon case, supra, a ‘c. i. £..’ contract was considered without any reference to the English and American authorities which have passed upon this form of contract under the law merchant, and which have established, with scarcely a dissenting opinion anywhere, that a ‘c. i. f.’ contract, although the term may be used in connection with the price of the commodities, yet affects the title on delivery. These contracts being so generally used have received a uniform interpretation, and it will not do to introduce confusion into commercial activities by establishing a rule which is inharmonious with the general custom of merchants throughout the trading world.”\nKnickerbocker Co. v. Seattle, 69 Wash. 336, 124 Pac. 920, where we held that an elevated roadway resting upon mud sills, piles and stringers was a permanent improvement, questioned by Thorberg v. Hoquiam, 77 Wash. 679, 682, 138 Pac. 304, as follows:\n“It was there insisted that a structure of wood was but a temporary improvement, and was intended to serve as a roadway only until such time as an earth fill could be made. We are not inclined to adopt the reasoning of the Knickerbocker case to the extent of holding that a plank roadway laid upon an ungraded street in a city is a permanent improvement as a matter of law; but where a grade is formally established, as was done in the Knickerbocker case (and here by adoption or estoppel), we think there can bé no doubt of the proposition that a city would not be warranted in improving the street under the statutes permitting the creation of an assessment district and charging the cost of the improvement to the abutting property without giving the work some character of finality or permanence. Or, to state the proposition in another way, if a city improves a street under the special assessment plan and charges the cost thereof to the abutting property, the law will presume the formal adoption of a grade as against a subsequent change of grade on the part of the city. If not within the letter, this ruling is clearly within the spirit of Rem. & Bal. Code, § 7875 (P. C. 77 § 1167).”\nJorgenson v. Winter, 69 Wash. 573, 125 Pac. 957, questioned by In re Pfeiffer, 10 Wn. (2d) 703, 711, 118 P. (2d) 158, as statutory provision involved was thereafter repealed.\nState v. Bennett, 71 Wash. 673, 129 Pac. 409, questioned by State v. Navone, 180 Wash. 121, 131, 39 P. (2d) 384, where we stated that during recent years the strict rule as to the necessity for the jury remaining absolutely together at all times has been somewhat relaxed.\nCorman v. Sanderson, 72 Wash. 627, 131 Pac. 198, questioned by Easterbrooks v. Abrahams, 200 Wash. 636, 637, 94 P. (2d) 486, as being in conflict with Enbody v. Hartford Accident & Indemnity Co., 147 Wash. 237, 265 Pac. 734, in the matter of attorney’s fees as costs for successful defense of an action of forcible entry and detainer.\nJorguson v. Seattle, 80 Wash. 126, 141 Pac. 334, questioned by Hamm v. Seattle, 143 Wash. 700, 255 Pac. 655, and questioned by State v. Williams, 12 Wn. (2d) 1, 12, 120 P. (2d) 496.\nCreditors’ Collection Ass’n v. Bisbee, 80 Wash. 358, 141 Pac. 886, questioned as follows by Pacific Coast Adjustment Co. v. Reese, 189 Wash. 347, 348, 65 P. (2d) 1057:\n“In Creditors Collection Ass’n v. Bisbee, 80 Wash. 358, 141 Pac. 886, it was held that property selected in lieu of the animals listed in subd. 4 of § 563 must be of a like nature. This holding was reversed in Lemagie v. Acme Stamp Works, 98 Wash. 34, 167 Pac. 60, which announced the existing rule that the householder may select money in lieu of the designated animals, or credits, or debts due, or any other kind of property whatsoever. Subsequently, it was held in Dean v. Opdycke, 151 Wash. 504, 276 Pac. 545, that the exemptions granted by § 563 may be claimed in garnishment proceedings. It follows, therefore, that, but for the existence of the proviso in § 703, a head of a family, whose wages are garnisheed, could claim as exempt both the twenty dollars per week provided in the body of that section and two hundred and fifty dollars under subd. 4 of § 563.'\n“The proviso has been included in our garnishment exemption statutes at all times since 1907. It survived an attack made on constitutional grounds more than twenty years ago in Creditors Collection Ass’n v. Bisbee, supra. In concluding his opinion in In re French, 250 Fed. 644, Judge Cushman said:\n“ ‘For, while Creditors’ Collection Association v. Bisbee, 80 Wash. 358, 141 Pac. 886, has been overruled in the matter of lieu exemptions, it has not been overruled in the holding therein made that section 703 containing the foregoing proviso, was in all respects constitutional.’ ”\nState v. Morden, 87 Wash. 465, 151 Pac. 832, questioned by State v. Navone, 180 Wash. 121, 131, 39 P. (2d) 384, where we stated that, during recent years, the strict rule as to the necessity for the jury remaining absolutely together at all times has been somewhat relaxed.\nDavies v. Maryland Cas. Co., 89 Wash. 571, 154 Pac. 1116, 155 Pac. 1035, questioned by Johnson v. McGilchrist, 174 Wash. 178, 183, 24 P. (2d) 607, because contrary to the overwhelming weight of authority and overruled by Luger v. Windell, 116 Wash. 375, 199 Pac. 760, 37 A. L. R. 641.\nO’Meara v. Russell, 90 Wash. 557, 156 Pac. 550, L. R. A. 1916E 743, in conflict with Corcoran v. Postal Telegraph-Cable Co., 80 Wash. 570, 142 Pac. 29, L. R. A. 1915B, 552, questioned by Kneass v. Cremation Society of Washington, 103 Wash. 521, 527, 175 Pac. 172.\nState v. Bates & Rogers Const. Co., 91 Wash. 181, 157 Pac. 482, questioned—overruled—by Reynolds v. Addison Miller Co., 143 Wash. 271, 279, 255 Pac. 110.\nStertz v. Industrial Ins. Commission, 91 Wash. 588, 158 Pac. 256, Ann. Cas. 1918B, 354, questioned by Blankenship v. Department of Labor and Ind., 180 Wash. 108, 112, 39 P. (2d) 981.\nShippen v. Shippen, 91 Wash. 610, 158 Pac. 247, questioned by Stone-Easter v. Seattle, 121 Wash. 520, 524, 209 Pac. 687, 215 Pac. 56, where we held that the supreme court not having appellate jurisdiction where the original amount in controversy does not exceed two hundred dollars, sureties on a cost bond in the superior court for two hundred dollars not being entitled to appeal to the supreme court in case of judgment against them, are not necessary parties to an appeal by the adverse party from a judgment in favor of the principal on the cost bond.\nPeterson v. Chess, 92 Wash. 682, 159 Pac. 894, questioned as follows by Helf v. Hansen & Keller Truck Co., 167 Wash. 206, 209, 9 P. (2d) 110:\n“We have not overlooked the case of Peterson v. Chess, 92 Wash. 682, 159 Pac. 894, where it was held that'the vendee of a motorcycle under a conditional sales contract could not recover for damages to the machine where it appeared that he had no interest therein at the time the action was commenced or at the time of the trial, the vendors having taken possession after the accident. But the rule of that case was abrogated by the case of Stotts v. Puget Sound Tr. L. & P. Co., supra, holding that the rights of a vendee under a conditional sales contract are the same as those of a bailee of personal property, and the case of Burnett v. Edw. J. Dunnigan, Inc., supra, to the effect that the vendee of an automobile under a conditional sales contract may maintain an action for its conversion even though, subsequent to the conversion and the institution of the action, the automobile had been repossessed by the vendor.”\nStandard Oil Co. v. Graves, 94 Wash. 291, 162 Pac. 558, questioned by Union Oil Co. v. State, 125 Wash. 327, 328, 216 Pac. 22, as the oil inspection fee statute was held unconstitutional as imposing a direct burden upon interstate commerce. See Standard Oil Co. v. Graves, 249 U. S. 389, 63 L. Ed. 662.\nSt. Germain v. Bakery & Confectionery Workers’ Union, 97 Wash. 282, 166 Pac. 665, L. R. A. 1917F, 824, questioned by Yakima v. Gorham, 200 Wash. 564, 568, 94 P. (2d) 180.\nJones v. Hoquiam Lbr. & Shingle Co., 98 Wash. 172, 167 Pac. 117, questioned by Seattle Ass’n of Credit Men v. General Motors Acceptance Corp., 188 Wash. 635, 637, 63 P. (2d) 359.\nNorthwest Trust & Safe Deposit Co. v. Butcher, 98 Wash. 158, 167 Pac. 46, overruled by Union Central Life Ins. Co. v. Fischer, 169 Wash. 75, 77, 13 P. (2d) 889, and State ex rel. O’Brien v. Superior Court, 173 Wash. 679, 24 P. (2d) 117.\nState v. Postal Telegraph-Cable Co., 101 Wash. 630, 172 Pac. 902, questioned by State ex rel. Washington Motor Coach Co. v. Kelly, 192 Wash. 394, 409, 74 P. (2d) 16.\nEbling v. Nielsen, 109 Wash. 355, 186 Pac. 887, questioned by Morehouse v. Everett, 141 Wash. 399, 411, 252 Pac. 157, as having been modified by Ebling v. Nielsen, 113 Wash. 698, 193 Pac. 569.\nSchaefer v. E. F. Gregory Co., 112 Wash. 408, 192 Pac. 968, questioned as follows by Hubbard v. Grandquist, 191 Wash. 442, 448, 71 P. (2d) 410:\n“An ordinary contract for the sale of real estate vests no title in the vendee. It cannot be held that the making of such a contract, whereby the owner of a tract of land agrees to sell a portion of it to another, severs the title. As this court said in the case of Culmback v. Stevens, 158 Wash. 675, 291 Pac. 705:\n“ ‘Whatever this court may have said heretofore on the question of the effect of such contracts in Schaefer v. Gregory Co., 112 Wash. 408, 192 Pac. 968; Ashford v. Reese, 132 Wash. 649, 233 Pac. 29, or In re Kuhn’s Estate, 132 Wash. 678, 233 Pac. 293, we now say that it creates a right enforceable against the land which is the subject of the contract; a right which cannot be taken away by either the grantor in the contract or by any one, with notice of the contract, claiming under, by or through the grantor, unless for a breach of the conditions of the contract by the grantee.\n“ Tt must follow that the interest in the property remaining in the grantors after the execution of the contract to the Richardsons was an incumbered title; that it was a legal title subject to be defeated absolutely by a performance of the contract on the part of the grantees, and subject to be reinstated in full on a breach of the contract. The real beneficial interest remaining in the grantors was the right to receive the payments as they fell due on the contract.’ ”\nState ex rel. Wettrick v. Seattle, 115 Wash. 548, 197 Pac. 782, which is contrary to our prior opinions that the payment of the salary of the disputed office to the de jacto officer was not a wrongful payment, and that such payment absolved the municipality from liability to the de jure officer, questioned—overruled—by State ex rel. Weyant v. Seattle, 127 Wash. 681, 688, 221 Pac. 997.\nState v. Catalino, 118 Wash. 611, 204 Pac. 179 overruled by State v. Misetrich, 124 Wash. 470, 471, 215 Pac. 13, and questioned by State v. Whipple, 124 Wash. 578, 579, 215 Pac. 14.\nDishman v. Whitney, 121 Wash. 157, 209 Pac. 12, 29 A. L. R. 460, questioned by Bourus v. Hagen, 192 Wash. 588, 591, 74 P. (2d) 205, as no longer an authority in view of Dishman v. Whitney, 124 Wash. 697, 215 Pac. 71. See, also, Mitchell v. Maytag-Pacific-Intermountain Co., 184 Wash. 342, 350, 51 P. (2d) 393, where we observed that, for the reasons stated in Nettleship v. Shipman, 161 Wash. 292, 296 Pac. 1056, the published opinion in Dishman v. Whitney, 121 Wash. 157, 209 Pac. 12, 29 A. L. R. 460, never became a decision of this court.\nIn re Sherwood’s Estate, 122 Wash. 648, 211 Pac. 734, questioned by In re Barclay’s Estate, 1 Wn. (2d) 82, 88, 95 P. (2d) 393.\nCastner v. Tacoma Gas & Fuel Co., 123 Wash. 236, 212 Pac. 283, which held that the cost of funeral expenses was not recoverable in an administrator’s action for wrongful death for the benefit of certain relatives or dependents, questioned by McMullen v. Warren Motor Co., 174 Wash. 454, 457, 25 P. (2d) 99, as it was overruled by Castner v. Tacoma Gas & Fuel Co., 126 Wash. 657, 219 Pac. 12.\nNorthern Pac. R. Co. v. Schoenfeldt, 123 Wash. 579, 213 Pac. 26, questioned by Williams v. Denney, 151 Wash. 630, 635, 276 Pac. 858, as overruled by Buck v. Kuykendall, 267 U. S. 307, 69 L. Ed. 622.\nInland Finance Co. v. Ingersoll Co., 124 Wash. 72, 213 Pac. 679, questioned—overruled—by Bank of Commerce v. Kelpine Products Co., 167 Wash. 592, 597, 10 P. (2d) 238, where we said:\n“In the case of Inland Finance Co. v. Ingersoll Co., 124 Wash. 72, 213 Pac. 679, wherein deficiencies in the corporate acknowledgment were different from those in the later case of Yukon Investment Co. v. Crescent Meat Co., supra, and different from those in the present case, it was held that, notwithstanding inaccuracies in the acknowledgment, the instrument should be held good under the statutory policy of substantial compliance. However, upon further consideration, we conclude that anything said in that case inconsistent with the later case of Yukon Investment Co. v. Crescent Meat Co., supra, which we follow in the present case, may be considered overruled.”\nKinnear v. King County, 124 Wash. 102, 213 Pac. 472, questioned—overruled—as follows by Inland Empire Land Co. v. Grant County, 138 Wash. 439, 442, 245 Pac. 14:\n“Much reliance is placed upon our decision in Kinnear v. King County, 124 Wash. 102, 213 Pac. 472, in which we held that the trial court had properly dismissed an action in which there was no showing that the property was assessed disproportionately to other property of like character. But the doctrine of that case has not been followed in our later decisions. In Tacoma Mill Co. v. Pierce County, 130 Wash. 358, 227 Pac. 500, the decision in Kinnear v. King County, supra, was reviewed, and attention was called to the fact that, since that decision, we had decided the cases of Northern Pacific R. Co. v. Pierce County, 127 Wash. 369, 220 Pac. 826, and Inland Empire R. Co. v. Whitman County, 128 Wash. 358, 223 Pac. 6, wherein we held that excessive valuation may, in certain cases, be so great as to raise constructive fraud, and that it was not necessary that there also be a showing that the land was assessed disproportionately to other land of like character. Applying those decisions to the instant case, it seems plain that land assessed from two to four times its actual value presents a case of constructive fraud that requires the intervention of a court of equity to grant relief.”\nFinkelberg v. Continental Cas. Co., 126 Wash. 543, 219 Pac. 12, questioned as follows by Merriman v. Maryland Cas. Co., 147 Wash. 579, 584, 266 Pac. 682:\n“Aside from what is said in Finkelberg v. Continental Casualty Co., 126 Wash. 543, 219 Pac. 12, relative to the effect of the failure of the assured to give notice of the pendency of the action, and which was not necessary to the decision in that case, no case has been cited, and in our investigation we have discovered none, which holds that the failure of the assured to inform the company that an action has been begun, as required by the policy, enables the injured person to maintain an action on the policy after obtaining a judgment against the assured without giving to the insurance company the right to defend upon the merits as to the question of liability and the amount thereof. The appellant had the right, at some time at least, to an opportunity to defend upon the merits and this is something that as yet it has never had. The case of Finkelberg v. Conti nental Casualty Co., supra, so far as it is not in accord with what has herein been said will be modified.”\nState v. Matson, 127 Wash. 513, 221 Pac. 311, questioned—overruled—as follows by State v. Rouw, 156 Wash. 198, 203, 286 Pac. 81:\n“After careful consideration of the questions now presented in connection with the first instruction above quoted, we hold, notwithstanding expressions to the contrary in the opinion of this court in the case of State v. Matson, supra, that the statutory presumption, as established by ch. 19, Laws of 1917, p. 61, § 12 (Rem. Comp. Stat, § 7329), supra, applies in prosecutions for the manufacture of intoxicating liquor for the purpose of sale, barter or exchange.”\nHatch v. Cole, 128 Wash. 107, 222 Pac. 463, questioned —overruled—as follows by Puget Sd. Bridge & Dredging Co. v. Lake Washington Shipyards, 1 Wn. (2d) 401, 409, 96 P. (2d) 257:\n“It may be that the Hatch case can be harmonized with our former decisions, above referred to, on the ground that, in the Hatch case, the court was not so much concerned with the question of a proper hearing, but rather with the question of the refusal of the arbitrators to properly weigh the evidence. The determination of the weight and sufficiency of the evidence is a matter within the judicial power of the arbitrators, and any error in that respect would be one of ‘fact or law,’ which must appear upon the face of the award. School Dist. No. 5 v. Sage, 13 Wash. 352, 43 Pac. 341; Puget Sound Bridge & Dredging Co. v. Frye, 142 Wash. 166, 252 Pac. 546.\n“However, we do not now subscribe to the broad statement made in the Hatch case that arbitrators have the power to arbitrarily decide disputes. Like any other judicial tribunal, they must decide upon the evidence adduced, after an opportunity for a full and fair hearing has been accorded to all the parties. Nor do we think that it is at all material whether the misbehavior of the arbitrators be intentional or not if, in fact, the parties have not had a proper hearing. An opportunity to be heard is a condition precedent to the arbitrators’ authority to make the award.”\nStevens v. Irwin, 132 Wash. 289, 231 Pac. 783, questioned by Russell v. Stephens, 191 Wash. 314, 315, 71 P. (2d) 30.\nAshford v. Reese, 132 Wash. 649, 233 Pac. 29, and In re Kuhn’s Estate, 132 Wash. 678, 233 Pac. 293, questioned—overruled—by Hubbard v. Grandquist, 191 Wash. 442, 448, 71 P. (2d) 410.\nHolt Mfg. Co. v. Jaussaud, 132 Wash. 667, 233 Pac. 35, 38 A. L. R. 1312, questioned by Kuhn v. Ambrose, 171 Wash. 528, 531, 18 P. (2d) 485, as follows:\n“Appellant relies on the case of Holt Mfg. Co. v. Jaussaud, 132 Wash. 667, 233 Pac. 35, 38 A. L. R. 1312, in which we held that no title whatever passes under a conditional sales contract of personal property. We have, however, since receded somewhat from that position, and have later held that the vendee does have some interest in the chattel, and that such interest is subject to attachment. Hess v. Starwich, 149 Wash. 679, 272 Pac. 75. If the vendee’s interest may be the subject of attachment, then it may also be subject to voluntary transfer, unless prohibited by the agreement of sale.”\nLoveless v. Chehalis, 133 Wash. 33, 233 Pac. 301, overruled by State ex rel. Larson v. Vancouver, 160 Wash. 655, 295 Pac. 947, questioned by State ex rel. Johnson v. Dayton, 200 Wash. 91, 94, 93 P. (2d) 909.\nDanz v. American Federation of Musicians, 133 Wash. 186, 233 Pac. 630, questioned—overruled—by Yakima v. Gorham, 200 Wash. 564, 568, 94 P. (2d) 180.\nState v. Dalzell, 135 Wash. 621, 238 Pac. 635, questioned as no longer authority by State v. Knizek, 192 Wash. 351, 354, 73 P. (2d) 731.\nFrandila v. Department of Labor & Industries, 137 Wash. 530, 243 Pac. 5, and Cole v. Department of Labor & Industries, 137 Wash. 538, 243 Pac. 7, questioned by McCormick Lbr. Co. v. Department of Labor & Industries, 7 Wn. (2d) 40, 49, 108 P. (2d) 807.\nRiverside Finance Co. v. Griffith, 140 Wash. 322, 248 Pac. 786, overruled by Walker v. Fowler, 155 Wash. 631, 285 Pac. 649, and questioned by In re Binge’s Estate, 5 Wn. (2d) 446, 475, 105 P. (2d) 689.\nState v. Brunn, 144 Wash. 341, 258 Pac. 13, overruled by State v. Brunn, 145 Wash. 435, 260 Pac. 990, questioned by State v. McMahon, 145 Wash. 672, 675, 261 Pac. 639.\nLockhart v. Lockhart, 145 Wash. 210, 259 Pac. 385, questioned by Bartow v. Bartow, 12 Wn. (2d) 408, 413, 121 P. (2d) 962.\nState v. Smith, 145 Wash. 250, 259 Pac. 711, questioned as follows by State v. Gaffney, 151 Wash. 599, 607, 276 Pac. 873, and questioned by State v. Freitas, 158 Wash. 155, 156, 290 Pac. 701:\n“A careful examinátion of the authorities satisfies us that the decision of this court in the case of State v. Smith, supra, was incorrect. The true rule is that the character of a witness may be shown by general reputation, and not by cross-examination as to specific acts of insinuated immorality along the line attempted to have been followed by appellants in the case at bar. A different rule applies in connection with the cross-examination of a party to an action, and cases in which courts have considered such cross-examination are not directly in point on the question now before us.”\nEnbody v. Hartford Accident & Indemnity Co., 147 Wash. 237, 265 Pac. 734, questioned by Easterbrooks v. Abrahams, 200 Wash. 636, 637, 94 P. (2d) 486, as in conflict with Corman v. Sanderson, 72 Wash. 627, 131 Pac. 198.\nIn re Cross’ Estate, 147 Wash. 441, 266 Pac. 711; 147 Wash. 699, 266 Pac. 712; and 148 Wash. 422, 269 Pac. 339, overruled by In re Cross’ Estate, 152 Wash. 459, 278 Pac. 414, which was overruled by In re Verchot’s Estate, 4 Wn. (2d) 574, 578, 580, 104 P. (2d) 490, as contrary to a practical unanimity of authority upon the propositions established by Singleton v. Cheek, 284 U. S. 493, 76 L. Ed. 419, 52 S. Ct. 257, 81 A. L. R. 923.\nState ex rel. Merritt v. Superior Court, 147 Wash, 690, 267 Pac. 503—motion for change of venue—questioned and in part overruled by State ex rel. Schmidt v. Nevins, 180 Wash. 356, 358, 39 P. (2d) 990, because in conflict with State ex rel. Shook v. Superior Court, 141 Wash. 651, 252 Pac. 103.\nInstruction given in Skates v. Conniff, 153 Wash. 538, 280 Pac. 15, questioned by O'Neil v. Gruhn, 197 Wash. 557, 563, 85 P. (2d) 1064, as contrary to other cases of this court, none of which is cited.\nGarrett v. Byerly, 155 Wash. 351, 284 Pac. 343, 68 A. L. R. 254, overruled by Martin v. Hadenfeldt, 157 Wash. 563, 289 Pac. 533, questioned by Eggert v. Schumacher, 173 Wash. 119, 22 P. (2d) 52.\nCherry v. General Petroleum Corp., 172 Wash. 688, 21 P. (2d) 520, questioned by Frazee v. Western Dairy Products, 182 Wash. 578, 587, 47 P. (2d) 1037.\nKarp v. Herder, 181 Wash. 583, 44 P. (2d) 808, questioned—overruled—by Morris v. Chicago, M. St. P. & P. R. Co., 1 Wn. (2d) 587, 604, 97 P. (2d) 119, 100 P. (2d) 19.\nEbey v. Engle & Hill, 1 Wash. Terr. 72, overruled by Bagley v. Carpenter, 2 Wash. Terr. 19, 22.\nShapoonmash v. United States, 1 Wash. Terr. 188, overruled by State v. Schafer, 156 Wash. 240, 243, 286 Pac. 833, on question of sufficiency of showing in record of presence of the accused throughout the trial.\nNickels v. Griffin, 1 Wash. Terr. 374, overruled by Phelps v. S. S. City of Panama, 1 Wash. Terr. 615, where we held that, upon a proper showing made, new proofs could, on appeal in an admiralty cause, be introduced in the territorial supreme court, which was not restricted to hearing the cause upon the proofs made in the district court.\nTierney v. Tierney, 1 Wash. Terr. 568, overruled sub silentio by Irving v. Irving, 26 Wash. 122, 66 Pac. 123, and expressly overruled by Johnston v. Johnston, 116 Wash. 322, 324, 199 Pac. 737, where we held that an order modifying the order made in a divorce proceeding awarding the custody of a minor child is appeal-able.\nMeeker v. Gardella, 2 Wash. Terr. 355, overruled by British Bark Latona v. McAllep, 3 Wash. Terr. 332b, 342.\nCline v. Mitchell, 1 Wash. 24, 23 Pac. 1013; Pierce v. Commercial Inv. Co., 31 Wash. 655, 72 Pac. 473; Aetna Ins. Co. v. Thompson, 34 Wash. 610, 76 Pac. 105; Brockway v. Abbott, 34 Wash. 700, 74 Pac. 1069; Trumbull v. Jefferson County, 37 Wash. 604, 79 Pac. 1105; and Shippen v. Shippen, 91 Wash. 610, 158 Pac. 247, overruled by Stone-Easter v. Seattle, 121 Wash. 520, 526, 209 Pac. 687, 215 Pac. 56.\nNorthern Pac. & P. S. S. R. Co. v. Coleman, 3 Wash. 228, 28 Pac. 514, overruled by Enoch v. Spokane Falls & N. R. Co., 6 Wash. 393, 402, 33 Pac. 966, where we held that, under the provisions of Art. I, § 16 of the constitution, the measure of damages, where land is appropriated by a railroad for right of way purposes, is the fair market value of the land taken at the time of the appropriation, together with the amount of depreciation, if any, in the value of the land not taken, and these respective amounts should be ascertained without regard to any benefits that may have resulted from the construction, or proposed construction, of the railroad.\nSpithill v. Jones, 3 Wash. 290, 28 Pac. 531, overruled by Bates v. Drake, 28 Wash. 447, 68 Pac. 961; McKinley v. Morgan, 36 Wash. 561, 79 Pac. 45; and Brown v. Baldwin, 46 Wash. 106, 114, 89 Pac. 483. In the last cited case, we said:\n“It shows how palpably wrong the announcement made in Spithill v. Jones was, and the inconsistency which this court was driven to in the case just cited in trying to sustain the doctrine of that case on the theory that it referred only to the form of the action, when the first expression of the law on the subject of the form of civil action provides that, ‘There shall be in this state hereafter but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be called a civil action.’ Pierce’s Code, § 250 (Bal. Code, § 4793). This is a mandatory provision of the law, and a ready yielding of allegiance to this mandate on the part of the courts of the state will simplify legal proceedings and strip them of fictions and technicalities which find no place in the reformed procedure. This holding does not lead to the conclusion that all the distinctions between law and equity are abolished, or that equitable actions are not to be tried under the same rules under which they always have been tried. It simply means that it makes no difference what the action is termed, and that the relief sought must be granted according to the demands of the complaint if they are substantiated by proof; that an applicant for justice is not to be turned out of the temple of justice scourged with costs because he happens to come in at one door instead of another, and be compelled to enter that other door to ask the same remedy at the hands of the same court. The court is the same, sitting at the same place, clothed with the same authority, and when once the applicant has gained legal access to the court through a statement of facts, which the law demands that the complaint shall be, he is entitled to just such relief as his complaint and his proof warrant; and in the trial of the cause, if it is discovered that the relief is equitable, the court will administer the equitable relief. If it becomes necessary in the trial of the cause to determine a purely legal right, the court, as it always has done, may call a jury to try out that question.”\nSee, also, Browder v. Phinney, 30 Wash. 74, 70 Pac. 264, and Filley v. Murphy, 30 Wash. 1, 70 Pac. 107.\nMoore v. Brownfield, 7 Wash. 23, 34 Pac. 199, overruled by Skansi v. Novak, 84 Wash. 39, 46, 146 Pac. 160; State v. Sturtevant, 76 Wash. 158, 135 Pac. 1035, 138 Pac. 650; and McNaught-Collins Imp. Co. v. May, 52 Wash. 632, 101 Pac. 237.\nPacific Supply Co. v. Brand, 7 Wash. 357, 35 Pac. 72, overruled by Rayburn v. Abrams, 52 Wash. 414, 100 Pac. 751.\nIn Philbrick v. Andrews, 8 Wash. 7, 35 Pac. 358, we held that where, in an action for divorce, the property of the husband has not been brought into the case, a decree in favor of the wife for alimony creates no specific lien on the property; and the husband’s right to a homestead exemption is paramount to the lien created by an execution levy under such judgment. In Haakenson v. Coldiron, 190 Wash. 627, 70 P. (2d) 294, we held that the amount of alimony due the wife is not a debt or liability within the meaning of constitutional provisions or of the statute exempting the proceeds of accident and health insurance from “debts” and liabilities of a divorced husband.\nSee Stafford v. Stafford, 118 Wash. Dec. 721, 140 P. (2d) 545, where the question is raised'whether under our constitution and statute exempting the homestead from execution or forced sale, except as in the statute provided, the homestead of the husband acquired after the entry of a decree of divorce and which was his separate property, is subject to sale under execution to satisfy the unpaid portion of alimony awarded in such decree. See, also, Shibley v. Shibley, 181 Wash. 166, 42 P. (2d) 446, where we held that a California judgment for alimony is not subject to modification as to sums already accrued and past due and may be established in this state as a foreign judgment, to be enforced in equity by contempt proceedings, if necessary, the same as if the judgment or decree were originally entered in this state.\nSears v. Williams, 9 Wash. 428, 37 Pac. 665, 38 Pac. 135, 39 Pac. 280, overruled by State ex rel. Bartelt v. Liebes, 19 Wash. 589, 592, 54 Pac. 26.\nNeis v. Farquharson, 9 Wash. 508, 37 Pac. 697, overruled by Barto v. Stewart, 21 Wash. 605, 618, 59 Pac. 480, where we held that action on any claim against a decedent’s estate is barred if claim has not been presented to the personal representative of the estate within one year after published notice of appointment of such representative, although the claim at the time within which it should have been presented may not have been due, or may in fact have been wholly contingent.\nGlover v. Rochester-German Ins. Co., 11 Wash. 143, 39 Pac. 380, overruled by Dickie Mfg. Co. v. Sound Construction & Engr. Co., 92 Wash. 316, 322, 159 Pac. 129.\nWebster v. Thorndyke, 11 Wash. 390, 39 Pac. 677, overruled by Roberts v. Washington Nat. Bank, 11 Wash. 550, 554, 40 Pac. 225.\nWillamette Casket Co. v. Cross Undertaking Co., 12 Wash. 190, 40 Pac. 729, overruled by Pacific Coast Biscuit Co. v. Perry, 77 Wash. 352, 354, 137 Pac. 483, where we held that, although the statute provides that a chattel mortgage is void as against creditors unless recorded, an unrecorded chattel mortgage is valid as between the parties and creditors subsequent to its execution who acquired no specific lien upon the property up to the time when it was finally filed for record.\nMarquis v. Willard, 12 Wash. 528, 41 Pac. 889, 50 Am. St. 906, in effect overruled by Greenius v. American Surety Co., 92 Wash. 401, 159 Pac. 384, L. R. A. 1917F, 1134, and expressly overruled by Johns v. Clark, 138 Wash. 288, 295, 244 Pac. 729.\nState v. Murphy, 13 Wash. 229, 43 Pac. 44, which held that a conviction of murder in the second degree was an acquittal of murder in the first degree and the defendant could only be again tried for the lesser crime, was overruled by State v. Ash, 68 Wash. 194, 197, 122 Pac. 995, where we enunciated the rule that a conviction of a lesser offense is not an acquittal of greater offenses charged in the same information, operating as a bar upon the granting of a new trial.\nPowell v. Pugh, 13 Wash. 577, 43 Pac. 879; Gund v. Parke, 15 Wash. 339, 46 Pac. 408; Morse v. Estabrook, 19 Wash. 92, 52 Pac. 531, 67 Am. St. 723, and Andrews v. Andrews, 3 Wash. Terr. 286, 14 Pac. 68, which held that the commuunity personal property can be sold on execution to satisfy a judgment against husband for his separate debt, were overruled by Schramm v. Steele, 97 Wash. 309, 311, 318, 166 Pac. 634.\nColumbia Nat. Bank v. Western Iron & Steel Co., 14 Wash. 162, 44 Pac. 145, and Cole v. Noerdlinger, 22 Wash. 51, 60 Pac. 57, overruled by Peters v. McPherson, 62 Wash. 496, 502, 114 Pac. 188, when we held that a denial in manner and form that plaintiffs expended the specified sum of money alleged by them, in a certain action or at all, is a negative pregnant and insufficient.\nPepperal v. City Park Transit Co., 15 Wash. 176, 45 Pac. 743, 46 Pac. 407, overruled by Thornton v. Dow, 60 Wash. 622, 629, 111 Pac. 899, where we held that the failure of a jury to follow, in making a special finding, an erroneous instruction of the court is not prejudicial error, where the record upon the whole case shows that the verdict was right, and no other verdict could have been rendered on proper instructions.\nTacoma v. Krech, 15 Wash. 296, 46 Pac. 255, 34 L. R. A. 68, overruled by State v. Nichols, 28 Wash. 628, 638, 69 Pac. 372.\nJones v. St. Paul M. & M. R. Co., 16 Wash. 25, 47 Pac. 226, which held that the owner of a steamboat accustomed to navigate a river could not recover damages caused by an obstruction to navigation, compelling him to tie up his boat for several days, overruled by Sholin v. Skamania Boom Company, 56 Wash. 303, 308, 105 Pac. 632.\nTacoma v. Tacoma Light & Water Co., 17 Wash. 458, 50 Pac. 55, overruled by Parkhurst v. Elliott, 103 Wash. 89, 92, 173 Pac. 731, where we held that the measure of damages for deceit in misrepresenting the value of mortgage securities, traded for plaintiff’s property, is the difference between the actual value of the securities and their value as represented.\nGerman-American Sav. Bank v. Spokane, 17 Wash. 315, 49 Pac. 542, 38 L. R. A. 259, and Sheafe v. Seattle, 18 Wash. 298, 51 Pac. 385, overruled by Jurey v. Seattle, 50 Wash. 272, 276, 97 Pac. 107.\nBrookman v. State Ins. Co., 18 Wash. 308, 51 Pac. 395, overruled by Main v. Scholl, 20 Wash. 201, 206, 54 Pac. 1125, where we held that property purchased with the proceeds of a loan made by either husband or wife subsequent to marriage is community property.\nGriffith v. Burlingame, 18 Wash. 429, 51 Pac. 1059, overruled by Security Savings & Loan Soc. v. Dudley, 175 Wash. 50, 57, 26 P. (2d) 384, 28 P. (2d) 276.\nState ex rel. Denny v. Bridges, 19 Wash. 44, 52 Pac. 326, 40 L. R. A. 593, overruled by State ex rel. BloedelDonovan Lumber Mills v. Savidge, 144 Wash. 302, 310, 258 Pac. 1.\nState v. McCormick, 20 Wash. 94, 54 Pac. 764, overruled by State v. Pepoon, 62 Wash. 635, 643, 114 Pac. 449.\nPacific Nat. Bank v. Pierce County, 20 Wash. 675, 56 Pac. 936, and Ridpath v. Spokane County, 23 Wash. 436, 63 Pac. 261, in so far as they held that a tax upon the shares of the capital stock of a banking corporation was an excise tax, were overruled by Spokane & Eastern Trust Co. v. Spokane County, 70 Wash. 48, 51, 126 Pac. 54,\nHall v. Skavdale, 21 Wash. 203, 57 Pac. 807, and Pacific Supply Co. v. Brand, 7 Wash. 357, 35 Pac. 72, overruled by Rayburn v. Abrams, 52 Wash. 414, 100 Pac. 751, where we held that a judgment of dismissal, for default in amending a complaint after sustaining a demurrer thereto, is appealable; since no exception was necessary to the order sustaining the demurrer and no further steps are necessary to secure a review, excepting an appeal.\nShuey v. Holmes, 21 Wash. 223, 57 Pac. 818, and Fremont State Bank v. Vincent, 112 Wash. 493, 192 Pac. 975, overruled by Duke v. Johnson, 123 Wash. 43, 46, 48, 211 Pac. 710.\nChehalis County v. Ellingson, 21 Wash. 638, 59 Pac. 485, overruled by Spokane & Idaho Lbr. Co. v. Stanley, 25 Wash. 653, 657, 66 Pac. 92.\nRidpath v. Spokane County, 23 Wash. 436, 63 Pac. 261, and Pacific Nat. Bank v. Pierce County, 20 Wash. 675, 56 Pac. 936, overruled by Spokane & Eastern Trust Co. v. Spokane County, 70 Wash. 48, 51, 126 Pac. 54.\nPeterson v. Seattle Traction Co., 23 Wash. 615, 63 Pac. 539, 65 Pac. 543, 53 L. R. A. 586. See Armstrong v. Musser Lbr. & Mfg. Co., 43 Wash. 584, 586, 86 Pac. 944; Rochester v. Seattle, R. & S. R. Co., 75 Wash. 559, 563, 135 Pac. 209, and New York Life Ins. Co. v. Newport, 1 Wn. (2d) 511, 516, 96 P. (2d) 449.\nBancroft-Whitney Co. v. Gowan, 24 Wash. 66, 63 Pac. 1111, overruled by Spokane Security Finance Co. v. Crowley Lbr. Co., 152 Wash. 697, 279 Pac. 103, where we held that a chattel mortgage giving the mortgagee a present right of possession does not entitle him to maintain an action of replevin; but a mortgagee of chattels may maintain an action for the conversion of the mortgaged property.\nCopland v. Pirie, 26 Wash. 481, 67 Pac. 227, 90 Am. St. 769, and State ex rel. Arnold v. Mitchell, 55 Wash. 513, 104 Pac. 791, overruled by Holzman v. Spokane, 91 Wash. 418, 425, 157 Pac. 1086. See In re Peterson’s Estate, 182 Wash. 29, 33, 45 P. (2d) 45.\nState v. Bliss, 27 Wash. 463, 68 Pac. 87, sub silentio overruled by State v. Butts, 42 Wash. 455, 85 Pac. 33, and State v. McCormick, 56 Wash. 469, 105 Pac. 1037, and expressly overruled by State v. Laws, 61 Wash. 533, 534, 112 Pac. 488.\nGray v. Washington Water Power Co., 27 Wash. 713, 68 Pac. 360, 30 Wash. 154, 70 Pac. 255, overruled by Rochester v. Seattle, R. & S. R. Co., 75 Wash. 559, 563, 135 Pac. 209. See Young v. Dille, 127 Wash. 398, 405, 220 Pac. 782 and New York Life Ins. Co. v. Newport, 1 Wn. (2d) 511, 516, 96 P. (2d) 449.\nState ex rel. Dudley v. Daggett, 28 Wash. 1, 68 Pac. 340, overruled by State ex rel. Plaisie v. Cole, 40 Wash. 474, 82 Pac. 749, where we held that this court has no jurisdiction of an appeal from a judgment of the superior court in a proceeding for a mandamus to compel a justice of the peace to grant a change of venue, where the original amount in controversy is less than two hundred dollars.\nIn re Macdonald’s Estate, 29 Wash. 422, 69 Pac. 1111, overruled by Davis v. Shepard, 135 Wash. 124, 130, 237 Pac. 21. See Horton v. McCord, 158 Wash. 563, 566, 291 Pac. 717.\nBurgert v. Caroline, 31 Wash. 62, 71 Pac. 724, 96 Am. St. 889, overruled sub silentio by Vietzen v. Otis, 63 Wash. 411, 115 Pac. 858 (see 46 Wash. 402, 90 Pac. 264), and expressly overruled by Olson v. Chapman, 4 Wn. (2d) 522, 535, 104 P. (2d) 344.\nPierce v. Commercial Inv. Co., 31 Wash. 655, 72 Pac. 473, overruled by Stone-Easter v. Seattle, 121 Wash. 520, 526, 209 Pac. 687, 215 Pac. 56.\nIn re Waugh, 32 Wash. 50, 72 Pac. 710, overruled by In re Bruen, 102 Wash. 472, 479, 172 Pac. 1152.\nState v. Durbin, 32 Wash. 289, 73 Pac. 373, overruled sub silentio by State v. Campbell, 40 Wash. 480, 82 Pac. 752, and expressly by State v. Wickstrom, 92 Wash. 503, 506, 159 Pac. 753.\nGriggs v. MacLean, 33 Wash. 244, 74 Pac. 360. See Rochester v. Seattle, R. & S. R. Co., 75 Wash. 559, 563, 135 Pac. 209, and New York Life Ins. Co. v. Newport, 1 Wn. (2d) 511, 516, 96 P. (2d) 449.\nLawrence v. Pederson, 34 Wash. 1, 74 Pac. 1011, overruled by Rochester v. Seattle, R. & S. R. Co., 75 Wash. 559, 563, 135 Pac. 209.\nO’Connor v. Lighthizer, 34 Wash. 152, 75 Pac. 643; Aetna Ins. Co. v. Thompson, 34 Wash. 610, 76 Pac. 105; and Brockway v. Abbott, 34 Wash. 700, 74 Pac. 1069, overruled by Stone-Easter v. Seattle, 121 Wash. 520, 526, 209 Pac. 687, 215 Pac. 56.\nSwope v. Seattle, 35 Wash. 69, 76 Pac. 517, overruled by State ex rel. Young v. Superior Court, 43 Wash. 34, 38, 85 Pac. 989.\nAllen v. Northern Pac. R. Co., 35 Wash. 221, 77 Pac. 204, 66 L. R. A. 804, overruled by Rochester v. Seattle, R. & S. R. Co., 75 Wash. 559, 563, 135 Pac. 209. See Wait v. Robertson Mtg. Co., 37 Wash. 282, 79 Pac. 926.\nState v. Ide, 35 Wash. 576, 77 Pac. 961, overruled by Tekoa v. Reilly, 47 Wash. 202, 209, 91 Pac. 769.\nTrumbull v. Jefferson County, 37 Wash. 604, 79 Pac. 1105, overruled by Stone-Easter v. Seattle, 121 Wash. 520, 526, 209 Pac. 687, 215 Pac. 56.\nOkanogan County v. Cheetham, 37 Wash. 682, 80 Pac. 262, 70 L. R. A. 1027, overruled by McAllister v. Okanogan County, 51 Wash. 647, 651, 100 Pac. 146.\nTham v. Steeb Shipping Co., 39 Wash. 271, 81 Pac. 711. See Rochester v. Seattle, R. & S. R. Co., 75 Wash. 559, 563, 135 Pac. 209.\nSmith v. St. Paul, M. & M. R. Co., 39 Wash. 355, 81 Pac. 840. See DeKay v. North Yakima & V. R. Co., 71 Wash. 648, 129 Pac. 574.\nJensen v. Cooks’ & Waiters’ Union, 39 Wash. 531, 81 Pac. 1069, 4 L. R. A. (N. S.) 302; St. Germain v. Bakery & Confectionery Workers’ Union, 97 Wash. 282, 166 Pac. 665, L. R. A. 1917F, 824; Baasch v. Cooks Union, 99 Wash. 378, 169 Pac. 843; and Danz v. American Federation of Musicians, 133 Wash. 186, 233 Pac. 630, overruled by Yakima v. Gorham, 200 Wash. 564, 568, 94 P. (2d) 180.\nState v. Bringgold, 40 Wash. 12, 82 Pac. 132, overruled by State v. Hamshaw, 61 Wash. 390, 392, 112 Pac. 379, where we held that, upon appeal from justice court in a criminal case, the superior court cannot allow an amended complaint to be filed, over objection by the accused.\nPostel v. Seattle, 41 Wash. 432, 83 Pac. 1025. See Kincaid v. Seattle, 74 Wash. 617, 620, 134 Pac. 504, 135 Pac. 820; and International Contract Co. v. Seattle, 74 Wash. 662, 134 Pac. 502.\nState ex rel. Richey v. Smith, 42 Wash. 237, 84 Pac. 851, 114 Am. St. 114, 7 Ann. Cas. 577, 5 L. R. A. (N. S.) 674, sub silentio overruled by State v. Pitney, 79 Wash. 608, 140 Pac. 918, Ann. Cas. 1916A, 209, and State v. Walter Bowen & Co., 86 Wash. 23, 149 Pac. 330, Ann. Cas. 1917B, 625; and expressly overruled by Tacoma v. Fox, 158 Wash. 325, 334, 290 Pac. 1010.\nArmstrong v. Wm. Musser Lbr. & Mfg. Co., 43 Wash. 584, 86 Pac. 944, overruled by Rochester v. Seattle, R. & S. R. Co., 75 Wash. 559, 563, 135 Pac. 209.\nHartley v. Ferguson, 46 Wash. 33, 89 Pac. 156. See Rochester v. Seattle, R. & S. R. Co., 75 Wash. 559, 563, 135 Pac. 209.\nLeonard v. Bassindale, 46 Wash. 301, 89 Pac. 879, in which we held unconstitutional the law of 1905 prohibiting the use of trading stamps, overruled by State v. Pitney, 79 Wash. 608, 615, 140 Pac. 918.\nJohnson v. Conner, 48 Wash. 431, 93 Pac. 914, overruled by McNaught-Collins Imp. Co. v. May, 52 Wash. 632, 635, 101 Pac. 237. See, also, State v. Sturtevant, 76 Wash. 158, 174, 135 Pac. 1035, where we said:\n“The court relied upon the case of Moore v. Brownfield, 7 Wash. 23, 34 Pac. 199, . . . upon the defense of adverse possession. In that case, it is said: ‘Although possession be held in subordination to the title of the United States, it may be adverse to one claiming the land as against the possessor.’ Judge Sawyer so instructed the jury in the case of Francoeur v. Newhouse, 43 Fed. 236, which was cited as sustaining authority. So far as we know, a like statement is not to be found elsewhere in the books. Moore v. Brownfield was followed in Johnson v. Conner, 48 Wash. 431, 93 Pac. 914, although at the time the court had declared a contrary rule in Yesler Estate v. Holmes, 39 Wash. 34, 80 Pac. 851.”\nSee Skansi v. Novak, 84 Wash. 39, 45, 46, 146 Pac. 160.\nHolcomb v. Holcomb, 49 Wash. 498, 95 Pac. 1091, and Sullivan v. Sullivan, 49 Wash. 508, 95 Pac. 1095, overruled by Griffith v. Griffith, 71 Wash. 56, 59, 127 Pac. 585, where we held that, under the constitution, limiting the original jurisdiction of the supreme court to special writs and to all other writs necessary and proper to the complete exercise of its appellate jurisdiction, the supreme court has no jurisdiction, pending an appeal in a divorce case, to award the wife temporary alimony, suit money and attorney’s fees for the prosecution of her appeal.. We said:\n“After the opinion of November 12, 1912, in this cause directing that the appellant be awarded alimony, suit money, and attorney’s fees, had been filed, a petition for rehearing was presented by the respondent in which the jurisdiction of the court to make the order was suggested. On consultation upon the petition, it was found that differences of opinion existed among the several members of the court as to the court’s jurisdiction, and the cause was set down for further argument at the present session. The question was reargued at the time appointed, and the court is now convinced that it was in error in making the order directed in its former opinion, and in error in making the orders in the cases of Holcomb v. Holcomb, 49 Wash. 498, 95 Pac. 1091; Sullivan v. Sullivan, 49 Wash. 508, 95 Pac. 1095; Gallagher v. Gallagher, 65 Wash. 310, 118 Pac. 4; and in entertaining the petition in Gust v. Gust, 69 Wash. 220, 124 Pac. 504. The reasons which lead us to this conclusion are clearly and fully stated in the dissenting opinion written by the present chief justice in the case of Holcomb v. Holcomb, supra, and we adopt the opinion as the opinion of the court in the present case. The order heretofore entered herein, directing alimony, suit money, and attorney’s fees to be granted is therefore revoked, and the application for the same denied.”\nSee Lewis v. Lewis, 83 Wash. 671, 145 Pac. 980; State ex rel. Clark v. Superior Court, 90 Wash. 80, 155 Pac. 398; Reno v. Reno, 118 Wash. 49, 203 Pac. 2; State ex rel. Brown v. Superior Court, 190 Wash. 572, 69 P. (2d) 811; Haakenson v. Coldiron, 190 Wash. 627, 70 P. (2d) 294; and State ex rel. Davis v. Superior Court, 200 Wash. 670, 94 P. (2d) 478.\nState ex rel. Puyallup v. Superior Court, 50 Wash. 650, 97 Pac. 778, overruled by State ex rel. Meyer v. Clifford, 78 Wash. 555, 560, 139 Pac. 650.\nGabrielson v. Hague Box & Lbr. Co., 55 Wash. 342, 104 Pac. 635, 133 Am. St. 1032, overruled sub silentio by Holm v. Chicago, M. & P. S. R. Co., 59 Wash. 293, 109 Pac. 799, resuscitated, without reference to. the Holm case, by Coleman v. St. Paul & Tacoma Lbr. Co., 110 Wash. 259, 188 Pac. 532, and expressly overruled by Staples v. Esary, 130 Wash. 521, 524, 228 Pac. 514.\nState ex rel. Arnold v. Mitchell, 55 Wash. 513, 104 Pac. 791, overruled by Holzman v. Spokane, 91 Wash. 418, 425, 157 Pac. 1086. See, also, In re Peterson’s Estate, 182 Wash. 29, 33, 45 P. (2d) 45.\nState ex rel. Chealander v. Carroll, 57 Wash. 202, 106 Pac. 748, overruled by State ex rel. McAulay v. Reeves, 196 Wash. 1, 10, 81 P. (2d) 860.\nTsmura v. Great Northern R. Co., 58 Wash. 316, 108 Pac. 774, overruled by Horton v. Oregon-Washington R. & N. Co., 72 Wash. 503, 512, 130 Pac. 897.\nKnust v. Bullock, 59 Wash. 141, 109 Pac. 329; Kneff v. Sanford, 63 Wash. 503, 115 Pac. 1040; and Burger v. Taxicab Motor Co., 66 Wash. 676, 120 Pac. 519, overruled by Bradley v. S. L. Savidge, Inc., 13 Wn. (2d) 28, 123 P. (2d) 780.\nNorth Star Trading Co. v. Alaska-Yukon-Pacific Exposition, 63 Wash. 376, 115 Pac. 855, overruled by opinion in same case, 68 Wash. 457, 123 Pac. 605.\nGallagher v. Gallagher, 65 Wash. 310, 118 Pac. 4, overruled by Griffith v. Griffith, 71 Wash. 56, 59, 127 Pac. 585.\nHarvard Inv. Co. v. Smith, 66 Wash. 429, 119 Pac. 864, sub silentio overruled by DeLano v. Tennent, 138 Wash. 39, 244 Pac. 273, 45 A. L. R. 766, and expressly overruled by Puget Mill Co. v. Kerry, 183 Wash. 542, 559, 49 P. (2d) 57.\nFranklin County v. Carstens, 68 Wash. 176, 122 Pac. 999, overruled by Gustaveson v. Dwyer, 83 Wash. 303, 145 Pac. 458.\nShea v. Skagit County, 68 Wash. 233, 122 Pac. 1061, overruled by Grant v. Evans, 163 Wash. 484, 486, 1 P. (2d) 852.\nCollignon & Co. v. Hammond Milling Co., 68 Wash. 626, 123 Pac. 1083, overruled sub silentio by Andersen, Meyer & Co. v. Northwest Trading Co., 115 Wash. 37, 196 Pac. 630, and expressly overruled by Northern G. W. Co. v. Northwest Trading Co., 117 Wash. 422, 426, 201 Pac. 903, 204 Pac. 202.\nGust v. Gust, 69 Wash. 220, 124 Pac. 504, overruled by Griffith v. Griffith, 71 Wash. 56, 59, 127 Pac. 585.\nState v. Wilson, 69 Wash. 235, 124 Pac. 1125. See State v. Schrader, 135 Wash. 650, 662, 238 Pac. 617, 243 Pac. 10.\nPurdy v. Sherman, 74 Wash. 309, 133 Pac. 440, and Birch v. Abercrombie, 74 Wash. 486, 133 Pac. 1020, 50 L. R. A. (N. S.) 59, overruled by Bradley v. S. L. Savidge, Inc., 13 Wn. (2d) 28, 48, 53, 66, 123 P. (2d) 780.\nCasassa v. Seattle, 75 Wash. 367, 134 Pac. 1080. See Wong Kee Jun v. Seattle, 143 Wash. 479, 255 Pac. 645.\nSeattle v. McElwain, 75 Wash. 375, 134 Pac. 1089, overruled by In re Seattle, 115 Wash. 535, 537, 197 Pac. 784.\nRochester v. Seattle, R. & S. R. Co., 75 Wash. 559, 135 Pac. 209. See New York Life Ins. Co. v. Newport, 1 Wn. (2d) 511, 516, 96 P. (2d) 449; and Young v. Dille, 127 Wash. 398, 220 Pac. 782.\nState ex rel. Murphy v. Wright, 76 Wash. 383, 136 Pac. 482, overruled by State ex rel. Meyer v. Clifford, 78 Wash. 555, 560, 139 Pac. 650.\nOpsahl v. Northern Pac. R. Co., 78 Wash. 197, 138 Pac. 681, overruled by Lauer v. Northern Pac. R. Co., 83 Wash. 465, 468, 145 Pac. 606.\nState v. George, 79 Wash. 262, 140 Pac. 337, overruled by State v. Wray, 142 Wash. 530, 533, 253 Pac. 801.\nJorguson v. Seattle, 80 Wash. 126, 141 Pac. 334, overruled by Wong Kee Jun v. Seattle, 143 Wash. 479, 505, 255 Pac. 645.\nCreditors’ Collection Ass’n v. Bisbee, 80 Wash. 358, 141 Pac. 886. See Lemagie v. Acme Stamp Works, 98 Wash. 34, 167 Pac. 60, and Pacific Coast Adjustment Co. v. Reese, 189 Wash. 347, 348, 65 P. (2d) 1057.\nState ex rel. Conner v. Superior Court, 81 Wash. 480, 143 Pac. 112, overruled by Malim v. Benthien, 114 Wash. 533, 540, 196 Pac. 7.\nPuget Sound State Bank v. Gallucci, 82 Wash. 445, 457, 144 Pac. 698, overruled by Sturtevant Co. v. Fidelity & Deposit Company, 92 Wash. 52, 67, 158 Pac. 740.\nEdmonds v. Altman, 89 Wash. 4, 153 Pac. 1082, overruled by Clemson v. Best, 174 Wash. 601, 606, 25 P. (2d) 1032.\nDavies v. Maryland Cas. Co., 89 Wash. 571, 154 Pac. 1116, 155 Pac. 1035, L. R. A. 1916D, 395. See Luger v. Windell, 116 Wash. 375, 199 Pac. 760.\nGuerin v. Clark County, 90 Wash. 242, 155 Pac. 1035, overruled by Sweet Clinic v. Lewis County, 154 Wash. 416, 425, 282 Pac. 832.\nPappas v. Dailey, 90 Wash. 285, 155 Pac. 1059. See New York Life Ins. Co. v. Newport, 1 Wn. (2d) 511, 516, 96 P. (2d) 449, and Rochester v. Seattle, R. & S. R. Co., 75 Wash. 559, 563, 135 Pac. 209.\nAmerican Sav. Bank & Trust Co. v. Dennis, 90 Wash. 547, 156 Pac. 559, overruled by Old Nat. Bank v. Gibson, 105 Wash. 578, 585, 179 Pac. 117.\nSeattle v. Dexter Horton Trust & Sav. Bank, 90 Wash 661, 156 Pac. 844, overruled by In re Seattle, 115 Wash. 535, 543, 197 Pac. 784.\nState v. Bates & Rogers Const. Co., 91 Wash. 181, 157 Pac. 482, overruled by Reynolds v. Addison Miller Co., 143 Wash. 271, 279, 255 Pac. 110.\nShippen v. Shippen, 91 Wash. 610, 158 Pac. 247, overruled by Stone-Easter v. Seattle, 121 Wash. 520, 526, 209 Pac. 687, 215 Pac. 56.\nPeterson v. Chess, 92 Wash. 682, 159 Pac. 894, overruled by Stotts v. Puget Sound T. L. & P. Co., 94 Wash. 339, 162 Pac. 519, L. R. A. 1917D, 214 and Helf v. Hansen & Keller Truck Co., 167 Wash. 206, 209, 9 P. (2d) 110. See Burnett v. Edw. J. Dunnigan, Inc., 165 Wash. 164, 4 P. (2d) 829.\nStandard Oil Co. v. Graves, 94 Wash. 291, 162 Pac. 558, overruled by Standard Oil Co. v. Graves, 249 U. S. 389, 63 L. Ed. 662, on the ground that oil inspection fees imposed by Laws of 1907, ch. 192, imposed a direct burden upon interstate commerce, noticed in Union Oil Co. v. State, 125 Wash. 327, 328, 216 Pac. 22.\nSt. Germain v. Bakery & Confectionery Workers’ Union, 97 Wash. 282, 166 Pac. 665, L. R. A. 1917F, 824, overruled by Yakima v. Gorham, 200 Wash. 564, 568, 94 P. (2d) 180.\nBaasch v. Cooks Union, 99 Wash. 378, 169 Pac. 843, overruled by Yakima v. Gorham, 200 Wash. 564, 568, 94 P. (2d) 180.\nZuhn v. Horst, 100 Wash. 359, 170 Pac. 1033, overruled by Strong v. Sunset Copper Co., 9 Wn. (2d) 214, 225, 114 P. (2d) 526.\nBabbitt v. Seattle School Dist., 100 Wash. 392, 170 Pac. 1020, overruled by Steiner v. Royal Blue Cab Co., 172 Wash. 396, 398, 20 P. (2d) 39, which was overruled by Bradley v. S. L. Savidge, Inc., 13 Wn. (2d) 28, 123 P. (2d) 780.\nMoore v. Roddie, 103 Wash. 386, 174 Pac. 648, overruled by Bradley v. S. L. Savidge, Inc., 13 Wn. (2d) 28, 48, 53, 123 P. (2d) 780.\nWatson v. Barnard, 105 Wash. 536, 178 Pac. 477, overruled by Rockwell v. Thompson, 124 Wash. 176, 179, 213 Pac. 922.\nUnited States Fidelity & Guaranty Co. v. Cascade Const. Co., 106 Wash. 478, 180 Pac. 463, sub silentio overruled by Mercy v. A. I. Hall & Son, 177 Wash. 338, 31 P. (2d) 1009, and expressly overruled by Millett v. Mackie Mill Co., 193 Wash. 477, 483, 76 P. (2d) 311.\nColeman v. St. Paul & Tacoma Lbr. Co., 110 Wash. 259, 188 Pac. 532, overruled by Staples v. Esary, 130 Wash. 521, 523, 524, 228 Pac. 514.\nSchaefer v. E. F. Gregory Co., 112 Wash. 408, 192 Pac. 968, overruled by Culmback v. Stevens, 158 Wash. 675, 291 Pac. 705, and Hubbard v. Grandquist, 191 Wash. 442, 448, 71 P. (2d) 410.\nFremont State Bank v. Vincent, 112 Wash. 493, 192 Pac. 975, overruled by Duke v. Johnson, 123 Wash. 43, 48, 211 Pac. 710.\nState ex rel. Wettrick v. Seattle, 115 Wash. 548, 197 Pac. 782, overruled by State ex rel. Weyant v. Seattle, 127 Wash. 681, 689, 221 Pac. 997.\nMatapan Nat. Bank v. Seattle, 115 Wash. 596, 197 Pac. 789, overruled by Bale v. Floyd, 199 Wash. 503, 509, 91 P. (2d) 1025.\nState v. Catalino, 118 Wash. 611, 204 Pac. 179, overruled by State v. Misetrich, 124 Wash. 470, 215 Pac. 13.\nMitchell v. Churches, 119 Wash. 547, 206 Pac. 6, 36 A. L. R. 1132, overruled by Bradley v. S. L. Savidge, Inc., 13 Wn. (2d) 28, 48, 53, 123 P. (2d) 780.\nDishman v. Whitney, 121 Wash. 157, 209 Pac. 12, 29 A. L. R. 460, and 124 Wash. 697, 215 Pac. 71, we stated, in Bourus v. Hagen, 192 Wash. 588, 591, 74 P. (2d) 205, was no longer recognized as an authority.\nStone-Easter v. Seattle, 121 Wash. 520, 209 Pac. 687, overruled on rehearing 121 Wash. 522, 215 Pac. 56.\nCastner v. Tacoma Gas & Fuel Co., 123 Wash. 236, 212 Pac. 283, overruled on rehearing, 126 Wash. 657, 219 Pac. 12, where we held that funeral expenses are recoverable against one causing the death of another by wrongful act.\nNorthern Pac. R. Co. v. Schoenfeldt, 123 Wash. 579, 213 Pac. 26, in effect overruled by Buck v. Kuykendall, 267 U. S. 307, 69 L. Ed. 622, we stated in Williams v. Denney, 151 Wash. 630, 635, 276 Pac. 858.\nCasey v. Edwards, 123 Wash. 661, 212 Pac. 1082, overruled by State ex rel. Oatey Orchard Co. v. Superior Court, 154 Wash. 10, 13, 280 Pac. 350.\nVernarelli v. Sweikert, 123 Wash. 694, 213 Pac. 482, overruled by Bradley v. S. L. Savidge, Inc., 13 Wn. (2d) 28, 49, 53, 123 P. (2d) 780.\nInland Finance Co. v. Ingersoll Co., 124 Wash. 72, 213 Pac. 679, in effect overruled by Yukon Inv. Co. v. Crescent Meat Co., 140 Wash. 136, 248 Pac. 377, expressly overruled by Bank of Commerce v. Kelpine Prod. Co., 167 Wash. 592, 597, 10 P. (2d) 238.\nKinnear v. King County, 124 Wash. 102, 213 Pac. 472, overruled by Inland Empire Land Co. v. Grant County, 138 Wash. 439, 442, 245 Pac. 14.\nWarner v. Modern Woodmen of America, 124 Wash. 252, 214 Pac. 161, 34 A. L. R. 87, overruled by Howard v. Equitable Assurance Society, 197 Wash. 230, 241, 85 P. (2d) 253.\nDishman v. Whitney, 124 Wash. 697, 215 Pac. 71 (see opinion same case 121 Wash. 157, 209 Pac. 12, 29 A. L. R. 460), we stated in Bourus v. Hagen, 192 Wash. 588, 591, 74 P. (2d) 205, is no longer an authority.\nSeattle v. Everett, 125 Wash. 39, 215 Pac. 337, overruled by Hollenbeck v. Seattle, 136 Wash. 508, 512, 240 Pac. 916.\nHarju v. Anderson, 125 Wash. 161, 215 Pac. 327, overruled by State ex rel. Hibler v. Superior Court, 164 Wash. 618, 624, 3 P. (2d) 1098, where we reiterated the rule,\n“That, in a proceeding brought to vacate a judgment procured by fraud, the prevailing party in the action wherein the judgment was obtained must be served with process and brought into the proceedings the same as in an original action. Mere service on the attorney is not sufficient.”\nFarr v. Department of Labor & Industries, 125 Wash. 349, 216 Pac. 20, overruled by Luton v. Department of Labor & Industries, 183 Wash. 105, 111, 48 P. (2d) 199. See, also, Abraham v. Department of Labor & Industries, 178 Wash. 160, 34 P. (2d) 457; Powell v. Department of Labor & Industries, 178 Wash. 699, 34 P. (2d) 459; Kloeppel v. Department of Labor & Industries, 178 Wash. 699, 34 P. (2d) 459; and Knestis v. Unemployment & Comp. Division, 16 Wn. (2d) 577, 134 P. (2d) 76.\nFinkelberg v. Continental Cas. Co., 126 Wash. 543, 219 Pac. 12, overruled by Merriman v. Maryland Cas. Co., 147 Wash. 579, 584, 266 Pac. 682.\nState v. Matson, 127 Wash. 513, 221 Pac. 311, overruled by State v. Rouw, 156 Wash. 198, 203, 286 Pac. 81.\nPiper v. Piper, 129 Wash. 72, 224 Pac. 576. See Rochester v. Seattle, R. & S. R. Co., 75 Wash. 559, 563, 135 Pac. 209, and New York Life Ins. Co. v. Newport, 1 Wn. (2d) 511, 516, 96 P. (2d) 449.\nAnning v. Rothschild & Co., 130 Wash. 232, 226 Pac. 1013, overruled by Bradley v. S. L. Savidge, Inc., 13 Wn. (2d) 28, 49, 53, 123 P. (2d) 780.\nStevens v. Irwin, 132 Wash. 289, 231 Pac. 783, overruled by Russell v. Stephens, 191 Wash. 314, 315, 71 P. (2d) 30.\nGriffin v. Smith, 132 Wash. 624, 232 Pac. 929, overruled by Bradley v. S. L. Savidge, Inc., 13 Wn. (2d) 28, 49, 53, 123 P. (2d) 780.\nAshford v. Reese, 132 Wash. 649, 233 Pac. 29, and In re Kuhn’s Estate, 132 Wash. 678, 233 Pac. 293, overruled by Culmback v. Stevens, 158 Wash. 675, 291 Pac. 705, and Hubbard v. Grandquist, 191 Wash. 442, 448, 71 P. (2d) 410.\nHolt Mfg. Co. v. Jaussaud, 132 Wash. 667, 233 Pac. 35, 38 A. L. R. 1312, overruled by Hess v. Starwich, 149 Wash. 679, 272 Pac. 75, and Kuhn v. Ambrose, 171 Wash. 528, 531, 18 P. (2d) 485.\nLoveless v. Chehalis, 133 Wash. 33, 233 Pac. 301, overruled by State ex rel. Larson v. Vancouver, 160 Wash. 655, 662, 295 Pac. 947. See State ex rel. Johnson v. Dayton, 200 Wash. 91, 94, 93 P. (2d) 909.\nDanz v. American Federation of Musicians, 133 Wash. 186, 233 Pac. 630, overruled by Yakima v. Gorham, 200 Wash. 564, 568, 94 P. (2d) 180.\nMorris v. Favor, 134 Wash. 75, 234 Pac. 1040, overruled by State ex rel. Mason v. Board of Commissioners, 146 Wash. 449, 464, 263 Pac. 735.\nAlto v. Hartwood Lbr. Co., 135 Wash. 368, 237 Pac. 987, overruled by Lucas v. Luckenbach S. S. Co., 141 Wash. 504, 510, 252 Pac. 526.\nState ex rel. Reynolds v. Hill, 135 Wash. 442, 237 Pac. 1004, overruled by State ex rel. Vandervort v. Grant, 156 Wash. 96, 102, 286 Pac. 63, and by State ex rel. Sohlman v. Oldham, 156 Wash. 484, 485, 287 Pac. 680.\nStevens v. Naches State Bank, 136 Wash. 137, 238 Pac. 918. See Sun Life Assur. Co. v. Outler, 172 Wash. 540, 546, 20 P. (2d) 1110.\nPerkins v. Ellensburg, 138 Wash. 641, 244 Pac. 996, overruled by Bale v. Floyd, 199 Wash. 503, 509, 91 P. (2d) 1025.\nRiverside Finance Co. v. Griffith, 140 Wash. 322, 248 Pac. 786, overruled by Walker v. Fowler, 155 Wash. 631, 637, 285 Pac. 649. See In re Binge’s Estate, 5 Wn. (2d) 446, 475, 105 P. (2d) 689.\nFeldtman v. Russak, 141 Wash. 287, 251 Pac. 572; Kludas v. Inland-American Printing Co., 149 Wash. 180, 270 Pac. 429; Barach v. Island Empire T. & T. Co., 151 Wash. 279, 275 Pac. 713; Mitchell v. Nalley’s, Inc., 163 Wash. 183, 300 Pac. 526; Steiner v. Royal Blue Cab Co., 172 Wash. 396, 20 P. (2d) 39; McMullen v. Warren Motor Co., 174 Wash. 454, 25 P. (2d) 99; and Templin v. Doan, 187 Wash. 68, 59 P. (2d) 1110. See Bradley v. S. L. Savidge, Inc., 13 Wn. (2d) 28, 123 P. (2d) 780, disposing of opinions in the foregoing and Sullivan v. Associated Dealers, 4 Wn. (2d) 352, 103 P. (2d) 489.\nState v. Brunn, 144 Wash. 341, 258 Pac. 13, overruled on rehearing 145 Wash. 435, 260 Pac. 990.\nMillspaugh v. Alert Transfer Co., 145 Wash. 111, 259 Pac. 22, overruled by Bredemeyer v. Johnson, 179 Wash. 225, 36 P. (2d) 1062. See Twedt v. Seattle Taxicab Co., 121 Wash. 562, 210 Pac. 20; Benson v. Anderson, 129 Wash. 19, 223 Pac. 1063, Weaver v. Windust, 195 Wash. 240, 80 P. (2d) 766; and Zurfluh v. Lewis County, 199 Wash. 378, 381, 91 P. (2d) 1002.\nState v. Smith, 145 Wash. 250, 259 Pac. 711, overruled by State v. Gaffney, 151 Wash. 599, 276 Pac. 873, and State v. Freitas, 158 Wash. 155, 156, 290 Pac. 701.\nColby & Dickinson v. Baker, 145 Wash. 584, 261 Pac. 101, overruled by Columbia Lbr. Co. v. Bothell Dairy Farm, 174 Wash. 662, 666, 25 P. (2d) 1037.\nState ex rel. Merritt v. Superior Court, 147 Wash. 690, 267 Pac. 503, overruled by State ex rel. Schmidt v. Nevins, 180 Wash. 356, 358, 39 P. (2d) 990.\nIn re Cross’ Estate, 152 Wash. 459, 278 Pac. 414, which overruled three cases, overruled by In re Verchot’s Estate, 4 Wn. (2d) 574, 578, 104 P. (2d) 490, because in conflict with Singleton v. Cheek, 284 U. S. 493, 76 L. Ed. 419, 52 S. Ct. 257, 81 A. L. R. 923.\nKeller v. Breneman, 153 Wash. 208, 279 Pac. 588, 67 A. L. R. 92. See Chapin v. Stickel, 173 Wash. 174, 182, 22 P. (2d) 290.\nGarrett v. Byerly, 155 Wash. 351, 284 Pac. 343, 68 L. R. A. 254, overruled by Martin v. Hadenfeldt, 157 Wash. 563, 568, 289 Pac. 533. See, also, Eggert v. Schumacher, 173 Wash. 119, 122, 22 P. (2d) 52.\nDownie v. Renton, 162 Wash. 181, 298 Pac. 454, overruled on rehearing 167 Wash. 374, 9 P. (2d) 372.\nTabb v. Funk, 170 Wash. 545, 17 P. (2d) 18, overruled by Dearling v. Funk, 177 Wash. 349, 365, 32 P. (2d) 548.\nBowman v. Union High School Dist., 173 Wash. 299, 22 P. (2d) 991, overruled by Casper v. Longview School Dist., 5 Wn. (2d) 403, 409, 105 P. (2d) 503.\nKarp v. Herder, 181 Wash. 583, 44 P. (2d) 808, overruled by Morris v. Chicago, M. St. P. & P. R. Co., 1 Wn. (2d) 587, 604, 97 P. (2d) 119, 100 P. (2d) 19.\nRussell v. Stephens, 189 Wash. 233, 64 P. (2d) 787, overruled on rehearing 191 Wash. 314, 315, 71 P. (2d) 30.\nCollins v. Bucoda, 191 Wash. 242, 70 P. (2d) 1062, overruled by Longview Co. v. Lynn, 6 Wn. (2d) 507, 529, 108 P. (2d) 365.\nPacific Tel. & Tel. Co. v. Henneford, 195 Wash. 553, 81 P. (2d) 786, overruled by Spokane v. State, 198 Wash. 682, 89 P. (2d) 826.\nPurdy v. State, 199 Wash. 638, 92 P. (2d) 880, overruled by Washington Security Co. v. State, 9 Wn. (2d) 197, 205, 114 P. (2d) 965.\nShively v. Garage Employees Local Union, 6 Wn. (2d) 560, 108 P. (2d) 354, overruled by O’Neil v. Building etc. Union, 9 Wn. (2d) 507, 115 P. (2d) 662.\nAppellant’s petition for rehearing should be granted, the judgment reversed and the cause remanded to the trial court for a new trial.\nSimpson, C. J., concurs with Millard, J."", ""type"": ""dissent"", ""author"": ""Millard, J.""}], ""attorneys"": [""John C. Richards, for appellant."", ""Leslie R. Cooper, C. P. Brownlee, and Philip Sheridan, for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 28809.\nEn Banc.\nMarch 16, 1943.]\nThe State of Washington, Respondent, v. Marvin McCollum, Appellant.\nJohn C. Richards, for appellant.\nLeslie R. Cooper, C. P. Brownlee, and Philip Sheridan, for respondent.\nReported in 136 P. (2d) 165.""}, ""cites_to"": [{""cite"": ""136 P. (2d) 165"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""244 Pac. 700"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""138 Wash. 423"", ""case_ids"": [814156], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/138/0423-01""], ""opinion_index"": 0}, {""cite"": ""108 Pac. 1077"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""58 Wash. 436"", ""case_ids"": [526264], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/58/0436-01""], ""opinion_index"": 0}, {""cite"": ""125 P. (2d) 681"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""13 Wn. 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+2580977,"{""id"": 2580977, ""name"": ""B. A. Andrews et al., Respondents, v. F. E. McCutcheon, Appellant"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""3c97b477831c1074ed26a5731d572f91bd3d4b5db48cebd7aac009840506be92"", ""simhash"": ""1:385da1e6f2144c39"", ""pagerank"": {""raw"": 0.0000001906782234540467, ""percentile"": 0.7310020777273115}, ""char_count"": 9738, ""word_count"": 1760, ""cardinality"": 537, ""ocr_confidence"": 0.623}, ""casebody"": {""judges"": [""Simpson, C. J., Beals, Blake, and Robinson, JJ., concur.""], ""parties"": [""B. A. Andrews et al., Respondents, v. F. E. McCutcheon, Appellant.""], ""opinions"": [{""text"": ""Grady, J.\nB. A. Andrews and Violet Andrews, his wife, brought this action against F. E. McCutcheon, doing business under the name of Family Shoe Store, and Ferol Fellows, doing business under the name of Family Beauty Salon, and Douglas Fellows, her husband, to recover damages as the result of personal injuries sustained by Mrs. Andrews when she fell while descending a stairway leading from the beauty parlor.\nA trial before the court and a jury resulted in a verdict in favor of the plaintiffs and against defendant McCutcheon. A motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, was made by defendant McCutcheon, which the court denied, and, from the judgment entered on the verdict, he has taken this appeal.\nThe material facts which the jury was justified in finding in support of its verdict are as follows: The appellant occupied and operated a shoe store on the ground floor of a building in the city of Yakima. To the rear of the building was a balcony, and leading to it from the ground floor was a stairway. In 1936, the appellant leased the balcony to Mrs. Fellows for use as a beauty parlor. At the time the lease was made, and when possession of the leased premises was taken, the appellant stated to her that he would maintain the stairs. When the lease expired, and on February 1, 1939, the appellant re-leased the premises to Mrs. Fellows for a term of five years, the lease, which was prepared by appellant, being substantially the same as the previous one except that the rent was increased.\nWhen the new lease was made, nothing was said about the stairway or its maintenance. The appellant admitted, when speaking of the stairs, that it was necessary for him to furnish a way whereby Mrs. Fellows and her customers could get to and from the balcony, and that it was his duty to fix the stairs if anything happened to them. During the time Mrs. Fellows occupied the balcony, the appellant’s employees, with his consent, tightened down the metal strips whenever it became necessary, and periodically swept and kept the stairs clean.\nThe patrons of the beauty parlor entered the shoe store of appellant from the street, passed through the same to the rear, and then up the stairway to the balcony. The stairway in question was three feet in width, the steps- thereof eleven inches wide and seven inches high. The steps were covered with linoleum, and at the outer edge of each a corrugated metal strip was laid and fastened down with screws. At the time Mrs. Andrews was injured, the metal strips on some of the steps, and particularly the one on which she slipped, had become worn smooth by long use, were loose, and the inner edge was elevated approximately one eighth of an inch off the linoleum. The screws were loose in some of the strips and protruded upwards an eighth of an inch, and, at times when the screws had been tightened, indentations were made in the strips and caused the inner edge to be somewhat elevated, or raised, from the linoleum.\nOn June 11, 1941, Mrs. Andrews and a Mrs. Smith went to the beauty parlor to ascertain its service charges. Mrs. Smith preceded the respondent down the stairs by a few steps. When respondent reached either the second or third step from the top, she stepped down to the next step with her right foot, placing the ball of that foot on the metal strip thereof and her heel on the linoleum. While she was taking the next step with her left foot, her right foot slipped on the metal strip, her right heel caught on the inner raised edge of the metal strip, and she fell, sustaining substantial injuries.\nThe case was tried and presented to the jury on the part of respondents Andrews from a three-fold aspect: (1) That the appellant leased to Mrs. Fellows the balcony in the building in which he operated his shoe store, and, in order to reach it, customers of the beauty parlor used a stairway at the rear left end of the shoe store, which stairway was maintained jointly by the appellant and Mrs. Fellows in a negligent manner; (2) that the appellant, when he leased the balcony, reserved control over the stairway and agreed to maintain and keep it in a good state of repair; and (3) that, if the appellant, when he leased the balcony to Mrs. Fellows, also leased with it the stairway, it was the duty of Mrs. Fellows and husband to exercise ordinary care in maintaining the stairway.\nThe theory of the appellant was that he leased both the balcony and the stairway, as an appurtenant thereto, and owed no duty to the tenant or her invitees to maintain or keep the stairway in repair.\nThe court submitted these respective theories to the jury, and, by its verdict, the jury found that the duty to maintain and keep the stairs in a safe condition was on the part of the appellant. There is sufficient evidence, as appears from the foregoing statement of facts, to have warranted the jury in concluding and finding that it was the intention of the parties, when the lease was originally made, and in the continued relationship of landlord and tenant, that the appellant would, and did, lease the balcony to Mrs. Fellows, and that he, appellant, would maintain the stairway for her use and the use of her invitees.\nIn order to enjoy the use of the balcony, it was necessary that the tenant and her invitees have the use of the entrance to the building from the street and that they have the use of sufficient of the shoe store to get to the stairway, but it cannot be assumed that the lease covered other than a right of user as a means of ingress and egress. When the appellant stated to Mrs. Fellows that he would maintain the stairs, coupled with his conduct in keeping them clean along with his shoe store, his fastening down the metal strips when they became loose, his expressed recognition that it was his duty to furnish a way whereby the tenant and her customers could get to and from the balcony, and his admission that it was his duty to fix the stairs if anything happened to them, it would seem clear that it was his intention not only to lease the balcony but also to supply and maintain all the necessary means of ingress thereto and egress therefrom.\nIt is a general rule of law that, when premises are leased, a stairway necessary to be used with them, and which is intended shall be for the exclusive use of the tenant and his invitees, passes as an appurtenant to the leased premises and is covered by the lease, though not specifically mentioned or described therein; but, when premises are leased to several ten-v ants and it is necessary, in the enjoyment thereof, that they use a common stairway and no mention is made of it when the lease is made, it is not deemed to be appurtenant to the leased premises and covered by the lease, but the tenants and their invitees have the right to use the same as a means of access to the leased property.\nThe landlord may expressly or impliedly reserve control over the stairway in those cases where it is for the exclusive use of a single tenant and his invitees, or he may expressly or impliedly include a stairway in his leases to the several tenants and make it a part of the leased premises. As to whether or not this has been done in either case, is a question of fact. When the landlord either expressly or impliedly reserves control over the stairway, whether there be one tenant or several, the tenant or tenants will be protected in his or their right to the use of the stairway, and the landlord has the legal duty to keep and maintain the stairway in a reasonably good and safe condition for use by such tenants and their invitees.\nThe foregoing rules of law are announced and discussed in the following cases: Lindbloom v. Berkman, 43 Wash. 356, 86 Pac. 567; Konick v. Champneys, 108 Wash. 35, 183 Pac. 75, 6 A. L. R. 459; Johnson v. Smith, 114 Wash. 311, 194 Pac. 997; McGinnis v. Keylon, 135 Wash. 588, 238 Pac. 631; Leuch v. Dessert, 137 Wash. 293, 242 Pac. 14; Holm v. Investment & Securities Co., 195 Wash. 52, 79 P. (2d) 708; Brandt v. Rakauskas, 112 Conn. 69, 151 Atl. 315; Starr v. Sperry, 184 Iowa 540, 167 N. W. 531; Roman v. King, 289 Mo. 641, 233 S. W. 161, 25 A. L. R. 1263, note p. 1273; and note 58 A. L. R. 1412. 4 Thompson on Real Property (Perm, ed.), pp. 88, 94, §§ 1594, 1596. Restatement of the Law of Torts, p. 980, § 361. 32 Am. Jur., Landlord and Tenant, p. 165, § 170, p. 564, § 689, p. 567, § 691.\nThe trial court, by instructions which clearly and correctly stated the law, submitted the factual question to the jury as to whether the appellant retained control over the stairway in a manner similar to that which he exercised over the ground floor of the building used for his shoe store. By its verdict, the jury found that the appellant did retain such control. There is ample evidence in the record from which the jury could have found that the appellant did not keep and maintain the stairway in a reasonably safe condition for use by the respondent, who was an invitee of the tenant.\nWe feel that we have discussed all the assignments of error advanced by appellant that are of substantial merit. Many of the cases cited by him relate to the theory that the stairway was a part of the leased premises and under the control of the tenant. But, as we are deciding the case upon the other theory, which we think is the applicable one, a discussion of appellant’s argument and authorities would serve no useful purpose.\nThe judgment is affirmed.\nSimpson, C. J., Beals, Blake, and Robinson, JJ., concur."", ""type"": ""majority"", ""author"": ""Grady, J.""}], ""attorneys"": [""Bruce Bartley and Max R. Nicolai, for appellant."", ""J. P. Tonkoff, for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 28820.\nDepartment Two.\nMarch 30, 1943.]\nB. A. Andrews et al., Respondents, v. F. E. McCutcheon, Appellant.\nBruce Bartley and Max R. Nicolai, for appellant.\nJ. P. Tonkoff, for respondents.\nReported in 135 P. (2d) 459.""}, ""cites_to"": [{""cite"": ""135 P. (2d) 459"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""58 A. L. R. 1412"", ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R."", ""opinion_index"": 0}, {""cite"": ""25 A. L. R. 1263"", ""category"": ""reporters:specialty"", ""reporter"": ""A.L.R."", ""opinion_index"": 0}, {""cite"": ""233 S. W. 161"", ""category"": ""reporters:state_regional"", ""reporter"": ""S.W."", ""opinion_index"": 0}, {""cite"": ""289 Mo. 641"", ""case_ids"": [851841], ""category"": ""reporters:state"", ""reporter"": ""Mo."", ""case_paths"": [""/mo/289/0641-01""], ""opinion_index"": 0}, {""cite"": ""167 N. W. 531"", ""category"": ""reporters:state_regional"", ""reporter"": ""N.W."", ""opinion_index"": 0}, {""cite"": ""184 Iowa 540"", ""case_ids"": [2253713], ""category"": ""reporters:state"", ""reporter"": ""Iowa"", ""case_paths"": [""/iowa/184/0540-01""], ""opinion_index"": 0}, {""cite"": ""151 Atl. 315"", ""category"": ""reporters:state_regional"", ""reporter"": ""A."", ""opinion_index"": 0}, {""cite"": ""112 Conn. 69"", ""case_ids"": [1541866], ""category"": ""reporters:state"", ""reporter"": ""Conn."", ""case_paths"": [""/conn/112/0069-01""], ""opinion_index"": 0}, {""cite"": ""79 P. (2d) 708"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""195 Wash. 52"", ""case_ids"": [1351260], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/195/0052-01""], ""opinion_index"": 0}, {""cite"": ""242 Pac. 14"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""137 Wash. 293"", ""case_ids"": [812042], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/137/0293-01""], ""opinion_index"": 0}, {""cite"": ""238 Pac. 631"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""135 Wash. 588"", ""case_ids"": [780474], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/135/0588-01""], ""opinion_index"": 0}, {""cite"": ""194 Pac. 997"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""114 Wash. 311"", ""case_ids"": [701953], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/114/0311-01""], ""opinion_index"": 0}, {""cite"": ""6 A. L. 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+2601920,"{""id"": 2601920, ""name"": ""John Pappas, Appellant, v. James Zerwoodis et al., Respondents"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""8bcc60527b28943fbb5d95ec3f90d9807f03b3433841203d45c5ec8566b17224"", ""simhash"": ""1:ababd423dd6cd756"", ""pagerank"": {""raw"": 0.0000002992332046808364, ""percentile"": 0.8518286201241848}, ""char_count"": 24308, ""word_count"": 4185, ""cardinality"": 1058, ""ocr_confidence"": 0.652}, ""casebody"": {""judges"": [""Simpson, C. J., Millard, Jeffers, and Grady, JJ., concur.""], ""parties"": [""John Pappas, Appellant, v. James Zerwoodis et al., Respondents.""], ""opinions"": [{""text"": ""Steinert, J.\nThe lessee of a building brought suit for specific performance of the lessors’ covenant to repair and also for damages alleged to have been sustained by the lessee because of the lessors’ breach of that covenant. Sometime after the commencement of the action, but prior to the time of the trial, the lessors repaired and also repainted the building, and at the hearing before the superior court the lessee conceded that his claim for specific performance had been fully satisfied. The trial therefore proceeded upon the issue of damages alleged to have been sustained by the lessee because of the lessors’ earlier breach of the covenant, in that they had not made the repairs sooner than they did. At the conclusion of the trial, and after taking the cause under advisement, the trial court rendered a memorandum opinion and subsequently entered judgment dismissing the action, but without costs to either party. The plaintiff lessee appealed.\nRespondent lessors are the owners of certain premises situated at the junction of three highways near the city of Renton. On August 16, 1939, they leased the premises, including the building thereon and the equipment therein, to the appellant for use as a restaurant, tavern, and dance hall, for a term of three years beginning October 1, 1939, at a rental of ninety dollars a month. The lease provided that its term of existence could be extended for an additional three-year period at the option of the lessee, on the basis of a monthly rental to be agreed upon by the parties at the end of the original term, and in case of their inability to agree upon the amount of such rental it was to be determined by a committee of three arbitrators.\nThe lease contained a covenant reading as follows:\n“It is further hereby agreed that the lessors shall keep the exterior of the building, namely roof and walls, in proper condition with necessary painting and will also be responsible for any repairs needed in the sewer connections of the said building.”\nThe front wall and one side wall of the building were of stucco composition and the rest of the building presumably was of the ordinary frame construction. The roof was flat, covered with an asphalt top, and was surrounded on three sides by fire walls.\nAt the end of the original three-year term, appellant elected to take an extension of three additional years as provided in the lease, but the parties were unable to agree upon the amount of the monthly rental for the extension period. Respondents were demanding that the rent be increased to one hundred fifty dollars a month; appellant was insisting that it be reduced to fifty dollars. Appellant was operating the place at that time simply as a tavern and dance hall, where beer, wine, and soft drinks were sold and where dances were held two nights a week, but no meals were then being served. It appears also that for some time past appellant had been complaining that the roof of the building leaked and that the exterior needed painting.\nThe parties being unable to come to any satisfactory agreement, three arbitrators were selected, in the manner provided in the lease, to determine the amount of the monthly rental to be charged during the period of the extension. After an inspection of the building, conferences with the respective parties, and a consultation among themselves, the arbitrators made a written report fixing the amount of such rental at one hundred dollars a month. In their report the arbitrators also expressed the view that the lessors had not fully complied with their obligations to the lessee and recommended “that the landlord fix up the building better than he has in the past; that is fix the roof; and keep the place in repairs.” It appears, however, that shortly before the arbitrators made their report, respondents had put a new asphalt covering on the roof at an expense of one hundred dollars, although they had not done anything in the way of painting during the entire term of the lease.\nPursuant to the report of the arbitrators, the lease was extended and appellant periodically paid the increased rental of one hundred dollars a month. He continued to make complaint, however, regarding the condition of the roof and exterior walls of the building, and respondents endeavored from time to time to make the roof watertight, but did not immediately paint the exterior. Considerable ill-feeling thus seems to have been engendered between the parties, culminating in the institution of this action by the appellant in July, 1943, which was about nine months after the commencement of the extended period of the lease.\nIn his complaint, as amplified by a bill of particulars, appellant alleged that respondents had breached their covenant to repair by allowing the roof of the building to remain in a leaky condition, with the result that in the rainy season water frequently dripped in various spots upon the dance floor and upon the tables in the adjoining booths, to the great discomfort and annoyance of his patrons, and that respondents had further breached their covenant by failing to paint the exterior of the building, in consequence of which the place had a dilapidated appearance, causing many of his customers to discontinue their patronage. The complaint further alleged that the damages resulting from the respondents’ failure to perform the above-mentioned covenant of the lease amounted to “approximately $10.00 per day,” and recovery in that amount was asked. The prayer of the complaint also asked for specific performance of the covenant of the lease. In their answer to the complaint respondents denied in toto appellant’s allegations respecting breach of covenant and consequent damage.\nInasmuch as the action in its inception was a suit in equity for specific performance of the covenant to repair, the trial court was not required to, and did not, make findings of fact. The court did, however, render a memorandum opinion, in which it carefully reviewed and analyzed the evidence and gave a summary of the facts as, in the opinion of the court, they appeared to be established by the evidence. While there is some conflict in the testimony, the material facts are not greatly in dispute. Our view of the factual situation coincides with that expressed by the trial court and may be briefly stated as follows:\nAbout the time of the expiration of the original term of the lease in 1942, a dispute arose between the parties concerning the amount of monthly rent to be charged during the extended term. On account of the outbreak of the present world war and the construction of various government works and other projects in and near Renton, there had been a great influx of people in the immediate vicinity of the premises here involved. For that reason respondents were demanding that the rent for the extended term be increased from ninety dollars a month to one hundred fifty dollars. Appellant, on the other hand, was insisting that the premises were worth not more than fifty dollars a month. Among other reasons given by the appellant for demanding a reduction in rent were the alleged physical condition and appearance of the building. Appellant complained of the shabby appearance of the place due to the fact that the building had not been painted for five or six years. He also complained that the roof leaked in several places, allowing water to drop onto the dance floor and booths at various spots. Respondents endeavored to repair the roof and during the late summer or early fall of 1942 spent about a hundred dollars in that effort, but did not at that time do anything toward having the building painted.\nThe parties being unable to come to any satisfactory agreement, a committee of arbitrators was selected and the matter of rent was submitted to them for decision. After listening to the contentions of both parties and also investigating the premises, the committee on October 13, 1942, made its report fixing the rental for the extended term at one hundred dollars a month and recommending that respondents fix up the building better than they had done in the past, particularly with reference to the roof.\nThroughout the fall and winter of 1942, and the early part of 1943, appellant continued to make complaint that the roof leaked, at times causing water to drip in spots upon the dance floor and upon the tables in the booths. It was testified that on one occasion it was necessary to set out pans to catch the dripping water, and also to move the patrons who were seated at one of the tables to another part of the room. Frequently there were wet spots upon the ceiling and on one of the walls of the building. However, it does not appear that there was ever any actual interruption of appellant’s business, nor was he ever compelled to close the place, even temporarily.\nIn response to appellant’s complaints concerning the roof, respondents endeavored from time to time to remedy the situation. As stated above, just shortly before the arbitrators made their report in October, 1942, respondents had put a new asphalt coating on the roof at an expense of one hundred dollars. Apparently, however, this did not fully terminate the trouble, at least not to the appellant’s entire satisfaction. At any rate he continued to make complaint throughout the latter part of 1942 and the early part of 1943. As these complaints were conveyed to respondent James Zerwoodis, he would visit the premises, most often with one or two assistants, and from the interior of the building would endeavor to locate the place where the roof was leaking. They would then go up onto the roof and make such repairs as seemed necessary in order to correct the situation. After completing the work they would return to the room below to ascertain whether they had succeeded in stopping the leak. This method of attempted repair was carried on many times, particularly during December, 1942, and January, 1943, and apparently with temporary success; but sooner or later another complaint would be made by the appellant. The difficulty seems to have been that of locating the exact place in the roof where the leak, or leaks, originated. The record is replete, however, with’evidence of the respondents’ continuous efforts to satisfy appellant’s complaints with respect to the leaks. There is also considerable evidence in the record from which the trial court could have found, as it seems to have done, that appellant’s complaints were greatly exaggerated.\nAt any rate, sometime in May, 1943, respondents engaged a contractor to inspect and renovate the entire roof and to paint the exterior of the building. The work could not be done, however, and was not done, until about the first of August of that year. In the meantime, appellant had commenced this action.\nIn his memorandum opinion, the trial judge expressed the view that the respondents had carried out the suggestions of the arbitrators with reference to repairs, and had also repainted the building, as soon as weather and labor conditions permitted. A careful reading of the record convinces us that, while some leakage may have persisted during the time when appellant was making complaint thereof, respondents in turn made every reasonable effort to remedy the situation and did in fact accomplish as good results as could have been expected under the circumstances existing during the latter part of 1942 and the early part of 1943. So far as the painting of the exterior is concerned, we are also satisfied that this was undertaken as soon as it could, and should, have been done.\nIn expressing these conclusions, however, we are not to be understood as holding that respondents were not bound by their covenant or would riot now be liable for any damages which may have actually resulted from their breach thereof, regardless of whether or not such breach came about through their willful neglect. On the contrary, we would be constrained to hold that, having covenanted to keep the roof and walls in proper condition, respondents would be liable for any ascertained damages shown to have been the proximate result of their failure to perform the covenant.\nThe trial court seems to have conceded, and we likewise assume from the very nature of the circumstances narrated above, that appellant was damaged to some extent by respondents’ failure to keep the roof in proper condition against leakage. However, the important question in this case, both in the superior court and in this court, was and is not merely whether the appellant has sustained some damage by respondents’ breach of their covenant, but, rather, whether the appellant has established the amount of his alleged damages by the required degree of proof.\nAppellant’s complaint was drawn upon the theory that the measure of his damages was his loss of profits. At the trial, he endeavored at first to establish recovery strictly upon that theory alone, but later changed his position somewhat, to include as an additional measure of recovery the difference between the rental value of the property in the condition required by the covenant of the lease and the value thereof in the condition in which the property actually was at and prior to the time the action was brought. The trial court held that the evidence was insufficient to establish any definite amount of loss with any reasonable degree of accuracy, under either theory of the measure of damages. This appeal presents the question of whether the trial court was correct in its holding.\nWhile there is a diversity of judicial opinion on the question of the measure of damages recoverable by the lessee from the lessor for the latter’s breach of covenant to repair, the decisions are in general accord upon the postulate that the damages recoverable for the breach of such covenant must be such as are the direct, natural, and proximate result of the breach, and such as may reasonably be supposed to have been within the contemplation of the parties at the time they made the contract; and, conversely, that remote, contingent, or speculative damages are not recoverable. 32 Am. Jur. 592, Landlord and Tenant, § 717; 36 C. J. 165, Landlord and Tenant, § 801.\nThe most usual rule or measure for assessing a tenant’s damages for breach of his landlord’s covenant to repair or other covenant with respect to the use of property, where there is no claim for, or proof of, special damages, is the difference between the rental value of the property if kept in the condition of repair or utility required by the covenant and the rental value in the condition in which the property actually is. Ingalls v. Beall, 68 Wash. 247, 122 Pac. 1063; Purcell v. Warburton, 70 Wash. 129, 126 Pac. 89; Matzger v. Arcade Building & Realty Co., 102 Wash. 423, 173 Pac. 47; Schermerhorn v. Sayles, 123 Wash. 139, 212 Pac. 156; Yakima Lodge No. 53, K. P. v. Schneider, 173 Wash. 639, 24 P. (2d) 103; 2 Underhill, Landlord and Tenant, § 526; 3 Sutherland, Damages (4th ed.), p. 3236; Taylor, Landlord and Tenant, §§ 117, 317; 32 Am. Jur. 593, Landlord and Tenant, § 717; 36 C. J. 166, Landlord and Tenant, § 801; notes (1924), 28 A. L. R. 1495; (1938), 116 A. L. R. 1239.\nOn the other hand, where special damages, such as loss of profits, are specifically set forth and proved, the recovery by a tenant, for breach of his landlord’s covenant to repair or other covenant with respect to the use of property, is not restricted to the difference in rental value, as expressed in the foregoing general rule, but may also include such loss of profits as has been directly and necessarily caused by the landlord’s wrongful act or default. In such case, however, the loss must be shown with a reasonable degree of certainty and accuracy, and the proof establishing the loss must be clear and convincing, free from speculation or conjecture. These complementary statements express a rule to which this court is definitely committed. Matzger v. Arcade Building & Realty Co., supra; Schermerhorn v. Sayles, supra; accord: Kohne v. White, 12 Wash. 199, 40 Pac. 794; Cordes v. Guy Inv. Co., 146 Wash. 143, 262 Pac. 131. Other cases illustrating the same principle are: DeHoney v. Gjarde, 134 Wash. 647, 236 Pac. 290; Schultz v. Wells Butchers' Supply Co., 151 Wash. 382, 275 Pac. 737; Blakiston v. Osgood Panel & Veneer Co., 173 Wash. 435, 23 P. (2d) 397; Quist v. Zerr, 12 Wn. (2d) 21, 120 P. (2d) 539; Automatic Canteen Co. of Washington v. Automatic Canteen Co. of America, 182 Wash. 133, 45 P. (2d) 41. See, also, 15 Am. Jur. 558, Damages, § 150.\nThe position taken by this court on this general subject is well illustrated by the case of Matzger v. Arcade Building & Realty Co., supra, which was an action for damages against a landlord for interference with the access of light and ventilation to a storeroom occupied by a tenant. On the question of loss of profits as a measure of damages, the court said:\n“It may be granted that, in certain cases, a tenant may show a loss of profits in the conduct of an established business where the landlord has unreasonably interfered with the full enjoyment and use of the demised premises. But cases so holding rest in an exception to a general rule, which has twice been declared by this court. Kohne v. White, 12 Wash. 199, 40 Pac. 794; Purcell v. Warburton, 70 Wash. 129, 126 Pac. 89. Interference with light is a breach of the covenant of quiet enjoyment. Taylor, Landlord and Tenant, 309(a).\n“The measure of damages for an interruption of quiet enjoyment by the landlord is the difference between the value of the use of the property as furnished by the landlord and the rent reserved. In other words, it is the diminished value of the use of the property. Tiffany, Landlord and Tenant, § 79g; Underhill, Landlord and Tenant, § 432; Taylor, Landlord and Tenant, §§ 177 and 317; 16 R. C. L. 770.\n“Loss of profits are usually regarded as too contingent, remote or speculative to be considered. 16 R. C. L. 1056. The general rule should not be departed from unless it is impossible to measure the losses by it, or the character of the business is such and the proof of the profits so clear that the court can say, as a matter of law, that loss of profits was within the contemplation of the parties at the time the contract was made. If this be so, it will declare lost profits to be the measure of damages. . . .\n“But if it be held that the loss of usable value is not a proper measure of damages, the exception to the rule allowing a loss of profits should not be allowed in this case, for, in sound reason and under all authority, a loss of profits is not allowed unless they can be measured with a fair degree of accuracy. The testimony must be clear and free from taint of speculation or conjecture. The rule rests in a principle applied in all cases for damages arising out of a sale of property or the use of property.\n“To sustain a verdict for prospective profits, the jury must have some reasonable basis for estimating the worth of the business. From the nature of things, prospective profits cannot be proved to the dollar. Yet the law does demand that there shall be tangible evidence sufficiently clear and convincing to reasonably sustain a verdict. There must be some standard of comparison.”\nAgain, in DeHoney v. Gjarde, supra, this court said:\n“True, this court is committed to the rule that loss of profits may be recovered, but we have said that the loss must be shown with a reasonable degree of accuracy, and that the testimony establishing the loss must be clear and free from taint of speculation or conjecture. [Citing cases.]”\nThe trial court applied these rules to the evidence in the instant case and came to the very emphatic conclusion that appellant had not shown any loss of profits with any reasonable degree of accuracy, but that, on the contrary, his testimony on that subject was at best speculative and conjectural. Our examination of the record leads us just as positively to the same conclusion.\nThere was no showing of the amount of profits that appellant had customarily been making, nor was there any convincing evidence concerning the amount of loss of profits due to the condition of the premises. Appellant testified that the bookkeeper’s receipts showed a loss of ten or eleven dollars a day, but no books were produced in court, nor was any explanation given as to how the loss was computed. Appellant testified that some of his patrons quit coming to his place because of the leaky roof, and others because of the dilapidated appearance of the exterior of the place, but there was nothing definite shown as to how many people quit coming, or when they quit, or how much loss of profits was due to that circumstance. It is further to be noted that appellant claimed that his damages amounted to ten dollars a day, as though the roof was constantly leaking every day and every night. Manifestly, that is not true. It is also to be remembered that dances were held only two nights a week, and it was only on those nights that his patrons could have been discommoded by dripping water while dancing. With respect to loss of profits caused by respondents’ delay in painting the building, the proof is even more meager in extent and less certain as to the amount of loss sustained.\nWe recognize that it would be impossible for appellant to establish his loss of profits with mathematical exactness or absolute certainty, and that consequently the law will not hold him to so strict a requirement, but in any event the burden was upon him to prove his loss with at least such certainty and accuracy as would enable the court to find from the evidence that he had been damaged in a stated amount. A reading of the record convinces us that neither the trial court nor anyone else could say that appellant had sustained a loss of profits in any specific amount whatever.\nThe other measure of damages on which appellant relied for recovery was the alleged diminished rental value of the property. He testified that, because of respondents’ failure to repair and repaint the- building, the rental value of the premises was only fifty dollars a month instead of one hundred dollars, the amount he was required to pay, and did pay, during the period of the extension. Appellant’s qualification to testify on that subject is not shown by the record. Assuming for the sake of argument only, that his status as a tenant qualified him to testify thereon, we are not greatly impressed by his testimony in that respect. The arbitrators themselves had recently fixed the rental value at one hundred dollars a month, although that amount was in the nature of a compromise between the claims of the two parties. Moreover, Mr. Zerwoodis, the owner of the building, testified at the trial that the rental value of the property was one hundred fifty dollars a month, and that he could get that amount for it. His testimony upon that question seems to us to have the greater weight. We conclude, as did the trial court, that the appellant likewise failed to establish, by the required degree of proof, his damages upon the basis of the difference in rental value of the property.\nFinally, appellant contends that, in any event, the trial court erred in refusing to award him nominal damages. That contention is without merit upon the appeal for it is the settled rule in this state that where the sole object of the action is the recovery of damages, the failure to give nominal damages is not ground for reversal of a judgment. Johnson v. Cook, 24 Wash. 474, 64 Pac. 729; Commercial Inv. Co. v. National Bank of Commerce, 36 Wash. 287, 78 Pac. 910; Storseth v. Folsom, 50 Wash. 456, 97 Pac. 492; Casassa v. Seattle, 75 Wash. 367, 134 Pac. 1080; Hewson v. Peterman Mfg. Co., 76 Wash. 600, 136 Pac. 1158, Ann. Cas. 1915D, 346, 51 L. R. A. (N.S.) 398; State v. Buckley, 98 Wash. 379, 167 Pac. 1087; Clark v. Kennedy, 162 Wash. 95, 297 Pac. 1087; Phillips v. Pantages Theatre Co., 163 Wash. 303, 300 Pac. 1048; Kenworthy v. Kleinberg, 182 Wash. 425, 47 P. (2d) 825.\nThe judgment is affirmed.\nSimpson, C. J., Millard, Jeffers, and Grady, JJ., concur."", ""type"": ""majority"", ""author"": ""Steinert, J.""}], ""attorneys"": [""Christ D. Lillions, for appellant."", ""Wm. V. Cowan, for respondents.""], ""corrections"": """", ""head_matter"": ""[No. 29409.\nDepartment One.\nNovember 10, 1944.]\nJohn Pappas, Appellant, v. James Zerwoodis et al., Respondents.\nChrist D. Lillions, for appellant.\nWm. V. Cowan, for respondents.\nReported in 153 P. (2d) 170.""}, ""cites_to"": [{""cite"": ""153 P. (2d) 170"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": -1}, {""cite"": ""47 P. (2d) 825"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""182 Wash. 425"", ""case_ids"": [871974], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/182/0425-01""], ""opinion_index"": 0}, {""cite"": ""300 Pac. 1048"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""163 Wash. 303"", ""case_ids"": [846692], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/163/0303-01""], ""opinion_index"": 0}, {""cite"": ""297 Pac. 1087"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""162 Wash. 95"", ""case_ids"": [838694], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/162/0095-01""], ""opinion_index"": 0}, {""cite"": ""167 Pac. 1087"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""98 Wash. 379"", ""case_ids"": [654069], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/98/0379-01""], ""opinion_index"": 0}, {""cite"": ""51 L. R. A. (N.S.) 398"", ""category"": ""reporters:federal"", ""reporter"": ""L.R.A.N.S."", ""opinion_index"": 0}, {""cite"": ""136 Pac. 1158"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""76 Wash. 600"", ""case_ids"": [618013], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/76/0600-01""], ""opinion_index"": 0}, {""cite"": ""134 Pac. 1080"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""75 Wash. 367"", ""case_ids"": [622547], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/75/0367-01""], ""opinion_index"": 0}, {""cite"": ""97 Pac. 492"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""50 Wash. 456"", ""case_ids"": [545915], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/50/0456-01""], ""opinion_index"": 0}, {""cite"": ""78 Pac. 910"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""36 Wash. 287"", ""case_ids"": [5241346], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/36/0287-01""], ""opinion_index"": 0}, {""cite"": ""64 Pac. 729"", ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 0}, {""cite"": ""24 Wash. 474"", ""case_ids"": [5152448], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/24/0474-01""], ""opinion_index"": 0}, {""cite"": ""45 P. (2d) 41"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""182 Wash. 133"", ""case_ids"": [872002], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""case_paths"": [""/wash/182/0133-01""], ""opinion_index"": 0}, {""cite"": ""120 P. (2d) 539"", ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""12 Wn. (2d) 21"", ""case_ids"": [2558615], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/12/0021-01""], ""opinion_index"": 0}, {""cite"": ""23 P. 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+265811,"{""id"": 265811, ""name"": ""John Pruitt, et al., Appellants, v. Douglas County, Respondent"", ""court"": {""id"": 8985, ""name"": ""Washington Court of Appeals"", ""name_abbreviation"": ""Wash. Ct. App.""}, ""analysis"": {""sha256"": ""ec5855d45ca5bbaa9fd1ef9b25b611e37ab9f15463484befa93bf225990cff79"", ""simhash"": ""1:2aa29688bf7ee263"", ""pagerank"": {""raw"": 0.00000014840989847754518, ""percentile"": 0.6617206254109795}, ""char_count"": 20581, ""word_count"": 3435, ""cardinality"": 1071, ""ocr_confidence"": 0.758}, ""casebody"": {""judges"": [], ""parties"": [""John Pruitt, et al., Appellants, v. Douglas County, Respondent.""], ""opinions"": [{""text"": ""Sweeney, J.\nThis is a suit by homeowners Sam and Boni Fletcher and John and Marian Pruitt against Douglas County for water damage arising from a June 1997 storm. Originally, the natural flow of water across certain land— properties ultimately acquired by the homeowners here— would have been 15 cubic feet per second (c.f.s.) during a similar storm. But before the landowners built their homes, the county and others constructed roads which reduced the natural flow across their properties from such a storm to 1 to 2 c.f.s. After the homeowners built, the county made road improvements which channeled water from other natural drain basins across the homeowners’ properties which resulted in a total flow of 10 c.f.s. during the storm. We conclude that these facts support a cause of action under the common enemy doctrine.\nFACTS\nWe have done our best to identify and articulate the factual backdrop for this case. And we have spelled it out here in a light most favorable to the nonmoving party as we must. See Hubbard v. Spokane County, 146 Wn.2d 699, 707, 50 P.3d 602 (2002). But it has been most difficult because the parties have provided only deposition excerpts — some of which lack context — to support their respective legal positions.\nIn the 1930s, Douglas County constructed Eastmont Avenue and Badger Mountain Road. The subject properties are located at the base of one of several natural drain basins crossed by Eastmont Avenue and Badger Mountain Road. Appellant’s Br. at 3 & Apps. 1, 2; Clerk’s Papers (CP) at 37, 109-11, 160-62. Eastmont Avenue and Badger Mountain Road intercept some, but not all, of the water flowing downhill from these natural drain basins.\nThe East Wenatchee subdivision in which the affected properties are located was approved by Douglas County in 1958. The landowners’ homes were built in 1967. In 1986, Sam and Boni Fletcher purchased their home. The preflood value was $160,000. John and Marian Pruitt bought the house next door in 1993. The preflood value was $164,000.\nApparently, if upland property had not been developed, a storm like the one in 1997 would have produced a water flow of 15 c.f.s. onto the landowners’ lots. CP at 84-85. But sometime between 1965 and 1995, a private quarry road was built on Badger Mountain. CP at 70. The construction of the quarry and the private access roads altered the natural flow of the runoff so, with the construction of Eastmont Avenue, Badger Mountain Road, and the private quarry access roads, the natural drainage to the landowners’ properties was significantly reduced. So if a storm of the same magnitude as the 1997 storm occurred, the landowners could expect only 1 to 2 c.f.s. to reach their properties from the natural drain area. CP at 41.\nThe county paved Upper Daniels Drive between 1995 and 1997. The construction apparently changed the slope of the road and added a ditch. As a result, the water was channeled onto the landowners’ properties.\nIn June 1997, storm water flooded the landowners’ lots at the rate of 10 c.f.s. Of the 10 c.f.s. that flowed onto the landowners’ properties, only 10 percent was likely to have originated inside the landowners’ natural drain basin. And approximately 90 percent of the water was likely to have originated outside of the landowners’ natural drain basin. CP at 42.\nThe parties dispute the nature of the water flow. The landowners claim that Upper Daniels Drive and Badger Mountain Road acted as a conduit to bring a portion of the water onto their properties. The county claims that the water was “diffuse surface water,” that overflowed the drainage ditches. Resp’t’s Br. at 4.\nIn 1995, KCM Inc. prepared a comprehensive flood hazard management plan. It concluded that the drainage facilities along Badger Mountain Road were inadequate to prevent flooding during major rainfall. The drainage facilities were designed in a way to contribute to uncontrolled drainage into urban areas. And the plan also concluded that a lack of county resources over many years had left the system functioning poorly, primarily due to the accumulation of sediment in culverts and ditches.\nThe landowners sued the county for damages based on negligence, strict liability, trespass, and inverse condemnation. The court granted the county’s summary judgment motion.\nDISCUSSION\nStandard of Review\nOur review here is de novo. Hubbard, 146 Wn.2d at 706. “ ‘ “Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” ’ ” Id. at 707 (quoting Ellis v. City of Seattle, 142 Wn.2d 450, 458, 13 P.3d 1065 (2000) (quoting Trimble v. Wash. State Univ., 140 Wn.2d 88, 92-93, 993 P.2d 259 (2000))). A material fact is one upon which the outcome of litigation depends. Greater Harbor 2000 v. City of Seattle, 132 Wn.2d 267, 279, 937 P.2d 1082 (1997).\nWe view the evidence in the light most favorable to the nonmoving party. Hubbard, 146 Wn.2d at 707. “If reasonable minds can reach different conclusions, summary judgment is improper.” Kalmas v. Wagner, 133 Wn.2d 210, 215, 943 P.2d 1369 (1997).\nAnd if the question is exclusively one of law, review is de novo. Rivett v. City of Tacoma, 123 Wn.2d 573, 578, 870 P.2d 299 (1994).\nCommon Law Negligence and Trespass\nTrespass. A trespass claim requires “ ‘an intentional or negligent intrusion onto or into the property of another.’ ” Borden v. City of Olympia, 113 Wn. App. 359, 373, 53 P.3d 1020 (2002) (quoting Mielke v. Yellowstone Pipeline Co., 73 Wn. App. 621, 624, 870 P.2d 1005 (1994)). Trespass can be shown by the discharge of water when the water ultimately reaches another’s property. Hedlund v. White, 67 Wn. App. 409, 418 n.12, 836 P.2d 250 (1992) (quoting Buxel v. King County, 60 Wn.2d 404, 409, 374 P.2d 250 (1962)).\n“Negligent trespass” requires proof of negligence (duty, breach, injury, and proximate cause). Gaines v. Pierce County, 66 Wn. App. 715, 719-20, 834 P.2d 631 (1992). We treat claims for trespass and negligence arising from a single set of facts as a single negligence claim. Pepper v. J.J. Welcome Constr. Co., 73 Wn. App. 523, 546-47, 871 P.2d 601 (1994).\nSurface Water. Surface water is “waters of a casual or vagrant character having a temporary source, and which diffuse themselves over the surface of the ground, following no definite course or defined channel.” Dahlgren v. Chi., Milwaukee & Puget Sound Ry., 85 Wash. 395, 405, 148 P. 567 (1915). The runoff from surface waters is dissipated in two ways: by spreading broadly and diffusely or by following a natural drain course. Island County v. Mackie, 36 Wn. App. 385, 390, 675 P.2d 607 (1984). A natural drain is “that course, formed by nature, which waters naturally and normally follow in draining from higher to lower lands.” King County v. Boeing Co., 62 Wn.2d 545, 550, 384 P.2d 122 (1963).\nCommon Enemy Doctrine. The common enemy doctrine “provides that surface water is ‘an outlaw and a common enemy against which anyone may defend himself, even though by so doing injury may result to others.’ ” DiBlasi v. City of Seattle, 136 Wn.2d 865, 875, 969 P.2d 10 (1998) (quoting Cass v. Dicks, 14 Wash. 75, 78, 44 P. 113 (1896)). In its strictest form, under the common enemy doctrine, if the landowner “ ‘in the lawful exercise of his right to control, manage or improve his own land, finds it necessary to protect it from surface water flowing from higher land, he may do so, and if damage thereby results to another, it is damnum absque injuria [injury without redress].’ ” Halverson v. Skagit County, 139 Wn.2d 1, 15, 983 P.2d 643 (1999) (quoting Cass, 14 Wash, at 78).\nThere are, however, three recognized grounds for liability despite the common enemy doctrine: (1) blockage of a natural drain or waterway; (2) collection and discharge of water onto adjoining lands in quantities greater than, or in a manner different from, its natural flow; and (3) failure to exercise due care in preventing unnecessary damage. Currens v. Sleek, 138 Wn.2d 858, 867-68, 983 P.2d 626, 993 P.2d 900 (1999) (refusing to abandon the common enemy doctrine altogether in favor of the reasonable use rule); Borden, 113 Wn. App. at 367-68.\nThe county is not liable under the common enemy doctrine for flood damage caused by its road improvements, unless, in the course of making those improvements, it blocked a natural drain or waterway, collected and discharged water onto neighboring land, or failed to exercise due care in preventing unnecessary damages. See Currens, 138 Wn.2d at 867-68.\nArtificial Collection/Discharge. Surface waters may not be “ ‘ “artificially collected and discharged upon adjoining lands in quantities greater than or in a manner different from the natural flow thereof.” ’ ” Halverson, 139 Wn.2d at 18-19 (emphasis omitted) (quoting Pis.’ Resp. Br. at 46 (quoting Colella v. King County, 72 Wn.2d 386, 390, 433 P.2d 154 (1967))). This prohibits the creation of an unnatural conduit, but permits the direction of diffuse surface waters into preexisting waterways and drain ways. Cur-rens, 138 Wn.2d at 862.\nThe rule is set out in Burton v. Douglas County. Just like here, the county in Burton asserted that the road did not convey surface waters by artificial means and deposit them on the landowner’s property. Burton, 14 Wn. App. at 153. And, like here, the county claimed that since there was no evidence that it was negligent in the construction of its road work, it could not be held liable. Id.\nIn Burton, the court found that the road constructed by the county was an artificial collection because the road “acted as an artificial drain, collecting, channeling, and depositing” surface water runoff from a hillside through a culvert onto the plaintiff’s property. Id. at 154. The court noted:\nWhether or not the road was negligently constructed is immaterial. The proximate cause of the damage was the initial wrong that occurred because Douglas County’s road acted as a channel to collect and divert water from its natural course and ultimately discharge surface water upon Burton’s property to his injury. There was no dispute among the experts who testified that the road acted to channel the surface waters during the storm. . . . But for the existence of the road, the surface waters would naturally have been dispersed instead of being collected, channeled and discharged upon Burton’s property.\nId. at 155-56 (footnotes omitted).\nThe collection and discharge rule was adopted in DiBlasi v. City of Seattle: “a municipality may be liable for damages to an adjoining landowner’s property caused by a street which acts to collect, channel and thrust water in a manner different from the natural flow.” DiBlasi, 136 Wn.2d at 879. The DiBlasi decision recognized that:\nthere is not a valid distinction between a culvert or gutter that acts to collect, concentrate and channel surface water in a manner different from the natural flow, and a street which causes damage to an adjoining property owner by acting in the same manner. Liability should result in each case.\nId.\nCausation\nUnder the facts presented here, earlier county improvements actually reduced the natural drainage across the landowners’ property. So the question is then whether the county can with impunity increase the flow of water across the landowners’ property so long as it does not increase it beyond the original natural drainage of 15 c.f.s. And we conclude it may not.\nTypically, the finder of fact must “compare the amount of surface water that would naturally reach the [landowners’] properties with the amount that reaches the properties after the changes to the road.” Ripley v. Grays Harbor County, 107 Wn. App. 575, 582, 27 P.3d 1197 (2001). Here, after these homes were built, the county artificially collected and discharged water in a greater quantity or in a different manner than before the improvements to Upper Daniels Drive. The homeowners showed that before the improvements the flow would have been 1 to 2 c.f.s. CP at 41. If proved, this is a sufficient showing to support a cause of action for the artificial collection and discharge of water. See Halverson, 139 Wn.2d at 18-19.\nHere, 90 percent of the water that actually reached the landowners’ properties was not the same water that would have reached the landowners’ property naturally. The causation issue is the diversion of a natural flow from other drain areas onto the landowners’ property.\nThe common enemy rule allows these landowners the right to protect themselves from naturally flowing water. At the time these homes were built that was 1 to 2 c.f.s., assuming a storm of the magnitude of the 1997 storm. But now the water reaching the landowners’ properties is both qualitatively and quantitatively different from the natural flow.\nDue Care. The landowners next argue that the county failed to use due care in the collection and discharge of this water in any event. The due care exception requires that property owners use “due care by acting in good faith and by avoiding unnecessary damage to the property of others.” Currens, 138 Wn.2d at 865. Here, the county may improve land in any manner allowed by law. But it must limit any harm caused by changes in the flow to that which is reasonably necessary. Id. at 867.\nThe question is whether the county minimized any unnecessary impacts upon adjacent properties. Id. at 865. The homeowners must show that the county either acted in bad faith or unnecessarily caused surface water damage. Id. And “[t]o prove bad faith, one must show ‘ “actual or constructive fraud” ’ or ‘ “a neglect or refusal to fulfill some duty . . . not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive.” ’ ” Ripley, 107 Wn. App. at 584 (quoting Bentzen v. Demmons, 68 Wn. App. 339, 349 n.8, 842 P.2d 1015 (1993) (quoting State v. Sizemore, 48 Wn. App. 835, 837, 741 P.2d 572 (1987))). Here, there is no showing of such a motive or intent.\nThe showing here is that 90 percent of the water that actually reached the landowners’ properties came from outside of the natural drain basin. A jury could then find that the unnatural movement of water from outside of the landowners’ drainage area caused by the roads unnecessarily impacted these landowners. See Currens, 138 Wn.2d at 866-67.\nNegligent Maintenance. The landowners also assert a general negligence claim for “duties to design, maintain, and otherwise control the public rights-of-way and other public facilities.” CP at 322.\nMunicipalities in Washington routinely assume the landownership and ministerial act of maintaining residential drainage systems. Phillips v. King County, 136 Wn.2d 946, 965, 968 P.2d 871 (1998); Sigurdson v. City of Seattle, 48 Wn.2d 155, 159, 292 P.2d 214 (1956). Where the municipality assumes the maintenance duties and control over the drainage system, it has a duty to exercise reasonable care in the repair and maintenance of the system. Sigurdson, 48 Wn.2d at 159-62; Tombari v. City of Spokane, 197 Wash. 207, 211-12, 84 P.2d 678 (1938); Boyer v. City of Tacoma, 156 Wash. 280, 287-88, 286 P. 659 (1930); Hayes v. City of Vancouver, 61 Wash. 536, 538, 112 P. 498 (1911). This duty exists regardless of who constructed the drainage system. Phillips, 136 Wn.2d at 966; Sigurdson, 48 Wn.2d at 161.\nBut the county must have knowledge, either actual or constructive, of the drainage defect, inadequacy, or obstruction. Sigurdson, 48 Wn.2d at 162-63; Tombari, 197 Wash, at 211-12; Georges v. Tudor, 16 Wn. App. 407, 411-12, 556 P.2d 564 (1976). Once the county has notice of the defective condition or inadequacy, however, it is for the trier of fact to determine whether the county acted negligently. Sig-urdson, 48 Wn.2d at 163.\nHere, the landowners showed that the county’s storm drains were in a state of general disrepair. And the county knew it. CP at 166-68 (Douglas County Comprehensive Flood Hazard Management Plan). The county claims, nonetheless, that this claim is speculative because the landowners fail to show damage would have been avoided by deeper ditches. And that may ultimately be their undoing at trial. But at the summary judgment stage of this proceeding, the landowners made out a prima facie case of duty, breach, and damage. See Hartley v. State, 103 Wn.2d 768, 777, 698 P.2d 77 (1985). The proximal relationship between the failure to repair and maintain these facilities and their damage is for the trier of fact. See Bernethy v. Walt Failor’s, Inc., 97 Wn.2d 929, 935, 653 P.2d 280 (1982).\nThe trial court should not have dismissed their negligence and trespass claim.\nInverse Condemnation\nAn action for the government’s taking or damaging of land is grounded in the Washington State Constitution, which provides: “No private property shall be taken or damaged for public . .. use without just compensation having been first made.” Const, art. I, § 16 (amend. 9). To establish a claim for inverse condemnation, the landowner must establish the elements of: “(1) a taking or damaging (2) of private property (3) for public use (4) without just compensation being paid (5) by a governmental entity that has not instituted formal proceedings.” Phillips, 136 Wn.2d at 957.\n“A ‘taking* occurs when government invades or interferes with the use and enjoyment of property, and its market value declines as a result.” Gaines v. Pierce County, 66 Wn. App. 715, 725, 834 P.2d 631 (1992). But an aggrieved landowner must show more than a tortious interference with the use or enjoyment of his property. Borden, 113 Wn. App. at 374. A flooding may be the basis for an inverse condemnation as an “invasion” of property if the invasion is “permanent or recurring” or involves “ ‘a chronic and unreasonable pattern of behavior by the government.’ ” Gaines, 66 Wn. App. at 725-26 (quoting Orion Corp. v. State, 109 Wn.2d 621, 671, 747 P.2d 1062 (1987)).\nA takings claim can be proved by (1) the “diversion of waters from the direction in which they would naturally flow and onto the land of plaintiff” or (2) where “the amount of water has been increased.” Wilber Dev. Corp. v. Les Rowland Constr., Inc., 83 Wn.2d 871, 875, 523 P.2d 186 (1974), overruled on other grounds by Phillips, 136 Wn.2d 946. The damage to the property must be permanent to be compensable. Wilson v. Key Tronic Corp., 40 Wn. App. 802, 816, 701 P.2d 518 (1985).\nHere, the landowners’ property had a zero market value after the flood. This is based on: (1) no sale potential in the open market due to its flood-damaged condition and (2) its location with potential for future flooding. CP at 204-13, 252-56. And, assuming the road will not be changed, the landowners’ properties will continue to be a dumping ground for neighborhood water.\nThe landowners have then presented a genuine issue of fact as to their inverse condemnation claim.\nAttorney Fees and Costs\nWithout much citation to authority or sufficient factual basis, the landowners ask for fees and costs. “A party may recover attorney fees and costs on appeal when granted by applicable law.” Or. Mut. Ins. Co. v. Barton, 109 Wn. App. 405, 418, 36 P.3d 1065 (2001); RAP 18.1.\nThe landowners do set forth a separate section, albeit in one sentence, with citation to RAP 18.1 (procedure for requesting fees) and RAP 14.3 (allowable costs). But they do not provide argument or the underlying grounds for the grant of fees as required by RAP 18.1(b). The procedure outlined in RAP 18.1(b) is mandatory. Phillips Bldg. Co. v. An, 81 Wn. App. 696, 705, 915 P.2d 1146 (1996); Austin v. U.S. Bank of Wash., 73 Wn. App. 293, 313, 869 P.2d 404 (1994). And the showing here is not enough. Wilson Court Ltd. P’ship v. Tony Maroni’s, Inc., 134 Wn.2d 692, 710 n.4, 952 P.2d 590 (1998).\nThe request for fees is therefore denied.\nThe summary judgment in favor of Douglas County is reversed.\nSchultheis and Kurtz, JJ., concur.\nThe common enemy doctrine has governed the law of surface water in Washington since 1896. Cass v. Dicks, 14 Wash. 75, 44 P. 113 (1896). Under the common enemy doctrine, landowners who alter the flow of surface water are shielded from liability only if they exercise their rights with due care by acting in good faith and avoiding unnecessary damage to the property of others. Currens v. Sleek, 138 Wn.2d 858, 983 P.2d 626, 993 P.2d 900 (1999).\nBurton v. Douglas County, 14 Wn. App. 151, 539 P.2d 97 (1975)."", ""type"": ""majority"", ""author"": ""Sweeney, J.""}], ""attorneys"": [""Peter D. Poulson, for appellants."", ""Robert R. Siderius, Jr. (of Jeffers, Danielson, Sonn & Aylward, P.S.), for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 21055-3-III.\nDivision Three.\nApril 17, 2003.]\nJohn Pruitt, et al., Appellants, v. Douglas County, Respondent.\nPeter D. Poulson, for appellants.\nRobert R. Siderius, Jr. (of Jeffers, Danielson, Sonn & Aylward, P.S.), for respondent.""}, ""cites_to"": [{""cite"": ""539 P.2d 97"", ""year"": 1975, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""14 Wn. App. 151"", ""year"": 1975, ""case_ids"": [1789442], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""case_paths"": [""/wash-app/14/0151-01""], ""opinion_index"": 0}, {""cite"": ""952 P.2d 590"", ""year"": 1998, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""134 Wn.2d 692"", ""year"": 1998, ""case_ids"": [452328], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""case_paths"": [""/wash-2d/134/0692-01""], ""opinion_index"": 0}, {""cite"": ""869 P.2d 404"", ""year"": 1994, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""73 Wn. App. 293"", ""year"": 1994, ""case_ids"": [1748505], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""313""}], ""case_paths"": [""/wash-app/73/0293-01""], ""opinion_index"": 0}, {""cite"": ""915 P.2d 1146"", ""year"": 1996, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""81 Wn. App. 696"", ""year"": 1996, ""case_ids"": [310786], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""705""}], ""case_paths"": [""/wash-app/81/0696-01""], ""opinion_index"": 0}, {""cite"": ""36 P.3d 1065"", ""year"": 2001, ""category"": ""reporters:state_regional"", ""reporter"": ""P.3d"", ""opinion_index"": 0}, {""cite"": ""109 Wn. App. 405"", ""year"": 2001, ""case_ids"": [1014124], ""category"": ""reporters:state"", ""reporter"": ""Wash. App."", ""pin_cites"": [{""page"": ""418""}], ""case_paths"": [""/wash-app/109/0405-01""], ""opinion_index"": 0}, {""cite"": ""701 P.2d 518"", ""year"": 1985, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""40 Wn. App. 802"", ""year"": 1985, ""case_ids"": [1796287], ""category"": ""reporters:state"", ""reporter"": ""Wash. 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App. 547"", ""type"": ""official""}], ""file_name"": ""0547-01"", ""last_page"": ""561"", ""first_page"": ""547"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 38, ""name"": ""Wash."", ""name_long"": ""Washington""}, ""last_updated"": ""2024-02-27T19:01:37.668100+00:00"", ""decision_date"": ""2003-04-17"", ""docket_number"": ""No. 21055-3-III"", ""last_page_order"": 595, ""first_page_order"": 581, ""name_abbreviation"": ""Pruitt v. 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+274501,"{""id"": 274501, ""name"": ""Commonwealth vs. Martin F. Delaney, Jr."", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""876660ab67958c236cef764d3587ec806c3decdfe236130bfda361ca3089d5e2"", ""simhash"": ""1:b2b0d76a7f5f3ecd"", ""pagerank"": {""raw"": 0.0000010723067811751872, ""percentile"": 0.9848290382952829}, ""char_count"": 55420, ""word_count"": 9160, ""cardinality"": 1615, ""ocr_confidence"": 0.903}, ""casebody"": {""judges"": [], ""parties"": [""Commonwealth vs. Martin F. Delaney, Jr.""], ""opinions"": [{""text"": ""Abrams, J.\nOn March 9, 1994, a District Court jury found the defendant, Martin F. Delaney, Jr., guilty of five counts of violating a protective order issued pursuant to G. L. c. 209A. The defendant appeals from the convictions, as well as from an order denying his motion for a new trial on various grounds. We transferred the case here on our motion. We affirm.\nThe following facts are not in dispute. On August 31, 1992, the victim, the defendant’s former female companion, obtained an ex parte protective order against the defendant pursuant to G. L. c. 209A, § 4. The order stated that the defendant was to refrain from having any contact with the victim, and specifically restrained the defendant from following the victim and making telephone calls to her. The order also stated that there was to be a hearing on September 11, 1992, to determine whether the order would be extended and that the defendant “may appear, with or without an attorney, to oppose any extension or expansion of this [ojrder. If the defendant does not appear, an extended or expanded [ojrder may remain in effect for up to one year.” Service of the temporary order was made by leaving a copy of it at the defendant’s last and usual place of abode on September 1, 1992. On September 11, 1992, the defendant did not appear at the hearing; the order was extended for one year to September 10, 1993. The extended order contained the same terms as the temporary order, but there is no evidence that the extended order was ever served on the defendant.\nThere was evidence from which the jury could have found the following facts. On September 14, 1992, the defendant telephoned the victim and stated, “You got a restraining order against me.” The defendant offered to put a clutch in the victim’s automobile for free if she would “drop” the restraining order against him. The defendant again telephoned the victim on September 18, 1992, and asked the victim to “give [him] another chance.” On September 28, 1992, the defendant forced the victim’s automobile off the road and apparently referring to charges in an unrelated matter told her, “You are going to drop the charges or else.” The defendant was arrested following this incident. On October 8, 1992, the defendant pulled his vehicle up behind the victim and asked her “if [they] could handle their problems outside of court.” Again, the defendant was arrested. Finally, on November 2, the defendant blocked the victim’s vehicle as she tried to leave a gasoline station.\nOn appeal, the defendant argues that, because he never was served with the extended order he was charged with violating, the judge improperly asserted jurisdiction over this case and denied him his due process rights under the Fourteenth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. The defendant also argues that the Commonwealth improperly joined the charges against him; he alleges error in the jury instructions and claims that the judge’s biased treatment of defense counsel deprived him of his right to a fair trial. Finally, the defendant claims that his motion for a new trial was improperly denied because the Commonwealth’s closing argument distorted the evidence against him.\n1. Failure to serve the extended order. The defendant first argues that the failure to serve him with a copy of the extended order deprived the District Court judge of subject matter jurisdiction over his case. Because it is clear that the District Court had subject matter jurisdiction, we treat the defendant’s argument as asserting that the statute requires that there be personal service on the defendant before he can be convicted of violating the order. We conclude that personal service of the extended order is not required.\nGeneral Laws c. 209A, § 7, requires that a copy of an order issued under §§ 3, 4, or 5 of G. L. c. 209A be served on a defendant. The defendant argues, therefore, that, absent such service, he cannot be convicted of violating an order issued pursuant to G. L. c. 209A. The defendant’s argument, however, ignores the fact that the temporary order was served on him at Ms last and usual place of abode and that the evidence warranted a finding that he had knowledge of the order. TMs order warned the defendant that, if he failed to appear, “an extended or expanded [o]rder may remain in effect.” Section 4 mandates that “the temporary order[] shall continue in effect without further order of the court” when the defendant fails to appear (emphasis added). The jury could have found that the defendant had actual and constructive notice of the order and that it continued in effect after the hearing date. In these circumstances the service of the extended order on the defendant was not a prerequisite to his prosecution for violating the terms of the order. This, however, does not end our inquiry. The defendant also argues that prosecuting a defendant for violating an order that has not been served on him violates the defendant’s due process rights.\nAs the defendant points out, “[t]he fundamental requisite of due process is an opportumty to be heard at a meamngful time and in a meaningful manner.” Matter of Kenney, 399 Mass. 431, 435 (1987). See Langlitz v. Board of Registration of Chiropractors, 396 Mass. 374, 376 (1985); LaPointe v. License Bd. of Worcester, 389 Mass. 454, 458 (1983). The defendant, however, does not argue that he was deprived of an opportumty to be heard before the judge entered the extended order. Apparently, the defendant’s argument is that, because he was not served with a copy of the extended order, he was precluded from moving to have the extended order vacated. G. L. c. 209A, § 3 (“[t]he court may modify its order at any subsequent time upon motion by either party”). The ex parte order informed the defendant that an extended order might be entered against him if he did not appear at the hearing. This information was certainly sufficient to put the defendant on notice, for “[njotice of facts which would incite a person of reasonable prudence to an inquiry under similar circumstances is notice of all the facts which a reasonably diligent inquiry would develop.” Commonwealth v. Olivo, 369 Mass. 62, 69 (1975), quoting Essex Nat’l Bank v. Hurley, 16 F.2d 427, 428 (1st Cir. 1926). Indeed, a party may not “shut his eyes to the means of knowledge which he knows are at hand, and thereby escape the consequences which would flow from the notice if it had actually been received.” Commonwealth v. Olivo, supra, quoting NLRB v. Local 3, Bloomingdale Dist. 65, Retail, Wholesale & Dep’t Store Union, 216 F.2d 285, 288 (2d Cir. 1954). Thus, the defendant, who with reasonable inquiry could have discovered that the temporary order had been extended, cannot be heard to complain that he was deprived of an opportunity to seek to have that extended order vacated.\nDue process also requires that a person be given a “reasonable opportunity to know what the order prohibited, so that he might act accordingly.” Commonwealth v. Butler, 40 Mass. App. Ct. 906, 907 (1996). See Commonwealth v. Freiberg, 405 Mass. 282, 289, cert, denied, 493 U.S. 940 (1989) (due process requires that individuals receive fair notice of conduct proscribed by statute); Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 522 (1986) (same); Commonwealth v. Williams, 395 Mass. 302, 304 (1985), quoting Kolender v. Lawson, 461 U.S. 352, 357 (1974) (“penal statute must ‘define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement’ ”). Clearly, a showing that a defendant was served with a copy of a court order is strong evidence that a defendant had knowledge that certain conduct would not be permitted and could result in a criminal conviction. The failure of such service, however, is not fatal where the Commonwealth can prove beyond a reasonable doubt that the defendant had actual knowledge of the terms of the order. Bongiovi v. LaBeet, 155 A.D.2d 320, 321 (N.Y. 1989) (“[a]t any rate, respondent conceded that she was, in fact, aware of the order of protection and, therefore, personal service need not be demonstrated”). Cf. State v. Delap, 466 N.W.2d 264, 269 (Iowa Ct. App. 1990) (whether order sufficiently clear, definite and unambiguous to support contempt adjudication irrelevant because defendant had actual knowledge of “no contact condition” in order and consequences of violating condition). Indeed, as long as a defendant had actual knowledge of the terms of the order, there is no danger that a defendant will be convicted of conduct not known to be violative of a court order. Cf. Lambert v. California, 355 U.S. 225, 229 (1957) (where there was “absence of an opportunity either to avoid the consequences of the law or to defend any prosecution brought under it,” defendant’s conviction violated due process).\nWe conclude then that the failure to serve a copy of the extended order on the defendant is not a bar to charging him with violating that order. Failure to serve the defendant, however, with a copy of the extended order is, of course, relevant to a determination as to whether the defendant possessed the knowledge required to convict him of violating the order. See note 5, supra. Evidence that the ex parte order delivered to the defendant’s last and usual address was actually received warrants the conclusion that the defendant had actual knowledge of the terms of the extended order, as does the defendant’s testimony that, following his arrest after the September 28 incident, he was aware that there was a protective order against him.\n2. Joinder. Prior to trial, there was a joinder of numerous charges pending against the defendant. The defendant argues that the offenses joined did not involve a “pattern of conduct” and that he was severely prejudiced by the joining of these charges. We disagree.\nA decision on “whether joinder is appropriate is committed to the sound discretion of the trial judge.” Commonwealth v. Montanez, 410 Mass. 290, 303 (1991). See Commonwealth v. Shelton, 37 Mass. App. Ct. 964, 964 (1994). The defendant bears the burden of demonstrating that prejudice will result from a failure to sever the charges. Commonwealth v. Gallison, 383 Mass. 659, 671 (1981). Indeed, Mass. R. Crim. R 9 (a) (3), 378 Mass. 859 (1979), provides that where offenses are related, “[t]he trial judge shall join the charges for trial unless he determines that joinder is not in the best interests of justice.”\nRelated offenses are defined in part as “arising] out of a course of criminal conduct or series of criminal episodes connected together or constituting parts of a single scheme or plan.” Mass. R. Crim. P. 9 (a) (1), 378 Mass. 859 (1979). We have stated that offenses are related if the evidence “in its totality shows a common scheme and pattern of operation that tends to prove all the indictments.” Commonwealth v. Feijoo, 419 Mass. 486, 494-495 (1995). Time and space play an important role in determining whether offenses are related offenses for the purposes of joinder. See Commonwealth v. Mamay, 407 Mass. 412, 417 (1990); Commonwealth v. Cruz, 373 Mass. 676, 690 (1977).\nIn the instant case, the judge joined for trial the charges of violating a c. 209A order, stalking, and intimidating a witness. All the incidents giving rise to the charges involved the same victim. All the incidents occurred between September and November of 1992; indeed, the six counts of c. 209A violations, which include the five counts of which the defendant was ultimately convicted, occurred within an approximate eight-week period. Thus, the offenses charged demonstrated a pattern of conduct by the defendant toward the victim because of his unhappiness with the ending of their relationship and his desire to reunite with her. See Commonwealth v. Feijoo, supra at 495 (joinder appropriate where offenses indicated scheme whereby defendant used his position as karate teacher to induce students to engage in homosexual activity); Commonwealth v. Mamay, supra at 416 (joinder appropriate where offenses indicated scheme whereby defendant used his position of authority and trust to commit sexual crimes on female patients visiting his office). As such, evidence of each offense would have been admissible at trials for a separate offense. See Commonwealth v. Feijoo, supra. Indeed, if the charges were tried separately, much testimony would be duplicated at each trial merely establishing the relationship between the victim and the defendant. See Commonwealth v. Hoppin, 387 Mass. 25, 32 (1982) (“(¡joinder may promote economy in the trial of criminal offenses, particularly when the same witnesses will testify concerning more than one offense”). Finally, we note that, in the instant case, the defendant has failed to demonstrate that he was prejudiced by the joinder of these offenses. The defendant’s burden is “not satisfied by a showing merely that the defendant’s chances for acquittal would have been better had the [complaints] been tried separately.” Commonwealth v. Montanez, supra at 304. Rather, the defendant’s burden is to show that “the prejudice resulting from a joint trial is so compelling that it prevented] [him] from obtaining a fair trial.” Commonwealth v. Clarke, 418 Mass. 207, 217 (1994), quoting Commonwealth v. Moran, 387 Mass. 644, 658 (1982). See Commonwealth v. Ferraro, 424 Mass. 87, 90 (1997). In the instant case, the jury acquitted the defendant of the stalking charge and the charge that he intimidated a witness. The defendant was also acquitted of one of the counts charging him with violating a protective order. Thus, it is clear thát the jury carefully considered the evidence with regard to each crime charged.\n3. Jury instructions. The defendant argues that, in order to be convicted of violating a c. 209A order, the Commonwealth must show a manifest intent on the part of the defendant to violate that order. We disagree.\nThe judge instructed the jury that, in order to convict the defendant of the crime of violating a c. 209A order, the Commonwealth must prove “first . . . that a court had issued an order pursuant to Chapter 209A of our General Laws, which ordered the defendant to refrain from abusing the alleged victim. Second, that such order was in effect on the date that this violation of the order allegedly occurred. Third, that the defendant knew that the pertinent terms of the order were in effect, either by having received a copy of the order or in some other way. And fourth, that the defendant violated the order by failing to vacate the household or by abusing alleged victim.”\nThe defendant argues that this charge was erroneous because, by allowing the jury to convict the defendant based solely on the fact that there was a violation of the order instead of requiring a finding that the defendant intended to violate the order, the instruction lowered the Commonwealth’s burden of proof. The defendant urges us to look to the law of contempt and conclude that an essential element of the crime of violating a c. 209A order is a finding that the defendant intended to violate the order. Because there was no objection at trial, we review the charge to determine whether it “was so erroneous that it created a ‘substantial risk of a miscarriage of justice.’ ” Commonwealth v. Preziosi, 399 Mass. 748, 751 (1987), quoting Commonwealth v. Murray, 396 Mass. 702, 705 (1986).\nWe have read § 7 as limiting to the enumerated offenses those actions which will constitute a criminal violation of G. L. c. 209A. Commonwealth v. Gordon, 407 Mass. 340, 345 (1990). All other violations of a c. 209A order cannot be prosecuted as a statutory offense; rather, they can be prosecuted as criminal contempt. Commentary to § 8:02 of the Guidelines for Judicial Practice: Abuse Prevention Proceedings (Oct. 1996).\nIn order to prove a defendant guilty of criminal contempt, the Commonwealth must prove beyond a reasonable doubt that “there was a clear, outstanding order of the court, that the defendant knew of that order, and that the defendant clearly and intentionally disobeyed that order in circumstances in which he was able to obey it.” Commonwealth v. Brogan, 415 Mass. 169, 171 (1993), quoting Furtado v. Furtado, 380 Mass. 137, 145 (1980). See United Factory Outlet, Inc. v. Jay’s Stores, Inc., 361 Mass. 35, 45 (1972) (Tauro, C.J., concurring) (“[t]he rule that intent is not an element of civil contempt is a direct consequence of the separate functions of criminal and civil contempt”).\nWhile intent is an element of criminal contempt proceedings, § 7 of G. L. c. 209A establishes a distinct statutory crime for certain violations of c. 209A orders. The statute does not speak explicitly to the defendant’s state of mind; it is conceded, however, by the Commonwealth that, in order to convict a defendant of violating an order, it must be proved beyond a reasonable doubt that the defendant knew of the order. See Commonwealth v. Crosscup, 369 Mass. 228, 234 (1975) (“clear statutory language would be needed ... to buttress an interpretation that knowledge was irrelevant”); Commonwealth v. Wallace, 14 Mass. App. Ct. 358, 364 (1982) (“[bjecause traditionally, at common law, some element of intent or knowledge was required before punishment could be imposed . . . and because due process considerations may, in some cases, require some degree of notice . . . courts are reluctant to infer a legislative intent to impose absolute liability” [citations omitted]). This statute, however, requires no more knowledge than that the defendant knew of the order. We decline to read any additional mens rea requirements into the statute. Simon v. Solomon, 385 Mass. 91, 103 (1982) (“[although the requirement of due process places some limits on legislative power to penalize innocent conduct, legislatures generally have broad power to define and limit the mens rea element of criminal offenses”); Commonwealth v. Jackson, 369 Mass. 904, 909 (1976) (“Legislature has great latitude to determine what conduct should be regarded as criminal and to prescribe penalties to vindicate the legitimate interests of society”). The defendant does not argue that the failure of the statute to require a showing of intentional violation is unconstitutional.\n4. Failure to allow certain arguments. The defendant also argues that the judge erred in failing to allow the defendant to pursue certain avenues of argument. The defendant attempts to cite five instances where the judge improperly discarded the defendant’s arguments. We think that this argument is without merit.\nAt trial, the defendant did not object to the judge’s rulings, instructions, or comments. Therefore, we examine whether the judge’s actions constituted a “substantial risk of a miscarriage of justice.” Commonwealth v. Boyer, 400 Mass. 52, 59 (1987).\nThe first occasion occurred during.the defendant’s opening statement where defense counsel made the following comment: “[The victim] has a motive in this trial, and you will hear it. She has a credibility problem, you will find out, that she has a hard time telling the truth.” Following an objection by the prosecutor, the judge instmcted: “The credibility and believability of witnesses is the sole province of the jurors. Refrain from making comment.” There was no error. Defense counsel’s statement was improper argument. See United States v. Dinitz, 424 U.S. 600, 612 (1976) (Burger, C.J., concurring). The judge did not create a. substantial risk of a miscarriage of justice with his instruction. The defendant’s second instance involved his discussion of a note left on a witness’s automobile that related that the defendant “had tried to break [the victim’s] arm” and that he was “violent.” The judge reminded the jury that the opening statements were not evidence. The judge acted properly because the evidence from the note regarding the victim’s arm was inadmissible hearsay and therefore improper to discuss as evidence during opening statements. See Commonwealth v. Murray, 22 Mass. App. Ct. 984, 985 (1986). The note was not offered as an exhibit.\nThe next two allegations of error involve the judge’s refusal to allow the defense to pursue during cross-examination a line of argument that the victim had been on welfare. The defense contended that the issue was relevant to the defendant’s credibility. Despite being given an opportunity to do so, the defense was unable to produce a relevant link between the victim’s welfare status and her credibility. These rulings were not erroneous.\nThe defendant argues that the judge’s instructions to the jury on an employer’s obligation to report monies paid to employees did not permit the defense’s point to reach the jury. However, the fact that the witness evaded taxes did reach the jury. The judge’s instruction to the jury merely clarified the distinction between the employer’s obligation to report income and the employee’s obligation to file a tax return. An error, if any, on the part of the judge was harmless.\n5. Closing argument. The defendant also argues that the prosecutor misstated the evidence in her closing argument. He claims that the prosecutor mislead the jury by implying that the proof of service was for the permanent order, rather than for the temporary order. We do not agree.\nBecause the defendant failed to object to the closing argument, the standard of review is whether the prosecutor’s argument created a substantial risk of a miscarriage of justice. See Commonwealth v. Mello, 420 Mass. 375 (1995); Commonwealth v. Marquetty, 416 Mass. 445, 450 (1993); Commonwealth v. Kozec, 399 Mass. 514, 518 n.8 (1987). Under that standard, “[w]e analyze the remarks in ‘light of the “entire argument, as well as in light of the judge’s instruction to the jury and the evidence at trial.” ’ ” Commonwealth v. Marquetty, supra, quoting Commonwealth v. Yesilciman, 406 Mass. 736, 746 (1990). The defendant’s argument, however, ignores that standard and focuses on one sentence out of context. To adopt the defendant’s position we would have to abandon our responsibility to analyze the prosecutor’s remarks in light of the entire argument. See Marquetty, supra at 445.\nRead in context, the relevant portion of the Commonwealth’s closing argument breaks down into two distinct parts. The first part of the excerpt addresses the process through which the victim obtained a restraining order against the defendant. The second half of the excerpt switches to the defendant’s claim that he never received the original temporary restraining order. The Commonwealth simply highlighted the return of service from the temporary order. The prosecutor was entitled to reply to the defendant’s main contention that he had never received the temporary or the extended order. The prosecutor’s reply was based on evidence admitted during the trial.\nThe defendant argues that it was never brought out that a copy of the extended order was not served on him. However, that fact was brought out during the trial by the defendant and in the defendant’s closing. If the defendant desired to focus on the fact that the extended order was not served, he had the opportunity to do so by noting the absence of service of the extended order in his closing argument. Instead, the defendant’s argument at trial attempted to convince the jurors that there was no service of any kind.\nThe Commonwealth noted that the return of service was left at the address which the defendant admitted was his primary place of residence for twelve years. The evidence highlighted by the prosecutor was how and where the defendant received his mail, evidence which came from the defendant himself. The prosecutor simply was arguing facts in evidence and reasonable inferences from those facts. Commonwealth v. Paradise, 405 Mass. 141, 152 (1989).\nFurther, the prosecutor encouraged the jurors to look at the proof of return of service by bringing their attention to the exhibit which was the temporary order, and which was extended on September 11, 1992. In doing so, the prosecutor made clear her intention that the jurors look at the evidence including the proof of return of service. The proof of service unequivocally shows the date and time of service as “9/1/92 10:00 AM.”\nWe also trust the citizens that serve as the foundation of our jury system. The judge told the jurors both before the trial began and after the closing argument that they were the sole finders of fact and that arguments by the attorneys should not be viewed as evidence. The judge’s instructions should have cured the prejudicial effect, if any, of the statement that the defendant would like us to use to conclude there was a substantial miscarriage of justice. “[T]he judge made it clear that the arguments of counsel were not evidence. The argument was forceful but fair. It did not exceed the limits of propriety.” Commonwealth v. Haskins, 411 Mass. 120, 122 (1991).\nJudgments affirmed.\nThe defendant was acquitted of one count of violating a protective order on October 12, 1992, one count of stalking on November 2, 1992, and one count of intimidating a witness on September 28, 1992.\nThe defendant also appeals from the denial of his motion for a new trial on the above grounds.\nSubject matter jurisdiction refers to the “court’s power to hear and determine cases of the general class or category to which proceedings in question belong; the power to deal with the general subject involved in the action.” Black’s Law Dictionary 1425 (6th ed. 1990).\nGeneral Laws c. 209A, § 7, provides in pertinent part: “Any such violation may be enforced in the superior, the district or Boston municipal court departments.” In addition, District Courts have jurisdiction of all misdemeanors, G. L. c. 218, § 26, and violation of a c. 209A protective order is a misdemeanor.\nSection 7 of G. L. c. 209A provides: “Whenever the court orders under ...[§§ 3, 4, and 5] of [c. 209A] ... the defendant to vacate, refrain from abusing the plaintiff or to have no contact with the plaintiff or the plaintiff’s minor child ... the appropriate law enforcement agency . . . shall serve one copy of each order upon the defendant. . . .”\nSection 3 of G. L. c. 209A provides: “A person suffering from abuse from an adult or minor family or household member may file a complaint in the court requesting protection from such abuse, including, but not limited to, the following orders: (a) ordering the defendant to refrain from abusing the plaintiff, whether the defendant is an adult or minor; (b) ordering the defendant to refrain from contacting the plaintiff, unless authorized by the court, whether the defendant is an adult or minor . . . .”\nSection 4 of G. L. c. 209A provides: “Upon the filing of a complaint under this chapter, the court may enter such temporary orders as it deems necessary to .protect a plaintiff from abuse, including relief as provided in section three. Such relief shall not be continued upon the filing of a complaint for divorce, separate support, or paternity action.\n“If the plaintiff demonstrates a substantial likelihood of immediate danger of abuse, the court may enter such temporary relief orders without notice as it deems necessary to protect the plaintiff from abuse and shall immediately thereafter notify the defendant that the temporary orders have been issued. The court shall give the defendant an opportunity to be heard on the question of continuing the temporary order . . . and of granting other relief as requested by the plaintiff no later than ten days after such orders are entered. Notice shall be made by the appropriate law enforcement agency as provided in section seven. If the defendant does not appear at such subsequent hearing, the temporary orders shall continue in effect without further order of the court.”\nSection 5 of G. L. c. 209A provides: “When the court is closed for business, any justice of the superior, probate and family, district or Boston municipal court departments may grant relief to the plaintiff as provided under section four if the plaintiff demonstrates a substantial likelihood of immediate danger of abuse.”\nThere was evidence that the defendant knew of the process of how a protective order begins as a temporary order and could be extended after a hearing. In fact, the defendant introduced evidence of a previous protective order obtained against him.\n“The court may modify its order at any subsequent time upon motion by either party.” G. L. c. 209A, § 3, fourth par.\nIt is clear that “[d]ue process requires that no [extended] order be issued against a person without prior notice and the opportunity to be heard.” Commentary to § 5:05 of the Guidelines for Judicial Practice: Abuse Prevention Proceedings (Oct. 1996). “[T]he adequacy of notice so far as due process is concerned is dependent on whether the form of notice provided is ‘reasonably calculated to give . . . actual notice of the proceedings and an opportunity to be heard.’ ” Commonwealth v. Olivo, 369 Mass. 62, 68 (1975), quoting Millikan v. Meyer, 311 U.S. 457, 463 (1940). In the instant case, service of the temporary order was made by delivering a copy of the order to the defendant’s last and usual address. The defendant does not argue that the extended order against him was entered improperly, and we do not consider that issue.\nThe Commonwealth was allowed to join the five offenses of which the defendant was convicted and three charges that he was acquitted of, including charges of violating a protective order on October 12, 1992, stalking, and intimidating a witness. See note 1, supra. The Commonwealth also sought to join for trial charges of assault and battery, malicious destruction of property, and threatening to commit a crime which involved the same victim. The motion judge ordered these offenses to be tried separately and the defendant was found not guilty.\nWe note that the Appeals Court recently stated that, on a complaint charging a defendant with a violation of a G. L. c. 209A order, the Commonwealth must prove that “there was a clear, outstanding order of the court, that the defendant knew of the order, and that the defendant clearly and intentionally disobeyed the order in circumstances in which he was able to obey it.” Commonwealth v. O’Shea, 41 Mass. App. Ct. 115, 118 (1996), quoting Commonwealth v. Brogan, 415 Mass. 169, 171 (1993). To the extent that that decision is inconsistent with our decision today, it is incorrect.\nThe defendant’s argument includes references to bias on the part of the trial judge. There is neither support nor a specific argument for that claim. The defendant’s discussion on that point does not rise to the level of appellate argument. Mass. R. A. R 16 (a) (4), as amended, 367 Mass. 921 (1975).\nThe following exchange occurred between the defense counsel and the witness:\nDefense counsel: “Did you ever pay taxes on [the cash money you received from Riverside House of Pizza]?”\nThe prosecutor: “Objection.”\nDefense counsel: “It goes to credibility, Your Honor.”\nThe judge: “She can have that.”\nDefense counsel: “Did you ever pay taxes?”\nThe witness: “No, I didn’t.”\nDefense counsel: “You never reported that to the State or the Federal government?”\nThe witness: “No.”\nThe prosecutor stated: “[At] the end of August of 1992, [the victim] went to Lawrence District Court. She went to Lawrence District Court in front of a judge, under oath, and she told the judge that she feared for her life and she needed help. She needed help from the court and she needed protection from the court. And that’s what the court gave her. The court gave her a restraining order. This restraining order, ladies and gentlemen, which you will have with you in the jury room, it states on it, ‘The court has issued the following orders to the defendant. You are not to abuse the plaintiff. You are to immediately leave and stay away from her address. You are to refrain from making phone calls to said plaintiff, not to follow her and to have no contact with her whatsoever.’ [The victim] again came back to the court on September 11, 1992, asking that order to be extended for a year. The judge ordered again [the defendant] to stay away from [the victim].”\nThe prosecutor then shifted focus and continued: “You have in front of you — you will have in front of you the return of service. It states here it was left, a copy of this at the defendant’s last and usual address. [The defendant], by his own admission, has lived at 35 Groton Street for the last twelve years. He gets his mail there. He gets his bills there. He gets his taxes there. In fact, all of his mail is left on the kitchen table. But this one very important piece of paper, he didn’t get. Isn’t that convenient? You heard [the defendant], [the defendant’s brother], and [the defendant’s mother] testify that when he got an important letter from his attorney, everyone was searching for him to find him. But when there is a piece of paper given to Mr. Delaney by a police officer, he’s claiming he didn’t get it. I would suggest that’s a little too convenient.” (Paragraph break added.)\nOn direct examination, the defendant said that he had no knowledge of the order until he was arrested on September 28, 1992. Further, in closing argument defense counsel stated, “Look at the restraining order. The Commonwealth has to prove beyond a reasonable doubt that [the defendant] knew about the restraining order. Did he receive it in hand from a police officer? No.” This statement clearly referred to the defense argument that neither the temporary restraining order nor the extended order had been served on the defendant.\nThe dissent suggests that all parties “operated as if the proof of service before them was proof of service of the extended order.” Post at 606-607. We do not agree. Examination and cross-examination of the defendant on the temporary order do not show that the parties focused solely on proof of service of the extended order. When the exhibit was introduced, it was introduced as the restraining order in effect against the defendant without reference to the return of service because that return was not yet at issue. Despite an effort to do so, the dissent cannot point to any instance in the transcript where the prosecutor stated or implied that the return of service was for the extended order. As we read the record, the prosecutor’s challenge, see post at note 5, went to the defendant’s testimony that he had not received the temporary order which was left at his last and usual home address.\nThe temporary order, left at the defendant’s last and usual address, referred to a hearing date of September 11, 1992, and included the statement that “[i]f the defendant does not appear [at the scheduled hearing], an extended or expanded Order may remain in effect for up to one year.”\nBefore any evidence was presented, the judge told the jury: “If one of the attorneys or I refer to some part of the evidence, and that does not coincide with what your recollection is, it is your recollection which you are to follow in your deliberation, not the attorneys or not mine.”\nAfter the closing arguments had concluded, the judge again instructed the jury: “The opening statements and the closing arguments of the lawyers are not a substitute for the evidence. They are only intended to assist you in understanding the evidence and the contentions of the parties.”"", ""type"": ""majority"", ""author"": ""Abrams, J.""}, {""text"": ""Lynch, J.\n(dissenting). Today the court affirms a criminal conviction for violating a protective order that had not been served on the defendant, even though G. L. c. 209A, § 7, clearly requires such service and even though the prosecutor told the jury that service had been made. Accordingly, I dissent.\nIt should be kept in mind that, although two protective orders issued against the defendant — a temporary order and an extended order — only one order, the extended order, formed the basis of the defendant’s conviction. The temporary order expired on September 11, 1992.\nDuring closing argument, the prosecutor stated:\n“[At] the end of August of 1992, [the complainant] went to Lawrence District Court. . . . The court gave her a restraining order. This restraining order, ladies and gentlemen, which you will have with you in the jury room, it states on it, ‘[t]he court has issued the following orders to the defendant. You are not to abuse the plaintiff. You are to immediately leave and stay away from her address. You are to refrain from making phone calls to said plaintiff, not to follow her and to have no contact with her whatsoever.’\n“[The complainant] again came back to the court on September 11, 1992, asking that order to be extended for a year. The judge ordered again [the defendant] to stay away from [the complainant]. You have in front of you — you will have in front of you the return of service. It states here it was left, a copy of this at the defendant’s last and usual address.\n“[The defendant], by his own admission, has lived at [that address] for the last twelve years. He gets his mail there. He gets his bills there. He gets his taxes there. In fact, all of his mail is left on the kitchen table. But this one very important piece of paper, he didn’t get. Isn’t that convenient?”\n“You heard [the defendant], [the defendant’s brother] and [the defendant’s mother] testify that, when he got an important letter from his attorney, everyone was searching for him to find him. But when there is a piece of paper given to [the defendant] by a police officer, he’s claiming he didn’t get it. I would suggest that’s a little too convenient.” (Emphasis added.)\nThe court reads a paragraph break immediately prior to the prosecutor’s reference to the return of service, and after so doing, asserts that “read in context” the Commonwealth’s closing argument breaks down into two distinct parts, one part addressing the process by which the complainant obtained a protective order against the defendant and one part addressing the defendant’s claim that he never received the original temporary protective order. Ante at 599-600 & n.12. The Commonwealth, however, did not argue that the prosecutor was making two distinct arguments, nor does the reproduction of the argument in the Commonwealth’s brief insert a paragraph break.1 contend that, read in context, it is clear that the prosecutor was improperly suggesting to the jury that what was in front of them was proof of service of the extended order when no such proof existed. Indeed, the prosecutor’s reference to the extended order, which the Commonwealth concedes was not served on the defendant, is immediately preceded by the prosecutor’s reference to September 11, 1992, the date the complainant obtained the extended order. Moreover immediately following is a reference to testimony that was elicited by the prosecutor alluding to the extended order. See note 5, infra. Furthermore, the prosecutor referred to “a piece of paper given to [the defendant] by a police officer.” Not even the temporary order was given to the defendant by a police officer; rather, the proof of service of the temporary order states that it was left at the defendant’s last and usual address: thus the prosecutor compounded the misstatement she made earlier in her argument.\nBecause the prosecutor referred both to service and to proof of service which did not exist, her argument misstated the evidence and was improper. It is well settled that “[a] prosecutor must limit comment in closing statement to the evidence and fair inferences that can be drawn from the evidence.” Commonwealth v. Kelly, 417 Mass. 266, 270 (1994). See Com monwealth v. Kozec, 399 Mass. 514, 516 (1987); Commonwealth v. Shelley, 374 Mass. 466, 472 (1978), S.C., 381 Mass. 340 (1980), and 411 Mass. 692 (1992). Moreover, the prosecutor’s statement cannot be characterized as responding to the defendant’s argument that there was no service at all. The thrust of the defendant’s argument was that he did not receive either order and was not aware at least until September 28, 1992, of the existence of a protective order. In support of this claim the defendant offered testimony to the effect that he did not spend a lot of time at the address where the temporary order was left and emphasized that no order was served in hand. More importantly, while the prosecutor was entitled to reply to the defendant’s contention, she was not entitled to rebut his contention by stating that proof of service of the extended order would be before the jury and that he had been given written notice by a police officer when those facts were not in evidence.\nIn the face of such prosecutorial error, several factors must be considered, including whether the argument was seasonably objected to; whether the error was limited to collateral issues or went to the heart of the case; whether the judge’s instructions to the jury may have mitigated the error; and generally, whether the error, in the circumstances, possibly made a difference in the jury’s conclusion. See Commonwealth v. Kozec, supra at 517-518; Commonwealth v. Pavao, 34 Mass. App. Ct. 577, 581 (1993). Because the argument here was not objected to, review is limited to whether a substantial risk of a miscarriage of justice has occurred. Where the evidence before the jury has been distorted, however, “we have recognized that the failure to object and possibly obtain a curative instruction may be the very thing which permits the remarks to have their maximum prejudicial effect.” Commonwealth v. Shelley, supra at 469. See Commonwealth v. Nordstrom, 364 Mass. 310, 314 (1973). See also Commonwealth v. Cifizzari, 397 Mass. 560, 578 (1986); Commonwealth v. Fitzgerald, 376 Mass. 402, 416 (1978).\nClearly, the defendant’s knowledge of the protective order and the terms it contained were crucial elements of the Commonwealth’s case. Indeed, without proving beyond a reasonable doubt that the defendant knew of the existence of the order, the defendant could not be convicted of violating the order. Thus, this “is not a case in which overreaching argument was confined to collateral issues only.” Commonwealth v. Shelley, supra at 470. Moreover, the judge’s instructions on the mental state element of the crime emphasized that the Commonwealth had to prove that the defendant had actual knowledge of the terms of the extended order, the very issue to which the prosecutor’s improper arguments referred. Thus, absent specific instructions that mitigated the error, I do not believe that the judge’s reminder to the jury that closing statements are not evidence cured the prejudicial impact of the prosecutor’s argument. See Commonwealth v. Rosa, 412 Mass. 147, 160 (1992) (curative instruction regarding the prosecutor’s improper closing argument not sufficient and new trial required given the importance to the Commonwealth’s case of the issue that was part of improper argument); Commonwealth v. Clary, 388 Mass. 583, 591 (1983) (“judge’s instructions to the jury, which stated only in general terms that the arguments of counsel are not evidence did not cure adequately the prejudicial impact of the prosecutor’s assertion”); Commonwealth v. Pavao, supra at 581-582 (where prosecutor misstated evidence by improperly attributing to defendant a statement indicating defendant acted with intent necessary to be convicted of murder, new trial required even though judge did instruct the jury that closing arguments were not evidence because there were not forceful statements by judge that argument was inappropriate and should be disregarded); Commonwealth v. Shelley, supra (where overreaching argument not confined to collateral issues only, adequate curative instructions did not render the prosecutorial misconduct harmless).\nThe court suggests that the parties knew that the defendant had not been served with a copy of the extended order and chose to use their closing statements to argue whether the defendant received a copy of the temporary order — a doubtful proposition particularly where, until today, a reading of the statute would suggest that a defendant must be served with a copy of the order he was charged with violating. I believe that a fairer and more plausible reading of the testimony and the closing arguments suggests that both defense counsel and the prosecutor operated as if the proof of service before them was proof of service of the extended order, an error that makes the distortion of the evidence during the prosecutor’s closing argument even more significant.\nGiven that the outcome of the case essentially depended on whether the jury believed the complainant’s or the defendant’s version of events, the suggestion that the defendant was served with a copy of the extended order could very well have influenced the jury’s assessment of the defendant’s credibility and thus, their verdict. Indeed, this is hardly a case where there is overwhelming evidence of the defendant’s guilt. See Commonwealth v. Clary, supra at 593; Commonwealth v. Shelley, supra. Contrast Commonwealth v. DeChristoforo, 360 Mass. 531, 538 (1971) (overwhelming evidence of guilt neutralizing prosecutorial misconduct). Thus, it is impossible to say that the improper argument, which undermined the defendant’s credibility and went to a crucial issue in the case, did not make a difference in the jury’s verdict, and I would order a new trial for the defendant. See Commonwealth v. Kelly, 417 Mass. 266, 271 (1994) (where improper argument went to police credibility, the crux of the case, new trial was necessary); Commonwealth v. Clary, supra at 593 (where argument of prosecutor struck at defendant’s sole defense, that error contributed to conclusion that new trial was warranted); Commonwealth v. Shelley, supra at 470-471 (argument as to credibility of expert witness urging an inference that expert testimony was purchased “struck impermissibly, at the defendant’s sole defense” and warranted a new trial).\nFinally, I agree that great trust should be and is placed in the citizens who serve as jurors, for they are the foundation of our justice system. Where the evidence is distorted, however, it is unfair to those very jurors to place on them the burden of cor-reeling or overlooking a prosecutor’s mistake. Indeed, a jury’s verdict can be only as fair as the trial allows. I would therefore reverse the defendant’s convictions and order a new trial.\nGeneraI Laws c. 209A, § 7, states in pertinent part: “Whenever the court orders under . . . [§§ 3, 4, and 5] of [c. 209A] ... the defendant to vacate, refrain from abusing the plaintiff or to have no contact with the plaintiff or the plaintiff’s minor child ... the appropriate law enforcement agency . . . shall serve one copy of each order upon the defendant.... The law enforcement agency shall promptly make its return of service to the court” (emphasis added).\nIndeed, the Commonwealth reproduces the same portion of the argument reproduced here and characterizes the argument as referring to “the issue of notice and to the service of the protective order.”\nThe court reasons from evidence of a previous protective order obtained against the defendant “that the defendant knew of the process of how a protective order begins as a temporary order and then may be extended after a hearing.” Ante at 591 n.5. It should be noted, however, that, while there was evidence that the complainant had obtained protective orders against the defendant in the past, she had also, on at least one occasion, failed to appear at the hearing as required in order to get the temporary order extended. Thus, in the defendant’s experience, notice of a temporary order did not necessarily mean that an extended order would follow; the absence of any service of an extended order could only have buttressed this conclusion.\nA review of several portions of the transcript indicates that defense counsel had confused the return of service of the temporary order as a return of service of the extended order. Indeed, when defense counsel moved for a directed verdict, alleging that the Commonwealth had not proved that the defendant had known of the existence of the order he was charged with violating (the extended order), she stated: “Under the facts that on that restraining order that they have entered into evidence, they have not proven that the defendant . . . either knew of the pertinent terms of the order were in effect by either having received a copy of the order or in some other way. The reason I would state that, Your Honor, is looking at the return of service checked off as leaving a copy at the defendant’s last and usual address as shown on this order, Your Honor, that doesn’t constitute proof that [the defendant] had any knowledge of the effect of this order. And he had no — it does not prove that he had knowledge of any portion of the order.”\nIn addition, in her own closing argument, defense counsel argued: “Look at the restraining order. The Commonwealth has to prove beyond a reasonable doubt that [the defendant] knew about the restraining order. Did he receive it in hand from a police officer? No. Could [the complainant] have told the police officer, well, he’s never at that 35 Groton Street address, go to his parents’ house .... She never told him that. If she told him that, maybe it would have gotten served. And who better to know [the defendant’s] schedule, where he is? She knew when she went into court, she knew where that restraining order was going to be. Could she have gone and taken the restraining order? Could she have orchestrated his arrest?” Certainly, it would seem likely that, in both examples, if defense counsel was aware that the extended order had not been served on the defendant she would have just said so in her argument to both the judge and the jury.\nIndeed, when the defendant was being cross-examined by the prosecutor, the prosecutor showed the defendant a copy of the extended order that had been introduced in evidence as the extended order obtained by the complainant on September 11, 1992. The defendant then testified that he lived at the address indicated on the order and received his mail there. The prosecutor then challenged the defendant’s testimony that he did not receive a copy of the extended order in the following exchange:\nThe prosecutor: “You receive any and all correspondence that is sent to you at 35 Groton Street; isn’t that correct?”\nThe defendant: “Yes. What’s your point now?”\nThe prosecutor: “But you didn’t receive this restraining order that was sent to you; is that correct?”\nThe defendant: “No, I did not.”\nI would suggest that this exchange supports the inference that the prosecutor, who challenges the defendant’s contention that he did not receive a copy of the extended order, was operating as if the proof of service before her was proof of service of the extended order. Indeed, she goes on to elicit testimony regarding what would happen to mail if left by a police officer with the defendant’s brother at the 35 Groton Street address or in the mailbox.\nIn addition, in responding to the defendant’s motion for a directed verdict, the prosecutor argued: “With regards to the . . . three counts of violations of restraining orders .... Judge, you have before you that is placed into evidence the service of the restraining order, that it has been left at the defendant’s last and usual address, that being I believe, 35 Groton Street.” I suggest that this reference to the return of service, coupled with the reference to the order in evidence, demonstrates that the prosecutor was acting as if the proof of service before the court was proof of service of the extended order.\nThe copy of the order is confusing at best apparently because the same piece of paper was used to indicate the existence and service of both. Thus, a “cursory glance” might give the impression to the jury that the order which had been served on the defendant was the order he was charged with violating."", ""type"": ""dissent"", ""author"": ""Lynch, J.""}], ""attorneys"": [""Mark J. Gillis for the defendant."", ""Marcia H. Slingerland, Assistant District Attorney, for the Commonwealth.""], ""corrections"": """", ""head_matter"": ""Commonwealth vs. Martin F. Delaney, Jr.\nEssex.\nDecember 4, 1996. -\nJuly 28, 1997.\nPresent: Wilkins, C.J., Abrams, Lynch, O’Connor, & Greaney, JJ.\nProtective Order. Abuse Prevention. Due Process of Law, Abuse prevention, Notice. Practice, Criminal, Severance, Instructions to jury, Contempt, Argument by prosecutor. Contempt. Intent. Witness, Credibility. Evidence, Credibility of witness, Hearsay, Relevancy and materiality.\nWhere a defendant was served at his last and usual place of abode with a temporary restraining order issued pursuant to G. L. c. 209A, with notice that, if he failed to appear at a hearing, the order would continue in effect without further order of the court, and where the order was so extended pursuant to G. L. c. 209A, § 4, personal service of the extended order was not a prerequisite to prosecution of the defendant for violation of the order [589-591]; moreover, where the defendant with reasonable inquiry could have discovered that the temporary order had been extended, there could be no argument on due process grounds that he was deprived of an opportunity to seek to have the extended order vacated [591-592], Lynch, J., dissenting.\nEvidence at the trial of complaints alleging violation of a protective order was sufficient to warrant the conclusion that the defendant had knowledge of the terms of the order. [592-593] Lynch, J., dissenting.\nIn a criminal case in which the defendant was charged with six counts of violation of a restraining order, intimidation of a witness, and stalking, on four various dates within an eight-week period, the judge correctly joined the offenses for trial, where the allegations demonstrated a pattern of conduct by the defendant toward the same victim, where evidence of each offense would have been admissible at trials of the offenses separately, and where the defendant did not demonstrate any prejudice from joinder. [593-595]\nThe provisions of G. L. c. 209, § 7, establishing a distinct crime for certain violations of c. 209A orders, do not require any further proof of \""a defendant’s intent or mens rea than proof that the defendant knew the terms of the order in question. [595-597]\nAt a criminal trial, there was no substantial risk of a miscarriage of justice in the judge’s exclusion of certain improper argument by defense counsel; of a certain improper reference to hearsay in defense counsel’s opening remarks; and of certain cross-examination of a witness that was irrelevant to her credibility; further, error, if any, in the judge’s instructions to the jury was harmless. [597-598]\nNo substantial risk of a miscarriage of justice was created at a criminal trial by the prosecutor’s closing argument which was based on the evidence admitted and reasonable inferences therefrom; further, the judge’s instructions made it clear that arguments of counsel were not evidence. [599-601] Lynch, L, dissenting.\nComplaints received and sworn to in the Lawrence Division of the District Court Department on September 29, 1992, October 9, 1992, and November 4, 1992, respectively.\nThe cases were tried before Michael T. Stella, Jr., J., and a motion for a new trial was heard by him.\nThe Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.\nMark J. Gillis for the defendant.\nMarcia H. Slingerland, Assistant District Attorney, for the Commonwealth.""}, ""cites_to"": [{""cite"": ""367 Mass. 921"", ""year"": 1975, ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""opinion_index"": 0}, {""cite"": ""41 Mass. App. Ct. 115"", ""year"": 1996, ""case_ids"": [1038715], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""118""}], ""case_paths"": [""/mass-app-ct/41/0115-01""], ""opinion_index"": 0}, {""cite"": ""311 U.S. 457"", ""year"": 1940, ""case_ids"": [6141572], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""page"": ""463""}], ""case_paths"": [""/us/311/0457-01""], ""opinion_index"": 0}, {""cite"": ""411 Mass. 120"", ""year"": 1991, ""case_ids"": [3897877], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""122""}], ""case_paths"": [""/mass/411/0120-01""], ""opinion_index"": 0}, {""cite"": ""405 Mass. 141"", ""year"": 1989, ""case_ids"": [3882618], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""152""}], ""case_paths"": [""/mass/405/0141-01""], ""opinion_index"": 0}, {""cite"": ""406 Mass. 736"", ""year"": 1990, ""case_ids"": [3885602], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""746""}], ""case_paths"": [""/mass/406/0736-01""], ""opinion_index"": 0}, {""cite"": ""399 Mass. 514"", ""year"": 1987, ""case_ids"": [3795275], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/399/0514-01""], ""opinion_index"": 0}, {""cite"": ""416 Mass. 445"", ""year"": 1993, ""weight"": 3, ""case_ids"": [819107], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""450""}, {""page"": ""445""}], ""case_paths"": [""/mass/416/0445-01""], ""opinion_index"": 0}, {""cite"": ""420 Mass. 375"", ""year"": 1995, ""case_ids"": [826148], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/420/0375-01""], ""opinion_index"": 0}, {""cite"": ""22 Mass. App. Ct. 984"", ""year"": 1986, ""case_ids"": [3989320], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""985""}], ""case_paths"": [""/mass-app-ct/22/0984-01""], ""opinion_index"": 0}, {""cite"": ""424 U.S. 600"", ""year"": 1976, ""case_ids"": [12027140], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""page"": ""612"", ""parenthetical"": ""Burger, C.J., concurring""}], ""case_paths"": [""/us/424/0600-01""], ""opinion_index"": 0}, {""cite"": ""400 Mass. 52"", ""year"": 1987, ""case_ids"": [880076], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""59""}], ""case_paths"": [""/mass/400/0052-01""], ""opinion_index"": 0}, {""cite"": ""369 Mass. 904"", ""year"": 1976, ""case_ids"": [309448], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""909"", ""parenthetical"": ""\""Legislature has great latitude to determine what conduct should be regarded as criminal and to prescribe penalties to vindicate the legitimate interests of society\""""}], ""case_paths"": [""/mass/369/0904-01""], ""opinion_index"": 0}, {""cite"": ""385 Mass. 91"", ""year"": 1982, ""case_ids"": [900794], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""103"", ""parenthetical"": ""\""[although the requirement of due process places some limits on legislative power to penalize innocent conduct, legislatures generally have broad power to define and limit the mens rea element of criminal offenses\""""}], ""case_paths"": [""/mass/385/0091-01""], ""opinion_index"": 0}, {""cite"": ""14 Mass. App. Ct. 358"", ""year"": 1982, ""case_ids"": [5737719], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""364""}], ""case_paths"": [""/mass-app-ct/14/0358-01""], ""opinion_index"": 0}, {""cite"": ""369 Mass. 228"", ""year"": 1975, ""case_ids"": [309652], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""234"", ""parenthetical"": ""\""clear statutory language would be needed ... to buttress an interpretation that knowledge was irrelevant\""""}], ""case_paths"": [""/mass/369/0228-01""], ""opinion_index"": 0}, {""cite"": ""361 Mass. 35"", ""year"": 1972, ""case_ids"": [3869233], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""45"", ""parenthetical"": ""Tauro, C.J., concurring""}], ""case_paths"": [""/mass/361/0035-01""], ""opinion_index"": 0}, {""cite"": ""380 Mass. 137"", ""year"": 1980, ""case_ids"": [477821], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""145""}], ""case_paths"": [""/mass/380/0137-01""], ""opinion_index"": 0}, {""cite"": ""415 Mass. 169"", ""year"": 1993, ""weight"": 2, ""case_ids"": [3907288], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""171""}, {""page"": ""171""}], ""case_paths"": [""/mass/415/0169-01""], ""opinion_index"": 0}, {""cite"": ""407 Mass. 340"", ""year"": 1990, ""case_ids"": [3886801], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""345""}], ""case_paths"": [""/mass/407/0340-01""], ""opinion_index"": 0}, {""cite"": ""396 Mass. 702"", ""year"": 1986, ""case_ids"": [898130], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""705""}], ""case_paths"": [""/mass/396/0702-01""], ""opinion_index"": 0}, {""cite"": ""399 Mass. 748"", ""year"": 1987, ""case_ids"": [3795527], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""751""}], ""case_paths"": [""/mass/399/0748-01""], ""opinion_index"": 0}, {""cite"": ""424 Mass. 87"", ""year"": 1997, ""case_ids"": [117636], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""90""}], ""case_paths"": [""/mass/424/0087-01""], ""opinion_index"": 0}, {""cite"": ""387 Mass. 644"", ""year"": 1982, ""case_ids"": [908832], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""658""}], ""case_paths"": [""/mass/387/0644-01""], ""opinion_index"": 0}, {""cite"": ""418 Mass. 207"", ""year"": 1994, ""case_ids"": [480474], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""217""}], ""case_paths"": [""/mass/418/0207-01""], ""opinion_index"": 0}, {""cite"": ""387 Mass. 25"", ""year"": 1982, ""case_ids"": [908778], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""32"", ""parenthetical"": ""\""(¡joinder may promote economy in the trial of criminal offenses, particularly when the same witnesses will testify concerning more than one offense\""""}], ""case_paths"": [""/mass/387/0025-01""], ""opinion_index"": 0}, {""cite"": ""373 Mass. 676"", ""year"": 1977, ""case_ids"": [324156], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""690""}], ""case_paths"": [""/mass/373/0676-01""], ""opinion_index"": 0}, {""cite"": ""407 Mass. 412"", ""year"": 1990, ""weight"": 2, ""case_ids"": [3886514], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""417""}, {""page"": ""416"", ""parenthetical"": ""joinder appropriate where offenses indicated scheme whereby defendant used his position of authority and trust to commit sexual crimes on female patients visiting his office""}], ""case_paths"": [""/mass/407/0412-01""], ""opinion_index"": 0}, {""cite"": ""419 Mass. 486"", ""year"": 1995, ""weight"": 3, ""case_ids"": [823702], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""494-495""}, {""page"": ""495"", ""parenthetical"": ""joinder appropriate where offenses indicated scheme whereby defendant used his position as karate teacher to induce students to engage in homosexual activity""}], ""case_paths"": [""/mass/419/0486-01""], ""opinion_index"": 0}, {""cite"": ""378 Mass. 859"", ""year"": 1979, ""weight"": 3, ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""opinion_index"": 0}, {""cite"": ""383 Mass. 659"", ""year"": 1981, ""case_ids"": [813544], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""671""}], ""case_paths"": [""/mass/383/0659-01""], ""opinion_index"": 0}, {""cite"": ""37 Mass. App. Ct. 964"", ""year"": 1994, ""case_ids"": [4018827], ""category"": ""reporters:state"", ""reporter"": ""Mass. 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+274524,"{""id"": 274524, ""name"": ""Marcia Seron Tetrault & others vs. Mahoney, Hawkes & Goldings & others"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""ce9a9eb504d0180eeebfb7c402c5d7adb067892f72eb953d2434ff29f55c1a6f"", ""simhash"": ""1:b8b20f961c04a611"", ""pagerank"": {""raw"": 0.0000014948269987329122, ""percentile"": 0.9917143818037267}, ""char_count"": 30942, ""word_count"": 5047, ""cardinality"": 1276, ""ocr_confidence"": 0.9}, ""casebody"": {""judges"": [], ""parties"": [""Marcia Seron Tetrault & others vs. Mahoney, Hawkes & Goldings & others.""], ""opinions"": [{""text"": ""Lynch, J.\nThe plaintiffs, all blood relatives of the testator, Berj H. Seron, assert four claims against Mahoney, Hawkes & Goldings (MHG), the law firm that drafted his estate planning documents, which included a will, a deed, and a trust. They allege that MHG was negligent in preparing and attending to the execution of the documents, violated G. L. c. 93A, intentionally inflicted emotional distress on the plaintiffs, and fraudulently conveyed real estate in violation of G. L. c. 109A, §§ 4, 7. In addition, the plaintiffs asserted claims alleging fraud and fraudulent conveyance against Harriet A. Seron, the testator’s wife, and Nicholas A. Anagnostis, the testator’s stepson. The plaintiffs also asserted a claim against the wife, alleging intentional infliction of emotional distress.\nOn cross motions for summary judgment, a Superior Court judge allowed the defendants’ motions for summary judgment on all counts. Thereafter, the plaintiffs appealed, and we transferred the case here on our own motion.\nDocuments properly before us. When the plaintiffs first moved for what they termed “Judgment on the Pleadings,” they submitted extensive medical records and deposition transcripts. The plaintiffs withdrew these documents when they were informed that a new rule required that summary judgment motions under Mass. R. Civ. P. 56, 365 Mass. 824 (1974), be limited to twenty pages. See Superior Court Rule 9A (b) (4). According to the plaintiffs, at the hearing on the cross motions for summary judgment, they indicated that the record was incomplete; the judge, however, refused to accept for filing the additional documents and instructed the plaintiffs to reduce the proposed filing of more than 200 pages to a more manageable amount. According to then brief, the plaintiffs had not submitted the additional documents in accordance with the instructions at the time the judge ruled on the motions for summary judgment because she had informed them that summary judgment would not be decided for approximately ninety days but instead issued her memorandum of decision and order less than one month after the hearing. The plaintiffs then submitted all of the documents originally filed along with additional documents in support of a motion to reconsider. That motion was denied, but the judge declined to rule on MHG’s motion to strike the additional documentation.\nThe plaintiffs argue that, in reviewing a grant of the summary judgment decision, the additional documents are properly before this court because the request to file the documents and the instruction by the judge below should be deemed to constitute a motion and order pursuant to Mass. R. Civ. P. 56 (f). Rule 56 (f) provides that parties objecting to the timing of summary judgment file an affidavit explaining that, “for reasons stated [they could not] present by affidavit facts essential to justify [their] opposition” to a summary judgment motion and request a continuance to complete discovery. See Commonwealth v. Fall River Motor Sales, Inc., 409 Mass. 302, 307 (1991); Aronson v. Commonwealth, 401 Mass. 244, 255 (1987), cert, denied, 488 U.S. 818 (1988); Godbout v. Cousens, 396 Mass. 254, 262 n.ll (1985). Here, the plaintiffs did not rely on rule 56 (f), and despite their argument to the contrary, we fail to see how the request to file additional documents and the instruction by the judge constitute a motion and order under rule 56 (f). Cf. Aronson v. Commonwealth, supra at 254-255 (where affidavit was insufficient, court cannot conclude that judge abused discretion in denying plaintiff opportunity to obtain further discovery). Thus, their failure to file the requisite affidavit is fatal. See First Nat’l Bank v. Slade, 379 Mass. 243, 244-245 (1979); Fidelity Mgt. & Research Co. v. Ostrander, 40 Mass. App. Ct. 195, 201 (1996); Atlas Tack Corp. v. DiMasi, 37 Mass. App. Ct. 66, 67 n.2 (1994). Indeed, contrary to the plaintiffs’ assertion, even if the judge considered their request a rule 56 (f) motion for a continuance, her issuance of the summary judgment order prior to receiving any additional documents would suggest that the motion was denied. Moreover, the plaintiffs cannot point to anything in the record to support their claim that they were led to believe that disposition of the motion would take at least ninety days. Finally, we note that, in any event, if the judge did request that the plaintiffs reduce the filing to a more manageable amount of documents, the plaintiffs failed to do so, and merely resubmitted with the motion for reconsideration the 200 pages of documents that were previously rejected by the judge. In these circumstances, we shall not allow the plaintiffs, whose summary judgment motion was denied reconsideration accompanied by additional documentation, to rely on and to cite to the additional documentation while appealing from the grant of summary judgment. Thus, MHG’s motion to strike these additional documents filed in the Appeals Court is allowed and we do not consider these additional documents in reviewing the grant of summary judgment. See note 4, supra.\nFacts. In order for their motions for summary judgment to be upheld, the defendants must establish that there are no genuine issues of material fact, Mass. R. Civ. R 56 (c); Golub v. Milpo, Inc., 402 Mass. 397, 400 (1988), and that they are entitled to judgment as a matter of law. Madsen v. Erwin, 395 Mass. 715, 719 (1985). “[The] party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates . . . that the party opposing the motion has no reasonable expectation of proving an essential element of that party’s case.” Symmons v. O’Keeffe, 419 Mass. 288, 293 (1995), quoting Wheatley v. American Tel. & Tel. Co., 418 Mass. 394, 397 (1994).\nViewed in the plaintiffs’ favor, the summary judgment record before the judge reveals the following facts. The testator’s estate plan consisted of a deed, a will, and an inter vivos trust. These documents were drawn up by MHG, who was hired by the stepson to prepare an estate plan for his stepfather, Berj H. Serón (testator). At the stepson’s request an attorney at MHG prepared a deed that was signed and delivered transferring the testator’s residence to the testator and his wife, as tenants by the entirety. MHG also drafted a will which provided that the wife was to receive all of the testator’s personal property with the exception of cash, stocks, and bonds. The cash, stocks, and bonds were bequeathed by the residuary clause to the wife (50%) and Simone Tetrault, the testator’s granddaughter (50%). The testator then reviewed the documents, and decided to leave certain “investment” artwork to his granddaughter. The attorney then advised the stepson that an inter vivos trust would accomplish the testator’s intention; he drafted a trust agreement for the Berj H. Serón Revocable Trust (trust). The will made the trust a beneficiary of 50% of the testator’s residuary estate and the 50% bequest to his granddaughter was eliminated. The stepson also told the testator to prepare a list of art pieces he wished to give to the trust.\nThe testator again reviewed the deed, will, and trust; he revised the trust to designate his daughter Marcia Serón Tetrault and granddaughter each as 50% income beneficiaries of the trust. After these revisions were made by the attorney, the testator signed the deed, will, and trust in the presence of two witnesses and a notary public. At this time, he changed the will by writing in that Rose A. Serón and Nuart J. Liz, his two sisters, were each to receive a 5% interest in the residue of his estate; the trust’s portion of the residuary estate was reduced to 40%. The wife’s portion of the residuary estate remained at 50%. The testator executed the will but, because he forgot to sign a page, he reexecuted the will the next day at the attorney’s direction.\nBecause the testator died on September 2, 1990, without preparing the list of investment artwork to go into the trust, it was largely unfunded at the time of his death. On November 28, 1990, the Essex Division of the Probate and Family Court Department allowed the testator’s will with the interlineations that gave each of the testator’s sisters a 5% interest in the residuary portion of the estate. The testator’s daughter assented to the probate of the will.\nThe negligence claim. The plaintiffs contend that MHG owed a duty of care to them arising from the fact that they were intended beneficiaries of the testator, and thus the duty to the testator also extended to them. The plaintiffs allege that MHG had a duty to ascertain the extent of the testator’s assets and the form in which they were held, to advise the testator that the practical effect of his estate plan was that his child, grandchild, and sisters would receive nothing, and to ascertain whether that was, in fact, the testator’s intent. We need not decide whether such a duty exists because a review of the documents submitted by MHG in support of its summary judgment motion shows there is no genuine issue of material fact regarding the testator’s intent.\nMHG submitted affidavits from both the wife and the stepson in which they averred that the stepson was acting in accordance with the testator’s intentions when he had MHG draft the deed and will and that the testator intended his wife to receive the marital residence. In response the plaintiffs have produced nothing to contest these affidavits with respect to the testator’s intent. The will, the deed, and the trust document do not support their claims. Contrast Simpson v. Calivas, 139 N.H. 1, 4-7 (1994) (in concluding that court in negligence action would look beyond four comers of will to ascertain testator’s intent, it was clear that notes of meeting between testator and defendant lawyer supported plaintiff’s claim that testator intended to leave all his land to plaintiff). Indeed, the materials submitted by the plaintiffs support the conclusion that the residence was previously in the testator’s name only and another home was in the wife’s name only. It is also undisputed that shortly before his death, the testator’s wife of twenty-seven years asked the testator to transfer their joint residence to them both, as tenants by the entirety. There is no suggestion, however, in any of the summary judgment submissions that the testator told any of the plaintiffs that his residence would be left to the testator’s daughter, granddaughter, or sisters, nor is there any indication regarding how the plaintiffs would make a showing that the testator intended to make some disposition of his property contrary to that expressed in the instruments. Thus on the one hand we have a properly executed deed granting a survivorship interest in the marital home to a long-term spouse, coupled with uncontested affidavits that this disposition was in accord with the testator’s intent and that the spouse had contributed approximately 37% of the original purchase price. On the other hand we have the mere assertion by the party with the burden of proof that the testator would have made some other disposition of the property (we know not what) if he had been told by his lawyers that the house was his principal asset. In these circumstances the defendants have sufficiently demonstrated by materials unmet by countervailing materials that the plaintiffs have no reasonable expectation of proving their case. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).\nOur conclusion does not mean that we approve of the professional conduct of the lawyers in this case. To fail to meet with a client for whom one is drafting a will is certainly poor professional practice for “[a]n attorney owes to a client, or a potential client, for whom the drafting of a will is contemplated, a duty to be reasonably alert to indications that the client is incompetent or is subject to undue influence and, where indicated, to make reasonable inquiry and a reasonable determination in that regard.” Logotheti v. Gordon, 414 Mass. 308, 311 (1993). See SJ.C. Rule 3:07, Canon 5, as appearing in 382 Mass. 779 (1981) (“[a] lawyer should exercise independent professional judgment in behalf of a client”), and S.J.C. Rule 3:07, Canon 6, DR 6-101 (A) (2), as appearing in 382 Mass. 783 (1981) (lawyer shall “not handle a legal matter without preparation adequate in the circumstances”).\nThe G. L. c. 93A claims. The plaintiffs also argue that the judge erred in allowing MHG’s motion for summary judgment on their G. L. c. 93A claims. The plaintiffs contend that, because no attorney from MHG ever met with the testator or determined the extent of the testator’s assets and the attorneys relied exclusively on the stepson’s representations concerning the testator’s desires, the preparation of an estate plan, which taken as a whole purported to but did not actually represent the testator’s testamentary intent, amounts to misrepresenting a material fact and constitutes a violation of G. L. c. 93A. In addition, the plaintiffs argue that G. L. c. 93A also was violated because MHG deceived them by purporting to represent the interests of the testator when in fact it was representing the interests of the wife and the stepson. We conclude, however, that the judge was correct in allowing MHG’s summary judgment motion on the c. 93A claim.\nWe have indicated that the proper party to assert a c. 93A claim against an attorney is a client or someone acting on a client’s behalf. Schaeffer v. Cohen, Rosenthal, Price, Mirkin, Jennings & Berg, P.C., 405 Mass. 506, 514 (1989). See Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 527, cert denied, 493 U.S. 894 (1989). Furthermore, for an attorney to be hable under G. L. c. 93A outside the attorney-client relationship, he or she must have been acting in a business context. First Enters., Ltd. v. Cooper, ante 344, 347 (1997). We conclude that the attorney was not engaged in trade or commerce with the plaintiffs and, therefore, there can be no recovery under c. 93A. See Logotheti v. Gordon, supra at 312.\nFraud. The plaintiffs also allege fraud against the wife and the stepson. There were no separate counts alleging undue influence or breach of confidential relationships against the wife or the stepson. Within the count alleging fraud against the wife, however, were various allegations that she was in a confidential relationship with the testator and unduly influenced him to deed his home as joint tenants. Similarly, within the count alleging fraud against the stepson, the plaintiffs alleged that the stepson, who was a trustee, was in a confidential or fiduciary relationship with the testator yet induced the testator to sign the estate planning documents through “fraudulent actions” solely to further the interests of the wife. The plaintiffs further argue that the stepson was in breach of a duty to disclose to the testator that the effect of his estate plan, in particular the conveyance of the real estate, would be to disinherit his blood relatives. In addition the plaintiffs allege that the stepson has failed to carry out his duties as trustee. Moreover, the plaintiffs argue that the complaint can be fairly read to include an allegation that the stepson unduly influenced the testator. Thus, we treat the complaint as alleging fraud based on undue influence, and the judge apparently did the same. See Mass. R. Civ. P. 8 (f), 365 Mass. 749 (1974) (“[a]ll pleadings shall be so construed as to do substantial justice”). We consider these allegations solely with respect to the deed signed by the testator, for the will has been probated. As such the will is “established] . . . against the world.” Finer v. Steuer, 255 Mass. 611, 616 (1926), quoting Bonnemort v. Gill, 167 Mass. 338, 340 (1897).\nIn order adequately to establish a claim for fraud based on undue influence, a plaintiff must establish that the defendant overcame the will of the grantor. See Corrigan v. O’Brien, 353 Mass. 341, 350 (1967); O’Brien v. Collins, 315 Mass. 429, 437 (1944); Neill v. Brackett, 234 Mass. 367, 369 (1920). Undue influence involves some form of compulsion which coerces a person into doing something the person does not want to do. Four considerations are usually present in such a case. These involve showings “that an (1) unnatural disposition has been made (2) by a person susceptible to undue influence to the advantage of someone (3) with an opportunity to exercise undue influence and (4) who in fact has used that opportunity to procure the contested disposition through improper means.” Heinrich v. Silvenail, 23 Mass. App. Ct. 218, 223 (1986), citing Neill v. Brackett, supra.\nIn the instant case, the plaintiffs rely on a portion of a deposition of Dr. Mortimer Greenberg, who treated the testator while he was hospitalized and witnessed his signing of the will and other documents. The deposition, however, does not support the plaintiffs’ claim that the testator was subject to undue influence. Although the portion of the deposition relied on by the plaintiffs might be regarded as ambiguous regarding the testator’s mental state at the time he signed the documents, in other portions of his deposition before the judge Dr. Greenberg stated that at the time around August 8, the testator was not suffering from senile dementia and in response to a question regarding whether the testator “was capable of having conversations with you about his illness and his longevity and what kind of measures he wanted you to take,” answered, “Yes.” Thus, the wife and the stepson, by reference to material authorized by Mass. R. Civ. R 56 (c), unmet by countervailing materials, established that the nonmoving party, who will bear the burden of proof at trial, had no reasonable expectation of proving an essential element of their case. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). Moreover, while it is true that where a confidential relationship exists it generally takes less to establish undue influence on the part of beneficiaries, or in this case, grantees, Heinrich v. Silvenail, supra at 225, citing Doggett v. Morse, 299 Mass. 383, 389 (1938), where there is no genuine issue of material fact regarding the testator’s being subject to undue influence, the judge was correct in allowing the summary judgment motion of the wife and stepson.,\nIntentional infliction of emotional distress. The plaintiffs asserted claims against the wife and MHG, alleging that “the [pjlaintiffs experienced severe, deep, and lasting emotional distress in confronting the realization that they were the intended beneficiaries of [the testator]” but that his wishes were not carried out because of the intentional actions of both MHG and the wife.\nTo prevail on their claim for intentional infliction of emotional distress, the plaintiffs must establish “(1) that the defendant intended to inflict emotional distress, or knew or should have known that emotional distress was the likely result of his conduct, ... (2) that the defendant’s conduct was extreme and outrageous, beyond all possible bounds of decency and utterly intolerable in a civilized community, (3) the actions of the defendant were the cause of the plaintiff’s distress, and (4) the emotional distress suffered by the plaintiff was severe and of such a nature that no reasonable person could be expected to endure it.” Payton v. Abbott Labs, 386 Mass. 540, 555 (1982), citing Agis v. Howard Johnson Co., 371 Mass. 140, 145 (1976). Liability cannot be predicated on “ ‘mere insults, indignities, threats, annoyances, petty oppressions or other trivialities’ ” nor even is it enough “ ‘that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.’ ” Foley v. Polaroid Corp., 400 Mass. 82, 99 (1987), quoting Restatement (Second) of Torts § 46 comment d (1965).\nEven putting as harsh a face on the actions of MHG and the wife as the facts alleged would reasonably allow, no reasonable jury could conclude that they engaged in conduct that would satisfy the elements necessary to prevail on a claim of intentional infliction of emotional distress. Indeed, contrary to the plaintiffs’ position, evidence that the wife, who had a strained relationship with her husband’s family, asked her husband of twenty-seven years to put his home in both of their names shortly before he died does not constitute extreme or outrageous conduct. See Beecy v. Pucciarelli, 387 Mass. 589, 596 (1982) (claim alleging intentional infliction of emotional distress properly dismissed where defendant’s conduct could not be characterized as extreme and outrageous); Richey v. American Automobile Ass’n, 380 Mass. 835, 839 (1980) (even if trier of fact inferred that plaintiff’s supervisor made a bad, unjust, and unkind decision to fire employee who was “tightly strung,” plaintiff still failed to make out a plausible case of “outrage”). Compare the facts of this case with those of Simon v. Solomon, 385 Mass. 91, 95, 97 (1982) (persistent failure by landlord to relieve flooding problem which resulted in water and sewage entering tenant’s apartment); Boyle v. Wenk, 378 Mass. 592 (1979) (persistent misconduct by private investigator); Agis v. Howard Johnson Co., supra at 144-145 (public humiliation).\nWith respect to the plaintiffs’ claim against MHG alleging intentional infliction of emotional distress, the affidavit of the attorney from MHG who prepared the documents for the testator makes clear that he at all times believed he was acting consistently with the testator’s intent and the plaintiffs have produced nothing to the contrary. Thus, while summary judgment on a matter dealing with intent requires great circumspection, there must be some indication that a plaintiff, who will bear the burden at trial, can produce the requisite quantum of evidence to enable it to reach a jury with its claim. A. John Cohen Ins. Agency, Inc. v. Middlesex Ins. Co., 8 Mass. App. Ct. 178,183 (1979). Where as here the plaintiffs have not responded to the defendants’ evidence with any countervailing evidence that would indicate there is a genuine issue of material fact with respect to the intent of the attorney from MHG, summary judgment was appropriate. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). The judge was correct in allowing the motion for summary judgment of MHG and the wife.\nSummary judgment in favor of the defendants is affirmed.\nSo ordered.\nThe judge properly determined that what was really before her was a motion for summary judgment pursuant to Mass. R. Civ. P. 56, 365 Mass. 824 (1974), and proceeded accordingly.\nThe plaintiffs, in pursuing tins appeal, then sought to include in the appendix to their brief the documents that had been attached to their motion to reconsider. MHG moved before a single justice of the Appeals Court to exclude these documents from the appendix, and the single justice referred the matter to the panel designated to hear the appeal.\nWe note that two of the plaintiffs, Marcia Seron Tetrault and Simone Tetrault, were not direct beneficiaries of the will. Rather, they were the beneficiaries of the trust which under the terms of the testator’s will was to receive 40% of his residuary estate.\nThe executor’s first amended account shows probate assets of $149,881.\nWe note that, where a claim that an individual’s free agency has been destroyed, the issue can be expressed in terms of fraud or undue influence; where, as here, the complaint establishes with sufficient particularity that the plaintiffs’ “expected evidence relates only to influence exerted through coercion rather than through deception — ‘fraud’ in the stricter sense.” Mirick v. Phelps, 297 Mass. 250, 252 (1937). See Mass. R. Civ. P. 9 (b), 365 Mass. 751 (1974). Fraud, in the sense of deceit, however, is a separate cause of action, Wellman v. Carter, 286 Mass. 237, 252-253 (1934); and where no such averments have been pleaded with any particularity, we need not consider the allegations in the plaintiffs’ brief that, given the stepson’s role in the testator’s estate planning and the ultimate disposition of the estate, a jury could conclude that he misled the testator as to how his estate would pass and the testator therefore signed the documents of his own free will but “affected by a false representation of fact.” Wellman v. Carter, supra at 253. See Mass. R. Civ. R 9 (b) (fraud must be pleaded with particularity).\nWe note also that the plaintiffs do not appear to challenge the validity of the trust documents.\nIn the portion of the depostion submitted by the plaintiffs in support of their motion for summary judgment, Dr. Greenberg stated that “when [the testator] had an infection and fever on admission” he was “disoriented.” According to Dr. Greenberg, this disorientation was a result of the untreated infection. Dr. Greenberg also stated that the testator’s mental status “waxed and waned” during the testator’s hospitalization but that the testator’s mental status related to times when he had a high fever. The testator was, however, “as oriented as most hospital patients are after he received treatment for the infection.” According to Dr. Greenberg, when lucid, the testator “seemed to be appropriate” for “purposes of explaining things to him for discussing his hospitalization and his illness.”\nWe note also that the deposition of Vincent Costa, the second witness to the signing of the documents, that he had a “feeling” that the testator did not know he was signing a will and deed at the time but that he “could be wrong” does not advance the plaintiffs’ allegation such that a genuine issue of material fact is created. See Heinrich v. Silvenail, 23 Mass. App. Ct. 218, 229 (1986), quoting Neill v. Brackett, 234 Mass. 367, 370 (1920) (“Suspicion ... no matter how strong, will not warrant a finding of undue influence. . . . ‘There must be a solid foundation of established facts upon which to rest an inference of its existence’ ”). See Popko v. Janik, 341 Mass. 212, 215 (1960); O’Brien v. Collins, 315 Mass. 429, 437 (1944).\nWe note also that there was no allegation that would support an inference that the testator’s disposition of his assets was unnatural. Indeed, including the wife’s name on the deed did not constitute a disposition that ignores the natural objects of the decedent’s bounty where the wife and the testator had been married for twenty-seven years. See Heinrich v. Silvenail, supra at 224 (mere fact that decedent chose to leave property to friend rather than relative does not render disposition unnatural). Contrast Popko v. Janik, supra (finding of undue influence where testator’s will left little to his nephew, who was during testator’s lifetime like “foster son” to him and principal object of his “bounty and affection” and instead gave home to housekeeper). Contrary to the plaintiffs’ assertions, the disposition is not made unnatural merely by showing that the wife and the testator kept separate finances.\nIn their notice of appeal, the plaintiffs stated that they also wished to appeal from the decision granting summary judgment to MHG, the stepson, and the wife on the count alleging fraudulent conveyance of real estate in violation of G. L. c. 109A, §§ 4, 7. The plaintiffs, however, have not briefed this issue, nor have they briefed their appeal from the denial of the motion to reconsider other than to argue that all the documents brought with the motion to reconsider are properly before this court. Therefore, these arguments are deemed waived. See Mass. R. A. R 16 (a) (4), as amended, 367 Mass. 921 (1975)."", ""type"": ""majority"", ""author"": ""Lynch, J.""}], ""attorneys"": [""Marc P. Frey for Rose A. Seron & another."", ""Deborah McWade for Simone Tetrault."", ""Timothy W. Demakis for Marcia Seron Tetrault."", ""Harvey Weiner (George C. Rodeas with him) for Mahoney, Hawkes & Goldings."", ""Thomas J. Barrett for Nicholas A. Anagnostis & another.""], ""corrections"": """", ""head_matter"": ""Marcia Seron Tetrault & others vs. Mahoney, Hawkes & Goldings & others.\nEssex.\nDecember 2, 1996. -\nJuly 16, 1997.\nPresent: Wilkins, C.J., Abrams, Lynch, O’Connor, & Greaney, JJ.\nPractice, Civil, Summary judgment. Negligence, Attorney at law. Attorney at Law, Attorney-client relationship, Negligence. Consumer Protection Act, Availability of remedy, Trade or commerce. Fraud. Emotional Distress. Will, Execution, Undue influence.\nThis court allowed a party’s motion to strike from the appellate record on appeal certain documents that were not considered by the judge below on cross motions for summary judgment and that were, in any event, never properly submitted for consideration. [457-459]\nOn a negligence claim brought by beneficiaries under a will and under a testamentary trust against the testator’s attorneys, summary judgment was correctly entered in favor of the defendant law firm, where, on the materials submitted, there was no genuine issue of material fact regarding the testator’s intentions in drafting his will, a deed to real property, and a trust document; thus the plaintiffs had no reasonable expectation of proving that the testator intended to make some other disposition of his property. [460-462]\nIn a G. L. c. 93A claim brought by beneficiaries under a will and under a testamentary trust against the testator’s attorneys, the judge correctly entered summary judgment for the defendants, where the law firm had not engaged in trade or commerce with the plaintiffs. [462-463]\nOn a claim alleging fraud based on undue influence in the drafting and execution of a deed, where there was no issue of material fact with regard to the grantor’s susceptibility to undue influence, the plaintiffs had no reasonable expectation of proving that element of their case, and the judge correctly allowed the defendants’ motion for summary judgment. [463-465]\nOn claims by disappointed beneficiaries under a will and a testamentary trust, alleging intentional infliction of emotional distress by the testator’s spouse and attorneys, the judge correctly allowed the defendants’ motion for summary judgment, where no reasonable view of the facts alleged by the plaintiffs would warrant the conclusion that the defendants had engaged in conduct that would satisfy the elements necessary to prevail and where, with respect to the law firm, there was no genuine issue of material fact with respect to the intent of the attorney in question. [465-467]\nCivil action commenced in the Superior Court Department on July 26, 1993.\nThe case was heard by Elizabeth B. Donovan, J., on motions for summary judgment.\nThe Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.\nMarc P. Frey for Rose A. Seron & another.\nDeborah McWade for Simone Tetrault.\nTimothy W. Demakis for Marcia Seron Tetrault.\nHarvey Weiner (George C. Rodeas with him) for Mahoney, Hawkes & Goldings.\nThomas J. Barrett for Nicholas A. Anagnostis & another.\nSimone Tetrault, Rose A. Seron, and Nuart J. Liz.\nHarriet A. Seron and Nicholas A. Anagnostis.""}, ""cites_to"": [{""cite"": ""367 Mass. 921"", ""year"": 1975, ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""opinion_index"": 0}, {""cite"": ""341 Mass. 212"", ""year"": 1960, ""weight"": 2, ""case_ids"": [3852725], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""215""}, {""parenthetical"": ""finding of undue influence where testator's will left little to his nephew, who was during testator's lifetime like \""foster son\"" to him and principal object of his \""bounty and affection\"" and instead gave home to housekeeper""}], ""case_paths"": [""/mass/341/0212-01""], ""opinion_index"": 0}, {""cite"": ""286 Mass. 237"", ""year"": 1934, ""weight"": 2, ""case_ids"": [922996], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""252-253""}, {""page"": ""253""}], ""case_paths"": [""/mass/286/0237-01""], ""opinion_index"": 0}, {""cite"": ""365 Mass. 751"", ""year"": 1974, ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""opinion_index"": 0}, {""cite"": ""297 Mass. 250"", ""year"": 1937, ""case_ids"": [886336], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""252""}], ""case_paths"": [""/mass/297/0250-01""], ""opinion_index"": 0}, {""cite"": ""8 Mass. App. Ct. 178"", ""year"": 1979, ""case_ids"": [3957879], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""183""}], ""case_paths"": [""/mass-app-ct/8/0178-01""], ""opinion_index"": 0}, {""cite"": ""378 Mass. 592"", ""year"": 1979, ""case_ids"": [337434], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""parenthetical"": ""persistent misconduct by private investigator""}], ""case_paths"": [""/mass/378/0592-01""], ""opinion_index"": 0}, {""cite"": ""385 Mass. 91"", ""year"": 1982, ""case_ids"": [900794], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""95, 97"", ""parenthetical"": ""persistent failure by landlord to relieve flooding problem which resulted in water and sewage entering tenant's apartment""}], ""case_paths"": [""/mass/385/0091-01""], ""opinion_index"": 0}, {""cite"": ""380 Mass. 835"", ""year"": 1980, ""case_ids"": [478932], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""839"", ""parenthetical"": ""even if trier of fact inferred that plaintiff's supervisor made a bad, unjust, and unkind decision to fire employee who was \""tightly strung,\"" plaintiff still failed to make out a plausible case of \""outrage\""""}], ""case_paths"": [""/mass/380/0835-01""], ""opinion_index"": 0}, {""cite"": ""387 Mass. 589"", ""year"": 1982, ""case_ids"": [908898], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""596"", ""parenthetical"": ""claim alleging intentional infliction of emotional distress properly dismissed where defendant's conduct could not be characterized as extreme and outrageous""}], ""case_paths"": [""/mass/387/0589-01""], ""opinion_index"": 0}, {""cite"": ""400 Mass. 82"", ""year"": 1987, ""case_ids"": [880054], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""99""}], ""case_paths"": [""/mass/400/0082-01""], ""opinion_index"": 0}, {""cite"": ""371 Mass. 140"", ""year"": 1976, ""case_ids"": [320403], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""145""}], ""case_paths"": [""/mass/371/0140-01""], ""opinion_index"": 0}, {""cite"": ""386 Mass. 540"", ""year"": 1982, ""case_ids"": [906571], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""555""}], ""case_paths"": [""/mass/386/0540-01""], ""opinion_index"": 0}, {""cite"": ""299 Mass. 383"", ""year"": 1938, ""case_ids"": [12254713], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""389""}], ""case_paths"": [""/mass/299/0383-01""], ""opinion_index"": 0}, {""cite"": ""23 Mass. App. Ct. 218"", ""year"": 1986, ""weight"": 4, ""case_ids"": [3991281], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""223""}, {""page"": ""225""}, {""page"": ""229""}, {""page"": ""224"", ""parenthetical"": ""mere fact that decedent chose to leave property to friend rather than relative does not render disposition unnatural""}], ""case_paths"": [""/mass-app-ct/23/0218-01""], ""opinion_index"": 0}, {""cite"": ""234 Mass. 367"", ""year"": 1920, ""weight"": 3, ""case_ids"": [63697], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""369""}, {""page"": ""370"", ""parenthetical"": ""\""Suspicion ... no matter how strong, will not warrant a finding of undue influence. . . . 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+274567,"{""id"": 274567, ""name"": ""Commonwealth vs. James R. Cyr, Jr"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""99fe1f728eedda55391eb49b66934f0d144bd558e54d5691cbfcab727a39d586"", ""simhash"": ""1:87c6eae8192ac1ad"", ""pagerank"": {""raw"": 0.0000002350952923995618, ""percentile"": 0.7932213422481388}, ""char_count"": 22615, ""word_count"": 3658, ""cardinality"": 1033, ""ocr_confidence"": 0.9}, ""casebody"": {""judges"": [], ""parties"": [""Commonwealth vs. James R. Cyr, Jr.""], ""opinions"": [{""text"": ""Abrams, J.\nAfter trial by jury, James R. Cyr, Jr., was convicted of murder in the first degree by reason of deliberate premeditation and of arson. On appeal, the defendant argues that the judge’s evidentiary rulings on the victim’s state of mind were erroneous. The defendant asserts that the erroneously admitted evidence was unfairly prejudicial and undermined his defense. Therefore, the defendant concludes a new trial is required on his conviction of murder in the first degree. We agree. We reverse and remand for a new trial on the indictment charging murder.\nFacts. We summarize the evidence viewed in the light most favorable to the Commonwealth. Commonwealth v. Salemme, 395 Mass. 594, 595 (1985). Tara Hartnett and the defendant met while attending college at the University of Massachusetts at Amherst. In April, 1992, during her junior year, Hartnett gave birth to the defendant’s daughter. During the pregnancy, Hartnett and the defendant had agreed that adoption was in the best interest of the child. They met with a nurse counsellor at Children’s Aid and Family Services in Northampton, to plan for the adoption placement. The nurse counsellor met with Hartnett and the defendant several times during the course of the pregnancy and after the child’s birth. She said that there was increasing tension and discord in the relationship between Hartnett and the defendant as to the child’s future.\nAfter the child was born, the defendant decided that he wanted to keep the child himself with some help from his parents. Hartnett still believed that adoption was in the child’s best interest. Eventually, Hartnett and the defendant decided against adoption. They agreed to have the child live at the defendant’s parents’ home in Amherst. Hartnett could see the child every day and help raise her.\nOn February 13, 1993, Hartnett and the defendant had a violent altercation which precipitated a series of legal proceedings in the District Court. Each sought a protective order against the other. A hearing on the orders was held in the Northampton Division of the District Court Department. The court issued the orders requested by both parties. A friend of Hartnett was designated the go-between. The go-between’s tasks included picking up the child at the defendant’s house for visits with Hartnett. Hartnett filed a petition with the Hampshire County Division of the Probate and Family Court, seeking to gain custody of the child. She also filed a criminal complaint against the defendant.\nOn March 19, 1993, there was a Probate Court hearing. Pending further probate custody proceedings, the child continued to live with the defendant and his parents. On the evening of March 20, 1993, Sunderland police and fire personnel were summoned to a fire at Hartnett’s house. These officials recovered Hartnett’s body from the burnt house.\nHartnett’s body had several stab wounds and extensive third degree burns. Forensic testing revealed that Hartnett had been stabbed eight times, but was alive at the time of the fire. The police discovered blood in almost every room of the house. They recovered a bloody knife. The police also observed a fresh trail of footprints and blood leading away from the house, and an identical set of footprints, absent the blood, leading toward the house. Next to the footprints leading toward the house, they found an impression in the snow, the dimensions of which matched that of a gasoline can found melted on the floor of the burned home. Hartnett’s housemates said that they had never seen the knife in their home.\nThat same evening, the defendant sought medical treatment at the emergency room of Cooley Dickinson Hospital. His hands were cut and bloody, he smelled of smoke and had singed hair. The defendant told the hospital personnel, and later the police, that he had burned his head on the stove while making coffee and that someone had attacked him with a knife while he was in his car.\nThe defendant admitted that he and Hartnett often argued and screamed at each other, especially about parenting. The defendant also testified that, on February 13, he and Hartnett got into an escalating argument over the child. They “shoved each other.” He then “pushed her away from” him into a closet. He grabbed the telephone out of her hands as she tried to call the police. He refused to let her take the child out because she was too upset.\nThe defendant said that, on the evening of March 20, he drove to Hartnett’s house. To avoid detection and arrest for violation of the protective order, he parked his car on a nearby road and walked through the woods to Hartnett’s house. The defendant said that, although Hartnett tried to close the door on him, he stuck his foot in the door and forced his way into her house. Hartnett ran away from him.\nThe defendant said that Hartnett grabbed a knife from the kitchen. She cut his hand. The defendant then hit her, knocked her down, grabbed the knife, and “attacked her with it.” The knife slipped and he felt his fingers go numb. The defendant said that he realized that he had just partially severed his fingers and that “drove [him] on even more, more.” He said that Hartnett tried to run from him, but he followed her from room to room. Hartnett eventually collapsed on the floor, and stopped moving. Thinking she was already dead, the defendant ran from the house.\nThe defendant said that he was bleeding heavily. As he was running away over snowbanks by the garage, he looked in the open door and saw a can of gasoline. He decided to bum the house because he knew there was blood everywhere. He spilled the gasoline in various rooms and searched the house for matches. He found matches but he had difficulty striking them due to his injured hand. He finally ignited the gasoline. The back of his head was burned as he fled through the breezeway door. He admitted that the blood and footprints leading away from the house were his. However, he denied that the footprints (with the nearby impression matching the dimensions of the gas can) which led to the house were his. He went home and asked his father to bring him to the hospital. He admitted lying to the doctor and the police about how he was injured.\nOn rebuttal, two police officers testified that, when they arrived at Hartnett’s house on the evening of March 20, the garage doors were closed. One officer also testified that he had examined the breezeway door and the snowbanks in front of the garage door, and that he had found no blood or footprints there.\nA. Hearsay. The defendant asserts that the judge’s evidentiary mlings on Hartnett’s state of mind were erroneous and prejudicial. He claims that the judge admitted Hartnett’s hearsay statements concerning her fear of the defendant and his prior misconduct. The defendant contends that that hearsay evidence undermined his defense of what he calls provocation or lack of malicious intent.\nGenerally, a deceased’s expressions of fear of the defendant are not relevant to or probative of the defendant’s motive. See Commonwealth v. DelValle, 351 Mass. 489, 493 (1966) (evidence of threats held immaterial as demonstrative “only [of] a state of fear on the part of the deceased,” and therefore inadmissible hearsay); Commonwealth v. Williams, 30 Mass. App. Ct. 543, 548 (1991) (victim’s statement that she feared the defendant was inadmissible hearsay); Commonwealth v. Bond, 17 Mass. App. Ct. 396, 399 (1984) (victim’s statements recounting threats by defendant and expressing fear of defendant inadmissible hearsay). The judge, despite this general rule, permitted witnesses to testify as to Hartnett’s statements to show the relationship between the parties.\nA friend of Hartnett said that Hartnett told her: “[S]he was afraid for [the child’s] safety as well as her own because of [the defendant’s] personality and his violence.” Over defense counsel’s objection, the judge ruled that this statement was admissible “to show the relationship that was existing between the parties and what was going on between them, the general tenor of their behavior, one to the other.” The nurse counsellor said that, during a telephone conversation, Hartnett had told her: “If [the defendant] would hit his mother and he would hit me, what will he do to [the child] in the future. So I don’t want him to raise [the child].” The nurse counsellor said that she told Hartnett that “she had a right to feel safe, and that she had a right to make sure her child was safe.” The nurse counsellor also said that, during another telephone conversation, Hartnett told her: “I’m afraid of [the defendant] and I don’t want him anywhere near me, and I wouldn’t drop the [protective] order.”\nWe conclude that the admission of the extrajudicial hearsay statements of Hartnett as to her fear of the defendant was erroneous and prejudicial. The hearsay statements undermined the defendant’s defense. See, e.g., Commonwealth v. Andrade, 422 Mass. 236, 239 (1996). The hearsay testimony of Hart-nett’s statements invited the jurors to base their decision on the degree of the defendant’s culpability (the only issue in the case) on inadmissible hearsay. See DelValle, supra at 492-493; Bond, supra at 399.\nThe Commonwealth argues that the extrajudicial statements were admissible because Hartnett’s state of mind was known to the defendant and relevant to his motive for killing her. See Commonwealth v. Lowe, 391 Mass. 97, 106, cert, denied, 469 U.S. 840 (1984); Commonwealth v. Borodine, 371 Mass. 1, 7-8 (1976), cert, denied, 429 U.S. 1049 (1977). See also Bond, supra at 398 (“[t]he state of mind exception ... allows the admission of extrajudicial statements to show the state of mind of the declarant if it is relevant to a material issue in the case”). Contrary to the Commonwealth’s claim, Hartnett’s fear of the defendant was not relevant, particularly where the only issue was the defendant’s degree of culpability.\nThe Commonwealth next argues that the improperly admitted evidence was merely cumulative of other properly admissible evidence, and therefore its admission was nonprejudicial error. See Andrade, supra at 241-242; Lowe, supra. Evidence of Hartnett’s statements about her fear and the defendant’s violence toward his mother and perhaps his daughter should not have been admitted because the statements were hearsay. See DelValle, supra at 495; Williams, supra at 548; Bond, supra at 399. There was no other properly admitted evidence on those facts. Accordingly, the erroneously admitted evidence was not cumulative of properly admitted evidence. Contrast Andrade, supra at 240 (new trial not required where “ample other evidence of threats, acts of physical violence, marital discord, and suspicions of infidelity” rendered “the erroneously admitted evidence cumulative on the points of the defendant’s intent and his state of mind”).\nWe consider whether the improper admission of evidence weakened the defendant’s case in some significant way so as to require a retrial. See Commonwealth v. Daggett, 416 Mass. 347, 352 n.5 (1993); Commonwealth v. Schulze, 389 Mass. 735, 741 (1983). We cannot fairly say that, in considering the defendant’s intent and degree of culpability, the jurors primarily relied on properly admitted evidence to make their decision. Contrast Andrade, supra at 241.\nEvidence of Hartnett’s fear of the defendant could have been considered by the jurors in determining the defendant’s culpability as well as evidence of his violence toward his mother. We therefore conclude that the erroneous admission of the improper evidence constituted reversible error. See Commonwealth v. Stone, 321 Mass. 471, 474 (1947) (“[wjhether guilty or innocent, he was entitled to be tried in accordance with law”). “[Sjuch doubts as we entertain can only be resolved in favor of the defendant.” Commonwealth v. Welcome, 348 Mass. 68, 70 (1964).\nB. Issues likely to recur at a new trial. We turn to other issues raised on appeal which may recur on retrial.\n1. Other testimony. Several lay witnesses properly were permitted to testify as to their observations of the defendant’s relationship with Hartnett and with his daughter. See Commonwealth v. Cordle, 404 Mass. 733, 744 (1989), S.C., 412 Mass. 172 (1992); Commonwealth v. Drew, 397 Mass. 65, 79 (1986). These witnesses, however, also testified as to the defendant’s prior misconduct with Hartnett’s aunt, brother, sister, and housemates. “It is well settled that the prosecution may not introduce evidence that a defendant previously has misbehaved, indictably or not, for the purposes of showing his bad character or propensity to commit the crime charged, but such evidence may be admissible if relevant for some other purpose.” Commonwealth v. Helfant, 398 Mass. 214, 224 (1986), and cases cited. “If it is determined that the evidence of other misconduct has probative value, the trial judge in his discretion must decide if such evidence is admissible by determining whether its probative value outweighs the risk of undue prejudice.” Commonwealth v. McClendon, 39 Mass. App. Ct. 122, 128 (1995). See Commonwealth v. Triplett, 398 Mass. 561, 562-564 (1986).\n2. The Probate Court file. Over defense counsel’s objection, the Probate Court file concerning Hartnett and the defendant was admitted in evidence. Defense counsel argued that, because of the propensity for exaggeration by complainants and their attorneys, the probative value of the evidence was outweighed by its prejudicial impact. The judge ruled the documents admissible to show the relationship of the parties and the defendant’s motive. We agree that some documents are not hearsay and may come in as extrinsic evidence to show the relationship of the parties. Hearsay portions regarding Hartnett’s intent to gain custody also are admissible as known by the defendant and relevant to his motive. See Lowe, supra at 106; Borodine, supra at 7-8. However, the file should be redacted to exclude Hartnett’s hearsay statements alleging uncharged domestic violence.\n3. Medical examiner’s opinion as to the presence of defensiv wounds. Over defense counsel’s objection, the medical examiner was allowed to testify that, in his opinion, the wounds on Hartnett’s arms and hands could be characterized as defensive wounds. The defendant argues that the jurors were equally capable of assessing whether those wounds were defensive in nature, and therefore this characterization fell outside the realm of proper expert testimony and improperly invaded the province of the jury. See Simon v. Solomon, 385 Mass. 91, 105 (1982); Commonwealth v. Montmeny, 360 Mass. 526, 528-529 (1971). We conclude that there was no error of law or abuse of discretion in allowing the medical examiner to offer expert testimony as to the presence of defensive wounds. See Simon, supra (“expert testimony on matters within the witness’s field of expertise is admissible whenever it will aid the jury in reaching a decision, even if the expert’s opinion touches on the ultimate issues that the jury must decide”). The medical examiner based his opinion on his specialized training, his extensive experience in having conducted approximately 3,000 autopsies, his knowledge of the circumstances in which Hartnett was killed, and hisobservations during the autopsy of the pattern and location of the various wounds on Hartnett’s body. See Commonwealth v. Gregory, 17 Mass. App. Ct. 651, 655-656 (1984) (medical examiner’s opinion regarding defensive wounds admissible where opinion was based on reliable medical data and plausible assumptions within the expert’s professional competence). Moreover, the judge properly instructed the jury that expert opinions were given merely to assist the jury, and that the jury could accept or reject those opinions as they saw fit. See Commonwealth v. Matthews, 406 Mass. 380, 391 (1990).\n4. Prior recorded testimony. The judge permitted three witnesses who were Mends of Hartnett to recount their memory of the testimony at the prior court hearings. The defendant objected. There was no error. “The exception to the hearsay rule permits the admission of prior recorded testimony ‘where the prior testimony was given by a person, now unavailable, in a proceeding addressed to substantially the same issues as in the current proceeding, with reasonable opportunity and similar motivation on the prior occasion for cross-examination of the declarant by the party against whom the testimony is now being offered.’ Commonwealth v. Meech, 380 Mass. 490, 494 (1980).” Commonwealth v. Trigones, 397 Mass. 633, 638 (1986). See P.J. Liacos, Massachusetts Evidence § 8.7.2, at 461 (6th ed. 1994 & Supp. 1995).\n5. Manslaughter charge. Over the Commonwealth’s objection, the judge charged the jury on manslaughter. However, “ [i]t is well established that, if any view of the evidence in a case would permit a finding of manslaughter rather than murder, a manslaughter charge should be given.” Commonwealth v. Walden, 380 Mass. 724, 726 (1980), and cases cited. See Commonwealth v. Schnopps, 383 Mass. 178, 179 (1981), S.C., 390 Mass. 722 (1984) (“[i]n deciding whether the judge should have charged on manslaughter, we assume the version of the facts most favorable to the defendant”).\nThe defendant maintained that, on the evening of March 20, he was distraught over the entire situation and went to Hartnett’s house with the intention of merely talking to her. He wanted to settle their issues outside of court. He stated that he entered the house unarmed and tried to calm Hart-nett down by assuring her that he just wanted to talk. He claimed that he lost his self-control only after she swung a knife at him and cut his hand.\nWe have not spoken to whether a person in the defendant’s position (a trespasser) is entitled to a manslaughter charge in a trial for the killing of an occupant of a dwelling. An occupant of a dwelling has no duty to retreat from an unlawful intruder. G. L. c. 278, § 8A. However, at common law the degree of force an occupant of a dwelling is entitled to use against an intruder varies with the circumstances of the trespass. See generally 1 W.R. LaFave & A.W. Scott, Jr., Substantive Criminal Law § 5.9 (b), at 669-671 (1986 & Supp. 1997). If any view of the evidence supports the inference that Hartnett used excessive force in repelling the defendant, a charge on manslaughter would be appropriate. Contrast Walden, supra at 729. See 2 C. Torcia, Wharton’s Criminal Law § 159, at 359 (15th ed. 1994). See also McCoy v. State, 8 Ark. 451, 455 (1848).\nAccordingly, the judgment is reversed, the verdict is set aside, and the case is remanded for a new trial on the indictment charging murder in the first degree based on deliberate premeditation. The arson conviction is affirmed.\nSo ordered.\nThe defendant does not allege any error in the conviction of arson. That conviction is affirmed.\nThe medical examiner opined that Hartnett died primarily of smoke inhalation, with the bum injuries and the loss of blood due to the stab wounds as secondary and tertiary causes of death, respectively.\nWe do not recite the extensive forensic evidence linking the defendant to the killing as he does not deny killing Tara Hartnett. He only challenges his degree of culpability.\nA show cause hearing on Hartnett’s criminal complaint took place on March 18, 1993. Three witnesses testified as to Hartnett’s testimony regarding the February 13 incident.\nHartnett’s housemates said that they had never seen the gasoline can in the garage.\nThere was ample admissible evidence as to the tension and conflicts in the relationship between Hartnett and the defendant.\nDefense counsel did not specifically object to all the hearsay statements. However, the record indicates that the judge was on notice that defense counsel was objecting to the admission of hearsay statements made by Hart-nett.\nThe admission of this statement was egregious because there was no evidence that Hartnett ever saw the defendant strike his mother.\nOver defense counsel’s objection, the judge ruled that some of Hartnett’s statements were admissible as a “declaration of a deceased person.” This ruling was erroneous. General Laws c. 233, § 65, is inapplicable to criminal cases. See Commonwealth v. Mandeville, 386 Mass. 393, 398 n.3 (1982).\nAt trial, the Commonwealth proceeded on the theory that the defendant killed Hartnett because of her intent to seek custody of their daughter. Accordingly, extrajudicial statements which recounted the increasing conflict between Hartnett and the defendant as to their daughter and related Hart-nett’s intent to seek custody were properly admissible under the state of mind exception as relevant evidence of the defendant’s motive. See Commonwealth v. Lowe, 391 Mass. 97, 106 (1984); Commonwealth v. Borodine, 371 Mass. 1, 8 (1976).\nThe record is not clear whether tape recordings of the proceedings were available.\nThe jury rejected the Commonwealth’s claim that the murder was committed with extreme atrocity or cruelty. On retrial, that theory may not be submitted to the jury."", ""type"": ""majority"", ""author"": ""Abrams, J.""}], ""attorneys"": [""David P. Hoose (Judith Wideman with him) for the defendant."", ""Judith Ellen Pietras, Assistant District Attorney, for the Commonwealth.""], ""corrections"": """", ""head_matter"": ""Commonwealth vs. James R. Cyr, Jr.\nFranklin.\nMarch 4, 1997. -\nMay 27, 1997.\nPresent: Wilkins, C.J., Abrams, Lynch, Fried, & Marshall, JJ.\nEvidence, Hearsay, State of mind, Relevancy and materiality, Cumulative evidence, Prior misconduct, Expert opinion, Previous testimony of unavailable witness. Homicide.\nAt a murder trial, the judge erred in admitting hearsay statements of the victim as to her fear of the defendant and regarding his other violent bad acts, and where the only issue in the case was the degree of the defendant’s culpability the statements were unfairly prejudicial and undermined the defendant’s defense, and the admission of the evidence constituted reversible error. [92-95]\nAt the retrial of a murder case, the trial judge should rule on the admissibility of evidence of the defendant’s other misconduct [95-96]; certain Probate Court records should be redacted to exclude hearsay [96]; the medical examiner may properly characterize the wounds suffered by the victim, with appropriate jury instructions by the judge [96-97]; prior recorded testimony of court proceedings in the case may properly be admitted [97]; and if any view of the evidence supported the inference that the victim used excessive force in repelling the defendant, a charge on manslaughter would be appropriate [97-98],\nIndictment found and returned in the Superior Court Department on April 6, 1993.\nThe case was tried before William H. Welch, J.\nDavid P. Hoose (Judith Wideman with him) for the defendant.\nJudith Ellen Pietras, Assistant District Attorney, for the Commonwealth.""}, ""cites_to"": [{""cite"": ""386 Mass. 393"", ""year"": 1982, ""case_ids"": [906527], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/386/0393-01""], ""opinion_index"": 0}, {""cite"": ""8 Ark. 451"", ""year"": 1848, ""case_ids"": [8727631], ""category"": ""reporters:state"", ""reporter"": ""Ark."", ""pin_cites"": [{""page"": ""455""}], ""case_paths"": [""/ark/8/0451-01""], ""opinion_index"": 0}, {""cite"": ""390 Mass. 722"", ""year"": 1984, ""case_ids"": [916672], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""parenthetical"": ""\""[i]n deciding whether the judge should have charged on manslaughter, we assume the version of the facts most favorable to the defendant\""""}], ""case_paths"": [""/mass/390/0722-01""], ""opinion_index"": 0}, {""cite"": ""383 Mass. 178"", ""year"": 1981, ""case_ids"": [813534], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""179""}], ""case_paths"": [""/mass/383/0178-01""], ""opinion_index"": 0}, {""cite"": ""380 Mass. 724"", ""year"": 1980, ""weight"": 2, ""case_ids"": [478458], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""726""}, {""page"": ""729""}], ""case_paths"": [""/mass/380/0724-01""], ""opinion_index"": 0}, {""cite"": ""397 Mass. 633"", ""year"": 1986, ""case_ids"": [874798], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""638""}], ""case_paths"": [""/mass/397/0633-01""], ""opinion_index"": 0}, {""cite"": ""380 Mass. 490"", ""year"": 1980, ""case_ids"": [478749], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""494""}], ""case_paths"": [""/mass/380/0490-01""], ""opinion_index"": 0}, {""cite"": ""406 Mass. 380"", ""year"": 1990, ""case_ids"": [3884074], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""391""}], ""case_paths"": [""/mass/406/0380-01""], ""opinion_index"": 0}, {""cite"": ""17 Mass. App. Ct. 651"", ""year"": 1984, ""case_ids"": [3980365], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""655-656"", ""parenthetical"": ""medical examiner's opinion regarding defensive wounds admissible where opinion was based on reliable medical data and plausible assumptions within the expert's professional competence""}], ""case_paths"": [""/mass-app-ct/17/0651-01""], ""opinion_index"": 0}, {""cite"": ""360 Mass. 526"", ""year"": 1971, ""case_ids"": [317466], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""528-529""}], ""case_paths"": [""/mass/360/0526-01""], ""opinion_index"": 0}, {""cite"": ""385 Mass. 91"", ""year"": 1982, ""weight"": 2, ""case_ids"": [900794], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""105""}, {""parenthetical"": ""\""expert testimony on matters within the witness's field of expertise is admissible whenever it will aid the jury in reaching a decision, even if the expert's opinion touches on the ultimate issues that the jury must decide\""""}], ""case_paths"": [""/mass/385/0091-01""], ""opinion_index"": 0}, {""cite"": ""398 Mass. 561"", ""year"": 1986, ""case_ids"": [877687], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""562-564""}], ""case_paths"": [""/mass/398/0561-01""], ""opinion_index"": 0}, {""cite"": ""39 Mass. App. Ct. 122"", ""year"": 1995, ""case_ids"": [1040780], ""category"": ""reporters:state"", ""reporter"": ""Mass. 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App. Ct."", ""pin_cites"": [{""page"": ""548"", ""parenthetical"": ""victim's statement that she feared the defendant was inadmissible hearsay""}, {""page"": ""548""}], ""case_paths"": [""/mass-app-ct/30/0543-01""], ""opinion_index"": 0}, {""cite"": ""351 Mass. 489"", ""year"": 1966, ""weight"": 3, ""case_ids"": [3861098], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""493"", ""parenthetical"": ""evidence of threats held immaterial as demonstrative \""only [of] a state of fear on the part of the deceased,\"" and therefore inadmissible hearsay""}, {""page"": ""492-493""}, {""page"": ""495""}], ""case_paths"": [""/mass/351/0489-01""], ""opinion_index"": 0}, {""cite"": ""395 Mass. 594"", ""year"": 1985, ""case_ids"": [896033], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""595""}], ""case_paths"": [""/mass/395/0594-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""425 Mass. 89"", ""type"": ""official""}], ""file_name"": ""0089-01"", ""last_page"": ""98"", ""first_page"": ""89"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T17:33:17.309606+00:00"", ""decision_date"": ""1997-05-27"", ""docket_number"": """", ""last_page_order"": 118, ""first_page_order"": 109, ""name_abbreviation"": ""Commonwealth v. 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+274577,"{""id"": 274577, ""name"": ""Commonwealth vs. Richard D. Ferguson"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""e6d715114f9171b02ab261caad75b752fd2c63f2114a520d5844bcd9a4370061"", ""simhash"": ""1:6246d35bd56e49ad"", ""pagerank"": {""raw"": 0.00000023417286884800999, ""percentile"": 0.7922494709150997}, ""char_count"": 18222, ""word_count"": 3006, ""cardinality"": 920, ""ocr_confidence"": 0.881}, ""casebody"": {""judges"": [], ""parties"": [""Commonwealth vs. Richard D. Ferguson.""], ""opinions"": [{""text"": ""Abrams, J.\nAfter trial by jury, Richard D. Ferguson was convicted of murder in the first degree of his wife, Helen Ferguson, by reason of deliberate premeditation and extreme atrocity or cruelty. On appeal, the defendant argues that the trial judge erred in refusing to dismiss the jury foreman, who indicated during the trial that he recognized a Commonwealth witness as having baby-sat for his children approximately twenty-seven years earlier. The defendant also argues that the judge erred in allowing the Commonwealth to call a rebuttal witness whose testimony, the defendant alleges, served only to attack his character. We affirm the conviction of murder in the first degree. We decline to exercise our power under G. L. c. 278, § 33E, in favor of the defendant.\nWe summarize the evidence in the light most favorable to the Commonwealth. Commonwealth v. Salemme, 395 Mass. 594, 595 (1985). The defendant owned a franchise which specialized in fire and water damage cleanup and restoration. On February 26, 1994, the night the victim was killed, she was conducting a water damage cleanup with the defendant and two employees at a bank in Lawrence. The defendant directed the two employees to work in the basement while he and the victim remained upstairs. One of the employees testified that the defendant told the two employees not to use the stairways and not to deliver buckets of water to him upstairs, because he would come downstairs to get the buckets himself. The employee said that she nevertheless tried to use the elevator, pushing the button for several minutes, but that the elevator did not respond. She resumed her work. The defendant later rode the elevator to the basement without difficulty.\nShortly thereafter, the defendant “discovered” the victim’s badly beaten body in the company van. He claimed that he had sent the victim out for beverages, and later found her while retrieving something from the van. The victim had sustained multiple slash wounds and severe blows to the head, from which she died several hours later. One of the defendant’s employees said that she had noticed and commented about a bloodstain on the defendant’s sweatshirt when he had descended to the basement prior to his alleged discovery of the victim.\nThere was evidence that the relationship between the defendant and the victim was deteriorating. The defendant was spending a great deal of time with one of his female employees. Although the defendant ostensibly hired her to fill a marketing position, the employee described her job as being essentially the defendant’s “travel companion.” She also said that the defendant directed her to dress and sit provocatively while traveling with him to job sites, apparently to attract male clients. The employee testified as to the defendant’s increasing infatuation with her, his sexual advances, his lavish gifts, and his continuous efforts to win her affection. She said that, in the weeks before the murder, the defendant had specifically asked her if she would be interested in him if he were not married.\nAfter the murder, a bank employee informed the police that the defendant had failed to return a key to the building adjacent to the bank. The police searched the building. Behind a ceiling tile they discovered a trash bag which contained the murder weapons (a wrench and a screwdriver), several rags, gloves, a box of ammunition, and two loaded handguns. The blood and hair found on several of these items, most notably the wrench, was consistent with that of the victim. The guns were linked to the defendant, and his fingerprint was found on one of them. The plastic bag, gloves, and rags were identical to those seized from the defendant’s company van and office. The missing key to the building was subsequently retrieved from the defendant’s kitchen.\nA forensic chemist opined that the pattern of the blood splatter on the clothing the defendant wore on the night of the murder was consistent with that of the blood splatter in the van. She concluded that, given the pattern, location, and number of the bloodstains, the defendant’s “garments were in close proximity to someone who had the same blood type factors as the victim while she was being beaten about the head and upper body area.” The forensic chemist estimated that at least four blows were necessary to produce the number of stains that were on the defendant’s clothing. Particles on the sleeve of the defendant’s jacket were consistent with the substance that comprised the ceiling tile behind which the trash bag was discovered. We leave the presentation of other evidence for our discussion of the specific issues raised on appeal.\n1. The jury foreman. The defendant argues that the judge’s refusal to excuse the jury foreman violated the defendant’s right to a trial by an impartial jury as guaranteed by art. 12 of the Massachusetts Declaration of Rights and the Sixth Amendment to the United States Constitution. See Commonwealth v. Vann Long, 419 Mass. 798, 802 (1995) (“The presence of even one juror who is not impartial violates a defendant’s right to trial by an impartial jury”), citing Ross v. Oklahoma, 487 U.S. 81, 85-86 (1988); Aldridge v. United States, 283 U.S. 308, 314 (1931).\nOn learning that the jury foreman had recognized a witness who testified for the Commonwealth, the judge individually questioned the juror in the presence of the defendant and counsel.\nThe determination of a juror’s impartiality “is essentially one of credibility, and therefore largely one of demeanor,” Patton v. Yount, 467 U.S. 1025, 1038 (1984). In such circumstances, we give a trial judge’s determination of impartiality great deference. See, e.g., Commonwealth v. Lattimore, 396 Mass. 446, 449 (1985); Commonwealth v. Amazeen, 375 Mass. 73, 83 (1978); Commonwealth v. Cleary, 41 Mass. App. Ct. 214, 219 (1996). See also Commonwealth v. Ascolillo, 405 Mass. 456, 460 (1989) (“A trial judge’s initial determination that a juror stands indifferent will not be disturbed on appeal unless the defendant demonstrates that there was a substantial risk that the case would be decided in whole or in part on the basis of extraneous issues”).\nThe juror had not seen the witness in over twenty-seven years. The juror was unsure whether he even recognized the witness until after her testimony on the second day of trial. After court, the judge was informed by the court officer that the juror reported that he recognized the witness. The next day, prior to any more testimony, the judge questioned the juror. The judge properly could conclude that the juror’s memory of this witness was faint at best. More importantly, the juror repeatedly and unequivocally indicated that he could and would be fair and impartial. Compare Commonwealth v. Auguste, 414 Mass. 51, 57-58 (1992). See Commonwealth v. Mahoney, 406 Mass. 843, 851 (1990) (“the judge was entitled to accept the suspect juror’s declaration . . . that she was disinterested and not impeded by any emotional or intellectual commitment”). “Where, as here, the judge who had the opportunity to observe the prospective juror, makes a determination that the juror is indifferent after exploring the grounds for a possible claim that the juror was not impartial, we cannot conclude, in the absence of any affirmative evidence to the contrary, that the judge abused his discretion.” Ascolillo, supra at 461, quoting Commonwealth v. Amazeen, supra at 83. We conclude that the judge carefully considered the issue and determined that the juror could be fair and impartial. Nothing in the record convinces us that there was an error of law or an abuse of discretion on the part of the judge.\n2. The rebuttal witness. Over the defendant’s objection, the judge permitted the Commonwealth to call a former job applicant of the defendant as a rebuttal witness. This witness testified that in January, 1994, she met the defendant while he was working at her parents’ house and he offered her a job. On the following day, she went with the defendant to call on a prospective customer. She testified that the defendant told her to wear a short skirt, “[ajnything sexy that [she] had,” and instructed her on how to sit and stand provocatively to attract the attention of any prospective male customers. The defendant asserts that this admission of evidence of his prior misconduct constituted reversible error.\nIt is well settled that the prosecution may not introduce evidence of the defendant’s prior bad acts to show bad character or propensity to commit the crime charged, but such evidence may be admissible if relevant for some other purpose. See Commonwealth v. Fordham, 417 Mass. 10, 22 (1994); Commonwealth v. Leonardi, 413 Mass. 757, 763 (1992); Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). “Evidence that has relevance to issues other than bad character or criminal propensity is admissible if not outweighed by its unfair prejudice, which is a determination for the judge to make and one which we do not disturb unless, in our judgment, it is palpably wrong. ” Fordham, supra at 22.\nThe rebuttal testimony describing the defendant’s dress and behavior requirements for female “marketers” may show that the defendant engaged in a pattern of using sexual appeal to procure business, but the evidence is of marginal relevance to any material issue on the charge of murder in the first degree. However, the rebuttal testimony did impeach the defendant on a collateral matter. See Simon v. Solomon, 385 Mass. 91, 107 (1982).\nTestifying on Ms own behalf, the defendant had maintained that Ms relationship with the female marketing employee was merely friendly and professional, and not of a sexual nature. He said that he never asked that employee if she would be more mterested in Mm if he were not married. He demed or attempted to explain Ms behavior toward her, and Ms testimony conflicted with that of the employee in several respects.\nOn cross-examination of the defendant, the prosecutor inquired about other women that the defendant had hired or considered hiring to travel with him as “marketers.” The defendant demed having ever directed his female employees, including the marketer, or prospective employees to dress and sit provocatively to attract male clients.\nAlthough the rebuttal testimony was collateral to the main issues at trial, the evidence “tended to cast doubt on the defendant’s credibility because it created a basis from wMch the jury might infer that because the defendant’s testimony [as to his requirements for female “marketers”] was not accurate, other portions of his testimony also might be inaccurate.” Commonwealth v. Fleury-Ehrhart, 20 Mass. App. Ct. 429, 434 (1985).\nA judge, in his discretion, may permit impeachment by extrinsic evidence on collateral matters. Simon, supra at 107. See Commonwealth v. Zezima, 365 Mass. 238, 242 n.5 (1974) (“Extrinsic evidence to rebut a witness on a collateral matter is not admissible as of right . . . although, in the judge’s discretion, it is not error to admit such testimony” [citations omitted]), S.C., 387 Mass. 748 (1982). On cross-examination, the defendant did not object to the prosecutor’s questiomng of the defendant regarding other female “marketers.” The judge properly could conclude that the jury should have the benefit of the rebuttal evidence which tended to contradict the defendant’s testimony. See Simon, supra.\nThe risk of prejudice also was minimized by the judge’s repetition of special cautionary instructions as to the proper use of the evidence. See Commonwealth v. Rivera, 424 Mass. 266, 273 (1997); Commonwealth v. Dunn, 407 Mass. 798, 807 (1990). In the context of the entire case and in light of the overwhelming evidence of the defendant’s guilt, the effect of the challenged evidence was insubstantial. See Commonwealth v. Miles, 420 Mass. 67, 73 (1995); Commonwealth v. Hanger, 377 Mass. 503, 510-512 (1979); Commonwealth v. Grammo, 8 Mass. App. Ct. 447, 456 (1979).\n3. G. L. c. 278, § 33E. Pursuant to our obligation under G. L. c. 278, § 33E, we have considered the entire record and conclude that the interests of justice do not require entry of a lesser degree of guilt or a new trial.\nJudgment affirmed.\nGeneral Laws c. 234, § 28, advises a trial judge that, “if it appears that, as a result of the impact of considerations which may cause a decision or decisions to be made in whole or in part upon issues extraneous to the case ... the juror may not stand indifferent, the court shall. . . examine the juror specifically with respect to such . . . matters which may, as aforesaid, cause a decision or decisions to be made in whole or in part upon issues extraneous to the issues in the case. Such examination . . . shall be conducted individually and outside of the presence of other persons about to be called as jurors or already called.” See Mass. R. Crim. P. 20 (b) (2), 378 Mass. 889 (1979).\nThe Judge: “I understand that you reported to [the] court officer that you recognized one of the witnesses yesterday?”\nThe Juror: “Yes. After the lunch I did recognize her. Originally when you asked if we knew any witnesses I said no, and I hadn’t seen the girl for twenty-seven years. She used to baby sit for my children when she was a student at Merrimack College and I didn’t recognize the name because that was not her name at the time.”\nThe Judge: “That was [the witness]?”\nThe Juror: “Yes.”\nThe Judge: “You knew her [by her maiden name]?”\nThe Juror: “Yes.”\nThe Judge: “Have you seen that woman in the past twenty-seven years?” The Juror: “No. I didn’t recognize her until we came back from lunch. I said, gee that looks like [her], but I still wasn’t sure.”\nThe Judge: “Let me ask you this sir. Now that you know that this was your baby sitter twenty-seven years ago would that affect your ability to judge her credibility objectively just as you would a stranger whom you never knew?” The Juror: “No.” [The transcript originally indicated that the juror had responded “Yes.” After checking the tape recording, the stenographer officially changed the response to “No.” The defendant does not argue that the answer should be otherwise.]\nThe judge sent the juror outside and heard arguments from counsel. Defense counsel requested that the juror be excused, and the prosecutor objected. The judge then resumed his inquiry of the juror.\nThe Judge: “Mr. [foreman], do you feel that you can completely put out of your mind the fact that that woman, twenty-seven years ago who, under her maiden name, was your baby sitter and judge her credibility just as you would a stranger’s?”\nThe Juror: “Yes, I do.”\nThe Judge: “I am satisfied that you will remain fair and impartial. I am ordering you, sir, not to mention this to any other juror in this particular case because you are the foreman of this jury so you definitely will be one of the deliberating jurors.\n“I am telling you now, sir, I am ordering you not to tell any other juror either before deliberations or during deliberations of your knowledge of that witness twenty-seven years ago and the circumstances under which you knew her, sir.\n“I am confident that you will remain fair and impartial. Fair and impartial to the Commonwealth and fair and impartial to the defendant.”\nthe juror: “I will.”\nThe judge sent the juror out of the courtroom and made the following findings: “I am satisfied not only on the basis of the words that I heard, watching the demeanor of the individual, I am satisfied that he will bend over backwards to remain fair in this particular case and so, under the circumstances, exercising my discretion, based on the answers I’ve heard and the behavior and mannerisms of this individual, I feel that he is and can be fair and impartial.”\nThe defendant’s reliance on Commonwealth v. Vann Long, 419 Mass. 798 (1995), is misplaced. In that case, the juror at issue “never unequivocally stated that he would be impartial, nor did he ever expressly state that he would or could put aside his bias against the Cambodian defendant.” Id. at 804.\nDefense counsel did ask the judge to instruct the jury not to draw inferences from questions which the defendant answered in the negative. The judge gave the requested instruction.\nThe judge determined that the rebuttal testimony “supported [the female marketing employee] as far as her responsibilities and relationship was as far as the defendant is concerned at the very least.” The judge also found that the evidence was not too remote and that its evidentiary value outweighed any danger of unfair prejudice.\nIf rebuttal testimony also bears on the defendant’s character, thereby raising the danger of unfair prejudice, the better practice is to exclude such evidence if offered solely as impeachment on a collateral matter. See Benjamin v. Felton & Son, 9 Mass. App. Ct. 926, 926 (1980)."", ""type"": ""majority"", ""author"": ""Abrams, J.""}], ""attorneys"": [""Roger A. Cox for the defendant."", ""Marcia H. Slingerland, Assistant District Attorney, for the Commonwealth.""], ""corrections"": """", ""head_matter"": ""Commonwealth vs. Richard D. Ferguson.\nEssex.\nApril 7, 1997. -\nJuly 1, 1997.\nPresent: Wilkins, C.J., Abrams, Lynch, Greaney, & Fried, JJ.\nJury and Jurors. Constitutional Law, Jury. Practice, Criminal, Challenge to jurors, Capital case. Witness, Credibility, Impeachment. Evidence, Prior misconduct, Relevancy and materiality, Credibility of witness, Impeachment of credibility.\nAt the trial of an indictment for murder in the first degree, there was no error of law or abuse of discretion in the judge’s refusal to excuse the jury foreman who, after a Commonwealth witness had testified, recognized her as his children’s baby-sitter some twenty-seven years before, where the juror’s memory was faint and where he repeatedly and unequivocally indicated that he could and would be fair and impartial. [351-354]\nAt a murder trial the judge properly allowed the Commonwealth to call a rebuttal witness to impeach the defendant’s testimony with respect to a collateral matter, where the evidence tended to cast doubt on the defendant’s credibility: any risk of prejudice was minimal in light of the judge’s instructions and the overwhelming evidence of the defendant’s guilt. [354-356]\nIndictment found and returned in the Superior Court Department on March 16, 1994.\nThe case was tried before Robert A. Barton, J.\nRoger A. Cox for the defendant.\nMarcia H. Slingerland, Assistant District Attorney, for the Commonwealth.""}, ""cites_to"": [{""cite"": ""406 Mass. 843"", ""year"": 1990, ""case_ids"": [3885519], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""851"", ""parenthetical"": ""\""the judge was entitled to accept the suspect juror's declaration . . . that she was disinterested and not impeded by any emotional or intellectual commitment\""""}], ""case_paths"": [""/mass/406/0843-01""], ""opinion_index"": 0}, {""cite"": ""9 Mass. App. Ct. 926"", ""year"": 1980, ""case_ids"": [3960703], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""926""}], ""case_paths"": [""/mass-app-ct/9/0926-01""], ""opinion_index"": 0}, {""cite"": ""378 Mass. 889"", ""year"": 1979, ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""opinion_index"": 0}, {""cite"": ""8 Mass. App. Ct. 447"", ""year"": 1979, ""case_ids"": [3958534], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""456""}], ""case_paths"": [""/mass-app-ct/8/0447-01""], ""opinion_index"": 0}, {""cite"": ""377 Mass. 503"", ""year"": 1979, ""case_ids"": [334114], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""510-512""}], ""case_paths"": [""/mass/377/0503-01""], ""opinion_index"": 0}, {""cite"": ""420 Mass. 67"", ""year"": 1995, ""case_ids"": [826207], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""73""}], ""case_paths"": [""/mass/420/0067-01""], ""opinion_index"": 0}, {""cite"": ""407 Mass. 798"", ""year"": 1990, ""case_ids"": [3886709], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""807""}], ""case_paths"": [""/mass/407/0798-01""], ""opinion_index"": 0}, {""cite"": ""424 Mass. 266"", ""year"": 1997, ""case_ids"": [117637], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""273""}], ""case_paths"": [""/mass/424/0266-01""], ""opinion_index"": 0}, {""cite"": ""387 Mass. 748"", ""year"": 1982, ""case_ids"": [908748], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/387/0748-01""], ""opinion_index"": 0}, {""cite"": ""365 Mass. 238"", ""year"": 1974, ""case_ids"": [291939], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""parenthetical"": ""\""Extrinsic evidence to rebut a witness on a collateral matter is not admissible as of right . . . although, in the judge's discretion, it is not error to admit such testimony\"" [citations omitted]""}], ""case_paths"": [""/mass/365/0238-01""], ""opinion_index"": 0}, {""cite"": ""20 Mass. 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+274590,"{""id"": 274590, ""name"": ""Commonwealth vs. Liberatore Libby Vincent Federico"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""e7449a585a20586dd60fda002ddb6a06d974258505ebf22e56b86009a38051e0"", ""simhash"": ""1:ac01a7ca1fb74beb"", ""pagerank"": {""raw"": 0.0000003796524383178587, ""percentile"": 0.8972443953296119}, ""char_count"": 28474, ""word_count"": 4560, ""cardinality"": 1062, ""ocr_confidence"": 0.902}, ""casebody"": {""judges"": [], ""parties"": [""Commonwealth vs. Liberatore Libby Vincent Federico.""], ""opinions"": [{""text"": ""Marshall, J.\nWe must decide whether the testimony of two experts on child sexual abuse impermissibly intruded on the jury’s role of assessing the credibility of the child complainants. In Commonwealth v. Dockham, 405 Mass. 618 (1989), we held that expert testimony on the general behavioral characteristics of sexually abused children was properly admitted where the defendant had argued that such testimony should have been admitted only in response to hypothetical questions based on the facts in evidence. Here, the defendant takes the antipodal position, arguing that the testimony given in response to hypothetical questions closely tailored to the facts amounted to an impermissible endorsement of the credibility of the complaining child witness. We conclude that the challenged expert testimony of one of the experts was improper in several respects, and that admission of the testimony was not harmless error.\n1. In December, 1988, a Superior Court jury convicted the defendant on seven indictments charging rape of a child under sixteen years and three indictments charging assault and battery on a child under the age of fourteen years. Federico filed a motion for a new trial, which was denied in August, 1994. He simultaneously appealed from his convictions, arguing that the judge improperly allowed two experts to bolster the credibility of the complainants’ claims of sexual abuse. The Appeals Court reversed, Commonwealth v. Federico, 40 Mass. App. Ct. 616, 618-619 (1996), ruling that the testimony of both experts impermissibly intruded on the jury’s role of assessing the credibility of the complainants, and that the admission of the testimony was prejudicial error. We granted the Commonwealth’s application for further appellate review. We reverse the judgment of the Superior Court.\n2. The jury could have found the following facts. In 1981, a mother, whom we shall call Maria, and her two daughters, whom we shall call Julie (then aged eleven years) and Sharon (then aged nine years), began living with the defendant shortly before the defendant and Maria were married. That same year the defendant began sexually abusing both sisters; the abuse continued chronically for the next six years. Neither sister revealed the abuse to anyone until March, 1988, when first Sharon, and subsequently Julie, told their mother about the abuse. A few days later Maria took Sharon, and then Julie, to a physician for an examination. A police officer and a detective also interviewed the sisters at home.\nAt the time of the trial in 1988, Julie and Sharon were nineteen and sixteen years old, respectively. They testified in detail about the sexual abuse to which they had been subjected by the defendant. The Commonwealth called as fresh complaint witnesses the detective and police officer who had interviewed the sisters, as well as their mother. The Commonwealth also called two experts to testify, Dr. Renee Brant, a child psychiatrist, and Dr. Jan Paradise, a pediatric gynecologist. Neither expert had treated either of the children. The prosecutor asked Dr. Brant a series of hypothetical questions in which she was asked to assume certain facts; in each case one of the facts she was asked to assume was that sexual relations had occurred between one or two girls and an adult male. She was then asked to opine as to whether the assumed facts were “consistent with” children who had been having sexual relations with an adult male (stepfather) over a number of years. In response to each hypothetical question, Dr. Brant opined that the assumed facts were “consistent with” children who had been having sexual relations with an adult.\nThere was evidence that there was no physical trauma to the genital area of either child. Dr. Paradise testified in response to a series of hypothetical questions. In each case she was asked to assume certain facts, one of which was vaginal penetration of a girl by an adult male, and another was the absence of physical signs of trauma to the genital area of the girl. The remaining assumed facts (different in each hypothetical question) concerned the ages of the girls, frequency and the timing of intercourse, and the timing of the physical examination of the girls in relation to the most recent act of intercourse. Dr. Paradise was then asked whether the assumed facts were “inconsistent” with each other. She opined that the assumed facts were not “inconsistent.”\n3. The defendant claims that the admission of the expert testimony of both Dr. Brant and Dr. Paradise impermissibly intruded on the jury’s role of assessing the credibility of the child complainants and “would inescapably have the same impact on the jury as a direct reference to and comparison with the child witnesses in the case.” Commonwealth v. Perkins, 39 Mass. App. Ct. 577, 583 (1995). The Commonwealth responds that the testimony was admissible because courts previously have allowed experts to testify about typical symptoms of sexually abused children, information which is beyond the knowledge of jurors. The Commonwealth not only asks that we affirm the convictions, but also argues that Commonwealth v. Perkins, supra, has been “wrongly decided.” In this case the expert testimony was particularly important, says the Commonwealth, because the two adolescent sisters did not disclose the sexual abuse for years, they remained at home with their abuser while the abuse was continuing, and they developed symptoms of anxiety and stress only after they had disclosed the abuse. This behavior, left unexplained, might unfairly suggest to a lay person that no abuse had occurred. See Commonwealth v. Hudson, 417 Mass. 536, 540 (1994) (expert testimony on typical symptoms of sexually abused children allowed because information is beyond common knowledge of jurors and may be of assistance in assessing witness’s credibility).\nIt hardly needs repeating that a trial judge has broad discretion to determine whether to admit expert testimony. See Commonwealth v. Colin C., 419 Mass. 54, 59 (1994); Commonwealth v. Dockham, supra at 628. Expert testimony “is admissible whenever it will aid the jury in reaching a decision, even if the expert’s opinion touches on the ultimate issues that the jury must decide.” Commonwealth v. Dockham, supra, quoting Simon v. Solomon, 385 Mass. 91, 105 (1982). See Commonwealth v. Colin C., supra at 59; Commonwealth v. Pikul, 400 Mass. 550, 553 (1987). See also Proposed Mass. R. Evid. 702 (“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise”). Under this principle, we have held that testimony on the general behavioral characteristics of sexually abused children may properly be the subject of expert testimony because behavioral and emotional characteristics common to these victims are “beyond the jury’s common knowledge and may aid them in reaching a decision.” Commonwealth v. Colin C., supra at 60. See Commonwealth v. Dockham, supra at 630. See also Commonwealth v. Day, 409 Mass. 719, 724 (1991) (expert testimony concerning “battered child syndrome” admissible because condition is not matter of common knowledge); Commonwealth v. Mamay, 407 Mass. 412, 421 (1990) (rape trauma syndrome is “beyond the jury’s common knowledge,” and therefore admissible). Such expert testimony may assist the jurors in assessing a victim witness’s testimony and credibility:\n“While jurors may be capable of personalizing the emotions of victims of physical assault generally, and of assessing witness credibility accordingly, tensions unique to the trauma experienced by a child sexually abused by a family member have remained largely unknown to the public. As the expert’s testimony demonstrates the routine indicia of witness reliability — consistency, willingness to aid the prosecution, straightforward rendition of the fact — may, for good reason, be lacking. As a result jurors may impose standards of normalcy on child victim/ witnesses who consistently respond in distinctly abnormal fashion.”\nCommonwealth v. Dockham, supra, quoting State v. Middleton, 294 Or. 427, 440 (1983) (Roberts, J., concurring).\nSuch evidence must, however, be confined to a description of the general or typical characteristics shared by child victims of sexual abuse. Deference must be preserved for the role of the jury as the final judge of credibility; “[e]valuations of credibility are, of course, within the exclusive province of the trier of fact,” Commonwealth v. Montanino, 409 Mass. 500, 504 (1991), quoting Commonwealth v. Ianello, 401 Mass. 197, 202 (1987), and “witnesses may not offer their opinions regarding the credibility of another witness.” Commonwealth v. Mon tonino, supra at 504. See Commonwealth v. Sires, 413 Mass. 292, 304 (1992).\nWe have identified several broad areas of expert testimony that are most likely to run afoul of this prohibition. First, we prohibit an expert from directly referring to or comparing the behavior of the specific child complainant to general characteristics of sexual abuse victims because “[sjuch testimony impermissibly intrudes on the jury’s province to assess the credibility of the witness.” Commonwealth v. Trowbridge, 419 Mass. 750, 759 (1995) (“[ajlthough expert testimony on the general behavioral characteristics of sexually abused children is permissible, an expert may not refer or compare the child to those general characteristics”). Commonwealth v. Colin C., supra at 60. See Commonwealth v. Richardson, 423 Mass. 180, 185 (1996) (harmless error to allow expert to testify, after child victim had given inconsistent testimony on sequence and dates of abuse, that such inconsistency was not unusual among child victims); Commonwealth v. Dockham, supra at 628, 630 (expert testimony admissible where there were “no references or comparison to the child witness”). The risk of improper comparisons between any general behavioral characteristics of sexually abused children and a particular complaining child witness is most acute when the expert witness has examined or treated the child. Testimony on the general characteristics of sexually abused children by such experts has been disallowed. See Commonwealth v. Trowbridge,, supra at 759-760; Commonwealth v. Rather, 37 Mass. App. Ct. 140 (1994). See also Commonwealth v. Swain, 36 Mass. App. Ct. 433, 444-445 (1994).\nSecond, the expert may not directly opine on whether the alleged victim was in fact subject to sexual abuse. Commonwealth v. Colin C., supra at 61 (expert testimony inadmissible where opinion that children were sexually abused “was tantamount to an expert opinion that the . . . claims . . . were likely true”); Commonwealth v. Trowbridge, supra (error to admit expert testimony that child’s behavior during gynecological visit was consistent with that of sexually abused children).\nThird, with respect to the accused, the expert may not provide profiles or testify as to the typical attributes or characteristics of the perpetrators of child abuse. Commonwealth v. Day, supra at 724 (testimony concerning “battered child syndrome” admissible, but testimony concerning “profile” of child batterers is not). See Commonwealth v. Goetzendanner, 42 Mass. App. Ct. 637, 644 (1997). We examine the testimony of the two experts in this case with those principles in mind.\nIn this case, Dr. Brant, a child psychiatrist, testified in response to a series of hypothetical questions, the assumed facts of which were based on the facts in evidence, as a hypothetical question must be. In the case of each hypothetical question, however, Dr. Brant was asked to “assume” that the children had sexual relations with their stepfather; she was then asked to opine on whether the “facts are consistent with the children who have had sexual relations at those ages with an adult.” Dr. Brant opined that the behavior described in each case was consistent with the behavior of children who had been sexually abused.\nDr. Brant could hardly have done otherwise, for the hypothetical question was tautological: Dr. Brant was asked to opine on whether sexual relations between a child and an adult was “consistent” with an assumed fact that sexual relations between the child and the adult stepfather had occurred. It could well be that the prosecutor intended the jury to understand that each of the other assumed facts (for example, the delay in reporting the abuse) could co-exist with sexual abuse. But there is a significant risk that the jury could have understood Dr. Brant’s testimony to mean that sexual abuse had in fact occurred in this case. That is impermissible. See Commonwealth v. Colin C., supra at 60-61. Because the only evidence against the defendant were the allegations of the complainants, at the very least Dr. Brant’s testimony tended to support their allegations and to buttress their credibility. We conclude that the testimony in response to the flawed hypothetical questions asked of Dr. Brant should not have been admitted.\nIn the absence of evidence of physical injury, a medical expert may be able to assist the jury by informing them that the lack of such evidence does not necessarily lead to the medical conclusion that the child was not abused. Commonwealth v. Allen, 40 Mass. App. Ct. 458, 465-466 (1996). See Commonwealth v. Dockham, supra at 621 (expert testimony that absence of trauma to genital area not inconsistent with sexual abuse admitted without challenge or comment on plenary review). Medical experts, like other experts, may not opine as to whether a particular child has been sexually abused. Commonwealth v. Colin C., supra at 60 (we have never allowed “an expert to testify that an alleged victim was in fact sexually assaulted”). See Commonwealth v. Montmeny, supra at 528 (direct opinion by medical expert that rape had occurred would have been “beyond the witness’s appropriate province as an expert”); Commonwealth v. Gardner, 350 Mass. 664, 665-667 (1966) (error to elicit from medical witness that there had been “forcible entry” of alleged victim of rape).\nWith respect to the admission of the expert medical testimony by Dr. Paradise, the hypothetical questions put to her did not suffer from the same defect as the hypothetical questions put to Dr. Brant. In each case Dr. Paradise was asked to “assume” that a child was vaginally penetrated on a regular basis, and was then asked to opine on whether this was “inconsistent” with the absence of physical trauma to the genital areas of the child. The jury could not have understood her testimony to mean that the abuse did occur, but only that it was possible that the abuse had occurred.\n4. Harmless error analysis. We turn to consider whether the admission of the testimony of Dr. Brant was harmless error. Defense counsel objected to the admission of the testimony of Dr. Brant. An error is nonprejudicial only when we are sure that the error “did not influence the jury, or had but very slight effect .... But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected.” Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983), quoting Kotteakos v. United States, 328 U.S. 750, 764-765 (1946). See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).\nAddressing Dr. Brant’s testimony, the hypothetical questions were deeply flawed and the opinion testimony of Dr. Brant could have been understood by the jury as testimony that sexual abuse did in fact occur in this case. Where, as here, the complainants’ allegations were the only evidence against the defendant, we cannot conclude that Dr. Brant’s expert testimony did not play a significant role in the jury’s determination and that the error was harmless. The admission of the expert testimony of Dr. Brant that was elicited through hypothetical questions was reversible error. Accordingly, the judgments are reversed, the verdicts set aside, and the case is remanded for a new trial.\nSo ordered.\nJustice O’Connor participated in the deliberation on this case, but retired before the opinion was issued.\nAppendix.\nA. An example of one of the hypothetical questions posed by the prosecution to Dr. Brant follows:\nQ.:“I would ask you to assume for purposes of this hypothetical, Doctor, that two sisters living with their mother and stepfather had sexual relations with the stepfather on a regular basis since the ages of twelve and nine. Further assume that neither sister disclosed those relations for six years while it was ongoing. I would ask you further to assume that ■ at age fifteen the younger sister disclosed the sexual activity to her mother the following day on which the stepfather had intercourse with her in the afternoon and in the evening scolded her, yelled at her, and lectured her for failing to fold towels and finish dishes in the sink.\n“I would ask you further to assume that the morning after that incident, the fifteen-year-old girl became upset and told her mother the Defendant had been having sexual relations with her for years. Do you have an opinion, to a reasonable degree of medical certainty, as to whether or not those assumed facts are consistent with the girl who had been having sexual relations with an adult since the age of approximately nine-and-a-half?”\nBased on that hypothetical question, Dr. Brant opined as follows:\n“Well, I have described the Circumstances in which the sexual relations can be maintained as a secret for a very long time. Then, comes the question about what the circumstances are under which a child who has had ongoing sexual relations will tell someone about it.\n“Those circumstances can include, first of all, a child growing up and growing into adolescence and having a changed awareness of what their situation is, that more and more they might have wishes to have relationships outside the family. To the extent that they are limited in doing that and having sexual relationships within the family, that can become more and more bothersome to a child and create more conflict.\n“It is often in the context of a family argument and anger that a child will, for the first time, tell someone about what has happened. Also, I think that what you described in terms of the child having sexual relationships at one point in time and then being reprimanded for not folding clothes in the proper sort of way, I think there can be a lot of strong feelings, a lot of conflict about, on the one hand, being treated in a more adult fashion; on the other hand, being reprimanded as a child or a servant, that can give rise to anger. The anger in some way can counteract the fears that have led a child to keep the sexual relations secret.\n“I think that by virtue of the argument, the anger, a child going into adolescence, that those are the kinds of circumstances in which it is very typical that a child might for the first time disclose a secret that they have been keeping for many years.”\nB. An example of a hypothetical question posed by the prosecution to Dr. Paradise follows:\nQ.: “And, Doctor, I would ask you to assume for purposes of this question that a fifteen-year-old girl was vaginally penetrated by an adult male penis several times weekly on a regular basis from the ages of eleven to age fifteen. I would ask you to further assume that the most recent penetration was five days prior to a physical examination conducted on this girl which revealed no physical signs of trauma to the genital area of the girl.\n“Based on your training and experience, do you have an opinion to a reasonable degree of medical certainty as to whether or not those three assumed facts are inconsistent?”\nDr. Paradise opined as follows:\n“Because you described the girl who has been experiencing intercourse for four years, from the ages of eleven to fifteen, and trauma means injury, fresh injury, like bruising or bleeding or a laceration.\n“Had there been some injury produced by that intercourse, it might have occurred very early on during this continuing series of events. After four years, even if there had been intercourse within a few days before the examination, there would be no reason to presume that there would be any evidence of injury at the time of the examination.”\nWe note that at the time of trial in 1988, in deciding whether to admit the challenged expert testimony, the trial judge did not have the benefit of appellate cases that have since elaborated on the admissibility of expert testimony in child sexual abuse cases. See, e.g., Commonwealth v. Dockham, 405 Mass. 618 (1989); Commonwealth v. Perkins, 39 Mass. App. Ct. 577 (1995).\nThe defendant also alleged error in (1) the conduct of the plea hearing; (2) the admission of testimony of witnesses that commented on the veracity of one of the complainants; and (3) the jury instructions on fresh complaint. With respect to these arguments, the Appeals Court concluded that there was no error. See Commonwealth v. Federico, 40 Mass. App. Ct. 616, 619-621 (1996). The Appeals Court correctly decided these issues.\nThe sexual abuse started with illicit touching, and eventually included oral sex and sexual intercourse. The incidents initially occurred several times a week, with increasing frequency over the years, culminating in nearly daily occurrence of sexual intercourse with one or the other sister.\nFor examples of the hypothetical questions posed by the prosecution to Dr. Brant and to Dr. Paradise, see Appendix.\nWe denied the Commonwealth’s application for further appellate review on February 29, 1996. See Commonwealth v. Perkins, 422 Mass. 1104 (1996).\nAt trial, the behavior of the complainants that could be viewed as inconsistent with their allegations of sexual abuse by their stepfather was the subject of forceful cross-examination by defense counsel.\nSexualIy abused children may be hesitant witnesses, especially when confronting their abusers. Their allegations of sexual abuse may be considered unreliable, or there may be concerns that child complainants are susceptible to techniques of questioning or therapy that might cause false recollections or confabulation. See, e.g., Ceci, How Suggestible are Preschool Children? Cognitive and Social Factors, 36 J. Am. Acad. Child Adolescent Psychiatry, 948 (July, 1997); American Psychological Association, The Suggestibility of Children’s Recollections (John Dorris ed. [1991]).\nThis is true whether the testimony stems from an expert witness or a lay witness. We have been careful to note that “[a]n expert may not render an opinion on the credibility of a witness because the jury is capable of making that assessment without the aid of an expert.” Commonwealth v. Ianello, 401 Mass. 197, 202 (1987).\nWe prohibit the expert witness from offering comparative testimony, reasoning that, while it falls short of directly rendering an opinion on the credibility of the specific witness, “[i]t would be unrealistic to allow this type of expert testimony and then expect jurors to ignore it when evaluating the credibility of the complaining child,” Commonwealth v. Ianello, supra at 202.\nIn addition, we have observed that where expert testimony is admitted it is good practice for the trial judge to give carefully limiting instructions to the jury regarding the proper function and use of such evidence. See Commonwealth v. Dockham, supra at 629.\nThe Commonwealth informed the judge that Dr. Brant would respond to hypothetical questions “regarding common clinical phenomena seen in children who have been sexually abusedf,] such as secrecy, delayed disclosure and retraction . . . [and] common behaviors seen in children who have been sexually abused which may appear strange or bizarre to a lay person and even inconsistent with a claim of sexual abuse.” Expert testimony regarding such common clinical phenomena is, of course, admissible. See Commonwealth v. Hudson, 417 Mass. 536, 540 (1994); Commonwealth v. Dockham, 405 Mass. 618, 629 (1989). However, the actual hypothetical questions posed by the prosecutor to Dr. Brant did not assume “common clinical phenomena”; they assumed specific facts admitted in evidence through the testimony of the two child complainants. See PJ. Liacos, Massachusetts Evidence § 7.10.2, at 418 (6th ed. 1994) (“A question based on assumptions not in evidence is improper”). It is not necessary, of course, for counsel to use hypothetical questions to elicit an expert’s opinion when the opinion is not based on the expert’s personal observations. Proposed Mass. R. Evid. 705 (an expert may give an opinion without prior disclosure of the underlying facts or data unless the court requires otherwise), approved in Department of Youth Servs. v. A Juvenile, 398 Mass. 516 (1986), is intended to eliminate the requirement for posing a hypothetical question to expert witnesses. See Department of Youth Servs., supra at 532; Liacos, supra at § 7.10.3, at 420-421.\nEvidence of physical injury of abuse is not always available in child sexual abuse cases, but is admissible when available. See, e.g., Commonwealth v. LeFave, 407 Mass. 927, 930-931 (1990) (physical evidence of sexual abuse showing that all female victims suffered vulvitis, redness around their labia, with one child having cracking and Assuring around her labia with bump on her hymen admitted without discussion on review). See also Commonwealth v. Pikul, 400 Mass. 550, 552 (1987) (extensive physical evidence of sexual abuse of murder victim admitted without challenge); Commonwealth v. Montmeny, 360 Mass. 526, 528-529 (1971) (physical evidence of rape properly admitted).\nThe jury may be under the mistaken understanding that certain types of sexual abuse always or nearly always cause physical injury or scarring in the victim. Particularly where the defendant argues that the absence of any scarring or injury is evidence that the abuse did not occur, expert medical testimony to the contrary may assist the jury in properly evaluating the evidence. See Myers, Expert Testimony in Child Sexual Abuse Litigation, 68 Neb. L. Rev. 1, 35-36 n.122 (1989).\nWe agree with the analysis of the Appeals Court, 40 Mass. App. Ct. 616, 618 n.2 (1996), that the defendant adequately preserved the issue for appeal. The Commonwealth correctly notes that, in the years intervening between the defendant’s conviction and his appeal, we have had occasion to clarify the law regarding the use of expert witnesses in child abuse cases. It suggests that the defendant should not have the benefit of what are now more stringent requirements for the use of such expert witnesses. While we recognize that ordering a new trial may come with a heavy cost to the complainants and their family, particularly where, as here, so many years have lapsed since the trial, we adhere to our view that, on direct appeal, a defendant has the benefit of intervening decisional law. See Commonwealth v. D’Agostino, 421 Mass. 281, 284 (1995)."", ""type"": ""majority"", ""author"": ""Marshall, J.""}], ""attorneys"": [""Robert C. Cosgrove, Assistant District Attorney, for the Commonwealth."", ""Maxine Sushelsky for the defendant.""], ""corrections"": """", ""head_matter"": ""Commonwealth vs. Liberatore Libby Vincent Federico.\nNorfolk.\nFebruary 6, 1997. -\nSeptember 4, 1997.\nPresent: Wilkins, C.J., Lynch, O’Connor, & Marshall, JJ.\nChild Abuse. Witness, Expert, Credibility. Evidence, Expert opinion, Sexual conduct, Credibility of witness. Error, Harmless.\nDiscussion of the principles governing the admissibility of expert medical testimony in cases involving sexual abuse of children. [847-850]\nAt the trial of indictments for sexual abuse of children, testimony of one expert medical witness was properly admitted, but the jury could have understood the testimony of a second medical expert, in response to flawed hypothetical questions, to mean that sexual abuse had in fact occurred [850-852]; where the only evidence against the defendant were the allegations of the complainants, the improperly admitted evidence constituted reversible error [852-853],\nIndictments found and returned in the Superior Court Department on May 11, 1988.\nThe cases were tried before Suzanne DelVecchio, J., and a motion for a new trial was heard by her.\nAfter review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.\nRobert C. Cosgrove, Assistant District Attorney, for the Commonwealth.\nMaxine Sushelsky for the defendant.""}, ""cites_to"": [{""cite"": ""421 Mass. 281"", ""year"": 1995, ""case_ids"": [861432], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""284""}], ""case_paths"": [""/mass/421/0281-01""], ""opinion_index"": 0}, {""cite"": ""68 Neb. L. Rev. 1"", ""category"": ""journals:journal"", ""reporter"": ""Neb. L. Rev."", ""opinion_index"": 0}, {""cite"": ""360 Mass. 526"", ""year"": 1971, ""case_ids"": [317466], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""528-529"", ""parenthetical"": ""physical evidence of rape properly admitted""}], ""case_paths"": [""/mass/360/0526-01""], ""opinion_index"": 0}, {""cite"": ""407 Mass. 927"", ""year"": 1990, ""case_ids"": [3887509], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""930-931"", ""parenthetical"": ""physical evidence of sexual abuse showing that all female victims suffered vulvitis, redness around their labia, with one child having cracking and Assuring around her labia with bump on her hymen admitted without discussion on review""}], ""case_paths"": [""/mass/407/0927-01""], ""opinion_index"": 0}, {""cite"": ""398 Mass. 516"", ""year"": 1986, ""weight"": 2, ""case_ids"": [877648], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""532""}], ""case_paths"": [""/mass/398/0516-01""], ""opinion_index"": 0}, {""cite"": ""422 Mass. 1104"", ""year"": 1996, ""case_ids"": [890055], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/422/1104-01""], ""opinion_index"": 0}, {""cite"": ""417 Mass. 348"", ""year"": 1994, ""case_ids"": [482592], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""353""}], ""case_paths"": [""/mass/417/0348-01""], ""opinion_index"": 0}, {""cite"": ""328 U.S. 750"", ""year"": 1946, ""case_ids"": [377132], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""page"": ""764-765""}], ""case_paths"": [""/us/328/0750-01""], ""opinion_index"": 0}, {""cite"": ""15 Mass. App. Ct. 437"", ""year"": 1983, ""case_ids"": [5738255], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""445""}], ""case_paths"": [""/mass-app-ct/15/0437-01""], ""opinion_index"": 0}, {""cite"": ""350 Mass. 664"", ""year"": 1966, ""case_ids"": [527000], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""665-667"", ""parenthetical"": ""error to elicit from medical witness that there had been \""forcible entry\"" of alleged victim of rape""}], ""case_paths"": [""/mass/350/0664-01""], ""opinion_index"": 0}, {""cite"": ""40 Mass. App. Ct. 458"", ""year"": 1996, ""case_ids"": [1035567], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""465-466""}], ""case_paths"": [""/mass-app-ct/40/0458-01""], ""opinion_index"": 0}, {""cite"": ""42 Mass. App. Ct. 637"", ""year"": 1997, ""case_ids"": [1606193], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""644""}], ""case_paths"": [""/mass-app-ct/42/0637-01""], ""opinion_index"": 0}, {""cite"": ""36 Mass. App. Ct. 433"", ""year"": 1994, ""case_ids"": [4016663], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""444-445""}], ""case_paths"": [""/mass-app-ct/36/0433-01""], ""opinion_index"": 0}, {""cite"": ""37 Mass. App. Ct. 140"", ""year"": 1994, ""case_ids"": [4019510], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""case_paths"": [""/mass-app-ct/37/0140-01""], ""opinion_index"": 0}, {""cite"": ""423 Mass. 180"", ""year"": 1996, ""case_ids"": [1028049], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""185"", ""parenthetical"": ""harmless error to allow expert to testify, after child victim had given inconsistent testimony on sequence and dates of abuse, that such inconsistency was not unusual among child victims""}], ""case_paths"": [""/mass/423/0180-01""], ""opinion_index"": 0}, {""cite"": ""419 Mass. 750"", ""year"": 1995, ""weight"": 2, ""case_ids"": [823693], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""759"", ""parenthetical"": ""\""[ajlthough expert testimony on the general behavioral characteristics of sexually abused children is permissible, an expert may not refer or compare the child to those general characteristics\""""}, {""parenthetical"": ""error to admit expert testimony that child's behavior during gynecological visit was consistent with that of sexually abused children""}], ""case_paths"": [""/mass/419/0750-01""], ""opinion_index"": 0}, {""cite"": ""413 Mass. 292"", ""year"": 1992, ""case_ids"": [3901200], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""304""}], ""case_paths"": [""/mass/413/0292-01""], ""opinion_index"": 0}, {""cite"": ""401 Mass. 197"", ""year"": 1987, ""weight"": 3, ""case_ids"": [3878311], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""202""}, {""page"": ""202""}, {""page"": ""202""}], ""case_paths"": [""/mass/401/0197-01""], ""opinion_index"": 0}, {""cite"": ""409 Mass. 500"", ""year"": 1991, ""case_ids"": [3893849], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""504""}], ""case_paths"": [""/mass/409/0500-01""], ""opinion_index"": 0}, {""cite"": ""294 Or. 427"", ""year"": 1983, ""case_ids"": [2189309], ""category"": ""reporters:state"", ""reporter"": ""Or."", ""pin_cites"": [{""page"": ""440"", ""parenthetical"": ""Roberts, J., concurring""}], ""case_paths"": [""/or/294/0427-01""], ""opinion_index"": 0}, {""cite"": ""407 Mass. 412"", ""year"": 1990, ""case_ids"": [3886514], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""421"", ""parenthetical"": ""rape trauma syndrome is \""beyond the jury's common knowledge,\"" and therefore admissible""}], ""case_paths"": [""/mass/407/0412-01""], ""opinion_index"": 0}, {""cite"": ""409 Mass. 719"", ""year"": 1991, ""weight"": 2, ""case_ids"": [3892311], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""724"", ""parenthetical"": ""expert testimony concerning \""battered child syndrome\"" admissible because condition is not matter of common knowledge""}, {""page"": ""724"", ""parenthetical"": ""testimony concerning \""battered child syndrome\"" admissible, but testimony concerning \""profile\"" of child batterers is not""}], ""case_paths"": [""/mass/409/0719-01""], ""opinion_index"": 0}, {""cite"": ""400 Mass. 550"", ""year"": 1987, ""weight"": 2, ""case_ids"": [880042], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""553""}, {""page"": ""552"", ""parenthetical"": ""extensive physical evidence of sexual abuse of murder victim admitted without challenge""}], ""case_paths"": [""/mass/400/0550-01""], ""opinion_index"": 0}, {""cite"": ""385 Mass. 91"", ""year"": 1982, ""case_ids"": [900794], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""105""}], ""case_paths"": [""/mass/385/0091-01""], ""opinion_index"": 0}, {""cite"": ""419 Mass. 54"", ""year"": 1994, ""case_ids"": [823665], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""59""}], ""case_paths"": [""/mass/419/0054-01""], ""opinion_index"": 0}, {""cite"": ""417 Mass. 536"", ""year"": 1994, ""weight"": 2, ""case_ids"": [482593], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""540"", ""parenthetical"": ""expert testimony on typical symptoms of sexually abused children allowed because information is beyond common knowledge of jurors and may be of assistance in assessing witness's credibility""}, {""page"": ""540""}], ""case_paths"": [""/mass/417/0536-01""], ""opinion_index"": 0}, {""cite"": ""39 Mass. 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App. Ct."", ""pin_cites"": [{""page"": ""618-619""}, {""page"": ""619-621""}], ""case_paths"": [""/mass-app-ct/40/0616-01""], ""opinion_index"": 0}, {""cite"": ""405 Mass. 618"", ""year"": 1989, ""weight"": 10, ""case_ids"": [3882436], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""628""}, {""page"": ""630""}, {""page"": ""628, 630"", ""parenthetical"": ""expert testimony admissible where there were \""no references or comparison to the child witness\""""}, {""page"": ""621"", ""parenthetical"": ""expert testimony that absence of trauma to genital area not inconsistent with sexual abuse admitted without challenge or comment on plenary review""}, {""page"": ""629""}, {""page"": ""629""}], ""case_paths"": [""/mass/405/0618-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""425 Mass. 844"", ""type"": ""official""}], ""file_name"": ""0844-01"", ""last_page"": ""855"", ""first_page"": ""844"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T17:33:17.309606+00:00"", ""decision_date"": ""1997-09-04"", ""docket_number"": """", ""last_page_order"": 875, ""first_page_order"": 864, ""name_abbreviation"": ""Commonwealth v. 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+285280,"{""id"": 285280, ""name"": ""Commonwealth vs. Robert Francis"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""fe31e83548a218f8f40063302bda16c4c4db503e2109091fe5db4cbf10f938a2"", ""simhash"": ""1:a80bc658d7de8999"", ""pagerank"": {""raw"": 0.0000004901210192658702, ""percentile"": 0.9337625475462082}, ""char_count"": 55510, ""word_count"": 8865, ""cardinality"": 1833, ""ocr_confidence"": 0.917}, ""casebody"": {""judges"": [], ""parties"": [""Commonwealth vs. Robert Francis.""], ""opinions"": [{""text"": ""Marshall, C.J.\nThe defendant was convicted by a jury, as an accessory before the fact, of murder in the first degree by reason of deliberate premeditation. He was also convicted, as an accessory before the fact, of three indictments charging armed assault with intent to murder and assault and battery by means of a dangerous weapon. G. L. c. 274, § 2. On appeal, he claims numerous errors that would warrant reversal of his convictions and requests relief pursuant to G. L. c. 278, § 33E. While his appeal was pending, the defendant filed a motion for a new trial based on newly discovered evidence that was referred to the Superior Court and denied without a hearing. His appeal from that order has been consolidated with his direct appeal from his convictions. We affirm the defendant’s convictions and the order denying his motion for a new trial. We conclude that relief pursuant to G. L. c. 278, § 33E, is not warranted.\n1. Facts. On the evening of February 28, 1995, Carlos Falcon and three other men were shot after leaving a Kentucky Fried Chicken (KFC) restaurant on State Street in Springfield. Falcon died as a result of being shot once in the back of the head. The other three men survived.\nEarlier that evening, members of two Springfield gangs known as Los Solidos and the Original Family Organization (OFO), a subordinate group whose members aspired to membership in Los Solidos, gathered in the apartment of Sharleen Alvarez located on the fourth floor at 659 State Street. Los Soli-dos members present were the defendant, Luis Berrios, Victor Figueroa, Johnny Sanchez, Luis Concepcion, and David Jiles. OFO members present were Daniel Rodriguez (“president” of OFO and the Commonwealth’s cooperating witness in this case), Michael Borden, Jason Jiles, and Sharleen Alvarez.\nThe Commonwealth presented evidence that warranted a finding that the defendant was the “chief enforcer” of Los Soli-dos, responsible for taking care of the gang’s guns, handling threats to the gang, and, during “wartime,” exercising control over the gang in cooperation with its “warlord.” There was testimony that, on the date of the shootings, Los Solidos were in a state of “war” with a rival gang, the Latin Kings.\nRodriguez testified that, at some point that evening, Concepcion and David Jiles entered the apartment and told the group that members of the Latin Kings were at the KFC “throwing signs,” which meant that they were disrespecting Los Solidos by displaying their hand signal. When some of those present urged retaliation, the defendant took charge, stating, “Everybody just calm down. We going [szc] take care of this.” He summoned Rodriguez, Borden, Jason Jiles, and Berrios into the bathroom, where he said, “If you can get those Kings, we got to do what we got to do.” Jason Jiles responded that he would take care of it. The defendant then directed Rodriguez and Ber-rios to leave while he remained in the bathroom with Borden and Jiles.\nReturning from the bathroom, the defendant told Rodriguez, “Don’t worry about it. I’m gon’ [szc] take care of it. Let me do my job.” Jason Jiles, in the defendant’s presence, picked up a .22 caliber semiautomatic handgun and said, “I’m going to do this.” The defendant then instructed Jason Jiles to “[g]et a hoody,” referring to a hooded sweatshirt, which Jiles put on before leaving the apartment. Borden also left the apartment at this time, and when Rodriguez asked where he had gone, the defendant told him not to worry about it. Borden often carried a .38 caliber revolver. Rodriguez testified that, shortly thereafter, Jason Jiles returned to the apartment and said, “Those ain’t Kings,” to which the defendant responded, “They Kings. They Kings. Go do what you got to do and take care of it.” Jason Jiles again left the apartment.\nThere was testimony by the Commonwealth’s witnesses about the events outside the apartment. Just prior to the shooting, Carlos Falcon and three companions had left the KFC. The three men were seated inside Falcon’s automobile, and Falcon was standing at the rear of the vehicle. A man matching the description of Borden approached and, after a brief verbal exchange, shot the three men in the vehicle with a .38 caliber revolver, wounding them. Jason Jiles, approaching from the rear, shot Falcon once in the back of the head with a .22 caliber handgun, killing him.\nJason Jiles and Borden then returned to the State Street apartment, where they were congratulated by the others. Los Solidos “warlord,” Johnny Sanchez, complained loudly to the defendant that the shooting was a mistake because it could “bring the heat down on us.” The defendant responded, “They’ll never figure this one out. Everybody just keep quiet.” Portions of this exchange were overheard by Springfield police officers outside the apartment, who had responded to a report of the shooting. The police were admitted to the apartment by Sharleen Alvarez. Only Rodriguez was arrested at the time, on an outstanding warrant. The defendant was arrested approximately two months later when Rodriguez implicated him in the shootings in a statement to police.\n2. The prosecutor’s opening statement. In his opening statement, the prosecutor informed the jury that Rodriguez, a cooperating witness for the Commonwealth, had a criminal history, but had made no “deals” with the Commonwealth in return for his testimony, and that he was no longer associated with gangs and now lived a “straight and narrow life.” The defendant moved for a mistrial, which was denied. He argues that this was error because the prosecutor had impermissibly vouched for Rodriguez’s credibility.\nA prosecutor may not express a personal opinion as to the credibility of a witness or assert personal knowledge of the facts in issue. See Commonwealth v. Trigones, 397 Mass. 633, 642 (1986), and cases cited. See also Mass. R. Prof. C. 3.8 (h), (i), as appearing in 428 Mass. 1305 (1999). He may in general state in his opening anything that he “expects to be able to prove by evidence.” Commonwealth v. Fazio, 375 Mass. 451, 454 (1978), and cases cited. The judge concluded, and we agree, that the prosecutor did not vouch for Rodriguez but merely “predict[ed] what the witness would say.” This prediction was borne out at trial, as Rodriguez testified that the Commonwealth had made no promises to him to induce him to testify against the defendant, and that he had ceased his gang involvement and held steady employment at the time of trial. The judge properly exercised his discretion in denying the defendant’s motion for a mistrial. See Commonwealth v. Amirault, 404 Mass. 221, 232 (1989).\n3. Witness confidentiality. Prior to Rodriguez’s testimony, the Commonwealth moved, pursuant to G. L. c. 258B, §§ 2, 3 (d), (h), to prevent defense counsel from cross-examining him about his address, telephone number, and place of employment, because he feared retaliation by gang members against himself or his family. The judge ruled that defense counsel could ask Rodriguez whether he was engaged in an occupation other than selling drugs, but not his specific employment or his employment address, and whether he now lived in western Massachusetts or in Connecticut, but not his city of residence or residential address. He also prohibited defense counsel from investigating these matters. The defendant argues that the restrictions infringed his right to confrontation guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. See Smith v. Illinois, 390 U.S. 129, 131 (1968); Alford v. United States, 282 U.S. 687, 692-693 (1931). We disagree.\nIn Commonwealth v. McGrath, 364 Mass. 243, 251 (1973), citing Smith v. Illinois, supra at 133-134 (White, J., concurring), we held that a defendant’s right to cross-examine a witness about his current address and place of employment may be restricted when the judge determines that a threat to the witness’s safety from disclosure of this information outweighs the defendant’s need for it. See Commonwealth v. Johnson, 365 Mass. 534, 545 (1974). Here, the judge properly concluded that the risk to Rodriguez’s safety was “inherent in the situation,” thereby relieving the Commonwealth of its burden to demonstrate an actual threat to the witness. Commonwealth v. McGrath, supra, citing United States v. Daddano, 432 F.2d 1119, 1128 (7th Cir. 1970), cert. denied, 402 U.S. 905 (1971). The judge then ascertained from defense counsel the defendant’s need for information about the witness’s current address and place of business, carefully weighed the defendant’s interest in disclosure against the witness’s interest in privacy, and concluded that the latter was sufficiently compelling to warrant the limitations described above. In all other respects, the defendant had “an open and meaningful opportunity to cross-examine” the witness. McGrath v. Vinzant, 528 F.2d 681, 685 (1st Cir.), cert. dismissed, 426 U.S. 902 (1976). By permitting general questions as to the witness’s home State and employment, the judge sought, and found, a compromise that allowed sufficient disclosure while minimizing any danger to the witness. See Commonwealth v. Johnson, supra at 546.\n4. Cross-examination of the defendant, (a) The defendant testified at trial, and now claims that it was error for the judge, to permit the prosecutor to question him about an incident that occurred approximately five weeks after the shootings: the defendant had been arrested and indicted, but subsequently acquitted by a jury, on the charge of possessing a firearm without a firearms identification card. G. L. c. 269, § 10 (h). Defense counsel objected repeatedly to the cross-examination concerning this incident.\nThe Commonwealth conceded at oral argument that it was error for the judge to allow the prosecutor to question the defendant about his alleged unlawful possession of a firearm; its relevance to the charges against the defendant was tenuous and was substantially outweighed by its potential to suggest the defendant’s criminal propensity. On review of the record, we are convinced, however, that this error “did not influence the jury, or had but very slight effect.” Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994) (preserved non-constitutional error). In response to the prosecutor’s questions, the defendant denied that he had possessed a handgun, and told the jury that he had been found not guilty on the charge, responses that served to minimize the prejudicial impact of the improper questions. See Commonwealth v. Stewart, 375 Mass. 380, 388 (1978), citing Commonwealth v. DeChristoforo, 360 Mass. 531, 541 (1971). The judge then terminated the prosecutor’s questioning when he asked the defendant about his arrest for this alleged misconduct. The prosecutor did not raise the matter again, and did not argue it in closing. Cf. Commonwealth v. Rivera, 425 Mass. 633, 646-647 (1997). During the prosecutor’s cross-examination of the defendant, the judge instructed the jury that a witness’s negative response to a leading question from counsel supplies no evidence for their consideration. See Commonwealth v. Murphy, 426 Mass. 395, 403 (1998). Both during the cross-examination and again in his final charge, the judge instructed the jury that, because the defendant had been found not guilty of the charge, they were required to find that he had, in fact, not possessed a gun as alleged. We presume that the jury followed these instructions, Commonwealth v. Watkins, 425 Mass. 830, 840 (1997), effectively negating any prejudice to the defendant. The judge properly exercised his discretion in denying the defendant’s motion for a mistrial on this issue.\n(b) The defendant argues that it was error to permit the prosecutor to question him about an incident that occurred shortly after the shootings, in which he was stabbed, and to call a Springfield police officer to rebut a particular aspect of the defendant’s testimony about the stabbing incident. There was no error.\nThe permissible scope of cross-examination rests largely in the sound discretion of the judge. Commonwealth v. Gagnon, 408 Mass. 185, 192 (1990). During cross-examination, the defendant first mentioned the stabbing to explain why he had left Los Solidos shortly after the shootings; he initially characterized the altercation that resulted in his injury as a “gang fight.” He subsequently denied that there was any ongoing conflict between Los Solidos and the Latin Kings around the time of the shootings, and when the prosecutor recalled the stabbing incident, the defendant claimed not to know who had stabbed him or whether it was gang related. The prosecutor then impeached the defendant with a statement he previously had made to police in which he had identified his assailant as a Latin King. Defense counsel objected, and the judge curtailed any further inquiry about this incident.\nThe defendant opened the door to cross-examination on the issue. See Commonwealth v. Magraw, 426 Mass. 589, 595-596 (1998). Moreover, his initial assertion that he had been stabbed in a “gang fight” made the circumstances of the stabbing relevant to subsidiary facts at trial as it was probative of the existence of a state of “war” between Los Solidos and the Latin Kings. His subsequent denial of any knowledge of those circumstances or the identity of his assailant made his prior inconsistent statement to police relevant for impeachment purposes. See Commonwealth v. Gil, 393 Mass. 204, 219 (1984). There was no abuse of discretion in allowing the prosecutor to inquire as far as he did about the circumstances of the defendant’s stabbing.\nNor was it error to allow the police officer to testify in rebuttal. Rebuttal evidence on a collateral matter may be admitted to impeach a witness’s credibility. See Commonwealth v. Ferguson, 425 Mass. 349, 355 (1997), citing Commonwealth v. Zezima, 365 Mass. 238, 242 n.5 (1974), S.C., 387 Mass. 748 (1982). The judge allowed the prosecutor to call the Springfield police officer who had taken the defendant’s statement about the stabbing for the limited purpose of rebutting the defendant’s claim that the police had “bullied” and “pressured” him into making the statement, as he had testified. The rebuttal testimony “tended to cast doubt on the defendant’s credibility because it created a basis from which the jury might infer that because the defendant’s testimony [as to the voluntariness of his statement about the stabbing] was not accurate, other portions of his testimony also might be inaccurate.” Commonwealth v. Ferguson, supra, quoting Commonwealth v. Fleury-Ehrhart, 20 Mass. App. Ct. 429, 434 (1985). It was, moreover, the defendant’s denial of any knowledge of his assailant that prompted the Commonwealth to offer the rebuttal witness. The rebuttal testimony, brief and restricted in scope, was not likely to confuse the jury, and there was no unfair surprise to the defendant. Simon v. Solomon, 385 Mass. 91, 107 (1982). There was no abuse of discretion.\n(c) The Commonwealth filed a pretrial motion to introduce in evidence statements given to the police by Jason files, who had previously been tried and convicted as a principal on this homicide. In these statements, in addition to confessing his own role in the crime, files inculpated the defendant and reported numerous incriminating statements the defendant allegedly made the night of the shootings. The Commonwealth argued that the statements, although hearsay, were admissible because made by files against his penal interest. The judge deferred ruling on the motion; he subsequently informed the prosecutor that he doubted that files’s statements were admissible. The Commonwealth did not call Jason files at trial and did not offer his statements in evidence.\nWhen cross-examining the defendant, however, the prosecutor used files’s statements, asking the defendant whether, when files returned to the apartment and reported that the men at the KFC were not Latin Kings, he recalled telling files to go “[l]ight up the car.” The defendant denied making the statement. The prosecutor then asked the defendant whether he was aware that files had given a statement to police, to which the defendant responded affirmatively. The prosecutor then repeated the question about “lighting] up the car.” Although defense counsel did not object, the judge, sua sponte, called for a bench conference.\nThe judge admonished the prosecutor that, while he had a right to cross-examine about statements that he had a good faith basis to believe the defendant had made, that basis could not be supplied by files’s statements to police, which had been excluded from evidence. The judge remarked that it was plain to him, and likely also to the jury, that papers the prosecutor was holding were files’s statements. The prosecutor did not dispute this observation nor did he challenge that files’s statements had been excluded, but argued that tlieir contents furnished him a good faith basis for inquiring about the defendant’s incriminating statements. The judge appeared to accept this argument, ruling that the prosecutor could ask the questions, provided that he conceal from the jury any appearance that he was relying on files’s statements.\nDefense counsel did not object, but the following day moved for a mistrial on the grounds, inter alia, that the prosecutor’s reference to inculpatory statements that had been attributed to the defendant solely by fason files, a codefendant who had not testified, violated the defendant’s Federal constitutional right of confrontation, citing Douglas v. Alabama, 380 U.S. 415 (1965). The judge denied the motion. The prosecutor proceeded, over objection, to ask the defendant six additional questions based on files’s statements. The judge then interrupted and barred the prosecutor from asking any further questions based on the contents of files’s out-of-court statements, restricting him to inquiring about matters that were abeady in evidence through the testimony of other witnesses. On appeal, the defendant renews his claim that these questions infringed his right of confrontation under both the Sixth Amendment and art. 12.\nIt was improper for the prosecutor to cross-examine the defendant about incriminating material that derived exclusively from the inadmissible extrajudicial statements of a separately tried codefendant who did not testify at the defendant’s trial. See Douglas v. Alabama, supra at 419-420. See also Robbins v. Small, 371 F.2d 793, 794-795 (1st Cir.), cert. denied, 386 U.S. 1033 (1967) (.Douglas error where prosecutor, by using statement of unavailable witness, “indirectly but effectively brought to the jury’s attention the substance of a statement that was not in evidence and, therefore, not subject to cross-examination”); Commonwealth v. MacKenzie, 413 Mass. 498, 505-508 (1992) (witness’s testimony as to incriminating portions of a nontesti-fying codefendant’s statement that the defendant had not adopted violated defendant’s right of confrontation under Douglas v. Alabama, supra). A confrontation clause violation, to which there is objection, is subject to review for harmless error. See Commonwealth v. MacKenzie, supra at 509 n.11, citing Brown v. United States, 411 U.S. 223 (1973). Although this is a close case, we conclude that the prosecutor’s use of Jiles’s statements did not result in unfair prejudice warranting reversal of the defendant’s convictions.\nWith respect to the first improper question, referring to the statement, “Go light up the car,” the defendant did not timely object, and our review is, therefore, limited to determining whether the prosecutor’s use of this statement created a substantial likelihood of a miscarriage of justice. See Commonwealth v. MacKenzie, supra at 509. It did not. Although the attributed statement was relevant to the defendant’s guilt as an “accessory before the fact,” it was cumulative of Rodriguez’s lengthy testimony that portrayed the defendant as the man in charge on the night of the shootings. Rodriguez also told the jury of several incriminating statements the defendant made while encouraging and counseling the principals to commit the crimes. See Commonwealth v. MacKenzie, supra at 510-511 (cumulative nature of evidence conveyed through improper question minimizes likelihood of miscarriage of justice). See also Arnold v. United States, 511 A.2d 399, 411 (D.C. 1986) (no prejudicial Douglas error where statements in prosecutor’s improper questions “did not constitute ‘the only direct evidence’ ” against defendant).\nAdditionally, this statement did not receive significant attention during the trial. The prosecutor asked a total of seven questions that referred to the contents of files’s statements, only four of which appear to have had those statements as their exclusive foundation. See note 7, supra. The defendant answered each, including the first, with a denial. In the course of the prosecutor’s cross-examination of the defendant (albeit on another subject), the judge interrupted and instructed the jury that a leading question on cross-examination that receives a negative response from a witness does not constitute evidence for their consideration, an instruction he repeated in his final charge. The prosecutor did not refer to files’s statements in his closing argument. See Commonwealth v. Jiles, 428 Mass. 66, 75 (1998), quoting Commonwealth v. Rivera, 425 Mass. 633, 642 (1997) (in evaluating whether improperly admitted evidence creates substantial likelihood of injustice, we attach “ ‘great weight’ to the fact that the ‘the jury’s attention was not in any way focused on [that evidence]’ ”). Thus, we are “substantially confident” that, had this question not been asked, the juiy’s verdict would not have been different. Commonwealth v. Ruddock, 428 Mass. 288, 292 n.3 (1998).\nThe defendant timely objected to the three additional questions based exclusively on files’s out-of-court statements. We must, therefore, determine whether the error in allowing these questions was “harmless beyond a reasonable doubt.” Commonwealth v. Vinnie, 428 Mass. 161, 162, cert. denied, 525 U.S. 1007 (1998) (preserved constitutional error). One of these questions asked whether the defendant recalled files telling him he had “ducked” the gun into the woods after the shootings. This did not refer to any incriminating statement made by the defendant, but rather to files’s own self-incriminating utterance after he committed the crime. No prejudice could have resulted from this question, as it did not bear on any aspect of the defendant’s criminal liability. See Commonwealth v. Libran, 405 Mass. 634, 643 (1989), citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) (factors for harmless error review include “the importance of the improperly admitted testimony to the prosecution’s case”).\nWith respect to the remaining two questions (i.e., did the defendant recall asking files what he did with the gun and telling Jiles not to answer his telephone or pager after the shootings), it is important to our analysis that the defendant was charged and convicted as an “accessory before the fact” to murder and various felony assaults. G. L. c. 274, § 2. Under the terms of the judge’s clear and forceful instructions to the jury, only the defendant’s conduct prior to the shootings (before the fact) was relevant to the offenses with which he was charged. Both improper questions, however, recited statements the defendant allegedly made after the crimes had been committed; neither had the effect of suggesting that the defendant had counseled or procured Jiles or others beforehand to commit the shootings. This is not a case where improper questions referring to inadmissible evidence “bore on a fundamental part of the State’s case against [the defendant].” Douglas v. Alabama, supra at 420. See Commonwealth v. Libran, supra.\nMoreover, while the jury could properly have considered these two attributed statements as evidence of the defendant’s consciousness of guilt — inasmuch as they suggested an effort to conceal the crimes, see, e.g., Commonwealth v. Coonan, 428 Mass. 823, 829 (1999); Commonwealth v. Clarke, 418 Mass. 207, 215 (1994) — in this regard the statements were cumulative of the testimony of Rodriguez, who testified that the defendant had instructed the other gang members in the apartment to keep quiet about the shootings. See Commonwealth v. Libran, supra at 643 (cumulative nature of improperly admitted evidence relevant to determining whether error harmless). The prosecutor’s use of these statements when the defendant had no opportunity to cross-examine his codefendant and test his credibility thus did not “add[] critical weight to the prosecution’s case.” Douglas v. Alabama, supra. Bearing in mind the devastating testimony of Rodriguez, an eyewitness to the defendant’s actions, we are satisfied beyond a reasonable doubt that the prosecutor’s improper use of these statements did not contribute to the jury’s verdict. See Chapman v. California, 386 U.S. 18, 24 (1967).\n5. Discharge of deliberating juror. At the beginning of the deliberations the judge was informed that a member of the jury, later identified as juror 5-2, wished to speak with him about her inability to remain impartial. In the presence of the defendant and his counsel, the judge conducted a voir dire of the juror, who linked her inability to remain impartial to “where [she] live[d],” more precisely, to the fact that there were gang members in her neighborhood and that this made her “afraid” and “nervous.” She testified that she had not told other jurors that her fear arose from gang issues, but only that she was afraid to render a verdict due to the neighborhood where she lived.\nAfter reviewing our decision in Commonwealth v. Connor, 392 Mass. 838 (1984), the judge conducted a further voir dire of the juror, again in the presence of the defendant and his counsel, this time asking specifically whether “[she had] a personal problem that’s not related to the other jurors or [her] relationship with them or to [her] views on the case.” She responded that her only problem was that the case “has to do with gangs,” that this made her fearful, and that this problem was personal to her and unrelated to her views on the evidence in the case. The judge then inquired whether she wished to be discharged. When she answered in the affirmative, the judge, pursuant to G. L. c. 234, § 26B, and Mass. R. Crim. R 20 (d), 378 Mass. 889 (1979), discharged her for “good cause,” substituted an alternate juror, and instructed the jury that the reason for the juror’s discharge had nothing to do with her views on the case or her relationship with her fellow jurors and that they were to begin their deliberations anew. Defense counsel timely objected to the juror’s discharge and moved for a mistrial, which was denied.\nGeneral Laws c. 234, § 26B, provides that if, at any time after a case has been submitted to the jury and before the jury have agreed on a verdict, a juror “dies, becomes ill, or is unable to perform his duty for any other good cause shown to the court,” the judge may discharge the juror, substitute an alternate selected by lot, and permit the jury to renew their deliberations. See Mass. R. Crim. P. 20 (d). In Commonwealth v. Connor, supra at 844-846, we concluded that “ ‘[g]ood cause’ includes only reasons personal to a juror,” that is, reasons unrelated to the “issues of the case,” the juror’s “views on the case,” or “his relationship with his fellow jurors.” In order to safeguard a defendant’s right to trial by a fair and impartial jury, the judge must carefully scrutinize the reasons offered for discharging a juror at this critical stage of trial “to ensure that a lone dissenting juror is not permitted to evade [the] responsibilities” of his oath or to avoid the stress associated with persistently asserting a minority position in deliberations. Id. at 843, 846. See Commonwealth v. Olszewski, 416 Mass. 707, 722 n.15 (1993), cert. denied, 513 U.S. 835 (1994).\nThe judge adhered scrupulously to the procedural safeguards delineated in Commonwealth v. Connor, supra at 843-846. Cf. id. at 846; Commonwealth v. Perez, 30 Mass. App. Ct. 934, 935 (1991). Moreover, we are satisfied that the record adequately supports the judge’s finding that the juror’s reason for seeking discharge was personal to her and unrelated to her views on the case or her relationship with her fellow jurors. See Commonwealth v. Connor, supra at 846.\nHaving heard the juror’s testimony about the nature and source of her difficulty, the judge characterized her fear as the product of her residential surroundings coupled with “the nature of this case,” and distinguished this latter from her views on the case, the issues it raised, or the evidence presented at trial. While this is, admittedly, a fine distinction, we think it neither untenable nor merely semantic. Although there was considerable evidence during trial about the organization and behavior of street gangs, nevertheless (as the judge clearly instructed the jury) such evidence was relevant only as it bore on the defendant’s state of mind or motive for acting; the defendant’s gang membership was not itself a triable issue in the case, about which the jury were required to make a finding. Moreover, at jury empanelment, the judge inquired whether prospective jurors had experiences with, or feelings about, gangs that would affect their ability to remain impartial, and he excused one juror who responded affirmatively. It is likely that the judge had this very inquiry in mind when he identified the “nature of this case” as one source of the juror’s difficulty, and we conclude that, as a juror’s expression of fear and potential prejudice would have furnished a sufficient basis for excusing her prior to trial, see G. L. c. 234, § 28, as well as during trial but prior to deliberations, see Commonwealth v. Maldonado, 429 Mass. 502, 505-507 (1999), it was reasonably considered “good cause” for discharging her after deliberations had begun.\nAdditionally, we note, as did the judge, that during the course of the trial juror 5-2 twice failed to appear and had to be escorted to the courthouse by police. Commenting on how “upset” she appeared to be, the experienced judge was in a superior position to observe and assess the juror’s demeanor on voir dire. We will not disturb this assessment on appeal. See, e.g., Commonwealth v. Dickerson, 372 Mass. 783, 794-795 (1977). Finally, the juror sought to be discharged on the first day on which the jury actually deliberated the case. The timing of her request makes it unlikely that the jury were at an impasse or that the juror’s difficulty was caused by stress associated with being a hold-out juror. See Commonwealth v. Leftwich, 430 Mass. 865, 874 (2000); Commonwealth v. Connor, supra at 846. In these circumstances, the juror’s inability to perform her function as an impartial trier of fact for reasons entirely personal was a “demonstrable reality.” Commonwealth v. Connor, supra at 846-847, quoting People v. Collins, 17 Cal. 3d 687, 696 (1976). The judge did not abuse his discretion in discharging her.\n6. Extraneous influences. The defendant maintains that on three separate occasions the judge erroneously refused to conduct an individual voir dire of jurors regarding their possible exposure to extraneous influences. He also claims error in the judge’s denial of his motion for a mistrial based on one such refusal. When a judge determines that the jury may have been exposed during the course of trial to material that “goes beyond the record and raises a serious question of possible prejudice,” he should conduct a voir dire of jurors to ascertain the extent of their exposure to the extraneous material and to assess its prejudicial effect. Commonwealth v. Jackson, 376 Mass. 790, 800 (1978). “The facts of the specific case are important,” Commonwealth v. Kamara, 422 Mass. 614, 616 (1996), and we review the judge’s procedure for abuse of discretion. Commonwealth v. Jackson, supra at 799. We conclude, with respect to each of the defendant’s claims of extraneous influence, that the judge properly exercised his discretion in refusing to conduct a voir dire of the other deliberating jurors.\n(a) While the judge was deciding how to proceed with respect to juror 5-2, defense counsel requested an individual voir dire of the other jurors to ascertain if they had been exposed to this juror’s expressions of fear and concern about gangs. The judge declined to address the matter until the issue of juror 5-2 had been resolved. Defense counsel did not thereafter renew his request for a voir dire on this issue until the day after the juror’s discharge. The judge again declined, stating that such an inquiry would be more harmful than productive. Even treating counsel’s request for a voir dire as timely and the issue as properly preserved for appeal, it was not error to deny the request. Juror 5-2 testified that, although she had expressed her fear to the other jurors, she had not discussed its basis other than to say that it was related to “where [she] live[d].” Later, after the juror had been discharged, the judge recalled her and specifically inquired whether she had discussed her fears with any of the other jurors, which she denied. There was, therefore, no basis for the judge to infer that juror 5-2 had been a source of any extraneous influence on the remaining jurors, let alone that her statements raised a serious question of possible prejudice. See Commonwealth v. Jackson, supra. Cf. Commonwealth v. Kamara, supra at 616-617 (individual voir dire of jurors properly conducted where, after judge had purged trial of any reference to gangs, one juror told others during deliberations that she knew defendant, knew he was gang member, thought him guilty, and was afraid to walk up street).\n(b) On the second day of deliberations, a juror reported to the judge that the previous evening a number of jurors had been filmed by a television camera and watched by two young men in the parking lot as they left the courthouse. The juror, in response to the judge’s question, stated that the incidents had not made her nervous about sitting on the case. Defense counsel did not ask for a voir dire of the jury at this time, but later requested renewed inquiry of this juror and a voir dire of the other jurors concerning the two men who had observed them. The judge refused, concluding that this procedure could impair the jury’s deliberations. Because the juror’s report to the judge, recounting a brief and innocuous incident involving two unidentified male observers, plainly did not “raise[] a serious question of possible prejudice,” the judge’s refusal to conduct a voir dire of the jury was a proper exercise of discretion. Commonwealth v. Jackson, supra at 800.\n(c) On the morning of the third day of deliberations, the judge, following his regular practice, polled the jurors regarding, inter alia, their exposure to extraneous material, including newspaper coverage of the trial and “particularly . . . the Springfield Union News.” Each juror, in turn, answered that he or she had complied with the judge’s instructions the previous evening to avoid such media accounts of the trial, and the jury resumed deliberations. Defense counsel thereafter provided the judge two articles from the previous day’s Springfield Union News — one concerning the discharge of juror 5-2, the other a memorial for the murder victim, Carlos Falcon — and moved for an individual voir dire of the jurors and a mistrial on grounds of extraneous influences. The judge denied the motions, stating that all members of the jury had just indicated their full compliance with his instructions, which specifically required them to avoid exposure to that particular newspaper, and that a voir dire on the matter was potentially harmful to deliberations. Clearly, having just determined that the jury had not been exposed to the extraneous influences in question, the judge properly exercised his discretion in denying the defendant’s motions.\n7. Denial of motion for a new trial. When Michael Borden was arrested approximately thirteen months after the defendant’s convictions, he gave two statements to the police, in which he did not name the defendant as having been present in Sharleen Alvarez’s apartment on the night of the shootings. He also gave a statement to a private investigator working for the defendant in which he claimed not to have seen or heard the defendant in the apartment. In all three statements, he identified Luis Berrios as the person who committed the acts alleged to have been committed by the defendant. While the defendant’s appeal was pending, he moved for a new trial pursuant to Mass. R. Grim. R 30 (b), 378 Mass. 900 (1979), claiming newly discovered evidence and submitting Borden’s statements, along with affidavits from his appellate counsel and private investigator, as supporting evidence. The motion judge, who did not preside at the defendant’s trial, denied the defendant’s motion without a hearing, from which the defendant appeals. The discretionary decision to deny a motion for a new trial will not be reversed unless it is manifestly unjust or the trial was infected with prejudicial constitutional error. See Commonwealth v. Nieves, 429 Mass. 763, 770 (1999), and cases cited. Neither ground for reversal is present here.\nIn a carefully reasoned memorandum of decision, the motion judge ruled that Borden’s statements, not being in the form of sworn affidavits, did not comply with Mass. R. Grim. R 30 (c) (3), 378 Mass. 900 (1979), had no corroborating circumstances or other indicia of trustworthiness that would render them admissible as declarations against penal interest, see Commonwealth v. Charles, 428 Mass. 672, 677, 679-680 (1999), and constituted, therefore, inadmissible hearsay. See Commonwealth v. Stewart, 383 Mass. 253, 258 (1981); Commonwealth v. Carver, 33 Mass. App. Ct. 378, 381 (1992). Alternatively, he reasoned, even if Borden’s statements were admitted in evidence, numerous factual discrepancies rendered them inherently unreliable, such that they failed to raise a “substantial issue” necessitating an evidentiary hearing, Mass. R. Crim. P. 30 (c) (3), or to establish that a new trial was warranted in the interests of justice. Mass. R. Crim. P. 30 (b). See Commonwealth v. Grace, 397 Mass. 303, 305-306 (1986). Each of these reasons independently constitutes a sufficient basis for the judge’s denial of the defendant’s motion for a new trial.\nWith respect to the latter basis for denial, we note, as did the motion judge, that Borden’s statements to the police and private investigator contradict one another concerning events in Alvarez’s apartment the night of the shootings, and also contradict the defendant’s own testimony at trial concerning his presence in the apartment that night. Moreover, these statements contradict the admission Borden made under oath when entering his plea of guilty to charges arising out of the shootings, see note 2, supra, in which he expressly agreed with the Commonwealth’s statement of facts that identified the defendant as the person who instructed him and Jason Jiles to commit the crimes. The numerous discrepancies and contradictions in Borden’s various statements about the crimes illustrate that an affidavit of a nontestifying codefendant subsequently offered in support of the defendant’s motion for a new trial is the “weakest sort of evidence.” Commonwealth v. Hennessey, 23 Mass. App. Ct. 384, 385 (1987), citing Commonwealth v. Grace, 370 Mass. 746, 752 (1976). The judge acted within his discretion in denying the defendant’s motion for a new trial.\n8. Section 33E review. We have reviewed the entire record of the defendant’s trial, pursuant to G. L. c. 278, § 33E (see note 1, supra), and conclude that neither a reduction in the jury’s verdict nor an order for a new trial is warranted.\nJudgments affirmed.\nOrder denying motion for a new trial affirmed.\nA defendant convicted as an accessory before the fact to murder in the first degree is entitled to review under G. L. c. 278, § 33E, because the punishment is the same as that for murder in the first degree and the offense, therefore, constitutes a “capital crime.” Patrick P. v. Commonwealth, 421 Mass. 186, 193 (1995). Commonwealth v. Angiulo, 415 Mass. 502, 509-510 (1993).\nJiles was tried separately and convicted as a principal on this homicide and the armed assaults. We affirmed his convictions. Commonwealth v. Jiles, 428 Mass. 66 (1998). Borden was taken into custody thirteen months after the defendant’s convictions and subsequently pleaded guilty to murder in the second degree, conspiracy to commit murder, and three charges of assault and battery by means of a dangerous weapon. Berrios pleaded guilty as an accessory before the fact to murder in the second degree and accessory before the fact to three charges of armed assault with intent to murder and assault and battery by means of a dangerous weapon.\nThe judge, following argument from counsel, stated that he was “satisfied that th[e] witness will be in very grave danger, physical danger of his life, if his whereabouts or home address or working address, for that matter, were to be revealed.” Given the evidence concerning gang-related violence, and that Rodriguez was the Commonwealth’s sole eyewitness to the defendant’s participation in the crimes, this finding is fully supported. See, e.g., Commonwealth v. Cobb, 379 Mass. 456, 469-470, vacated sub nom. Massachusetts v. Hurley, 449 U.S. 809 (1980), appeal dismissed, 382 Mass. 690 (1981).\nRodriguez testified on direct examination that he was now employed as a cook and that, since he had begun cooperating with the police, he had had no further gang involvement, had not lived in Springfield, and had not sold drugs. During cross-examination, he testified that his family members in Hartford, Connecticut, had introduced him to gangs and that he currently resided in Connecticut.\nThe defendant argues in the alternative that, because he had been acquitted of the unlawful possession of a firearm charge, the Commonwealth should have been barred from introducing evidence of this alleged misconduct on the ground of collateral estoppel. As a matter of Federal constitutional law, collateral estoppel does not bar the government in a criminal prosecution from introducing evidence from a separate prosecution on unrelated charges in which the defendant was acquitted. See Krochta v. Commonwealth, 429 Mass. 711, 716-717 (1999), citing United States v. Felix, 503 U.S. 378, 386 (1992), and Dowling v. United States, 493 U.S. 342, 348-349 (1990). We have not previously considered whether the Massachusetts Constitution affords greater protection to criminal defendants in this regard. See Krochta v. Commonwealth, supra at 718 n.14. Because we have concluded that the evidence was inadmissible pursuant to our law of evidence, we do not reach this constitutional issue.\nThere is no merit to the defendant’s claim that there was unfair surprise because the typewritten statement he made to the police was not provided to his counsel until the morning of the defendant’s testimony. The judge repeatedly denied the Commonwealth’s motion to introduce the typewritten report itself in evidence, and limited the prosecutor to questioning the defendant about whether he had given a statement to the police and what he had said about the stabbing and his attacker’s identity. The defendant had access to this evidence independent of the police report.\nThe additional questions were (2) did the defendant recall asking Jason Jiles after the shootings what he did with the gun; (3) did he recall Jiles telling him he had “ducked” the gun into the woods behind the apartment; (4) did he recall telling Jiles after the shootings not to answer his telephone or pager; (5) did he recall telling Jiles, “Them are Kings. Them are Kings. Get back down there. Go do what you gotta do. Go take care of it”; (6) did he recall Jiles’s having changed his clothes after the shootings; (7) did David Jiles and Luis Concepcion come into the apartment and inform him of Latin Kings at the KFC. Of the seven questions asked by the prosecutor, two dealt with matters that were also testified to by Rodriguez (questions 5 and 7); the defendant himself testified about another (question 6). These three questions, therefore, were not improper. See Commonwealth v. Johnson, 412 Mass. 318, 327-328 (1992) (not improper to cross-examine defendant about matters testified to by others, provided that defendant not asked to comment on credibility of another witness). Thus, only four of the prosecutor’s seven questions about matters contained in Jiles’s statements are at issue here, the initial question regarding “light[ing] up the car” and questions 2-4 above.\nThe defendant makes no claim that the right of confrontation under art. 12 affords greater protection than the Sixth Amendment and we do not address this issue. See Commonwealth v. Keevan, 400 Mass. 557, 568 n.9 (1987).\nThe record does not indicate whether the judge made a final ruling on the admissibility of Jiles’s statements. The prosecutor, however, was clearly aware that the judge considered the statements inadmissible, and the Commonwealth concedes on appeal that the statements had been excluded from evidence. The statements, which were offered as exceptions to the rule of hearsay exclusion as statements made by Jiles against his penal interest, see Commonwealth v. Carr, 373 Mass. 617, 623 (1977), would properly have been ruled inadmissible. Although they contained self-incriminating material and were generally against Jiles’s penal interest, the statements clearly sought to shift blame to the defendant and others while exonerating Jiles or minimizing his own role in the crimes. Those portions of Jiles’s statements inculpating the defendant thus lacked corroborating circumstances that would minimize the “hazards of fabrication or unreliability,” and would not satisfy the test for admission as statements against a declarant’s penal interest. Id. at 622. See Commonwealth v. Charles, 428 Mass. 672, 679 n.2 (1999), citing Commonwealth v. Pope, 397 Mass. 275, 280-281 (1986); Commonwealth v. Lopera, 42 Mass. App. Ct. 133, 137 (1997). Additionally, absent “particularized guarantees of trustworthiness,” Ohio v. Roberts, 448 U.S. 56, 66 (1980), the admission in evidence of Jiles’s extrajudicial confession inculpating the defendant when Jiles was unavailable for cross-examination would have implicated and violated the defendant’s constitutional right of confrontation. See Bruton v. United States, 391 U.S. 123, 126-128, 135-137 (1968); Commonwealth v. Keevan, 400 Mass. 557, 569 (1987) (claimed Bruton error addressed in context of separate trials of codefendants); Commonwealth v. Pope, supra at 280 n.7. See also Lilly v. Virginia, 527 U.S. 116, 134-139 (1999) (plurality opinion).\nAlthough defense counsel, prior to trial, asserted the “confrontation clause” as a barrier to the admission of Jiles’s statements in evidence, this objection was raised ten days before the prosecutor asked this first question. See Commonwealth v. MacKenzie, 413 Mass. 498, 508-509 (1992) (defendant’s objection during voir dire of witness two days before witness testified at trial, where defense counsel was himself uncertain about admissibility of testimony, insufficient to preserve claim of confrontation clause violation for appeal). Moreover, the defendant did not object when the prosecutor asked the question, or when he repeated it; the judge, sua sponte, interrupted and questioned the prosecutor about the propriety of his tactic. Not until the next day did the defendant move for a mistrial, arguing a confrontation clause violation. Thereafter, he objected to all questions put by the prosecutor that appeared to be based on Jiles’s statements. See Commonwealth v. Pagano, 47 Mass. App. Ct. 55, 59 (1999), cert. denied, 528 U.S. 1089 (2000), citing Commonwealth v. Silvia, 343 Mass. 130, 135-136 (1961) (where defense counsel objected to last two of five questions asked by prosecutor, objection not timely with respect to the earlier three questions). Cf. Douglas v. Alabama, 380 U.S. 415, 420-423 (1965).\nThe judge instructed the jury that liability as an accessory before the fact requires proof beyond a reasonable doubt that the defendant counseled, hired, or procured the commission of a felony by persons who actually committed the criminal acts and that he shared their intent. He further instructed them that “to counsel” means to urge, encourage, advise or order a person to do an act and “to procure” means to bring the act about and, at the request of defense counsel, gave a supplemental instruction distinguishing an accessory before the fact from a joint venturer on the ground that the latter must be proven to have been present at the crime when it was committed and willing to assist. Moreover, the defendant was not tried as a conspirator or joint venturer, and any evidence of postshooting conduct among the various participants in these crimes was not directly relevant to the offenses with which he was charged.\nThe defendant claims that the judge’s procedure was defective, because he discharged juror 5-2 without a hearing and without making adequate findings to support his determination that the “good cause” requirement had been satisfied. The record does not support this assertion. The judge conducted a voir dire of the juror in accordance with the requirements of Commonwealth v. Connor, 392 Mass. 838, 845 (1984). He then inquired of the two court officers who had contact with the jury, determining that neither had any information relevant to the juror’s problem. See Commonwealth v. Haywood, 377 Mass. 755, 769-770 (1979). The judge expressly concluded that the juror’s problem was fear and that it was a personal matter unconnected to her views on the case or on the evidence.\nAfter charging the jury the previous day, the judge, owing to the lateness of the hour, immediately suspended deliberations until the following day.\nThis request was not timely, and our review is, therefore, limited to determining whether there was error that created a substantial likelihood of a miscarriage of justice. See Commonwealth v. Cameron, 385 Mass. 660, 669 (1982) (motion for mistrial based on extraneous influence, brought one day after incident, held untimely). Accord Commonwealth v. Jackson, 376 Mass. 790, 797 (1978).\nThe judge, at the request of defense counsel, had inquired of juror 5-2 whether she was one of the jurors who had been in the parking lot the previous evening, which she denied.\nBorden’s statement to the private investigator, while it is labeled “affidavit,” contains the phrase “I. . . swear,” and is signed by both Borden and the investigator, was not verified by an oath before a magistrate or a notary public, nor does it affirm that Borden signed under the pains and penalties of perjury. See G. L. c. 268, § 1A. The motion judge, therefore, correctly ruled that it was not an affidavit. See O’Brion, Russell & Co. v. LeMay, 370 Mass. 243, 245 (1976); Galvin v. Town Clerk of Winchester, 369 Mass. 175, 177 (1975), citing Murphy, petitioner, 321 Mass. 206, 213 (1947).\nBorden indicated some disagreement with the Commonwealth’s statement of facts concerning his and Jason Jiles’s respective roles in the shootings, prompting the prosecutor to restate and clarify these facts before the judge accepted Borden’s plea. None of these disputed facts, however, concerned the defendant’s role in directing Borden and Jiles to commit the crimes."", ""type"": ""majority"", ""author"": ""Marshall, C.J.""}], ""attorneys"": [""Alan J. Black for the defendant."", ""Jane Davidson Montori, Assistant District Attorney, for the Commonwealth.""], ""corrections"": """", ""head_matter"": ""Commonwealth vs. Robert Francis.\nHampden.\nMay 5, 2000.\nAugust 22, 2000.\nPresent: Marshall, C.J., Abrams, Greaney, Spina, & Cowin, JJ.\nHomicide. Practice, Criminal, Capital case, Opening statement, Confrontation of witnesses, Cross-examination by prosecutor, Jury and jurors, Examination of jurors. Witness, Credibility, Cross-examination, Limits on testimony. Constitutional Law, Confrontation of witnesses. Evidence, Rebuttal, Cross-examination, Prior misconduct. Jury and Jurors.\nAt a murder trial, the judge did not abuse his discretion in denying the defendant’s motion for a mistrial based on the claim that the prosecutor had impermissibly vouched for a witness’s credibility, where the judge concluded that the prosecutor had merely predicted what the witness would say. [356-357]\nAt a murder trial, the judge properly restricted the defendant’s cross-examination of a witness regarding his residence and employment addresses, where the judge concluded that the witness’s safety was threatened by such disclosure. [357-358]\nAt a murder trial, the judge erred in allowing the prosecutor to question the defendant about his alleged unlawful possession of a firearm for which the defendant had been arrested five weeks after the murder victim had been shot; however, the error could have had but slight effect in light of the judge’s instruction to the jury that, because the defendant had been acquitted of the charge, they were required to find that he had not in fact possessed a gun as alleged [358-359]; further, the judge properly exercised his discretion to deny the defendant’s motion for a mistrial on this issue [359].\nAt a murder trial, the judge properly allowed the prosecutor to cross-examine and present rebuttal evidence on an incident unrelated to the murder but occurring shortly thereafter, in which the defendant was stabbed, where the defendant opened the door to cross-examination on the subject. [359-361]\nAt a murder trial, the prosecutor improperly cross-examined the defendant about incriminating material derived exclusively from the inadmissible extrajudicial statements of a separately tried codefendant who did not testify at the defendant’s trial; however, the prosecutor’s use of the statements did not result in prejudice warranting reversal of the defendant’s convictions, where the prosecutor did not refer to the matter in closing argument, where the judge correctly gave limiting instructions to the jury, and where the inadmissible evidence did not bear on the defendant’s criminal liability or was merely cumulative. [361-367]\nAt a murder trial, the judge properly discharged a juror for good cause, substituted another juror, and instructed the jury, and no abuse of discretion was shown. [367-369]\nAt a murder trial, the judge properly exercised his discretion in refusing to conduct an individual voir dire of deliberating jurors to ascertain their exposure to asserted extraneous influences. [369-371]\nA judge did not abuse his discretion in denying without a hearing a motion for a new trial filed by a defendant convicted of murder in the first degree, where the defendant did not submit evidence with any indicia of trustworthiness that would be admissible as declarations against penal interest or otherwise raise a substantial issue to establish that a new trial was warranted in the interests of justice. [371-373]\nIndictments found and returned in the Superior Court Department on May 12, 1995.\nThe cases were tried before John F. Moriarty, J., and a motion for new trial, filed on October 23, 1998, was considered by Daniel A. Ford, J.\nAlan J. Black for the defendant.\nJane Davidson Montori, Assistant District Attorney, for the Commonwealth.""}, ""cites_to"": [{""cite"": ""528 U.S. 1089"", ""year"": 2000, ""case_ids"": [9665828, 9665957, 9665671, 9665768, 9666063, 9665711, 9665490, 9665587, 9665620, 9666101, 9665877, 9666003, 9665915, 9665532], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/528/1089-08"", ""/us/528/1089-11"", ""/us/528/1089-05"", ""/us/528/1089-07"", ""/us/528/1089-13"", ""/us/528/1089-06"", ""/us/528/1089-01"", ""/us/528/1089-03"", ""/us/528/1089-04"", ""/us/528/1089-14"", ""/us/528/1089-09"", ""/us/528/1089-12"", ""/us/528/1089-10"", ""/us/528/1089-02""], ""opinion_index"": 0}, {""cite"": ""513 U.S. 835"", ""year"": 1994, ""case_ids"": [1331289, 1335073, 1335650, 1335459, 1333605, 1332774, 1331245, 1333711, 1335410, 1335507, 1330804, 1333268, 1334521, 1331967], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/513/0835-03"", ""/us/513/0835-07"", ""/us/513/0835-01"", ""/us/513/0835-13"", ""/us/513/0835-02"", ""/us/513/0835-11"", ""/us/513/0835-04"", ""/us/513/0835-08"", ""/us/513/0835-14"", ""/us/513/0835-06"", ""/us/513/0835-05"", ""/us/513/0835-09"", ""/us/513/0835-12"", ""/us/513/0835-10""], ""opinion_index"": 0}, {""cite"": ""386 U.S. 1033"", ""year"": 1967, ""case_ids"": [6377867, 6377399, 6377209, 6377559, 6378041, 6377690], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""parenthetical"": "".Douglas error where prosecutor, by using statement of unavailable witness, \""indirectly but effectively brought to the jury's attention the substance of a statement that was not in evidence and, therefore, not subject to cross-examination\""""}], ""case_paths"": [""/us/386/1033-05"", ""/us/386/1033-02"", ""/us/386/1033-01"", ""/us/386/1033-03"", ""/us/386/1033-06"", ""/us/386/1033-04""], ""opinion_index"": 0}, {""cite"": ""525 U.S. 1007"", ""year"": 1998, ""case_ids"": [11153824, 11153571, 11153384, 11153161, 11153771, 11153741, 11153118, 11153264, 11153683, 11153300, 11153209, 11153467, 11153628, 11153342], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""parenthetical"": ""preserved constitutional error""}], ""case_paths"": [""/us/525/1007-14"", ""/us/525/1007-09"", ""/us/525/1007-07"", ""/us/525/1007-02"", ""/us/525/1007-13"", ""/us/525/1007-12"", ""/us/525/1007-01"", ""/us/525/1007-04"", ""/us/525/1007-11"", ""/us/525/1007-05"", ""/us/525/1007-03"", ""/us/525/1007-08"", ""/us/525/1007-10"", ""/us/525/1007-06""], ""opinion_index"": 0}, {""cite"": ""426 U.S. 902"", ""year"": 1976, ""case_ids"": [6185091, 6184399, 6184943, 6184596, 6184730], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/426/0902-05"", ""/us/426/0902-01"", ""/us/426/0902-04"", ""/us/426/0902-02"", ""/us/426/0902-03""], ""opinion_index"": 0}, {""cite"": ""413 Mass. 498"", ""year"": 1992, ""weight"": 5, ""case_ids"": [3901246], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""505-508"", ""parenthetical"": ""witness's testimony as to incriminating portions of a nontesti-fying codefendant's statement that the defendant had not adopted violated defendant's right of confrontation under Douglas v. Alabama, supra""}, {""page"": ""509""}, {""page"": ""510-511"", ""parenthetical"": ""cumulative nature of evidence conveyed through improper question minimizes likelihood of miscarriage of justice""}, {""page"": ""508-509"", ""parenthetical"": ""defendant's objection during voir dire of witness two days before witness testified at trial, where defense counsel was himself uncertain about admissibility of testimony, insufficient to preserve claim of confrontation clause violation for appeal""}], ""case_paths"": [""/mass/413/0498-01""], ""opinion_index"": 0}, {""cite"": ""321 Mass. 206"", ""year"": 1947, ""case_ids"": [499954], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""213""}], ""case_paths"": [""/mass/321/0206-01""], ""opinion_index"": 0}, {""cite"": ""369 Mass. 175"", ""year"": 1975, ""case_ids"": [309754], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""177""}], ""case_paths"": [""/mass/369/0175-01""], ""opinion_index"": 0}, {""cite"": ""370 Mass. 243"", ""year"": 1976, ""case_ids"": [312633], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""245""}], ""case_paths"": [""/mass/370/0243-01""], ""opinion_index"": 0}, {""cite"": ""385 Mass. 660"", ""year"": 1982, ""case_ids"": [900701], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""669"", ""parenthetical"": ""motion for mistrial based on extraneous influence, brought one day after incident, held untimely""}], ""case_paths"": [""/mass/385/0660-01""], ""opinion_index"": 0}, {""cite"": ""377 Mass. 755"", ""year"": 1979, ""case_ids"": [334104], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""769-770""}], ""case_paths"": [""/mass/377/0755-01""], ""opinion_index"": 0}, {""cite"": ""343 Mass. 130"", ""year"": 1961, ""case_ids"": [4023963], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""135-136"", ""parenthetical"": ""where defense counsel objected to last two of five questions asked by prosecutor, objection not timely with respect to the earlier three questions""}], ""case_paths"": [""/mass/343/0130-01""], ""opinion_index"": 0}, {""cite"": ""47 Mass. App. Ct. 55"", ""year"": 1999, ""case_ids"": [480193], ""category"": ""reporters:state"", ""reporter"": ""Mass. 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+300520,"{""id"": 300520, ""name"": ""Robert F. Maxwell & another vs. Edward F. Ratcliffe & others"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""bd27388b6f66e4add56bb34f5be5d141d56d6ab86b12e87dcd4e66251c7b0697"", ""simhash"": ""1:e772d5e450ceb05e"", ""pagerank"": {""raw"": 0.0000003476502204165734, ""percentile"": 0.8815095011330777}, ""char_count"": 6514, ""word_count"": 1137, ""cardinality"": 427, ""ocr_confidence"": 0.617}, ""casebody"": {""judges"": [], ""parties"": [""Robert F. Maxwell & another vs. Edward F. Ratcliffe & others.""], ""opinions"": [{""text"": ""Cutter, J.\nIn this action of tort or contract Maxwell and his wife seek to recover damages alleged to have been sustained by misrepresentations concerning a house sold by Rateliffe to the Maxwells. The case is before us on a bill of exceptions on which the Maxwells now present only the question whether the trial judge correctly directed a verdict for each of Ratcliffe’s two brokers, Jose Henriques and Marshall T. Slater, on the counts in tort against them, respectively. The jury could have found the facts stated below.\nThe Maxwells on October 4,1964, stopped at Henriques’s real estate office. They found there Slater and his wife. Mrs. Maxwell told Slater she wanted to buy a small ranch house with specifications mentioned by her. Slater drove the Maxwells to 20 Davis Street, Woburn, and showed the Maxwells the house, including the cellar. Mrs. Maxwell “told Slater the cellar looked large enough to build a room there” to use as a playroom for her grandchildren. She “saw a hole in the cellar and something sticking out of it.” She “asked Slater what it was, and he said he did not know.” Her husband “said it looked like a pump.” She said, “[W]hat’s a pump doing here?” Slater “said he didn’t know but ... it didn’t look as if it had been used.” The cellar was then dry and there was no water in the hole. Mrs. Maxwell asked, “pQs the cellar dry?” Slater replied that the Ratcliffes “had a 9 x 12 rug on the other side of the cellar and it was dry.” She also “asked Slater why there wasn’t any bulkhead there, and he said that he didn’t know and that it’s dry.” She believed and relied upon Slater’s representation, and Henriques’s representations mentioned below, that the cellar was dry “in making her decision to buy the house, and would not have bought the house had she known that the representation was not true because she wanted to build a room in the basement.”\nMrs. Maxwell went to the house again on October 7 with her daughter and a friend, William A. Curry, “who was going to try to build the playroom.” They met Hen-riques at his office and were driven by him to the house. While in the basement “they asked Henriques why the pump was there, and he said he didn’t know, that they may have had water at some time.” Curry also “talked with Henriques about building the room and asked if the cellar was dry, and Henriques said the cellar was dry.” Mrs. Maxwell then said that Slater “had told her there was a rug on the floor and she took it for granted that it was dry.”\nThe Maxwells bought the house and moved in on Novem-i ber 7. About five to six weeks later water came into thei cellar “except during dry spells” and the pump “did not! take care of the water.” The playroom was never built because the cellar “was wet . . . and the floor had water on it.” Some property was damaged by water.\nRatcliffe told a broker, one DiPanfilo, about the water problem when he went to him about selling the house. There was later a multiple listing of the house and the executive secretary of a real estate board sent information about this house to each member of the board’s multiple listing service, including Henriques’s office. The “listing stated in part that the list price was $16,500 and contained the following remarks: ‘Sump pump in cellar, gets some water seepage periodically.’ ” It was agreed that Slater and Henriques were engaged as brokers for Ratcliffe in the sale of the house.\nThe evidence summarized above came from several witnesses called by the Maxwells. Verdicts were directed for Slater and Henriques at the close of the plaintiffs’ case.\nThe evidence permitted the jury to conclude that both Slater and Henriques represented that the cellar was dry. They could infer that Slater and Henriques were associated in the same office and that each had, or should have had, knowledge of the facts about “water seepage periodically” stated in the multiple listing. The state of the cellar was, in any event, an existing fact susceptible of knowledge. Yorke v. Taylor, 332 Mass. 368, 371. Pietrazak v. McDermott, 341 Mass. 107, 109. Powell v. Rasmussen, 355 Mass. 117, 119. The brokers’ statements, according to the testimony, were not mere expressions of opinion or statements promissory in character. They could reasonably be viewed as flat statements that the cellar was dry. Cf. Yerid v. Mason, 341 Mass. 527, 529-531; Fogarty v. Van Loan, 344 Mass. 530, 531-532; Richman v. Seaberg, 353 Mass. 757, 758. Because the question of the dryness of the cellar had been raised expressly, there was special obligation on the brokers to avoid half truths and to make disclosure at least of any facts known to them or with respect to which they had been put on notice. See Kannavos v. Annino, ante, 42, 46-50.\nThere was ample evidence of reasonable reliance and damage. The brokers acted in respects in which they owed a duty, not only to their principal, Ratcliffe, but to the Maxwells with whom they dealt directly. See Coe v. Ware, 271 Mass. 570, 572-574.\nThe jury could conclude that all the elements of a cause of action in deceit had been proved. It was error to direct verdicts for the brokers.\nExceptions sustained.\nCounts in warranty against all three defendants and the count against Rateliffe in tort have been waived.\nCurry testified that Henriques, when asked if the pump was used, said, “to my knowledge, no; that ... he thought at one time they had a big storm or flood of some sort and put it in in case it happened again.”"", ""type"": ""majority"", ""author"": ""Cutter, J.""}], ""attorneys"": [""Daniel J. Johnedis for the plaintiffs.""], ""corrections"": """", ""head_matter"": ""Robert F. Maxwell & another vs. Edward F. Ratcliffe & others.\nMiddlesex.\nDecember 3, 1969.\nDecember 31, 1969.\nPresent: Spalding, Cutter, Kirk, Spiegel, & Quirico, JJ.\nDeceit. Sale, Sale of real estate. Broker, Deceit.\nA cause of action for deceit by the buyers against brokers of the seller in a sale of a dwelling was proved by evidence that, in response to inquiries by the buyers before the sale, the brokers stated as a fact that the cellar was dry, whereas it actually was subject to “water seepage periodically,” as the brokers knew or should have ascertained, that the buyers relied on such representations in consummating the sale, and that the buyers suffered damage because of the condition of the cellar.\nTort or contract. Writ in the Fourth District Court of Eastern Middlesex dated September 26, 1966.\nFollowing removal of the action to the Superior Court, transfer to the District Court under G. L. c. 231, § 102C, and retransfer to the Superior Court, the action was tried before Sullivan, J.\nDaniel J. Johnedis for the plaintiffs.""}, ""cites_to"": [{""cite"": ""271 Mass. 570"", ""case_ids"": [4028628], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""572-574""}], ""case_paths"": [""/mass/271/0570-01""], ""opinion_index"": 0}, {""cite"": ""353 Mass. 757"", ""case_ids"": [3865208, 3865542], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""758""}], ""case_paths"": [""/mass/353/0757-02"", ""/mass/353/0757-01""], ""opinion_index"": 0}, {""cite"": ""344 Mass. 530"", ""case_ids"": [520522], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""531-532""}], ""case_paths"": [""/mass/344/0530-01""], ""opinion_index"": 0}, {""cite"": ""341 Mass. 527"", ""case_ids"": [3852931], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""529-531""}], ""case_paths"": [""/mass/341/0527-01""], ""opinion_index"": 0}, {""cite"": ""355 Mass. 117"", ""case_ids"": [302744], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""119""}], ""case_paths"": [""/mass/355/0117-01""], ""opinion_index"": 0}, {""cite"": ""341 Mass. 107"", ""case_ids"": [3854147], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""109""}], ""case_paths"": [""/mass/341/0107-01""], ""opinion_index"": 0}, {""cite"": ""332 Mass. 368"", ""case_ids"": [938184], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""371""}], ""case_paths"": [""/mass/332/0368-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""356 Mass. 560"", ""type"": ""official""}], ""file_name"": ""0560-01"", ""last_page"": ""563"", ""first_page"": ""560"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T16:50:02.272497+00:00"", ""decision_date"": ""1969-12-31"", ""docket_number"": """", ""last_page_order"": 607, ""first_page_order"": 604, ""name_abbreviation"": ""Maxwell v. 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+302744,"{""id"": 302744, ""name"": ""Lyndall G. Powell vs. William Rasmussen"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""683153c61514962cfb523171a117491b7457ae57223a70b3655eff718d138ec2"", ""simhash"": ""1:28b7995b825cd802"", ""pagerank"": {""raw"": 0.0000005084199636373634, ""percentile"": 0.9379375013755629}, ""char_count"": 6641, ""word_count"": 1145, ""cardinality"": 465, ""ocr_confidence"": 0.588}, ""casebody"": {""judges"": [], ""parties"": [""Lyndall G. Powell vs. William Rasmussen.""], ""opinions"": [{""text"": ""Wilkins, C.J.\nThis action of tort is for deceit in the sale of capital stock. The plaintiff’s sole exception is to the direction of a verdict for the defendant.\nWe summarize evidence which the jury could accept as true. In late 1963 the defendant informed the plaintiff that certain New Jersey parties were interested in acquiring the capital stock of Westfield Broadcasting Company (Broadcasting), owner of radio station WDEW, and asked whether the plaintiff was interested in this investment. The plaintiff replied that he was, and would put up $5,000 toward the purchase price if the other money necessary for the purchase price should be raised. Subsequently, the New Jersey parties, as shareholders of Comet Investment Corporation (Comet), entered into negotiations with Broadcasting to purchase its stock for $100,000.\nIn the latter part of March, 1964, the defendant informed the plaintiff that the president of Comet was coming to Westfield to see one of the principal stockholders of Broadcasting, and to sign a buy and sell agreement for Broadcasting stock; that Comet had sold $95,000 “worth of stock” and the money “was there”; and that if the plaintiff wanted “to get in on it,” Comet was holding the last $5,000 worth of stock for him. Relying on the defendant’s representations, the plaintiff gave the defendant two checks each for $2,500 payable to Comet, one on March 31, 1964, and the other on June 15, 1964, and received two certificates, each for twenty-five shares, of Comet stock. Comet did in fact in May, 1964, enter into an agreement with Broadcasting to purchase all the latter’s stock for $100,000.\nWithin two to three months after June 15, 1964, the plaintiff became aware that the transaction was not going well, and spoke with the defendant, who said that he understood that Comet was having difficulty raising the money. The plaintiff then reminded the defendant that the latter had previously told him that stock in the amount of $95,000 had been sold by Comet and had been paid in. The defendant replied, “That is what I thought too.”\nThe sale of Broadcasting stock to Comet never took place because Comet could not raise the purchase price. The total amount realized by Comet from the sale of stock was approximately $24,000 represented by the sale of 241 shares at $100 a share. The stock was worthless on May 21, 1965, the date of the writ.\nIn this Commonwealth it has been held in a long line of cases that “the charge of fraudulent intent, in an action for deceit, may be maintained by .proof of a statement made, as of the party’s own knowledge, which is false, provided the thing stated is not merely a matter of opinion, estimate, or judgment, but is susceptible of actual knowledge; and in such case it is not necessary to make any further proof of an actual intent to deceive.” Chatham Furnace Co. v. Moffatt, 147 Mass. 403, 404.\nThe doctrine here early was recognized in two opinions of Chief Justice Shaw. In Hazard v. Irwin, 18 Pick. 95, 109, it was said, “this case is entirely distinguishable, being one, where the subject ... is one of fact, in respect to which a person can have precise and accurate knowledge, and in respect to which, if he speaks as of his own knowledge, and has no such knowledge, his affirmation is essentially false.” In Page v. Bent, 2 Met. 371, 374, Chief Justice Shaw restated the rule: “The principle is well settled, that if a person make a representation of a fact, as of his own knowledge, in relation to a subject matter susceptible of knowledge, and such representation is not true; if the party to whom it is made relies and acts upon it, as true, and sustains damage by it, it is a fraud and deceit, for which the party making it is responsible.”\nWe cite a few of the many cases in this Commonwealth which are in accord. Milliken v. Thorndike, 103 Mass. 382, 385. Litchfield v. Hutchinson, 117 Mass. 195, 197-198. Weeks v. Currier, 172 Mass. 53, 55. Adams v. Collins, 196 Mass. 422, 428. Bates v. Cashman, 230 Mass. 167, 168. Moran v. Levin, 318 Mass. 770, 773. Golding v. 108 Longwood Ave. Inc. 325 Mass. 465, 467. Enterprises, Inc. v. Cardinale, 331 Mass. 244, 245. Yorke v. Taylor, 332 Mass. 368, 371. Pietrazak v. McDermott, 341 Mass. 107, 110. Yerid v. Mason, 341 Mass. 527, 529-530. See Restatement: Torts, § 526; Prosser, Torts (3d ed.) § 102, pp. 719-721.\nThe misrepresentation that Comet had received, and still had on hand, $95,000 from the sale of its stock was susceptible of actual knowledge. The defendant had “stated [this] as a fact and not as matter of opinion, estimate or judgment.” Enterprises, Inc. v. Cardinale, supra, 331 Mass. 244, 245. The amount he said had been sold left as the unsold balance the precise amount which the plaintiff had informed the defendant he was willing to pay and could have been a powerful inducement to immediate action.\nThe direction of a. verdict for the defendant finds support in a relatively small number of our cases, some quite old, which seem to require either knowledge of the untruth or recklessness as to the truth or falsity of the statement by the one making it. These cases should not be accepted as stating the current law of the Commonwealth. Among them are Tryon v. Whitmarsh, 1 Met. 1, 7-8, Thaxter v. Bugbee, 5 Cush. 221, 223, and Alpine v. Friend Bros. Inc. 244 Mass. 164, 167. In Nash v. Minnesota Title Ins. & Trust Co. 163 Mass. 574, 578-579, the majority, influenced by Derry v. Peek, 14 App. Cas. 337, approved the requirement of an intention to mislead, a holding from which Chief Justice Field and Mr. Justice Holmes dissented (pp. 586-587).\nIt was error to direct a verdict for the defendant.\nExceptions sustained."", ""type"": ""majority"", ""author"": ""Wilkins, C.J.""}], ""attorneys"": [""Joseph D. Rosenbloom for the plaintiff."", ""No argument or brief for the defendant.""], ""corrections"": """", ""head_matter"": ""Lyndall G. Powell vs. William Rasmussen.\nHampshire.\nNovember 7, 1968. ■ — •\nJanuary 2, 1969.\nPresent: Wilkins, C.J., Whittemore, Cutter, Kiek, & Spiegel, JJ.\nDeceit.\nIt was error to direct a verdict for the defendant in an action for deceit where there was evidence that the defendant stated to the plaintiff as a fact and as of the defendant’s own knowledge that a certain corporation had received and still had a specified large sum from sale of its stock, that the plaintiff, relying on the statement, purchased some of the stock, that the amount realized by the corporation from the sale of stock prior to the plaintiff’s purchase was a matter susceptible of knowledge, that such amount actually was far less than as represented by the defendant, and that the stock became worthless.\nTort. Writ in the Superior Court dated May 21, 1965.\nThe action was tried before DeSaulnier, J.\nJoseph D. Rosenbloom for the plaintiff.\nNo argument or brief for the defendant.""}, ""cites_to"": [{""cite"": ""163 Mass. 574"", ""case_ids"": [786187], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""578-579""}], ""case_paths"": [""/mass/163/0574-01""], ""opinion_index"": 0}, {""cite"": ""244 Mass. 164"", ""case_ids"": [750618], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""167""}], ""case_paths"": [""/mass/244/0164-01""], ""opinion_index"": 0}, {""cite"": ""5 Cush. 221"", ""case_ids"": [314741], ""category"": ""reporters:state"", ""reporter"": ""Cush."", ""pin_cites"": [{""page"": ""223""}], ""case_paths"": [""/mass/59/0221-01""], ""opinion_index"": 0}, {""cite"": ""1 Met. 1"", ""case_ids"": [2042416, 11267121], ""category"": ""reporters:state"", ""reporter"": ""Met."", ""pin_cites"": [{""page"": ""7-8""}], ""case_paths"": [""/mass/42/0001-01"", ""/ky/58/0001-01""], ""opinion_index"": 0}, {""cite"": ""341 Mass. 527"", ""case_ids"": [3852931], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""529-530""}], ""case_paths"": [""/mass/341/0527-01""], ""opinion_index"": 0}, {""cite"": ""341 Mass. 107"", ""case_ids"": [3854147], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""110""}], ""case_paths"": [""/mass/341/0107-01""], ""opinion_index"": 0}, {""cite"": ""332 Mass. 368"", ""case_ids"": [938184], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""371""}], ""case_paths"": [""/mass/332/0368-01""], ""opinion_index"": 0}, {""cite"": ""331 Mass. 244"", ""weight"": 3, ""case_ids"": [936572], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""245""}, {""page"": ""245""}], ""case_paths"": [""/mass/331/0244-01""], ""opinion_index"": 0}, {""cite"": ""325 Mass. 465"", ""case_ids"": [506360], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""467""}], ""case_paths"": [""/mass/325/0465-01""], ""opinion_index"": 0}, {""cite"": ""318 Mass. 770"", ""case_ids"": [929805], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""773""}], ""case_paths"": [""/mass/318/0770-01""], ""opinion_index"": 0}, {""cite"": ""230 Mass. 167"", ""case_ids"": [71226], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""168""}], ""case_paths"": [""/mass/230/0167-01""], ""opinion_index"": 0}, {""cite"": ""196 Mass. 422"", ""case_ids"": [56029], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""428""}], ""case_paths"": [""/mass/196/0422-01""], ""opinion_index"": 0}, {""cite"": ""172 Mass. 53"", ""case_ids"": [475235], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""55""}], ""case_paths"": [""/mass/172/0053-01""], ""opinion_index"": 0}, {""cite"": ""117 Mass. 195"", ""case_ids"": [2136577], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""197-198""}], ""case_paths"": [""/mass/117/0195-01""], ""opinion_index"": 0}, {""cite"": ""103 Mass. 382"", ""case_ids"": [2146141], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""385""}], ""case_paths"": [""/mass/103/0382-01""], ""opinion_index"": 0}, {""cite"": ""2 Met. 371"", ""case_ids"": [2041084, 4372741], ""category"": ""reporters:state"", ""reporter"": ""Met."", ""pin_cites"": [{""page"": ""374""}], ""case_paths"": [""/mass/43/0371-01"", ""/ky/59/0371-01""], ""opinion_index"": 0}, {""cite"": ""18 Pick. 95"", ""case_ids"": [2025366], ""category"": ""reporters:state"", ""reporter"": ""Pick."", ""pin_cites"": [{""page"": ""109""}], ""case_paths"": [""/mass/35/0095-01""], ""opinion_index"": 0}, {""cite"": ""147 Mass. 403"", ""case_ids"": [782396], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""404""}], ""case_paths"": [""/mass/147/0403-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""355 Mass. 117"", ""type"": ""official""}], ""file_name"": ""0117-01"", ""last_page"": ""120"", ""first_page"": ""117"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T16:49:27.387538+00:00"", ""decision_date"": ""1969-01-02"", ""docket_number"": """", ""last_page_order"": 164, ""first_page_order"": 161, ""name_abbreviation"": ""Powell v. 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+309786,"{""id"": 309786, ""name"": ""Doris Perry vs. Lawrence Medeiros & another"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""82e474689d5594e57dcd96d00a40f2e658199691e858705ba0714fcedd4940d9"", ""simhash"": ""1:fc83c2cf9b4556e7"", ""pagerank"": {""raw"": 0.0000006077504650398584, ""percentile"": 0.9553136109479742}, ""char_count"": 20146, ""word_count"": 3516, ""cardinality"": 870, ""ocr_confidence"": 0.896}, ""casebody"": {""judges"": [], ""parties"": [""Doris Perry vs. Lawrence Medeiros & another.""], ""opinions"": [{""text"": ""Quirico, J.\nThis is an action of tort to recover damages for personal injuries sustained by the plaintiff in a fall on the exterior common stairs of a building in Taunton in which she occupied the third-floor apartment as a tenant of the defendants who owned the property. The case is before us on the plaintiff’s amended bill of exceptions after a trial to a jury who returned a verdict for the defendants.1\nThe plaintiff argues two exceptions covered by her amended bill. One is to the Superior Court judge’s exclusion from evidence of a portion of the Taunton building code requiring landings at certain doors opening on a flight of stairs. The other is to the judge’s instruction to the jury concerning the requirement of G. L. c. 84, §§ 18-21, as in effect at the time of the plaintiff’s injury, that in certain claims for injuries caused by a defect consisting in whole or in part of snow or ice, the claimant give written notice within a prescribed time to the owner of the allegedly defective premises. For the reasons which follow, we sustain the first exception and overrule the second.\nThe pertinent allegations of the plaintiff’s one count declaration are that on December 31, 1967, she was a tenant in a third floor apartment in premises of the defendants, that while in the exercise of due care in leaving the building by a common stairway she was caused to fall and was injured “because said premises had negligently been maintained by the” defendants, that on the day of the accident “the landing and stairs where she was caused to fall were covered with snow and ice,” that as the result of her injuries she was hospitalized until January 30, 1968, “so that it was impossible for her to give notice to the Defendants,” and that she gave such notice to the defendants on or about February 21, 1968. Each defendant filed an answer setting up a general denial and the defenses of contributory negligence, assumption of the risk, statute of limitations and failure to give the defendant notice of the accident as required by statute.\nWe summarize certain basic facts about which there appears to be no disagreement. The defendants, at all times material to this case, owned a three-apartment house. They occupied the first-floor apartment, they rented the third-floor apartment to the plaintiff, and they rented the second-floor apartment to another tenant. A set of exterior stairs consisting of seven steps leading from the ground to an enclosed porch, and the porch itself, were used in common by the defendants and their two tenants as a means of access to a first-floor hallway from which they ultimately reached their respective apartments. There was no landing at the top of the exterior stairs at the door used for entrance to or exit from the enclosed porch. The plaintiff was injured in a fall on the exterior stairs when leaving her house on the evening of December 31, 1967. At that time there was a door at the opening from the porch to these stairs and there was some snow on the stairs. The plaintiff was taken to a hospital that evening and remained at the hospital until January 29, 1968. On February 21, 1968, she caused a written notice to be served on the defendants informing them of the date, time and place of her injury. The defendants contest the timeliness of the notice, but not its legal sufficiency or completeness. See G. L. c. 84, §§ 18-21.\nThe evidence as described in the bill of exceptions included the following relative to the alleged negligence of the defendants. The plaintiff first became the defendants’ tenant at the property in question in August, 1963. At that time the porch described above was already enclosed, but there was no door at the head of the exterior stairs. Later in that year “when the cold weather began,” the defendants installed a storm door at the head of those stairs thus completely enclosing the porch. Each year thereafter the storm door was removed in warm weather and reinstalled in cold weather. When the door was installed in the fall of 1967, a spring arrangement was also attached to close the door whenever it was opened. When a person leaving the building opened the door he then had to step out and down about seven inches to place his foot on the top step of the exterior stairs.\nOn the night of her accident, the plaintiff opened the outer porch door with her right hand in anticipation of stepping through the door opening to the top step of the stairs. Before she placed her foot on the step the door swung shut against her with such force that she was caused to lose her footing and fall down the stairs, landing at the bottom and sustaining serious injuries in the process. When the plaintiff first rented the apartment, there was a light outside the porch and it was in working condition. At some later date the light stopped working. She spoke to one of the defendants about it, but it never was repaired and it was not working at the time of the accident. Evidence concerning snow on the stairs and the statutory notice thereof will be discussed later in this opinion.\n1. Exclusion of building code provision. The plaintiff had the burden of proving her allegation that the defendants were guilty of negligence in their maintenance of the common area consisting of the porch and exterior stairs, and that their negligence caused her injuries. Stated differently, the plaintiff had the burden of proving that the defendants violated a duty which they owed to her as their tenant with respect to areas used by her in common with other occupants of the building. The duty of the defendants was “to use reasonable care to keep the common areas in as good a condition as that in which they were or appeared to be at the time of the creation of the tenancy.” Goodman v. Smith, 340 Mass. 336, 338 (1960), and cases cited. Crea v. Stunzenas, 344 Mass. 265, 267 (1962). Shwartz v. Feinberg, 306 Mass. 331, 333-334 (1940).\nAs part of her case the plaintiff called the building inspector of the city of Taunton as a witness and through him offered § 6.08 of the city’s building code which, on the date of the plaintiff’s injury, provided in part as follows: “No exit door shall open immediately on a flight of stairs but a landing the length and width of not less than the width of such door shall be provided between such door and such stairs. No riser shall be located within one foot of an exit door.” The judge excluded this evidence. We hold that the exclusion of the quoted portion of § 6.08 was error.\nThere was evidence that when the plaintiff became a tenant of the defendants there was no door at the head of the exterior stairs, and that thereafter the defendants placed a storm door at that opening. The municipal building code prohibited the resulting condition, viz., an exit door opening immediately on a flight of stairs without a landing. With the benefit of the excluded portion of § 6.08 the jury could have found that there was a violation of the building code which contributed to the plaintiff’s injury. “The general rule in Massachusetts is that violation of the safety statute or ordinance does not in itself give rise to a cause of action but is evidence of negligence.” Dolan v. Suffolk Franklin Sav. Bank, 355 Mass. 665, 667 (1969). It is also the general rule that while the violation of a safety statute, ordinance or regulation is not conclusive on the issue of civil liability, it “. . .is evidence of negligence on the part of a violator as to all consequences that the statute, ordinance or regulation was intended to prevent.” Follansbee v. Ohse, 293 Mass. 48, 52 (1935), quoting from Guinan v. Famous Players-Lasky Corp., 267 Mass. 501, 516 (1929). The provision of the Taunton building code which the judge excluded was clearly intended to eliminate or minimize the risk of falls, with resulting injuries, in passing through a doorway which opens directly to the top step of a set of stairs going down from the other side of the door.\nThe defendants rely on statements quoted from our opinion in Richmond v. Warren Institution for Sav., 307 Mass. 483, 485 (1940), to the effect that a statute which made it a misdemeanor for a person to permit any article to remain in a stairway of a building in a manner which impeded the passage of persons on the stairway did not affect the duty of a landlord to his tenants and that the violation of the statute “had no effect as evidence of negligence.” That reliance is misplaced since the rule would have no application to the facts of the case before us, assuming it would still be followed on facts similar to those in the Richmond case.\nThe plaintiff’s bill states that the judge ruled that the building inspector “could not testify to the building code,” and that thereupon the plaintiff offered to prove that had the inspector been allowed to testify, “he would have testified that in his opinion the stairs upon which the plaintiff fell were, on December 31, 1967, in violation of the building code of the City of Taunton.” The opinion of the inspector on this point was properly excluded. The pertinent provisions of § 6.08 of the building code should have been admitted. There was evidence that there was no landing at the door at the head of the exterior stairs. It would then be a function of the jury to decide whether there was a violation of the code. The inspector was properly precluded from giving the jury his opinion interpreting the code and the effect thereof on facts to be found by the jury. S.D. Shaw & Sons V. Joseph Rugo, Inc., 343 Mass. 635, 639 (1962). Killam v. Standard Oil Co., 248 Mass. 575, 582 (1924). See Campbell v. Leach, 352 Mass. 367, 373 (1967).\n2. “Snow or ice” notice. The plaintiff was not entitled to recover unless she proved first that her injuries were caused by a defective condition of a common area of the defendants’ premises, and that the defect was due to the defendants’ negligence. If the defective condition consisted in part of snow or ice, the plaintiff was required to prove additionally that she gave the defendants written notice of the time, place and cause of her injury, and that she gave the notice within the time prescribed by the applicable statute. G. L. c. 84, §§ 18-21. Walsh v. Riverway Drug Store Inc., 311 Mass. 326, 328 (1942). Regan v. Atlantic Ref. Co., 304 Mass. 353, 354 (1939). Baird v. Baptist Soc’y, 208 Mass. 29, 32 (1911).\nOn the date of the plaintiff’s injury the applicable statutes, G. L. c. 84, §§ 18-21, required notice within thirty days after injury, subject to the proviso in § 19, as appearing in St. 1965, c. 378, § 2, that \"" [i]f by reason of physical or mental incapacity it is impossible for the person injured to give the notice within the time required, he may give it within thirty days after such incapacity has been removed . . . .” The plaintiff first gave the defendants notice under the statute on February 21, 1968, fifty-two days after her injury. The judge advised counsel before their final arguments that in his opinion the notice was fatally tardy. He instructed the jury that if they found that the plaintiff’s injuries were “caused by, or contributed to, in whole or in part, by an accumulation of snow and ice, they must find for the defendants.” The plaintiff argues that this instruction was erroneous, and that the jury should have been permitted to decide whether her notice was seasonably given under the extended time permitted by the statute “by reason of physical or mental incapacity.” We hold that the judge acted correctly.\nIn Goodwin v. Fall River, 228 Mass. 529, 533 (1917), involving R. L. c. 51, § 21, which included substantially the same language now found in G. L. c. 84, § 19, we said: “The physical or mental incapacity which enlarges the period of limitation within which notice as a condition precedent to a right to maintain an action must be given [in an action for injuries caused by a defective sidewalk], is an inability of the person injured to give the notice himself or through another which results from a loss of the faculties of the mind, or from a lack of power to use the mind because of the loss or impairment of the organs of the body. Mere physical inability to move or to be moved about or to write are not evidence of mental or physical incapacity. [Citations omitted.] Ignorance of facts upon which the ability of the person injured may depend to give notice is not evidence of mental or physical condition; nor is the want of means to employ assistance to give the notice or to find out where the accident happened evidence that the plaintiff was incapable of giving the notice within thirty days because of mental or physical incapacity.” In Townsend v. Boston, 232 Mass. 451, 452 (1919), involving a defective sidewalk consisting in part of ice thereon, this same rule was applied. Saunders v. Boston, 167 Mass. 595, 596 (1897). Lyons v. Cambridge, 132 Mass. 534, 535 (1882).\nApplying to this case the test prescribed by the language quoted above from the Goodwin case, the judge correctly ruled that the evidence of the plaintiff’s condition after she was injured as stated in her bill of exceptions and quoted in the margin below was not sufficient to entitle her to have the question of her claimed “physical or mental incapacity” submitted to the jury for their determination whether her snow and ice notice to the defendants was timely under G. L. c. 84, § 19.\nThe plaintiff is strongly critical of this court’s interpretation of the pertinent statutory language in the Goodwin case, supra, contending that it “is not only grossly inconsistent with public policy, but it is also not necessarily called for by the statutory language.” She asks that we reinterpret it. We decline to do so. The plaintiff points to the 1973 amendment to § 18 (see n.5 to this opinion) presumably to suggest that the Legislature has given some relief from the strict interpretation in the Goodwin case. We note that the Legislature elected to give only limited relief, and did not attempt to change the statutory language of “physical or mental incapacity” which was interpreted in the Goodwin case.\n3. Conclusion. The jury returned a verdict for the defendants. No special questions were submitted to the jury. It is therefore not now possible to determine whether the jury concluded (a) that the defendants were not negligent, or (b) that they were negligent, but the plaintiff’s injury resulted in whole or in part from snow or ice and the plaintiff did not give the defendants notice within the time limited by G. L. c. 84, §§ 18-21. The plaintiff is entitled to a new trial. Since it has been established that the plaintiff did not seasonably give any “snow or ice” notice as required by G. L. c. 84, §§ 18-21, she will not be entitled to prevail at the new trial if the jury find that her injuries were sustained by reason of a defective condition which consisted in whole or in part of snow or ice contributing to the injuries.\nThe plaintiff’s exception to the exclusion of the pertinent provisions of the Taunton building code is sustained; the other exception is overruled.\nSo ordered.\nThe action, originally entered in the Superior Court on October 6, 1969, was transferred to the District Court pursuant to G. L. c. 231, § 102C. After a trial in the latter court resulting in a finding for the defendants, the case was retransferred to the Superior Court for trial to a jury. The record on appeal was originally entered in the Appeals Court and the case was thereafter transferred by us to this court for direct appellate review. G. L. c. 211A, § 10 (A), inserted by St. 1972, c. 740, § 1.\nSection 6.08 of the building code also provided as follows: “Direction of swing '— Except in residence buildings, doorways that serve as exits shall have the door, including vestibule doors, so hung as to swing outward when opening” (emphasis supplied). Since this language excepts “residence buildings” and the present case involves a residence buiding, this portion of § 6.08 was properly excluded by the judge.\nFor a discussion of the view that statutes, ordinances and regulations dealing with residential buildings in the area of requirements for the safety of the occupants thereof should be held to create an obligation on landlords for the benefit of their tenants, see Boston Housing Authority v. Hemingway, 363 Mass. 184, 203, 206-214 (1973), concurring and dissenting opinion by Quirico, J.\nBy St. 1973, c. 1085, the following sentence was added to G. L. c. 84, § 18: “Failure to give such notice for such injury or damage sustained by reason of snow or ice shall not be a defense under this section unless the defendant proves that he was prejudiced thereby.” That amendment does not apply to this case where the injury was sustained on December 31, 1967.\nThe bill states: “The plaintiff was unable to move from the position where she had fallen and remained there for approximately one-half hour until discovered by her daughter. Thereafter she was taken to the Morton Hospital in Taunton, Massachusetts, where she was confined from the date of the accident, December 31, 1967, to January 29, 1968. . . . That hospital report reveals that the plaintiff had suffered a fractured sacrum and that for twenty-one days after her admission to the hospital was not allowed to get out of bed at all, but was, in fact, strapped to a fracture board. . . . [A]fter twenty-one days in the hospital she was able to walk a distance of approximately eight to ten feet. The plaintiff was discharged from the hospital to her home on January 29, 1968. She was carried into her apartment and spent the next three weeks lying on the fracture board.”"", ""type"": ""majority"", ""author"": ""Quirico, J.""}], ""attorneys"": [""Marc E. Antine for the plaintiff."", ""Brian J. Moran for the defendants.""], ""corrections"": """", ""head_matter"": ""Doris Perry vs. Lawrence Medeiros & another.\nBristol.\nNovember 5, 1975.\nMarch 4, 1976.\nPresent: Hennessey, C.J., Qunuco, Braucher, & Kaplan, JJ.\nLandlord and Tenant, Safety requirements, Landlord’s liability to tenant or one having his rights. Negligence, One owning or controlling real estate, Violation of building code. Evidence, Opinion: expert. Snow and Ice.\nAt the trial of an action against a landlord by a tenant for injuries sustained when she opened the exit door of the common porch and stepped out and down about seven inches to place her foot on the top step of the exterior common stairs but lost her footing and fell, it was error to exclude evidence that the city building code provided that “No exit door shall open immediately on a flight of stairs but a landing . . . shall be provided between such door and such stairs.” [840-842]\nAt the trial of an action against a landlord by a tenant for personal injuries sustained in a fall on common stairs, the opinion of the building inspector of the city that the stairs “were ... in violation of the building code,” offered following the erroneous exclusion of the code, was properly excluded. [842]\nAt the trial of an action for injuries sustained in a fall on stairs allegedly in a defective condition by reason of snow or ice, of which the plaintiff first gave written notice under G. L. c. 84, §§ 18, 19, as appearing in St. 1965, c. 378, §§ 1, 2, fifty-two days after the injury, the trial judge correctly ruled that evidence of the plaintiff’s condition after the injury, in substance that she was unable to move from where she fell until discovered in approximately one-half hour, that she had suffered a fractured sacrum and was strapped to a fracture board in a hospital for twenty-one of the twenty-nine days she was there, and that after her discharge she was carried into her apartment and spent the next three weeks on a fracture board, was not sufficient to submit to the jury the question whether under § 19 her “physical or mental incapacity” was such as to make it impossible for her to give the notice within thirty days after the injury as required by § 18, and her notice was not timely. [842-845]\nTort. Writ in the Superior Court dated August 29, 1969.\nThe action was tried before Hallisey, J.\nAfter review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.\nMarc E. Antine for the plaintiff.\nBrian J. Moran for the defendants.\nElizabeth Medeiros.""}, ""cites_to"": [{""cite"": ""363 Mass. 184"", ""year"": 1973, ""case_ids"": [287373], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""203, 206-214""}], ""case_paths"": [""/mass/363/0184-01""], ""opinion_index"": 0}, {""cite"": ""132 Mass. 534"", ""year"": 1882, ""case_ids"": [2131689], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""535""}], ""case_paths"": [""/mass/132/0534-01""], ""opinion_index"": 0}, {""cite"": ""167 Mass. 595"", ""year"": 1897, ""case_ids"": [473596], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""596""}], ""case_paths"": [""/mass/167/0595-01""], ""opinion_index"": 0}, {""cite"": ""232 Mass. 451"", ""year"": 1919, ""case_ids"": [61537], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""452""}], ""case_paths"": [""/mass/232/0451-01""], ""opinion_index"": 0}, {""cite"": ""228 Mass. 529"", ""year"": 1917, ""case_ids"": [51130], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""533""}], ""case_paths"": [""/mass/228/0529-01""], ""opinion_index"": 0}, {""cite"": ""208 Mass. 29"", ""year"": 1911, ""case_ids"": [3473290], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""32""}], ""case_paths"": [""/mass/208/0029-01""], ""opinion_index"": 0}, {""cite"": ""304 Mass. 353"", ""year"": 1939, ""case_ids"": [873597], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""354""}], ""case_paths"": [""/mass/304/0353-01""], ""opinion_index"": 0}, {""cite"": ""311 Mass. 326"", ""year"": 1942, ""case_ids"": [889305], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""328""}], ""case_paths"": [""/mass/311/0326-01""], ""opinion_index"": 0}, {""cite"": ""352 Mass. 367"", ""year"": 1967, ""case_ids"": [304919], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""373""}], ""case_paths"": [""/mass/352/0367-01""], ""opinion_index"": 0}, {""cite"": ""248 Mass. 575"", ""year"": 1924, ""case_ids"": [3814487], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""582""}], ""case_paths"": [""/mass/248/0575-01""], ""opinion_index"": 0}, {""cite"": ""343 Mass. 635"", ""year"": 1962, ""case_ids"": [4025389], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""639""}], ""case_paths"": [""/mass/343/0635-01""], ""opinion_index"": 0}, {""cite"": ""307 Mass. 483"", ""year"": 1940, ""case_ids"": [902964], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""485""}], ""case_paths"": [""/mass/307/0483-01""], ""opinion_index"": 0}, {""cite"": ""267 Mass. 501"", ""year"": 1929, ""case_ids"": [844192], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""516""}], ""case_paths"": [""/mass/267/0501-01""], ""opinion_index"": 0}, {""cite"": ""293 Mass. 48"", ""year"": 1935, ""case_ids"": [479951], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""52""}], ""case_paths"": [""/mass/293/0048-01""], ""opinion_index"": 0}, {""cite"": ""355 Mass. 665"", ""year"": 1969, ""case_ids"": [302776], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""667""}], ""case_paths"": [""/mass/355/0665-01""], ""opinion_index"": 0}, {""cite"": ""306 Mass. 331"", ""year"": 1940, ""case_ids"": [871860], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""333-334""}], ""case_paths"": [""/mass/306/0331-01""], ""opinion_index"": 0}, {""cite"": ""344 Mass. 265"", ""year"": 1962, ""case_ids"": [520681], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""267""}], ""case_paths"": [""/mass/344/0265-01""], ""opinion_index"": 0}, {""cite"": ""340 Mass. 336"", ""year"": 1960, ""case_ids"": [3852379], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""338""}], ""case_paths"": [""/mass/340/0336-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""369 Mass. 836"", ""type"": ""official""}], ""file_name"": ""0836-01"", ""last_page"": ""845"", ""first_page"": ""836"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T16:58:20.910295+00:00"", ""decision_date"": ""1976-03-04"", ""docket_number"": """", ""last_page_order"": 861, ""first_page_order"": 852, ""name_abbreviation"": ""Perry v. 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+314573,"{""id"": 314573, ""name"": ""Clark W. Wilson vs. Boston Redevelopment Authority & others"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""b45ce69513a2eab0c13590d3b615651076abaa2b28b22e2f316ab0eb49b733dd"", ""simhash"": ""1:6e615317868df086"", ""pagerank"": {""raw"": 0.00000017173636109667148, ""percentile"": 0.7033798109465069}, ""char_count"": 9348, ""word_count"": 1623, ""cardinality"": 533, ""ocr_confidence"": 0.877}, ""casebody"": {""judges"": [], ""parties"": [""Clark W. Wilson vs. Boston Redevelopment Authority & others.""], ""opinions"": [{""text"": ""Hennessey, J.\nThis is an action in tort brought by the plaintiff to recover for personal injuries sustained by him when he fell into an elevator shaft after the grate or screen positioned over the shaft gave way. The premises were owned by the Boston Redevelopment Authority (B. R. A.). The declaration was in three counts: the first count was against the B.R. A.; the second count was against the defendant Sam Shore as tenant, in part, of the premises in question; the third count named Alan I. Shore as a defendant.\nThe jury returned verdicts for the defendants B. R. A. and Sam Shore on counts 1 and 2. However, the jury found for the plaintiff against the defendant Alan I. Shore on count 3 in the amount of $26,500.\nThe case is before us on the plaintiffs bill of exceptions, which was originally entered in the Appeals Court. The single issue raised by the bill relates to that portion of the trial judge’s charge to the jury defining the duty of care owed to the plaintiff by the defendant B. R. A. The Appeals Court overruled the plaintiffs exception. Wilson v. Boston Redevelopment Authy. 1 Mass. App. Ct. 870 (1974). We granted the plaintiffs petition for further appellate review. We conclude that there was error in the charge.\nThe evidence may be summarized as follows. The defendant Sam Shore had for approximately thirty-five years conducted an egg business at 93-99 Fulton Street, Boston. On September 27, 1965, that property was taken in an eminent domain proceeding by the B. R. A. On April 20, 1966, the tenancy was transferred in name from Sam Shore to Alan I. Shore with the approval of the B. R. A. Under an oral tenancy, Alan I. Shore was to occupy the first and second floors only. However, Alan I. Shore did apparently have use of the elevator. The operating equipment for the elevator was located in a “penthouse” at the top of the elevator shaft. At the time of the accident the elevator was not working. Consequently, Sam Shore, who was working for his son, contacted the George T. McLauthlin Company and the plaintiff was sent to repair the elevator.\nFollowing a preliminary inspection, the plaintiff proceeded to the penthouse to check the electrical equipment housed there. He first checked certain fuses and switches and then moved to the rear of the enclosure, as he testified, to check the slack cable switch. In so moving, he stepped on the grate which covered the elevator shaft. The triangular grate, not fastened by bolts or otherwise, was merely positioned on the shaft. On two sides it was supported against the brickwork of the building; on the third side it lay on an I-beam arrangement. When the plaintiff stepped on the grate, it gave way beneath him and he fell into the shaft, sustaining injury.\nIn a relatively long and comprehensive instruction, the trial judge charged the jury as to the legal effect of a taking by eminent domain; the legal implications of a tenancy at sufferance as opposed to a tenancy at will; the status of an invitee of a tenant; and the law of negligence including proximate cause, contributory negligence, and damages.\nThe judge’s further instructions permitted the jury to consider whether the B. R. A. was in control of the elevator penthouse where the accident occurred; whether the tenant was one or the other of the Shores; whether the tenancy was a tenancy at will; and whether the plaintiff was working in the penthouse as an invitee of the tenant at will. In addition, the charge stated that if all of the foregoing facts were found, then the B. R. A. was under a duty to exercise reasonable care to see to it that the plaintiff was not injured.\nThe plaintiffs single exception arises out of the judge’s language in defining the B. R. A.’s duty of reasonable care owed to the plaintiff in the event that the jury found the B. R. A. to be in control. The judge stated specifically that the B. R. A. had a duty to warn the plaintiff of dangers known to the B. R. A. which were not open and obvious. The plaintiffs exception concerns the additional instruction: “There was no duty ... to make . .. physical changes in the property or in the pent house or the elevator or in the grate; no duty to make physical changes. A person coming on the premises as a business invitee, if he’s been invited to come to that particular place, that particular spot where the accident occurred, takes it as he finds it; no obligation to change the construction orto change the method of doing business.”\nThe B. R. A. argues that we should consider the charge as a whole and that taken as a whole the charge correctly stated the applicable law. We, of course, agree that a charge is to be examined in its totality to determine whether it is a clear and accurate statement of the law. Gilchrist v. Boston Elev. Ry. 272 Mass. 346 (1930). Haven v. Brimfield, 345 Mass. 529 (1963). Washington v. Sullivan, 357 Mass. 766 (1970). However, where a portion of the charge incorrectly states the applicable law, the accuracy of the charge as a whole may be affected. Posner v. Minsky, 353 Mass. 656, 660 (1968). That the error consists of one rather than ten sentences is irrelevant as is the fact that the statement may be characterized as a fragment of a larger context. Rather the more pertinent inquiry is whether the erroneous statement materially alters the correctness and accuracy of the legal issues charged and whether the error is cured when considered in the context of the complete charge. We are of opinion that the statement that the B. R. A., if determined to be in control of the elevator, owed “no duty to make physical changes” and had “no obligation to change the construction,” is error in law and was not rectified by the fuller statement of the instruction.\nThe clear import of the erroneous instruction which is now challenged by the plaintiffs exception was that the B. R. A., even if found to be in control of the penthouse, had no duty to make repairs. It could be inferred from the charge — indeed almost inescapably an inference arose from the charge — that the B.R. A. could not in any circumstances be charged with a duty of securing the grating by appropriate bolting devices. This is not the state of the law. Gilroy v. Badger, 301 Mass. 494 (1938). Regan v. Nelson, 345 Mass. 678 (1963). Mason v. Lieberman, 349 Mass. 321 (1965). The duty of reasonable care owed the plaintiff by the B. R. A. may well have necessitated that the B. R. A. make some physical changes in the penthouse, including the affixing of appropriate devices to secure the grate over the elevator shaft. The judge’s instructions incorrectly informed the jury in this regard.\nExceptions sustained.\nThere was apparently an oral agreement between the B. R. A. and Alan I. Shore relating to maintenance of the elevator. Shore testified that the agreement was limited to the extent that he would make minor electrical repairs; the B. R. A. interprets the agreement more broadly. In any event, apparently attributing the instant failure to such a defect, the Shores summoned the plaintiff, a licensed electrician.\nBoth the plaintiff and the defendant B. R. A. addressed at some length the issue whether our decision in Mounsey v. Ellard, 363 Mass. 693 (1973), applies to the facts of this case. Without considering the retroactivity of that decision, we point out that the Mounsey case is inapposite here, in light of the single narrow issue that is before us.\nIt is clear that the judge did not treat this as a case involving a common passageway, probably on the premise that the penthouse was not per se a part of the elevator as a common passageway. Under this approach the rule that a landlord has a duty to use reasonable care to keep the common areas in the condition they were or appeared to be at the time of the letting is inapplicable. However, the question whether the judge’s charge treated the case as one concerning a common passageway controlled by a landlord (cf. Lowe v. National Shawmut Bank, 363 Mass. 74 [1973]) or one where no common passageway is involved (cf. Gilroy v. Badger, 301 Mass. 494, 496 [1938]; Ross v. Broitman, 338 Mass. 770, 772-773 [1959]) is not crucial. Under either situation it would be contrary to the law to charge, as the judge in substance did here, that a defendant in control of the premises had no duty under any circumstances “to make physical changes” or “to change the construction.”"", ""type"": ""majority"", ""author"": ""Hennessey, J.""}], ""attorneys"": [""Frank T. Barber, III, for the plaintiff."", ""William H. Shaughnessy for the Boston Redevelopment Authority.""], ""corrections"": """", ""head_matter"": ""Clark W. Wilson vs. Boston Redevelopment Authority & others.\nSuffolk.\nOctober 9, 1974.\nJanuary 6, 1975.\nPresent: Reardon, Quirico, Hennessey, & Kaplan, JJ.\nPractice, Civil, Charge to jury. Negligence, One owning or controlling real estate. Landlord and Tenant, Landlord’s liability to tenant or one having his rights.\nWhere the plaintiff, an elevator repairman, was injured after stepping on an insecured grate covering an elevator shaft in a building owned by the Boston Redevelopment Authority and let to a codefendant, it was reversible error for the judge to charge the jury that, even if the Boston Redevelopment Authority was in control of the elevator, it had “no duty ... [to a business invitee] to make ... physical changes in the property.” [591-592]\nTort . Writ in the Superior Court dated April 14, 1967.\nThe action was tried before Goldberg, J.\nFrank T. Barber, III, for the plaintiff.\nWilliam H. Shaughnessy for the Boston Redevelopment Authority.""}, ""cites_to"": [{""cite"": ""338 Mass. 770"", ""case_ids"": [515495], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""772-773""}], ""case_paths"": [""/mass/338/0770-01""], ""opinion_index"": 0}, {""cite"": ""363 Mass. 74"", ""case_ids"": [287203], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/363/0074-01""], ""opinion_index"": 0}, {""cite"": ""363 Mass. 693"", ""year"": 1973, ""case_ids"": [288164], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/363/0693-01""], ""opinion_index"": 0}, {""cite"": ""349 Mass. 321"", ""year"": 1965, ""case_ids"": [524654], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/349/0321-01""], ""opinion_index"": 0}, {""cite"": ""345 Mass. 678"", ""year"": 1963, ""case_ids"": [48040], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/345/0678-01""], ""opinion_index"": 0}, {""cite"": ""301 Mass. 494"", ""year"": 1938, ""weight"": 2, ""case_ids"": [866444], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""496""}], ""case_paths"": [""/mass/301/0494-01""], ""opinion_index"": 0}, {""cite"": ""353 Mass. 656"", ""year"": 1968, ""case_ids"": [3864635], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""660""}], ""case_paths"": [""/mass/353/0656-01""], ""opinion_index"": 0}, {""cite"": ""357 Mass. 766"", ""year"": 1970, ""case_ids"": [296010, 296156, 296021], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/357/0766-03"", ""/mass/357/0766-02"", ""/mass/357/0766-01""], ""opinion_index"": 0}, {""cite"": ""345 Mass. 529"", ""year"": 1963, ""case_ids"": [47959], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/345/0529-01""], ""opinion_index"": 0}, {""cite"": ""272 Mass. 346"", ""year"": 1930, ""case_ids"": [3826287], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/272/0346-01""], ""opinion_index"": 0}, {""cite"": ""1 Mass. App. Ct. 870"", ""year"": 1974, ""case_ids"": [3944624, 3944110], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""case_paths"": [""/mass-app-ct/1/0870-01"", ""/mass-app-ct/1/0870-02""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""366 Mass. 588"", ""type"": ""official""}], ""file_name"": ""0588-01"", ""last_page"": ""592"", ""first_page"": ""588"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T16:56:19.714590+00:00"", ""decision_date"": ""1975-01-06"", ""docket_number"": """", ""last_page_order"": 604, ""first_page_order"": 600, ""name_abbreviation"": ""Wilson v. Boston Redevelopment 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+317524,"{""id"": 317524, ""name"": ""Thomas J. McMahon & another vs. M & D Builders, Inc."", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""88e0b542803d92baccec2370f486de8e49514df9ed416faa771883e0e7212403"", ""simhash"": ""1:b26282c9d8d7f2e3"", ""pagerank"": {""raw"": 0.0000007397755280282393, ""percentile"": 0.969207857292066}, ""char_count"": 20274, ""word_count"": 3468, ""cardinality"": 868, ""ocr_confidence"": 0.625}, ""casebody"": {""judges"": [], ""parties"": [""Thomas J. McMahon & another vs. M & D Builders, Inc.""], ""opinions"": [{""text"": ""Quirico, J.\nThis is a bill in equity in which the plaintiffs seek to rescind their purchase of a house and lot from the defendant on the grounds of: (a) false and fraudulent representations made by the defendant concerning the house to procure and induce the plaintiffs to purchase it, (b) breach of implied warranties by the defendant that the house was free from major and structural defects, that it was built in a good and workmanlike manner and that it was suitable for habitation, and (c) breach of an implied warranty by the defendant that the house complied with the building code of the town in which it was located. The case is before us on the appeal of the plaintiffs from a final decree dismissing their bill.\nThe case is presented to us on an agreed record on appeal under S. J. C. Rule 1:04, 351 Mass. 734-735. The record shows that on July 2, 1970, a judge of the Superior Court allowed the defendant’s motion for a final decree and on the same day entered a final decree dismissing the bill. Neither the motion nor the decree is reproduced in the record. The record does not state the grounds for the motion or the basis for the dismissal of the bill. It is only by a reading of the plaintiff’s brief that we are able to learn that the motion was probably filed pursuant to the provisions of G. L. c. 231, § 59, as amended by St. 1965, c. 491, § 1, permitting the entry of final decrees on motion therefor in suits in equity where the pleadings and other papers on file “show affirmatively . . . that no genuine issue of material facts exists and there is nothing to be decided except questions of law, or the form of the decree, or the nature of the relief to be granted.” Rule 1:04 permits “an agreed record in the form of a statement setting forth only such pleadings, facts, and documents as are essential to the issues to be presented to the full court.” While this rule permits an alternative simplified and abbreviated record on appeal, it still contemplates and requires that a statement of the facts essential to the issues be included in the record. The briefs are no part of the record on appeal. Foley’s Case, 344 Mass. 456, 458.\nUnder § 59, a party to a suit in equity which involves rights under a written contract is entitled to have his motion for entry of a final decree allowed without trial on the merits only “if admissions in the pleadings, interrogatories or admissions under section sixty-nine, stipulations affidavits herexmder, show affirmatively . . . that no genuine issue of material facts exists and there is nothing to be decided except questions of law, or the form of the decree, or the nature of the relief to be granted.” We must determine whether the record before us and the inferences which may properly be drawn therefrom, when viewed in their light most favorable to the plaintiffs, show that a “genuine issue of material facts exists.” The burden is on the defendant as moving party to show that it does not exist. Hub Associates, Inc. v. Goode, 357 Mass. 449, 451. United States v. Diebold, Inc. 369 U. S. 654, 655. The standard to be applied in making the determination “is analogous to that used on a motion for a directed verdict.” American Manufacturers Mut. Ins. Co. v. American Bdcst.-Paramount Theatres, Inc. 388 F. 2d 272,279 (2d Cir.).\nWe shall summarize the pertinent allegations of the bill and facts stated by the plaintiffs in answers to interrogatories. On June 3, 1969, the parties executed a written agreement by which the defendant agreed to sell and the plaintiffs agreed to buy “the land and buildings thereon located at No. Lot 48 Forest Street in Medfield, Massachusetts, consisting of approximately 33,623 square feet” for a price of $43,000. At that time the defendant, which was engaged in the business of building and selling houses, was building a house on the lot in question. The house was structurally complete. The exterior and interior painting, landscaping, hanging of interior doors, and installation of electrical appliances and plumbing fixtures had not been completed. The plaintiffs looked at the house on May 31, June 2 and June 3, 1969, and they spoke to the defendant’s president, William G. Duhaime, about the house and its construction on all three dates.\nThe plaintiffs allege in their bill that before they signed the agreement, “the defendant, its agents, servants or employees represented that the interior walls were of plaster, that the house contained only the best or first class building materials and appliances; and that the house was soundly constructed and built in a workmanlike manner and was suitable for habitation.” They allege further that they relied on these representations, that all of them were false, that the defendant knew or should have known that the representations were false and that they were made with the intent to defraud the plaintiffs.\nThe plaintiffs contend that the false statements made by the defendant were representations of material facts and therefore, in combination with the additional allegations, are actionable and entitle them to rescind their purchase. The defendant contends that the statements are “generalities [which] amount only to the usual sales talk between prospective seller and buyer and, therefore, fall within the ordinary rule that ‘false statements of opinion, of conditions to exist in the future, or of matters promissory in nature are not actionable.’ ” We recognized in Fogarty v. Van Loan, 344 Mass. 530, 532, that “the line between what is actionable and what is not in cases of this sort is often difficult to draw.” In the present case the defendant was the builder of the house about which its president made representations to the plaintiffs. The house was almost completed when the statements were made. It had progressed to the point where representations that the interior walls were of plaster, that the house contained only the best or first class materials, and that it was soundly constructed and built in a workmanlike manner were statements of facts which the defendant then represented to exist. They were in no sense statements of opinion, of conditions to exist in the future, or of matters promissory in nature. We hold that they were representations of facts, and that if they were false they were actionable.\nThis case is governed by our holdings in Kabatchnick v. Hanover-Elm Bldg. Corp. 328 Mass, 341, 343-347, Pietrazak v. McDermott, 341 Mass. 107, 109-110, Powell v. Rasmussen, 355 Mass. 117, 119, and Maxwell v. Ratcliffe, 356 Mass. 560, 562-563, all relating to false representations of facts; and not by our holdings in Yaghsizian v. Saliba, 338 Mass. 794, Yerid v. Mason, 341 Mass. 527, 529-530, and Fogarty v. Van Loan, 344 Mass. 530, 532, all dealing with false statements of opinion, of conditions to exist in the future, or of matters promissory in nature.\nThe plaintiffs allege that “the representations made by the defendant . . . were false, which the defendant knew or should have known, and were made with the intent to defraud the plaintiffs.” Despite these broad allegations, the plaintiffs may be entitled to rescind on proof of much less. In Yorke v. Taylor, 332 Mass. 368, 371, the trial judge had found that the defendants had misrepresented the assessed valuation of property being sold, but that they had “acted in good faith and had no. intention of misleading or deceiving the plaintiff.” We said that “these findings would not defeat the right to rescind. In this Commonwealth one who has been induced to enter into a contract in reliance upon a false though innocent representation of a material fact susceptible of knowledge which was made as of the party’s own knowledge and was stated as a fact and not as matter of opinion is entitled to rescission.” Rudnick v. Rudnick, 281 Mass. 205, 208. Golding v. 108 Longwood Ave. Inc. 325 Mass. 465, 467-468. Enterprises, Inc. v. Cardinale, 331 Mass. 244. Beliefeuille v. Medeiros, 335 Mass. 262, 265.\nThe plaintiffs devote a portion of their brief to the argument that the “doctrine of merger” is no bar to the relief which they seek. We assume that they refer to the rule stated in Pybus v. Grasso, 317 Mass. 716, 717, quoting from Restatement: Contracts, § 413, to the effect that “the acceptance of a deed of conveyance of land from one who has previously contracted to sell it, discharges the contractual duties of the seller to the party so accepting except such as are embodied in the deed . . . .” The defendant does not argue this point in its brief. The sketchy agreed record on appeal does not state the grounds or basis for the judge’s entry of a decree dismissing the bill without trial. On the assumption that coverage of the issue by the plaintiffs’ brief indicates that it was probably involved in the judge’s action, we deal with it briefly. If the question is involved it arises under the following provision of the contract in this case: “If the seller shall be unable to give title or to make conveyance as above stipulated, any payments made under this agreement shall be refunded, and all other obligations of either party hereunto shall cease. The acceptance of a deed by the Buyer shall be deemed tobe a full performance and discharge hereof” (emphasis supplied).\nIn the Pybus case, supra, after stating the general rule quoted above, we added at page 719: “To the general rule as stated above there is an exception to the effect that promises in the original agreement which are additional or collateral to the main promise to convey the land and are not inconsistent with the deed as given are not necessarily merged in the deed, but may survive it and be enforced after the deed is given.” The later case of Lipson v. Southgate Park Corp. 345 Mass. 621, 625, 626, involved an agreement whereby the plaintiff agreed to buy and the defendant to sell a parcel of land together with a house to be built thereon in conformity with certain plans and specifications. We held that “there were at least two separable undertakings agreed to by the defendant: (1) to convey a parcel of land; (2) to construct a house . . . ,” that the case fell within the exception to the general rule stated in the Pybus case, and that “all the provisions of the purchase and sale agreement were not merged into the accepted deed.” In Holihan v. Rabenius Builders, Inc. 355 Mass. 639, 641-643, on facts substantially similar to those in the Upson case, the same reasoning was applied and the same result was reached.\nThe opinion in the Holihan case includes additional language which suggests a second and at least equally tenable basis for holding that the doctrine of merger or waiver by acceptance of the deed did not apply. The agreement in that case was very much like the one before us now. It was apparently a simple printed form of agreement commonly used for the purchase and sale of real estate. It was not specifically drafted for, or intended for use in a case of the sale of a lot with a house to be built or completed thereon. Both agreements contain the provision that the acceptance of a deed by the buyers shall be deemed a full performance and discharge thereof. In the Holihan case we said that “the doctrine of merger or waiver by acceptance of the deed . . . applies to defects in the conveyance itself, such as failure to convey all the area contracted for as well as to defects in the title” (p. 642), and that “the statement in the púrchase and sale agreement . . . that ‘the acceptance of a deed and possession . . . shall be deemed a full performance and discharge hereof ’ does not change this result. It can have no effect on the building contract” (p. 643). We hold that the substantially similar language in the agreement. in the present case is likewise applicable only to the title to the real estate which was to be conveyed, and that the plaintiffs’ acceptance of the deed operated as a merger or waiver only to the extent of precluding any claim that the title which the defendant conveyed did not satisfy the requirements of the agreement.\nBy its answer to the plaintiffs’ bill the defendant admitted only the allegations that it entered into the purchase and sale agreement with the plaintiffs, that it conveyed the real estate in question to them, and that true copies of the agreement and deed are attached to the bill. It denied all other allegations of the bill. Thus a genuine issue of material facts arises from the pleadings as to the plaintiffs’ allegations that the defendant made false representations about the house to induce them to enter into the agreement. If the motion for final decree were to be determined on the basis of the bill and answer alone, it should have been denied.\nThe agreed record includes a summary of “facts material to this appeal” taken from answers by the plaintiffs to interrogatories filed by the defendant. We assume from the inclusion of this summary .that the judge may have considered these answers in deciding whether a genuine issue of material facts existed, but this is not clear from the record. If the evidence at the trial were to be limited to what is stated in the summary, it might be of doubtful sufficiency on the issue of the defentant’s false representations. However, since the interrogatories are not in the record, we do not know the scope of inquiry which produced their answers. Since the answers must be responsive, they are limited by the language of the interrogatories. We cannot assume or conclude that the plaintiffs, at a trial on the merits, would be unable, either personally or through other witnesses, to present evidence in addition to what is contained in the summary of their answers to interrogatories. Although the plaintiffs’ answers may constitute admissions, that does not prevent them from introducing additional evidence on the same issue or other issues, or from explaining any such admission. If the answers are offered in evidence by the defendant, they may bind the defendant if the)' are uncontradicted, but they will not bind the plaintiffs. Woodman v. Powers, 242 Mass. 219, 223. Washburn v. R. F. Owens Co. 258 Mass. 446, 449. Dome Realty Co. v. Cohen, 290 Mass. 36, 39.\nOn the limited record before us it cannot be held that the defendant “shows affirmatively . . . that no genuine issue of material facts exists” on the matter of the false representations allegedly made by it. It was therefore error to allow the defendant's motion for a final decree and to enter a final decree dismissing the bill without a trial on the merits of that part of the case. G. L. c. 231, § 59.\nThe parties on both sides of this case have asked us to decide the important question whether the builder-vendor of a dwelling house impliedly warrants to the initial purchaser for occupancy (a) that the house was built in a good and workmanlike manner, (b) that it is suitable for habitation, and (c) that it was built in compliance with applicable building laws, ordinances, regulations or codes. They have argued this question at length in their briefs. The plaintiffs argue that there is a trend in the opinions of some jurisdictions, other than this Commonwealth, toward the implication of such warranties. To the extent that we have considered this question, we have not committed ourselves to that trend. Spencer v. Gabriel, 328 Mass. 1. Donahue v. Stephens, 342 Mass. 89, 92. Albano v. Western Constr. Corp. 357 Mass. 647. While we may be asked to reconsider our position on this important question in an appropriate case and on a record which presents it properly, we do not believe that this is such a case.\nThe parties are in effect asking us to rule on a demurrer which, although argued in the Superior Court, has not been decided by that court. Since the demurrer is not reproduced in the record, we do not know whether it was directed specifically to the allegations of implied warranties, or only to the bill generally. The judge who heard the demurrer ordered, on May 4, 1970, that it be deferred “until after hearing on [the] merits” of the case. On the same date he referred the case to a master for hearings to start on or before June 14. He later changed that date to June 29. With the case in that status, another judge of the same court entered the final decree dismissing the bill on July 2, 1970, apparently before any hearings w*ere held by the master.\nThe question whether any warranties are to be implied in the sale of a dwelling house by a builder-vendor to the initial purchaser for occupancy is much too important to he considered on a record which fails to disclose whether or not it was a factor in the entry of the final decree from which the appeal before us was claimed.\nThe final decree dismissing the bill is reversed, and the order allowing the motion for the entry of such decree is vacated. The case is to stand for further proceedings in the Superior Court.\nSo ordered.\nThe agreement required the defendant as seller to convey \""by a good and sufficient deed conveying a good and clear record and marketable title thereto free from encumbrances except the provisions of the local zoning laws, [and] taxes for the current year . . . [which] shall be apportioned to date of conveyance.”"", ""type"": ""majority"", ""author"": ""Quirico, J.""}], ""attorneys"": [""Ralph C. Copeland for the plaintiffs."", ""Peter C. Huckins for the defendant.""], ""corrections"": """", ""head_matter"": ""Thomas J. McMahon & another vs. M & D Builders, Inc.\nNorfolk.\nApril 7, 1971.\nJune 30, 1971.\nPresent: Tauro, C.J., Spiegel, Reardon, Quirico, & Braucher, JJ.\nDeceit. Sale, Rescission, Sale of real estate. Equity Jurisdiction, Rescission. Contract, For sale of real estate, Building contract, Performance and breach, Merger. Deed, Acceptance. Merger. Equity Pleading and Practice, Summary final decree. Rules of Court.\nS. J. C. Rule 1:04 requires that on appeal upon an agreed record a statement of the facts essential to the issues be included in the record. 155-56]\nStatements alleged to have been made to prospective purchasers of a house which was structurally complete but otherwise incomplete by the president of the corporation building the house, that its “interior walls were of plaster, that the house contained only the best or first class building materials and appliances, and that the house was soundly constructed and built in a workmanlike manner and was suitable for habitation” were representations of existing facts which if false would support rescission by the purchasers of their subsequent agreement to buy the house. [56-58]\nIn an agreement for purchase and sale of a lot and a house being built thereon by the seller, a provision that “Itjhe acceptance of a deed by the buyer shall be deemed to be a full performance and discharge hereof ” applied only to the title to be conveyed, and acceptance of a deed by the purchasers did not merge therein their right to rescind the agreement by reason of false representations concerning the quality of the house by the seller. [59-60]\nIn a suit in equity to rescind a purchase by the plaintiffs of a lot and house thereon built by the defendant seller, where it appeared that the bill alleged that the defendant made false representations concerning the construction of the house which induced the plaintiffs to enter into the written agreement to purchase the property, that the defendant’s answer denied such allegation, that the defendant moved for entry of a final decree under G. L. c. 231, § 59, as amended by St. 1965, c. 491, § 1, that the final decree dismissed the bill, and that on the plaintiffs’ appeal therefrom upon an agreed record the record included a summary of “facts material to this appeal” taken from answers by the plaintiffs to interrogatories filed by the defendant but did not include the interrogatories, it was held that upon the limited record this court could not declare that the defendant showed affirmatively that “no genuine issue of material facts” existed, and that allowance of the defendant’s motion and entry of the final decree were reversible errors. [56, 61-62]\nIn the circumstances, this court declined to consider whether a builder — vendor of a dwelling house impliedly makes any warranties to the initial purchaser for occupancy. [62-63]\nBill in equity filed in the Superior Court on April 3, 1970.\nThe plaintiffs appealed from a final decree dismissing the bill entered by Sullivan, J.\nRalph C. Copeland for the plaintiffs.\nPeter C. Huckins for the defendant.""}, ""cites_to"": [{""cite"": ""357 Mass. 647"", ""case_ids"": [295938], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/357/0647-01""], ""opinion_index"": 0}, {""cite"": ""342 Mass. 89"", ""case_ids"": [3854417], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""92""}], ""case_paths"": [""/mass/342/0089-01""], ""opinion_index"": 0}, {""cite"": ""328 Mass. 1"", ""case_ids"": [514015], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/328/0001-01""], ""opinion_index"": 0}, {""cite"": ""290 Mass. 36"", ""case_ids"": [494045], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""39""}], ""case_paths"": [""/mass/290/0036-01""], ""opinion_index"": 0}, {""cite"": ""258 Mass. 446"", ""case_ids"": [3820268], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""449""}], ""case_paths"": [""/mass/258/0446-01""], ""opinion_index"": 0}, {""cite"": ""242 Mass. 219"", ""case_ids"": [3812157], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""223""}], ""case_paths"": [""/mass/242/0219-01""], ""opinion_index"": 0}, {""cite"": ""355 Mass. 639"", ""case_ids"": [302740], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""641-643""}], ""case_paths"": [""/mass/355/0639-01""], ""opinion_index"": 0}, {""cite"": ""345 Mass. 621"", ""case_ids"": [48129], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""625, 626""}], ""case_paths"": [""/mass/345/0621-01""], ""opinion_index"": 0}, {""cite"": ""317 Mass. 716"", ""case_ids"": [927270], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""717""}], ""case_paths"": [""/mass/317/0716-01""], ""opinion_index"": 0}, {""cite"": ""335 Mass. 262"", ""case_ids"": [3845600], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""265""}], ""case_paths"": [""/mass/335/0262-01""], ""opinion_index"": 0}, {""cite"": ""331 Mass. 244"", ""case_ids"": [936572], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/331/0244-01""], ""opinion_index"": 0}, {""cite"": ""325 Mass. 465"", ""case_ids"": [506360], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""467-468""}], ""case_paths"": [""/mass/325/0465-01""], ""opinion_index"": 0}, {""cite"": ""281 Mass. 205"", ""case_ids"": [3831871], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""208""}], ""case_paths"": [""/mass/281/0205-01""], ""opinion_index"": 0}, {""cite"": ""332 Mass. 368"", ""case_ids"": [938184], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""371""}], ""case_paths"": [""/mass/332/0368-01""], ""opinion_index"": 0}, {""cite"": ""341 Mass. 527"", ""case_ids"": [3852931], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""529-530""}], ""case_paths"": [""/mass/341/0527-01""], ""opinion_index"": 0}, {""cite"": ""338 Mass. 794"", ""case_ids"": [515624], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/338/0794-01""], ""opinion_index"": 0}, {""cite"": ""356 Mass. 560"", ""case_ids"": [300520], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""562-563""}], ""case_paths"": [""/mass/356/0560-01""], ""opinion_index"": 0}, {""cite"": ""355 Mass. 117"", ""case_ids"": [302744], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""119""}], ""case_paths"": [""/mass/355/0117-01""], ""opinion_index"": 0}, {""cite"": ""341 Mass. 107"", ""case_ids"": [3854147], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""109-110""}], ""case_paths"": [""/mass/341/0107-01""], ""opinion_index"": 0}, {""cite"": ""328 Mass, 341"", ""case_ids"": [514128], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""343-347""}], ""case_paths"": [""/mass/328/0341-01""], ""opinion_index"": 0}, {""cite"": ""344 Mass. 530"", ""weight"": 2, ""case_ids"": [520522], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""532""}, {""page"": ""532""}], ""case_paths"": [""/mass/344/0530-01""], ""opinion_index"": 0}, {""cite"": ""388 F. 2d 272"", ""case_ids"": [2094081], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""279""}], ""case_paths"": [""/f2d/388/0272-01""], ""opinion_index"": 0}, {""cite"": ""369 U. 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+3268058,"{""id"": 3268058, ""name"": ""Gregory Sloan et al., Appellants, v. Larry Thompson et al., Respondents"", ""court"": {""id"": 8985, ""name"": ""Washington Court of Appeals"", ""name_abbreviation"": ""Wash. Ct. App.""}, ""analysis"": {""sha256"": ""e9e803869914f75b6e67f0f41954234ced8c12da3c570a1c55fbd0c45e1e571b"", ""simhash"": ""1:f9ba94a1699727ec"", ""pagerank"": {""raw"": 0.0000000895912873997097, ""percentile"": 0.5020707770993599}, ""char_count"": 27806, ""word_count"": 4630, ""cardinality"": 1243, ""ocr_confidence"": 0.728}, ""casebody"": {""judges"": [], ""parties"": [""Gregory Sloan et al., Appellants, v. Larry Thompson et al., Respondents.""], ""opinions"": [{""text"": ""¶1 Larry Thompson knew what the building codes were for framing a house and yet proceeded, without permits, to build one that was woefully defective. Thompson, by his own, admission, possessed the requisite knowledge of a defect to support a finding of fraudulent concealment. Because the trial court erred in applying the law of fraudulent concealment to the facts of this case, we reverse and remand for entry of a judgment consistent with this decision.\nGrosse, J.\nFACTS\n¶2 Between 1982 and 1984, Larry Thompson acquired three lots in the Lake Cavanaugh area of Skagit County. In 1985, Thompson cleared Lot 3 and prepared an area on which to move a 1930s era house that he had acquired onto the property. In so doing, he poured a concrete slab on which he framed a first floor. He then jacked up the old house, which was cut in two pieces to facilitate moving, and placed it on top of, and attached it to, the first story frame that he had built himself. Perched atop the frame, the 1930s era structure remained separated by a small space where Thompson constructed a narrow corridor to reunite the two pieces of the older structure. Thompson obtained only an electrical hook-up permit and did all of the construction himself without acquiring permits or consulting the applicable building codes.\n¶3 The Thompsons lived in the house on and off over a period of six years. In 1991, the Thompsons decided to relocate to Utah and sought a buyer for two of the lots, including the one containing the house. Glen and Tonya Young responded and entered into a real estate contract with Thompson in 1992 consisting of a $20,000 down payment and monthly payments of $1,000. For personal reasons, Glen needed to get out of the deal and deeded the property back to Thompson and continued to rent the home for another two years.\n¶4 Thompson met Greg Sloan in the spring of 1994. Sloan ran a logging company doing logging on a neighbor’s property and contacted Thompson regarding access across his property. During the course of these conversations, Sloan inquired about the possibility of renting or purchasing the house and acreage. An agreement was eventually reached that called for monthly payments of $600, of which $300 was to go towards a down payment of $10,000. The total purchase price was set at $125,000.\n¶5 At the time this agreement was executed there was virtually no discussion of the property, other than the maintenance of the water system. Thompson orally agreed to install a well, but never fulfilled that promise. At trial, Sloan testified that he asked Thompson if he knew who built the house and Thompson said that he did. Sloan testified that he assumed that Thompson meant that he had a contractor build the house for him.\n¶6 The Sloans walked through the building and then proceeded to occupy it for three years. During this period of time the Sloans became aware that the roof leaked, the house shook, the decks were rotted, some of the electrical outlets did not work, and the toilets did not flush properly. Sloan complained immediately about the roof and got assurances from Thompson that he would repair it. Sloan patched it several times, and then replaced a large section, noting considerable rot in the roof. During this time there was extensive water intrusion into the house. After the roof replacement, Sloan did not experience any more significant leaking. Meanwhile, Sloan had obtained bids to put in a well, which were rejected by Thompson, and Thompson reneged on his agreement to fix the roof.\n¶7 In 1997, the Sloans thought they had paid enough to complete the $10,000 down payment, and so pursued a real estate contract with Thompson. The parties argued over the terms and in the end they completed paperwork for the sale, using a printed form offered by Thompson, in which, unbelievably, the Sloans gave up their right to the $10,000 paid as a down payment (crediting the rent). Thompson did, however, credit the Sloans with $3,000 to compensate for his failure to install the promised well. The Sloans requested no information, and Thompson made no representations. Furthermore, the parties initialed in at least two places on the contract standard “as is” language, indicating their agreement that the Sloans had inspected the property and were satisfied.\nf 8 In 1998, there was a small earthquake, which caused the house to move slightly and part of the deck to collapse. Sloan removed the deck. Then in 2000, there was a larger earthquake at which time the floor of the moved-in house began to pull away from the sides and threatened to collapse. When Sloan began shoring up the timbers and pulling off wall coverings, he found what various experts testified at trial in terms of inadequate and dangerous building practices employed in the construction of the home. Experts testified at trial that Thompson’s construction work on the foundation and framing of the first floor of the house was structurally unsound. There were also significant defects in the work Thompson did on the plumbing and electrical systems, and the septic system he installed was done without a permit, was improperly sized, and did not have a functioning drain field. They also testified that the house now is not fit for safe habitation and must be demolished. The experts’ testimony stands unrefuted.\n¶9 Sloan testified at trial that after the second earthquake he went to the Skagit County permitting center to find the building permits for the house, but was unable to locate any. Sloan has since been served with a notice of violation from Skagit County subjecting him to the various fees and civil penalties for construction of a residence without the required permits, review, and inspections. He now faces the choice of either bringing the house up to code or demolishing it.\n¶10 In January 2002, the Sloans filed this lawsuit claiming fraudulent concealment and breach of contract and requesting specific performance of the real estate contract, unspecified damages, and attorney fees. They later amended the complaint to include a consumer protection claim. The Thompsons answered and filed counterclaims claiming breach of contract, waste, and timber trespass. In February 2003, the Sloans filed a jury demand which the Thompsons opposed. The Thompsons claimed that the jury issues were too inextricably bound up with the nonjury issues to allow for a reasonable bifurcation of the trial. The Sloans filed a brief in response, arguing that the issues in this case were primarily factual and that any equitable issues could be reserved to the court to be based on the jury’s factual determinations. The court denied the Sloans’ jury demand without explanation.\n¶11 After a bench trial, the superior court found in favor of the Thompsons as to the fraudulent concealment and consumer protection claims. The court concluded that there was no evidence that Thompson intentionally, recklessly, or negligently misled the Sloans by statement or omission or concealed any defects within the property. The court also concluded that the “as is” provision in the contract was enforceable against the Sloans and that the Sloans were extremely negligent in failing to employ any of the usual safeguards to determine whether they were getting what they thought they were getting. The court therefore dismissed their fraudulent concealment claim with prejudice. The court also dismissed the consumer protection claim with prejudice because the court determined that this was a private dispute and that no fraud or misrepresentation took place. The court determined that the Thompsons were entitled to 80 percent of their attorney fees because the “greater part of the lawsuit involved developing and defending the fraudulent concealment claim.”\n¶12 Furthermore, the superior court retained jurisdiction over the issue of the water system and required the Thompsons to adjust the lot line so that the entire water system was contained within the Sloans’ property or to install a well to serve the Sloans’ property. Thompson adjusted the lot line as asked, but when it became apparent to the court that the water system still was incapable of providing potable water to the Sloans, the court amended its judgment to require the Thompsons to install a well. The Thompsons cross-appeal from this amended court order. The Sloans appeal from the court’s judgment on the fraudulent concealment claim, the consumer protection claim, the denial of the jury demand, and the award of attorney’s fees.\nANALYSIS\nFraudulent Concealment\n¶13 “In the sale of residential dwellings, the doctrine of caveat emptor no longer applies ‘to the complete exclusion of any moral and legal obligation to disclose material facts not readily observable upon reasonable inspection by the purchaser.’ ” Thus, a builder-vendor of a residential dwelling has a duty to speak in those situations where:\nthere is a concealed defect in the premises of the residential dwelling, the builder-vendor has knowledge of the defect, the defect is dangerous to the property, health or life of the purchaser, and the defect is unknown to the purchaser and a careful, reasonable inspection on the part of the purchaser would not disclose the defect.[]\nFurthermore, “the defect complained of must ‘substantially affect [ ] adversely the value of the property or operate [ ] to materially impair or defeat the purpose of the transaction.’ ” “In such a situation, a builder-vendor’s failure to inform the purchasers of the defect constitutes fraudulent concealment.”\n¶14 However, fraudulent concealment does not extend to those situations where the defect is apparent. In other words, “in those situations where a purchaser discovers evidence of a defect, the purchaser is obligated to inquire further.”\n¶15 Here, the Sloans claim several concealed defects existed in the house, and the superior court agreed that the defects were serious enough to meet the standard for a fraudulent concealment claim. The defects the Sloans claimed, and submitted unrefuted expert testimony to support, included structural defects, plumbing defects, electrical defects, and defects in the domestic water system and septic system.\n¶16 Structural engineering experts testified that the lower level was built by “someone who really didn’t know anything about construction” and that the construction was “not up to standard or required code building practices.” Another expert testified that he could not find anything “ethical” or “legal” about the foundation of the home laid by Thompson. And yet another expert, at times holding back laughter, testified that Thompson’s framing of the first floor appeared to have been done by someone without knowledge of basic carpentry methods and Uniform Building Code requirements and was “the worst thing [he had] ever seen.” While discussing Thompson’s faulty wall support construction, the expert testified that “[t]o a guy with my experience, the building would’ve been out and out dangerous to even walk around in it and I wouldn’t have done it.”\n117 He also wrote in his report, “The general structure appears to be sound when looking at areas that are still covered, but in most places where it has been uncovered, there’s rotting and extremely faulty construction.” He also testified that there was rotting damage in the house but that in his opinion, “the bigger problem was the original member construction and the method of construction.”\n¶18 A plumbing expert also testified that the toilets were not properly vented and that some of the pipes ran uphill, and an electrician testified to “multiple code infractions and unsafe wiring” hidden behind wall coverings. Furthermore, a septic system expert testified that the system installed by Thompson was not built to code. And finally, another expert testified that the open domestic water system installed by Thompson failed to provide potable water to the house.\n¶19 When the elements of fraudulent concealment are properly applied to the facts of this case we find it impossible to arrive at the same conclusion as the superior court. The superior court stated in its memorandum decision that “there is no evidence of fraud or concealment” and that “[w]hile the defects of the house clearly meet that standard, the proof is not there to establish a knowing misrepresentation of material fact (or failure to disclose the same) made with the intent to induce the purchase, on which the purchaser reasonably relied.” And in the conclusions of law, the superior court stated that “[t]here is no evidence that Mr. Thompson intentionally, recklessly or negligently misled the Sloans, whether by statement or omission, as to any aspect of the structure, nor is there any evidence that he intentionally, recklessly or negligently concealed any defects with the property.” It is clear from this that the superior court misapprehended the law.\n¶20 As the Washington Supreme Court has stated, intent is not an element of a cause of action for fraudulent concealment. What is important is not the mental state of the builder-vendor, but his or her actual, subjective knowledge of the defect. “[A]ctual knowledge can be proved by circumstantial evidence.” And “[a]ctual knowledge of a defect does not necessarily mean actual knowledge that an injury will result.”\n¶21 Here, Thompson admitted to doing all of the defective construction himself, without permits and without consulting the code, so he cannot claim ignorance of the conditions that were later determined to be defective. However, he claims in his defense he did not know that his construction was defective, and that it would be absurd to find that he had knowingly concealed defects in the home when he planned to live in it with his family. This very well may have been the reasoning employed by the superior court when it determined that Thompson had not “intentionally, recklessly or negligently concealed any defects with the property.” In other words, the superior court determined that while Thompson might have been a bad carpenter who constructed a defective frame, he did not know that he was constructing a defective frame and therefore could not be attributed with the requisite knowledge of the defect under a fraudulent concealment claim.\n¶22 However, Thompson testified that he was familiar with code books and “knew what the codes were,... as far as framing is concerned.” If Thompson, by his own admission, knew the framing codes and then proceeded to construct a first floor frame that the unrefuted expert testimony and the findings of the superior court have found to be “terrible,” “unsafe,” “[un]ethical,” and “out and out dangerous,” we cannot see how Thompson cannot be attributed with knowledge of the defects, at least as far as the framing is concerned.\nf 23 But the issue remains whether the Sloans’ knowledge of other defects in the home was enough to shift the obligation to them to inquire further. The superior court thought it did, stating in its conclusions of law that the Sloans, “having lived in the house for six years between 1994 and 2000 are imputed with the knowledge of structural or other defects concerning the subject property that were obvious, namely the water system, the roof, the decks, the plumbing and electrical problems, the water intrusion, the inadequate supports, etc.” and that the “Sloans were extremely negligent in failing to employ any of the usual safeguards to determine whether they were getting what they thought they were getting.”\nf 24 However, “a fraudulent concealment claim may exist even though the purchaser makes no inquiries which would lead him to ascertain the concealed defect.” Only in situations where a purchaser discovers evidence of the defect, and thus the defect is apparent, is the purchaser required to inquire further.\n¶25 In Dalarna, the buyers knew the property had experienced water leakage but claimed that the sellers had concealed the extensive nature of the leakage. This court held that the buyers’ knowledge of the water leakage made the extensive nature of the leakage readily ascertainable by simply making further inquiries. Thus, the court imposed on the buyers a duty to make further inquiries as to the extent of the leakage.\n¶26 Here, the Sloans testified that during the time they had lived in the house they had experienced problems with the roof, plumbing, decks, some electrical outlets did not work, and Elaine Sloan had become aware that the domestic water was causing her to become ill. While all this arguably may have put the Sloans on notice to make further inquiries in these areas, nothing in the record suggests that they possessed knowledge of the faulty framing of the lower level of the home or of the defective septic system at the time they purchased the house.\n¶27 The experts in this case testified that the defective framing of the lower level would not have been noticeable to a trained eye if covered from view by sheetrock and/or plywood walls and ceilings. Again, the experts’ testimony stands unrefuted. Here, the superior court looked to other defects in the property as evidence that the structural defects in the framing of the house and the septic system were readily ascertainable. However, there is no evidence in the record to suggest that the Sloans’ knowledge of other unrelated defects in the house such as the leaky roof, faulty deck, and improperly flushing toilets would have put them on notice of the structural defects in the first floor framing or in the septic system, thus making such defects readily ascertainable. In fact, all expert testimony points to the contrary, and the superior court erred in imputing such knowledge upon the Sloans.\n¶28 Furthermore, the “as is” provision in the purchase contract does not immunize Thompson from fraudulent concealment liability. Although courts routinely enforce such “as is” clauses allocating the risk of unknown defects to the buyers, to do so where the sellers knew about the defects and withheld material information would be to blindly enforce a contract of questionable provenance, obtained by fraudulent concealment, and we will not do so.\n¶29 Finally, the Sloans’ fraudulent concealment claim is not barred by the statute of limitations. The statute of limitations for fraud does not begin to run until the aggrieved party discovers the facts constituting the fraud. Here, the Sloans did not discover the concealed framing defects until 2000, when Sloan removed the wall coverings after the second earthquake. The Sloans then filed suit in January 2002, well within the time allowed.\n¶30 Thus, when the elements of fraudulent concealment are properly applied to this case, the conclusion reached by the superior court is unsupportable. There are defects in the house, Thompson is imputed with knowledge of the framing defects because he put them there and knew they were defective, the Sloans did not know of the defects and undisputed expert testimony established that a careful, reasonable inspection would not have disclosed the defect in the framing. Furthermore, a leaky roof and other exposed defects in the house would not have put the Sloans on notice that Thompson had perched a 1930s house atop a dangerously defective first floor frame that is now on the verge of collapsing. When the correct law is applied, the facts compel a finding of fraudulent concealment against Thompson.\nConsumer Protection\n¶31 Substantial evidence supports the superior court’s finding that this is a private dispute that had no impact on the public interest and therefore the Consumer Protection Act, chapter 19.86 RCW, does not apply. Relevant factors to determining whether an action affects the public interest include:\n(1) Were the alleged acts committed in the course of defendant’s business? (2) Did defendant advertise to the public in general? (3) Did defendant actively solicit this particular plaintiff, indicating potential solicitation of others? (4) Did plaintiff and defendant occupy unequal bargaining positions?[]\nWhile “ [o]rdinarily, a breach of a private contract affecting no one but the parties to the contract is not an act or practice affecting the public interest, ... it is the likelihood that additional plaintiffs have been or will be injured in exactly the same fashion that changes the factual pattern from a private dispute to one that affects the public interest.” While there is evidence that Thompson had purchased other properties, fixed them up and resold them to make extra money, substantial evidence supports a finding that Thompson built this home with the intention of its being his retirement home. Thompson and his family lived in the house for the greater portion of six years and left only when personal reasons necessitated the family’s relocation to Utah. Substantial evidence supports a determination that this sale did not occur within the course of Thompson’s business, but was simply a private transaction.\nWater System (Cross-Appeal)\n¶32 The superior court’s decision to require Thompson to either adjust the lot line or dig a well to provide the Sloans with potable water apparently was predicated on its erroneous determination at trial that the water system was spring fed and a lot line adjustment would place this spring fed system entirely on the Sloans’ property. After Thompson submitted a request to the court for an approval of the lot line adjustment, Sloan submitted an expert’s report that there was no spring on Lot 2 or Lot 3 and that the system is fed by runoff and is not acceptable for human consumption. Sloan then requested the court to require Thompson to install a well if the court’s intention was indeed to provide potable water. The court granted the request and amended the order to require the Thompsons to install a well. This was well within the superior court’s discretion.\n¶33 For the above reasons, we affirm the superior court’s judgment on the consumer protection claim and affirm its order directing Thompson to install a well. We reverse the superior court’s judgment on the fraudulent concealment claim and reverse its order awarding the Thompsons attorney fees based on their successful defense at trial from the fraudulent concealment claim and remand these issues to the superior court for entry of a judgment consistent with this opinion, including an appropriate award of attorney fees to the Sloans. The trial court shall also award the Sloans reasonable attorney fees for this appeal.\nCox, C.J., and Coleman, J., concur.\nReconsideration denied August 23, 2005.\nReview denied at 157 Wn.2d 1003 (2006).\nClerk’s Papers (CP) at 56.\nAtherton Condo. Apartment-Owners Ass’n Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d 506, 523, 799 P.2d 250 (1990) (quoting Hughes v. Stusser, 68 Wn.2d 707, 711, 415 P.2d 89 (1966)).\nAtherton, 115 Wn.2d at 524 (citing Obde v. Schlemeyer, 56 Wn.2d 449,452, 353 P.2d 672 (1960)).\nAtherton, 115 Wn.2d at 524 (alterations in original) (quoting Mitchell v. Straith, 40 Wn. App. 405, 411, 698 P.2d 609 (1985)).\nAtherton, 115 Wn.2d at 524 (citing Obde, 56 Wn.2d 449 (duty to inform purchaser of termite condition)); Perkins v. Marsh, 179 Wash. 362, 367, 37 P.2d 689 (1934) (duty to inform lessee of failure of the drainage system to carry away water during the rainy season); Luxon v. Caviezel, 42 Wn. App. 261, 264-65, 710 P.2d 809 (1985) (duty to inform purchaser of inadequate septic system); Sorrell v. Young, 6 Wn. App. 220, 225, 491 P.2d 1312 (1971) (duty to inform purchaser that lot was built up to street level with fill).\nAtherton, 115 Wn.2d at 524.\nAtherton, 115 Wn.2d at 525 (citing Puget Sound Serv. Corp. v. Dalarna Mgmt. Corp., 51 Wn. App. 209, 752 P.2d 1353, review denied, 111 Wn.2d 1007 (1988)).\nReport of Proceedings (RP) (Dec. 8, 2003) at 87.\nRP (Dec. 9, 2003) at 96.\nRP (Dec. 10, 2003) at 12, 14.\nRP (Dec. 10, 2003) at 14.\nRP (Dec. 10, 2003) at 12.\nRP (Dec. 10, 2003) at 55.\nRP (Dec. 9, 2003) at 13-19; RP (Dec. 8, 2003) at 133.\nRP (Dec. 10, 2003) at 80.\nRP (Dec. 8, 2003) at 46.\nCP at 46.\nCP at 55.\nAtherton, 115 Wn.2d at 523.\nBurbo v. Harley C. Douglass, Inc., 125 Wn. App. 684, 698,106 P.3d 258 (2005) (citing House v. Thornton, 76 Wn.2d 428, 433, 457 P.2d 199 (1969)).\nBurbo, 125 Wn. App. at 698 (citing Nauroth v. Spokane County, 121 Wn. App. 389, 393, 88 P.3d 996 (2004)).\nBurbo, 125 Wn. App. at 698 (citing Howland v. Grout, 123 Wn. App. 6, 11, 94 P.3d 332 (2004)).\nThompson testified that he did not get any permits because he wanted to save money. RP (Dec. 11, 2003) at 96.\nCP at 55.\nRP (Dec. 11, 2003) at 16.\nCP at 43.\nCP at 44.\nRP (Dec. 9, 2003) at 96.\nRP (Dec. 10, 2003) at 14.\nCP at 55.\nCP at 54-55.\nAtherton, 115 Wn.2d at 525 (citing Obde, 56 Wn.2d at 453).\nAtherton, 115 Wn.2d at 525 (citing Dalarna, 51 Wn. App. 209).\nPuget Sound Serv. Corp. v. Dalarna Mgmt. Corp., 51 Wn. App. 209, 752 P.2d 1353, review denied, 111 Wn.2d 1007 (1988).\nDalarna, 51 Wn. App. at 215.\nDalarna, 51 Wn. App. at 215.\nThe experts testified on cross-examination that there was some deflection in the house that was apparent to the naked eye due to an inadequately sized roof beam, but this does not speak directly to the first floor framing issue, nor was it established that this deflection would have been apparent when the Sloans’ purchased the home years earlier, before the earthquake.\nThe 1997 purchase contract states:\nThe purchaser takes the property in an “as” is [sic] contition [sic] and as part of the negotiations and consideration inducing the vendor to sell to the purchaser is the fact that he shall make no claim or demand nor institute any suit or action which claims there has been misrepresentation.\nEx. 78.\nSee Syvrud v. Today Real Estate, Inc., 858 So. 2d 1125, 1130 (Fla. Ct. App. 2003) (“An ‘as is’ clause in a contract for the sale of residential real property does not waive the duty... to disclose hidden defects in the property.”); Logue v. Flanagan, 213 W. Va. 552, 584 S.E.2d 186,190 (2003) (“ ‘The existence of an “as is” clause in a contract of sale for real estate will not relieve the vendor of his obligation to disclose a condition which substantially affects the value or habitability of the property and which condition is known to the vendor, but not to the purchaser, and would not be disclosed by a reasonable and diligent inspection. Such failure to disclose constitutes fraud.’ ”) (quoting Stemple v. Dobson, 184 W. Va. 317, 318 (court’s syllabus point 4), 400 S.E.2d 561 (1990)).\nSee RCW 4.16.080(4): “An action for relief upon the ground of fraud, the cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud.”\nCP at 53.\nSee RP (Dec. 10, 2003) at 73 (where the expert testified that the framing would have had to have been exposed “in order to get alarmed about it”).\nHangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 790-91, 719 P.2d 531 (1986).\nHangman Ridge, 105 Wn.2d at 790 (citing Lightfoot v. MacDonald, 86 Wn.2d 331, 334, 544 P.2d 88 (1976) and McRae v. Bolstad, 101 Wn.2d 161, 166, 676 P.2d 496 (1984)).\nSee Svendsen v. Stock, 143 Wn.2d 546, 555, 23 P.3d 455 (2001) (“[I]t is unlikely that the conduct of a single private seller would ever be within the sphere of trade and commerce and, thus, fall under the [Consumer Protection Act].”).\nSee CP at 43 n.5 (“The Court is now satisfied that there is, indeed, a spring on the property. Thompson’s testimony on this fact was not controverted. Where the water actually lies with reference to the line of Lot 3 is unresolved.”).\nCP at 75.\nSee CP at 96."", ""type"": ""majority"", ""author"": ""Grosse, J.""}], ""attorneys"": [""K. Garl Long, for appellants."", ""Kenneth W. Masters (of Wiggins & Masters, P.L.L.C.), for respondents.""], ""corrections"": """", ""head_matter"": ""[Nos. 54122-6-I; 54990-1-I.\nDivision One.\nJuly 5, 2005.]\nGregory Sloan et al., Appellants, v. Larry Thompson et al., Respondents.\nK. Garl Long, for appellants.\nKenneth W. Masters (of Wiggins & Masters, P.L.L.C.), for respondents.""}, ""cites_to"": [{""cite"": ""23 P.3d 455"", ""year"": 2001, ""category"": ""reporters:state_regional"", ""reporter"": ""P.3d"", ""pin_cites"": [{""parenthetical"": ""\""[I]t is unlikely that the conduct of a single private seller would ever be within the sphere of trade and commerce and, thus, fall under the [Consumer Protection Act].\""""}], ""opinion_index"": 0}, {""cite"": ""143 Wn.2d 546"", ""year"": 2001, ""case_ids"": [425279], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""555"", ""parenthetical"": ""\""[I]t is unlikely that the conduct of a single private seller would ever be within the sphere of trade and commerce and, thus, fall under the [Consumer Protection Act].\""""}], ""case_paths"": [""/wash-2d/143/0546-01""], ""opinion_index"": 0}, {""cite"": ""676 P.2d 496"", ""year"": 1984, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""101 Wn.2d 161"", ""year"": 1984, ""case_ids"": [1139592], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""166""}], ""case_paths"": [""/wash-2d/101/0161-01""], ""opinion_index"": 0}, {""cite"": ""544 P.2d 88"", ""year"": 1976, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""86 Wn.2d 331"", ""year"": 1976, ""case_ids"": [1117411], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""334""}], ""case_paths"": [""/wash-2d/86/0331-01""], ""opinion_index"": 0}, {""cite"": ""719 P.2d 531"", ""year"": 1986, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""105 Wn.2d 778"", ""year"": 1986, ""case_ids"": [1199153], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""790-91""}], ""case_paths"": [""/wash-2d/105/0778-01""], ""opinion_index"": 0}, {""cite"": ""184 W. Va. 317"", ""weight"": 2, ""case_ids"": [8577138], ""category"": ""reporters:state"", ""reporter"": ""W. Va."", ""pin_cites"": [{""page"": ""318""}], ""case_paths"": [""/w-va/184/0317-01""], ""opinion_index"": 0}, {""cite"": ""213 W. Va. 552"", ""year"": 2003, ""weight"": 2, ""case_ids"": [9097642], ""category"": ""reporters:state"", ""reporter"": ""W. 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+3342548,"{""id"": 3342548, ""name"": ""DI FRANCO v. ASCANI"", ""court"": {""id"": 10118, ""name"": ""Louisiana Court of Appeal"", ""name_abbreviation"": ""La. Ct. App.""}, ""analysis"": {""sha256"": ""703be8b69646ab3564c33596c816e458c9212bf1de5d6cbf943eb29e18919464"", ""simhash"": ""1:e7d6a62ad135717d"", ""pagerank"": {""raw"": 0.00000011754216298252391, ""percentile"": 0.5874064472484689}, ""char_count"": 11109, ""word_count"": 1861, ""cardinality"": 588, ""ocr_confidence"": 0.532}, ""casebody"": {""judges"": [], ""parties"": [""DI FRANCO v. ASCANI""], ""opinions"": [{""text"": ""HIGGINS, J.\nThis is a suit for damages for the alleged breach of a written building contract entered into between plaintiff, defendant, and the Security Building & Loan Association on March 4r 1925. Defendant denied liability, and filed a reconventional demand for extra work.\nThere was judgment in favor of plaintiff for the sum of $700 on the main demand, and defendant’s reconventional demand was dismissed. The defendant has appealed.\nThe petition alleges that on March 4, 1925, a written building contract was entered into between plaintiff as owner, defendant as contractor, and the Security Building & Loan Association, which assumed no responsibility, being merely a party to the contract to pay for the work performed; that the defendant undertook and agreed to erect and finish in “a perfect and workmanlike manner” and deliver to plaintiff a two-story double dwelling on South Rocheblave street, this city, for the sum of $14,000; that the building was, to be erected and constructed in accordance with the plans and specifications which were made part of the contract; that on or about the ________ day of November, 1925, plaintiff was induced to accept the building with defendant’s assurance that same was built in accordance with the contract, plans, and specifications, but it later developed that the said representations were false and untrue; “that the roof which was guaranteed by the contract, plans and specifications for a period of three years, was defective and leaked badly with each rain, as the result of which the ceilings of the said house were badly damaged”; that plaintiff verbally demanded that defendant repair the roof and the damage to the ceilings caused by the leaks, and on August 11, 1926, formally placed the defendant in default for not doing so; that the plaintiff repaired the said roof at a cost of $110 and the damage to the ceilings at a cost of $66; that the paving done under the contract was poor in workmanship and inferior in the material furnished, and, although defendant’s attention was called to the defects, lie failed to remedy thorn, as a result of which holes developed in the paving so that it became apparent that the work would have to be done over at a minimum cost of $100; that the painting on the exterior of the building was improperly done; that the material used in mixing the paint was of an inferior quality, and improperly mixed, causing the paint to crumble and peel off the building, with the result that plaintiff will be put to the expense of $350 to have the house repainted in the manner provided by the contract, plans, and specifications; that the work of placing the roof on the building, painting the house, and the paving were not done in accordance' with the contract, plans and specifications, and that plaintiff is entitled to recover the alleged damages on account of the' defendant’s breach of the contract; and that subsequent to the execution of the contract, it was verbally agreed between plaintiff and defendant that 120 feet of fencing called for by the contract would not be erected, and plaintiff would be allowed a credit of $1 per linear foot, or $120. Plaintiff iprays for judgment against the defendant in the sum of $746, with legal interest from judicial demand until paid.\nDefendant denied liability, averring that the contract, plans, and specifications were carried out, and that, if there were any defects in the building, they were the result of imperfections in the plans and specT ifications; that, if there were any leaks in the roof, they were due to the fact that the foundation of the building was not sufficient, which caused it to sink, and for which defendant would not be responsible; defendant reconvenes for the sum of $150 for extra work alleged to be due under a separate verbal contract between himself and plaintiff.\nThe contract, plans, and specifications provided that the contractor should erect and finish “in a perfect and workmanlike manner and deliver to the said party of the first part free from all encumbrances and liens a two-story dwelling. * * * Said work to be done in strict accordance with the drawings and specifications.”\nThe specifications further provided that the contractor should furnish all material where not otherwise specified, “and shall lay out the work and be responsible for its correctness1.” The' specifications contain a further provision that “all material employed in the construction of the said building, unless otherwise specified, to be of the best of their several kinds. All labor is to be performed in the best and most acceptable manner, by skilled workmen.”\nThe house, under the terms of the contract, was to have been completed and delivered by July 9, 1925, but was not delivered ‘ until the middle of November, 1925, when plaintiff took possession of the building and recorded the formal acceptance in the mortgage office, as required by the building law of this state.\nDefendant contends that the plaintiff, having accepted and occupied the building after the architect, Baehr, approved the building, is estopped from claiming damages, unless he was induced to accept the building through fraud. It appears that Mr. Baehr was the architect representing the Security Building & Loan Association which had loaned the plaintiff the money to pay for the construction of the building, having taken a mortgage upon the premises to secure the loan. The architect directly represented the homestead and not plaintiff, the owner of the property. Recording the formal written acceptance in the mortgage office was done simply in compliance with the provisions of the building laws of the state, so that the owner would be protected against any liens that might be recorded against the property.\nIt further appears that the complaints concern latent defects which were not discovered until the building was accepted and occupied. For instance, the reason for the leaks in the roof was due to the fact that the slates were not properly lapped, the specifications calling for a three-inch lap or cover, whereas they were only lapped two and two and one-half inches. The fact that the paint would peel and dry out so as to become powdery like whitewash could not be discovered until ■a reasonable time after the building had been painted. All of the defects complained of evidenced themselves within six months after the building was occupied. The roof leaked so badly that plaintiff was compelled to have a new one placed on the building within two years after the house was built. The evidence convinces us that the defendant contractor knew that he had failed to comply with the contract, plans, and specifications, in the respects complained of in this suit, at the time he tendered *the building to the plaintiff and plaintiff did not know of them.\nBy the acceptance and occupancy of the building the plaintiff did not waive any rights which he had against defendant for breach of contract, when the breach at the time of the acceptance of the building could not with reasonable care and diligence be discovered, due to the fact that the vices were latent defects.\nIn the case of Police Jury vs. Johnson, 111 La. 279, 35 So. 550, 552, the Supreme Court said:\n“We adhere to the decision cited by learned counsel in which it was held that a person who performs a contract unskilfully on the premises of a person who has contracted for a first-class outfit, or a person who could not do otherwise than accept the situation, does not thereby waive damages. Schwartz Case, 34 La. Ann. 214.”\nIn the case of Leinhard vs. Meyer, 11 La. App. 328, 123 So. 130, this court held:\n“Where it was intention of parties to building contract that building should be tenantable and constructed in workmanlike manner, and of good material such as to resist usual rains in locality, and contractor failed to fulfill obligations, resulting in leaks around windows and walls, contractor and surety were liable under contract and bond for damages which owner sustained. * * *”\nSee, also, R. C. C. arts. 2762 and 2769; Levy vs. Schwartz, 34 La. Ann. 209; Borrosky vs. Hill, 1 La. App. 431; Emdon vs. Olympia Roofing Co., 11 La. App. 614, 124 So. 615.\nOn the merits of the case, primarily questions of fact are involved. The record is voluminous and the evidence conflicting as to the alleged damages, but the district judge, after hearing the testimony of the witnesses, visited the building in question, and then rendered judgment in. favor of plaintiff. The record shows that the evidence abundantly supports the findings of the district judge, and therefore his judgment in favor of plaintiff on the main demand will not be disturbed.\nWhen the plaintiff in reconvention sought to introduce proof in support of his reconventional demand, defendant in reconvention objected to the evidence on the ground that the contract provided that there would be no charge for extra work, unless written estimates were submitted and agreed upon in writing before the work was commenced, and, as the petition in reconvention alleged that the extra work was done under a verbal agreement, but did not allege that the provision in the contract requiring that extra work he agreed upon in writing was waived, the evidence was therefore inadmissible. This objection was referred to the merits.\nConceding that the evidence was admissible, the most favorable view we would take of the matter as far as plaintiff in reconvention is concerned, after a careful reading of the record, we are unable to say that the judge a quo was manifestly in error in dismissing the reconventional demand, only issues of fact being involved.\nIn the case of Stringfellow vs. Nowlin Bros., 157 La. 683, 102 So. 869, 870, the Supreme Court said:\n“One who desires relief by means of a reconventional demand must institute such a demand in court. His position, in reconvening, becomes that of plaintiff. So much is this the case that, although the demand be inserted in the answer, it is not considered as a part of the answer, but as a petition setting forth a distinct cause of action. Powell v. Graves, 14 La. Ann. 873. It is therefore subject to all the rules of pleading applicable to plaintiff, and must be set forth with the same clearness and precision as if alleged in a direct action.”\nThe court further said:\n_ “It is clear, therefore, that the institution of a reconventional demand implies the existence of a prior suit or main demand in court. But, while the method of trial must be governed by the conditions of the main action, the reconventional demand enjoys the status of an independent suit, in which the burden of proof is upon the reconvener to establish the facts alleged.”\nWe do not find that the plaintiff in re-convention proved his claim by a preponderance of the evidence.\nFor the reasons assigned, the judgment appealed from is affirmed."", ""type"": ""majority"", ""author"": ""HIGGINS, J.""}], ""attorneys"": [""Borah, Himel & Bloch, of New Orleans, attorneys for plaintiff, app.ellee."", ""U. Marinoni, Jr., and Michel Provosty, of New Orleans, attorneys for defendant, appellant.""], ""corrections"": """", ""head_matter"": ""No. 11,773\nOrleans\nDI FRANCO v. ASCANI\n(March 10, 1930. Opinion and Decree.)\nBorah, Himel & Bloch, of New Orleans, attorneys for plaintiff, app.ellee.\nU. Marinoni, Jr., and Michel Provosty, of New Orleans, attorneys for defendant, appellant.""}, ""cites_to"": [{""cite"": ""14 La. Ann. 873"", ""category"": ""reporters:state"", ""reporter"": ""La. Ann."", ""opinion_index"": 0}, {""cite"": ""157 La. 683"", ""weight"": 2, ""case_ids"": [1273827], ""category"": ""reporters:state"", ""reporter"": ""La."", ""pin_cites"": [{""page"": ""870""}], ""case_paths"": [""/la/157/0683-01""], ""opinion_index"": 0}, {""cite"": ""124 So. 615"", ""category"": ""reporters:state_regional"", ""reporter"": ""So."", ""opinion_index"": 0}, {""cite"": ""11 La. App. 614"", ""case_ids"": [3335075], ""category"": ""reporters:state"", ""reporter"": ""La. App."", ""case_paths"": [""/la-app/11/0614-01""], ""opinion_index"": 0}, {""cite"": ""1 La. App. 431"", ""case_ids"": [3284048], ""category"": ""reporters:state"", ""reporter"": ""La. App."", ""case_paths"": [""/la-app/1/0431-01""], ""opinion_index"": 0}, {""cite"": ""34 La. Ann. 209"", ""category"": ""reporters:state"", ""reporter"": ""La. Ann."", ""opinion_index"": 0}, {""cite"": ""123 So. 130"", ""category"": ""reporters:state_regional"", ""reporter"": ""So."", ""opinion_index"": 0}, {""cite"": ""11 La. App. 328"", ""case_ids"": [3332005, 3335022], ""category"": ""reporters:state"", ""reporter"": ""La. App."", ""case_paths"": [""/la-app/11/0328-01"", ""/la-app/11/0328-02""], ""opinion_index"": 0}, {""cite"": ""34 La. Ann. 214"", ""category"": ""reporters:state"", ""reporter"": ""La. Ann."", ""opinion_index"": 0}, {""cite"": ""111 La. 279"", ""weight"": 2, ""case_ids"": [2476596], ""category"": ""reporters:state"", ""reporter"": ""La."", ""pin_cites"": [{""page"": ""552""}], ""case_paths"": [""/la/111/0279-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""13 La. App. 2"", ""type"": ""official""}], ""file_name"": ""0002-01"", ""last_page"": ""6"", ""first_page"": ""2"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 10, ""name"": ""La."", ""name_long"": ""Louisiana""}, ""last_updated"": ""2024-02-27T18:15:40.468383+00:00"", ""decision_date"": ""1930-03-10"", ""docket_number"": ""No. 11,773"", ""last_page_order"": 38, ""first_page_order"": 34, ""name_abbreviation"": ""Di Franco v. 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+343550,"{""id"": 343550, ""name"": ""Commonwealth vs. William Frangipane"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""e12a54224dd55d09d4d6196f52daf82d5ed99f58631be630520c414cac5cae68"", ""simhash"": ""1:b6ce6b4875a6603d"", ""pagerank"": {""raw"": 0.0000002751140778383906, ""percentile"": 0.8327398624398565}, ""char_count"": 29702, ""word_count"": 4630, ""cardinality"": 1274, ""ocr_confidence"": 0.915}, ""casebody"": {""judges"": [], ""parties"": [""Commonwealth vs. William Frangipane.""], ""opinions"": [{""text"": ""Greaney, J.\nA jury in the Superior Court convicted the defendant of forcible rape of a child under the age of sixteen years, G. L. c. 265, § 22A, and indecent assault and battery on a person fourteen years or over, G. L. c. 265, § 13H. Represented by new counsel on appeal, the defendant contends that the trial judge erred in (1) admitting expert opinion testimony given by a social worker about the loss and recovery of a traumatic memory through dissociation because the opinion testimony, in significant respects, concerned scientific and medical matters beyond the scope of the witness’s competence; and (2) failing to conduct a preliminary hearing under Commonwealth v. Lanigan, 419 Mass. 15 (1994), to determine the reliability of the Commonwealth’s proffered expert opinion testimony on the subject of dissociative memory loss. We granted the defendant’s application for direct appellate review. We agree with the defendant’s first point and conclude that the admission of portions of the objectionable expert testimony caused prejudice that necessitates reversal of both convictions. We refer the second issue (the need to conduct a Lanigan hearing) to be addressed at retrial.\nThe Commonwealth presented evidence of the following. On the evening of November 29, 1991, the complainant, then fourteen years old and a freshman in high school, went on a church youth group outing with approximately twenty other youths, as well as a few adult chaperones, including a priest. The group boarded a school bus in front of a church located on the Melrose-Wakefield line, and departed for a hayride at a farm in Tewksbury. The defendant, an employee of the bus company transporting the group, was the bus driver.\nAt the farm, the complainant, other youths, adult chaperones, and the defendant boarded a horse-drawn wagon covered with hay, which took them through some farmland and woods to a bonfire in a clearing surrounded by trees and rocks. A path through the woods led from the clearing to some portable toilet facilities. It was dark outside, and the bonfire lit up only the immediately surrounding area.\nAfter fifteen or twenty minutes beside the bonfire, the complainant set out to use the toilet facilities. As he approached the facilities, he heard a voice from further down the path call out, “Hey, kid. Come here.” He walked in the direction of the voice, and a man, whom he later identified as the defendant, grabbed his left hand, pulled it behind his back, and shoved him to the ground. The complainant could not see who it was who raped him, but noticed that his assailant was “plump” and had dark hair. The complainant returned to the bonfire, and, on his arrival, did not remember the rape and thought he had simply gone to the bathroom.\nAbout fifteen minutes later, the group returned to the wagon. During the ride back to the bus, the defendant started a “hay fight” in which everyone participated. As the complainant was throwing hay, the defendant grasped the complainant’s penis, over his clothing, seven or eight times.\nThe group rode back in the bus to Melrose. The complainant’s father picked him up and drove him home. The following day, the complainant told his mother that the defendant had touched his “private area” on the hayride. The complainant did not tell his mother, nor anyone else, about the rape because he had no memory of it. His parents decided against pressing charges on the indecent touchings.\nAlmost two and one-half years later, toward the end of his junior year of high school, the complainant began to recall “bits and pieces” of the rape. By the beginning of his senior year, he remembered the rape in full, and had no doubt that it was the defendant who raped him. After his first year of college, the complainant reported the incident to law enforcement personnel. A Tewksbury police officer met with the defendant, who acknowledged having driven a group of young teenagers to a hayride in Tewksbury and acknowledged going on the hayride, but denied having participated in the “hay fight” and denied having touched any of the youths on that trip.\nThe defendant did not testify at trial, nor did he call any witnesses to testify on his behalf. His defense was based on cross-examination of the Commonwealth’s witnesses to contend that he did not rape or molest the complainant, and that the complainant’s version of events and claims were not credible.\n1. Before trial, the Commonwealth notified the defendant’s trial counsel that it intended to call an expert witness “to discuss the [complainant’s] memory of the alleged assault, how a child’s memory works, and why some areas of the incident were readily apparent [and] disclosed immediately and others were ‘blocked out’ for several years.” Counsel filed a motion to exclude the testimony. The motion specifically objected to the anticipated testimony of the witness on “blocked out” memory on the ground that the witness’s opinion was “based upon extraneous facts not within the area of her professional competence as well as upon hearsay statements.” The judge took no action on the matter before trial.\nOn the third day of trial, immediately before the Commonwealth called the witness, the defendant’s trial counsel promptly renewed his objection to her testimony. The judge directed the Commonwealth to first establish, in the presence of the jury, the witness’s qualifications as an expert, and then permitted cross-examination in that limited area.\nThe witness testified during the voir dire that she has had approximately eighteen years’ experience as a psychotherapist. She is a licensed independent certified social worker with a bachelor’s degree in social services and a master’s degree in social work. She testified that she had been trained as a specialist in sexual abuse and had worked as an outpatient clinician in the adolescent department of the Greater Manchester Mental Health Center in Manchester, New Hampshire; had worked at North Shore Children’s Hospital in Salem, Massachusetts, in a variety of capacities, including conducting interviews and evaluations of, and providing treatment to, sexually abused children, as well as supervising the hospital’s “sexual information and trauma team”; had been the director of an outpatient clinic in Lowell that provided evaluations of and treatment to sexually abused children; and had previously testified as an expert witness in the Superior Court. Since 1989, the witness has been in private practice, continuing her “specialty in sexual abuse and trauma to children as well as treating adult survivors.” Over the years, the witness had studied in “the area of memory [of sexual abuse]” with a variety of researchers, including Dr. Bessel van der Kolk at the Human Resource Institute, Dr. Judy Herman at Cambridge Hospital, and others, and has attended seminars and workshops in this field. She also subscribes to a number of journals and magazines concerning sexual abuse of children. Based on the witness’s voir dire testimony, the judge found her qualified “to express opinions in the field of child abuse.”\nThereafter, the witness, who had not met with the complainant, and had not reviewed the particulars of the case, testified that victims of various traumas, including sexual abuse, experience many of the same symptoms, such as dissociative memory loss, derealization, nightmares, and “poor sleep.” She explained that dissociative memory loss may lead to the delayed disclosure of a traumatic event. She stated that children who have been abused typically do not disclose such abuse immediately, but rather disclose the abuse “months to years after the actual experience happened.”\nThe witness also explained that the eventual disclosure of a memory may vary from the disclosure of a partially recovered memory to the disclosure of a complete recall of an experience. Alternatively, an individual may completely repress a memory and only learn of a traumatic event from someone else. The witness stated that various factors influence when events, subject to dissociative memory loss, are remembered or recovered, including how one stores memory of trauma, how threatened an individual is in making a disclosure, the response to the individual as a result of that disclosure, an individual’s psychological makeup, and the type of treatment used to retrieve the memory.\nAs to traumatic memory, the witness testified how individuals remember traumatic events. She stated that traumatic memory is “stored in different parts of the brain [compared to everyday memories] which we’re able to understand now through what we call PET scans. It’s also retrieved differently than our everyday memory is retrieved. So that different cues, such as a nightmare or a smell or something that we hear, may trigger a memory that would . . . remind us of something to do with that traumatic memory and so little bits of information begin to come out.” A PET scan, she explained, is “a scan of the brain [whereby dye is injected] into various parts of the brain [and one] can actually see by the color [that comes] up how different memories are being stored in the brain, the different parts of our brain that we are actually storing memory in.” She further explained that, “[w]hen one is experiencing trauma ... we might feel [dissociation] more in a physical sense where we’re literally taking ourselves out of ourselves. And the brain is working in such a way that it’s separating the memory so that we’re not experiencing it as happening to ourselves.” The witness testified that there are “various theories” concerning trauma memory, and that the subject is “filled with a lot of controversy” and “not completely understood.”\nA trial judge has wide discretion to qualify an expert witness and to decide whether the witness’s testimony should be admitted. See Commonwealth v. Mahoney, 406 Mass. 843, 852 (1990); Commonwealth v. Dockham, 405 Mass. 618, 628 (1989). “ ‘The crucial issue,’ in determining whether a witness is qualified to give an expert opinion, ‘is whether the witness has sufficient “education, training, experience and familiarity” with the subject matter of the testimony.’ ” Commonwealth v. Richardson, 423 Mass. 180, 183 (1996), quoting McLaughlin v. Selectmen of Amherst, 422 Mass. 359, 361-362 (1996). See Commonwealth v. Mahoney, supra (judge should consider “whether the witness has sufficient skill, knowledge, and experience in the area of his training”). Testimony “on matters within the witness’s field of expertise is admissible” when the testimony concerns matters beyond the common knowledge of the jurors and will aid the jurors in reaching a decision (emphasis supplied). Commonwealth v. Dockham, supra at 628, quoting Simon v. Solomon, 385 Mass. 91, 105 (1982). See Commonwealth v. Richardson, supra. Consequently, a judge’s discretion can be abused when an expert witness is permitted to testify to matters beyond an area of expertise or competence. See Timmons v. Massachusetts Bay Transp. Auth., 412 Mass. 646, 649 (1992). The admission of expert testimony will be reversed only where it constitutes an abuse of discretion or other error of law. See Adoption of Hugo, 428 Mass. 219, 232 (1998), cert, denied sub nom. Hugo P. v. George P., 526 U.S. 1034 (1999), and cases cited.\nThe defendant argues that the judge erred in permitting the witness to offer an expert opinion on dissociative memory loss and recovered memory because she was not qualified to do so. To the extent that the witness testified that victims of trauma, in particular, sexually abused children, experience dissociative memory loss that may lead to the delayed recovery and disclosure of a traumatic memory, we disagree. “[CJourts have uniformly allowed expert testimony on the typical symptoms of sexually abused children because the information is beyond the common knowledge of jurors and of assistance in assessing a victim witness’s testimony and credibility.” Commonwealth v. Richardson, supra at 182-183, quoting Commonwealth v. Hudson, 417 Mass. 536, 540 (1994). See Commonwealth v. Thayer, 418 Mass. 130, 134 (1994); Commonwealth v. Dockham, supra at 629-630. One of these symptoms includes “the common phenomenon of delayed disclosure in cases of child sexual abuse.” Commonwealth v. Allen, 40 Mass. App. Ct. 458, 468 (1996). A critical issue in this case was the credibility of the complainant’s claim that he immediately forgot about the rape, but recovered the memory of it years later. Thus, the subject matter was appropriate for expert testimony. In view of the witness’s extensive training, education, and experience in interviewing, evaluating, and treating sexually abused children, the judge acted within his discretion to qualify the witness as an expert in child abuse, and to admit her testimony concerning dissociation and recovered memory; what these conditions or symptoms are; and the fact that victims of trauma may experience them. The fact that the witness was a certified social worker, and not a medical doctor or psychologist, does not alter this conclusion. See Commonwealth v. Thayer, supra; Moore v. Fleet Refrigeration & Air Conditioning Co., 28 Mass. App. Ct. 971, 972 (1990), and cases cited.\nHowever, we agree with the defendant that the witness should not have been permitted to testify about how a trauma victim stores and retrieves, or dissociates, a traumatic memory because the witness’s testimony on these issues involved pronouncements concerning the physical functioning of the brain, a scientific and medical matter on which the Commonwealth failed to establish that the witness was qualified to testify. The judge’s qualification of the witness in the field of child abuse in no way extended to a qualification in the area of the neurological or medical functioning of the brain, and the witness’s testimony in the latter area obviously went beyond discussing the typical symptoms of sexually abused children. See Timmons v. Massachusetts Bay Transp. Auth., supra at 649-650 (noting fact that witness is qualified as an expert in one area does not qualify him to give expert opinion in other area). The witness was not a medical doctor or a psychiatrist, and her license to practice social work did not authorize her to provide professional services of a medical nature. See G. L. c. 112, § 130 (those authorized to perform social work may provide services such as “psychosocial evaluation, counseling, psychotherapy of a nonmedical nature, referral to community resources, and the development and provision of educational programs”).\nFurther, the witness’s “studies” with allegedly noted researchers in the area of memory, and attendance at various seminars and workshops, did not serve as a sufficient basis on which to qualify her to testify to the science of how traumatic memory works. The witness did not even explain what aspects of memory she studied with the researchers or at the seminars and workshops she attended. Thus, contrary to the Commonwealth’s contention, this is not a situation involving testimony on a question of discrete knowledge. Cf. Commonwealth v. Mahoney, supra at 852-853 (chemist trained in chemical analysis and experienced in forensic chemistry could testify that substance was vomit although not specifically trained in the chemical analysis of residual stomach contents).\nAlthough the defendant’s trial counsel did not object during the witness’s direct examination to those portions of the witness’s testimony that we have concluded were improperly admitted, counsel had made it clear to the judge, both in a pretrial motion, and in his statements to the judge immediately before the witness testified at trial, that he objected to the witness’s testimony relative to “how a child’s memory works and why some areas were readily apparent and disclosed immediately and others were ‘blocked out’ for several years” on the ground that she was not competent to testify on such matters. Counsel’s claim of error concerning the admission of such testimony was preserved and the Commonwealth does not argue to the contrary.\nThe complainant’s credibility was pivotal to the Commonwealth’s case. The witness’s improperly admitted testimony served to bolster the complainant’s credibility by providing a medically scientific explanation for his purported memory loss and its later recovery; and the prosecutor, during his closing argument, stressed the importance of the witness’s testimony to credit the complainant’s assertion that he immediately forgot about the rape, but years later recovered a complete memory of it. Because the improper testimony went to the only seriously contested issue at the trial, we cannot say that the judge’s error in admitting the improper testimony “did not influence the jury, or had but very slight effect.” Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), quoting Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983). See Commonwealth v. Woods, 36 Mass. App. Ct. 950, 951 (1994), S.C., 419 Mass. 366 (1995). See also Griffith, Repressed Memories: The Effects of Expert Testimony on Mock Jurors’ Decision Making, 16 Am. J. Forensic Psychol. 5, 8 (1998) (noting that, where there is “little or no corroborating evidence in child sexual abuse case, juries are often left to weigh the credibility of the victim and the accused based largely on the expert testimonies”). Thus, the admission of the improper testimony was prejudicial. Further, because both the rape and indecent assault and battery offenses hinged, in large part, on the complainant’s credibility, the convictions cannot be separated and both must be reversed. See Commonwealth v. Dranka, 46 Mass. App. Ct. 38, 43 (1998).\n2. We need not reach the defendant’s additional argument that the judge erred in failing to conduct a prehminary hearing to determine the reliability of the Commonwealth’s proffered expert opinion testimony on the subject of dissociative memory loss and recovered memory pursuant to Commonwealth v. Lanigan, 419 Mass. 15, 25-27 (1994). Depending on the type of expert opinion testimony the Commonwealth attempts to proffer at retrial, this issue may arise again. Contrary to the Commonwealth’s assertion, a review of literature on the subject of dissociative memory establishes that the debate concerning the reliability or validity of recovered memory does not solely revolve around the use of memory recovery techniques in therapy. See, e.g., Lindsay, The Controversy Regarding Recovered Memories of Childhood Sexual Abuse, 12 J. Interpersonal Violence 631, 642 (1997) (debate exists over scientific processes used to recollect childhood traumas); McKonkey, Memory, Repression, and Abuse: Recovered Memory and Confident Reporting of the Personal Past, 16 Am. Psychiatric Press. Rev. Psychiatry 11-55, 11-55, 11-59, 11-71 (1997) (discussing how “biological, cognitive, and social influences that shape memory are intertwined in the debate about recovered memory”); Schacter, The Recovered Memories Debate: A Cognitive Neuroscience Perspective, Recovered Memories and False Memories 63, 79, 88 (M.A. Conway ed. 1997) (stating “there is no direct evidence that specific techniques used in therapy are the sole or primary cause of . . . false recollections” and discussing other aspects that merit consideration). Consequently, it may be appropriate for the trial judge to conduct a Lanigan hearing before retrial if the Commonwealth seeks to introduce expert testimony on the neurological aspects of dissociative memory loss, for the purposes of showing the reliability of recovered memory. This is distinguished from memory problems associated with dissociative memory loss, and related mental disorders, where a Lanigan hearing would not be necessary, such as those referred to in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, or those disorders where qualified expert testimony has been accepted as rehable in the past in Massachusetts appellate cases.\n3. The judgments are reversed, the verdicts are set aside, and the case is remanded for further proceedings.\nSo ordered.\n-rhe witness defined “dissociation” or “disassociation” as “a psychological state” whereby persons “distance themselves from the actual experience of what’s going on [and] lose a lot of the specific detail of time or place, sometimes what is actually happening to them.” We shall refer to this state as dissociative memory loss.\nThe complainant was twenty years old at the time of trial in December, 1997.\nThe witness was the only expert called by the Commonwealth.\nThe defendant’s trial counsel asked to cross-examine the witness outside the jury’s presence. Without explanation, the judge, over objection, denied this request. The judge should not have conducted the examination in front of the jury.\nWe also have stated that, with respect to qualifying a witness as an expert, “[a]lthough it is for the court to determine whether a witness is qualified to testify as an expert, there is no requirement that the court specifically make that finding in open court upon proffer of the offering party. Such an offer and finding by the [cjourt might influence the jury in [their] evaluation of the expert and the better procedure is to avoid an acknowledgement of the witnesses] expertise by the [c]ourt.” Commonwealth v. Richardson, 423 Mass. 180, 184 (1996), quoting United States v. Bartley, 855 F.2d 547, 552 (8th Cir. 1988).\nThe witness explained that, to obtain her license, she was required to have “five years[’] postgraduate experience, a certain number of hours of supervision around cases, and pass an exam.” Pursuant to G. L. c. 112, § 130, a “[licensed certified social worker” and a “[licensed independent clinical social worker” may render services, including “psychotherapy of a nonmedical nature,” involving “the application of social work theory and methods” in the treatment of mental and emotional disorders.\nDuring cross-examination, the witness explained that the workshops she had attended ranged from one day to one week in duration, and involved “taking courses throughout the day on a variety of topics.”\nThe judge then adequately instructed the jury on their role in evaluating expert testimony. See Commonwealth v. Richardson, supra at 184-185; Commonwealth v. Dockham, 405 Mass. 618, 629 (1989).\nSee note 1, supra. The witness explained that dissociative memory loss generally occurs at the time of the trauma.\nThe witness stated that “derealization” occurs when one “depersonalize[s] the situation . . . push[es] it away from [oneself] as an experience that is not happening.”\nThe witness testified that, if a child is physically threatened, the child may experience dissociation “more severely,” causing the child to repress the difficult memory “more severely than if the trauma is not seen as dangerous or violent.”\nThe subject of “recovered memory,” particularly of childhood sexual abuse, is highly controversial. See, e.g., Griffith, Repressed Memories: The Effects of Expert Testimony on Mock Jurors’ Decision Making, 16 Am. J. Forensic Psychol. 5, 7 (1998) (noting controversies surrounding issue of delayed recall of childhood abuse); Payne, Memory Illusions: Recalling, Recognizing, and Recollecting Events That Never Occurred, 35 J. Memory & Language 261, 261 (1996) (“In recent years there has been a dramatic increase in interest in false memories —remembering something that never occurred or misremembering the details of an actual event — due in large part to controversies arising from the recovery of lost or repressed memories”); Schacter, The Recovered Memories Debate: A Cognitive Neuroscience Perspective, Recovered Memories and False Memories 63, 63 (M.A. Conway ed. 1997) (“The recovered memories debate is the most passionately contested battle that has ever been waged about the nature of human memory”). One of the central issues debated on this subject is “how and why individuals come to forget and then remember childhood sexual abuse .... Some [researchers] have argued that qualitatively different processes are involved in memory for traumatic versus nontraumatic events and that clinical mechanisms (e.g., cognitive avoidance or dissociation) are necessary to explain nonremembering of childhood trauma, whereas others have argued that general mechanisms of memory and forgetting (e.g., poor encoding, decay, interference, state- and context-dependency) are sufficient.” Lindsay, The Controversy Regarding Recovered Memories of Childhood Sexual Abuse, 12 J. Interpersonal Violence 631, 639 (1997). In addition, it should be noted that differences in the ways researchers and critics have used certain key terms have contributed to the debate: “[F]or some . . . ‘recovered memories’ are understood necessarily to entail the existence of a special ‘massive repression’ mechanism by which memories of childhood sexual abuse are more or less instantly suppressed from awareness. For [others], the term ‘recovered memories’ does not necessarily entail any such special repression mechanism, and some prefer the related notions of dissociation or motivated forgetting as explanatory concepts.” Id. at 635. See Paris, A Critical Review of Recovered Memories in Psychotherapy: Part I— Trauma and Memory, 41 Can. J. Psychiatry 201, 202 (1996) (defining defense mechanisms that influence access to memories, including “suppression — a conscious or semiconscious decision to control and conceal unacceptable impulses, thoughts, feelings, or acts; repression — an unconscious mechanism that banishes unacceptable ideas, fantasies, affects, or impulses from consciousness; or dissociation — the splitting of clusters of mental contents from conscious awareness,” and explaining significance of terms: “In suppression, memories are available, but the individual makes an effort not to think about them; in repression, memories are unavailable; while in dissociation, not only memories, but entire segments of the personality become inaccessible” [emphasis in original]).\nIn its brief, the Commonwealth acknowledges the difference between these two areas: “The purpose of [the witness’s] testimony was not to explain the science of how memory works, but to explain that memory failure can be one of the many characteristics or ‘symptoms’ found in persons who have experienced sexual trauma.” As we previously explained, there was no error in permitting the witness to testify to the symptoms, including dissociative memory loss and recovered memory, of sexually abused children. The problem with the witness’s testimony arose when she proceeded to testify about the neurological science of how traumatic memory works.\nDr. Bessel van der Kolk has been described as “one of the country’s most renowned psychiatrists in [the field of memory].” Shahzade v. Gregory, 923 F. Supp. 286, 287 (D. Mass. 1996). Dr. Judy Herman has been described as one of the founders of the “recovered memory” movement. F. Grews, The Memory Wars: Freud’s Legacy in Dispute 160 (1995). The research conducted and findings reported by both of these doctors, however, have been the subject of considerable criticism. See H.G. Pope, Jr., The Scientific Status of Research on Repressed Memories, 1 Modem Scientific Evidence: The Law and Science of Expert Testimony 115, 121 (Supp. 2000) (criticizing van der Kolk’s studies of neurotransmitters involved in memory, and neuroendocrine and imaging studies of trauma victims); McConkey, Memory, Repression, and Abuse: Recovered Memory and Confident Reporting of the Personal Past, 16 Am. Psychiatric Press Rev. Psychiatry 11-55, U-64 (1997) (criticizing Herman study on recovered memories of childhood sexual abuse).\nThere is no record support for the Commonwealth’s assertion that the witness “gained knowledge of the basic physiological aspects of dissociation from reading and studying the works of others — such as the memory experts she studied with.”"", ""type"": ""majority"", ""author"": ""Greaney, J.""}], ""attorneys"": [""Brownlow M. Speer, Committee for Public Counsel Services, for the defendant."", ""David W. Cunis, Assistant District Attorney, for the Commonwealth.""], ""corrections"": """", ""head_matter"": ""Commonwealth vs. William Frangipane.\nMiddlesex.\nFebruaiy 5, 2001.\nMarch 20, 2001.\nPresent: Marshall, C.J., Greaney, Ireland, Cowin, Sosman, & Cordy, JJ.\nChild Abuse. Witness, Expert. Evidence, Expert opinion, Qualification of expert witness. Practice, Criminal, Judicial discretion.\nAt the trial of indictments for forcible rape of a child under the age of sixteen and indecent assault and battery on a person fourteen years or over, the judge acted within his discretion to qualify a Commonwealth witness, a licensed independent certified social worker, as an expert in child abuse and to admit her testimony concerning dissociation and recovered memory, what these conditions or symptoms are, and the fact that victims of trauma may experience them [533-535]; however, the judge erred in allowing the witness to testify beyond her qualification on the neurological or physical functioning of the brain or the science of how traumatic memory works [535-537]; where the complainant’s credibility was the issue at trial, the improperly admitted expert testimony was prejudicial, and a new trial was required [537],\nAt the retrial of indictments for sexual abuse of a child, it would be appropriate for the trial judge to conduct a preliminary hearing pursuant to Commonwealth v. Lanigan, 419 Mass. 15, 25-27 (1994), if the Commonwealth seeks to introduce expert testimony on dissociative memory loss or recovered memory. [537-538]\nIndictments found and returned in the Superior Court Department on July 25, 1996.\nThe cases were tried before Robert W. Banks, J.\nThe Supreme Judicial Court granted an application for direct appellate review.\nBrownlow M. Speer, Committee for Public Counsel Services, for the defendant.\nDavid W. Cunis, Assistant District Attorney, for the Commonwealth.""}, ""cites_to"": [{""cite"": ""419 Mass. 15"", ""year"": 1994, ""case_ids"": [823726], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""25-27""}], ""case_paths"": [""/mass/419/0015-01""], ""opinion_index"": -1}, {""cite"": ""419 Mass. 15"", ""year"": 1994, ""weight"": 2, ""case_ids"": [823726], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""25-27""}], ""case_paths"": [""/mass/419/0015-01""], ""opinion_index"": 0}, {""cite"": ""923 F. Supp. 286"", ""year"": 1996, ""case_ids"": [7773056], ""category"": ""reporters:federal"", ""reporter"": ""F. 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+3657238,"{""id"": 3657238, ""name"": ""Commonwealth vs. Christopher L. Little"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""bb809fb548eb5990982d0f51ec7743f5635790aa7423109477a8b97ea7521a2d"", ""simhash"": ""1:ff26056c1d8ed7fb"", ""pagerank"": {""raw"": 0.0000002961649941606976, ""percentile"": 0.8496186457202717}, ""char_count"": 37943, ""word_count"": 6088, ""cardinality"": 1257, ""ocr_confidence"": 0.924}, ""casebody"": {""judges"": [], ""parties"": [""Commonwealth vs. Christopher L. Little.""], ""opinions"": [{""text"": ""Cordy, J.\nThe Commonwealth brought a complaint against Christopher Little, the defendant, charging him with possession of a Class D substance (marijuana) with the intent to distribute. At trial, Little contested the charge only insofar as it alleged an intent to distribute. The Commonwealth called an experienced narcotics investigator, Detective Thomas Keating, who testified that in his opinion, the facts of Little’s case were consistent with an intent to distribute. Little filed a motion for a required finding of not guilty, which the trial judge denied. The jury returned a verdict of guilty, and Little was sentenced to a term of two years’ imprisonment. Little appealed, and we granted his application for direct appellate review.\nLittle, represented by new counsel, presses two arguments on appeal. First, he challenges Keating’s testimony as an expert witness, including his qualifications as an expert, the scientific basis for his opinions, and the sufficiency of his testimony to prove that Little had an intent to distribute marijuana. Second, he challenges the judge’s decision to deny Little’s motion in limine to exclude his prior convictions of crimes involving drug distribution.\nWe conclude that the judge did not abuse his discretion in allowing Detective Keating to testify, nor did he err in denying the motion for a required finding of not guilty. While Keating’s testimony sometimes strayed beyond the bounds of his expertise, there was no objection to it, and its admission did not create a substantial risk of a miscarriage of justice. We also conclude, however, that the judge erred in denying Little’s motion in li-mine, essentially ruling that if Little chose to testify, the Commonwealth would be allowed to introduce evidence of Little’s prior convictions relating to drug distribution. Therefore, we reverse the conviction and remand for a new trial.\n1. Facts. The jury could have found the following facts beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). On the evening of October 12, 2006, Officer Robert Stokinger of the Whitman police was parked on Route 14 when he saw a green sedan automobile with an expired inspection sticker drive by. He entered the vehicle’s registration plate number into his computer and learned that the car had failed an inspection in December, 2005, and that the license of the vehicle’s owner had been suspended. Stokinger pulled the vehicle over; Little was driving, and he was the only person inside the car. Stokinger asked Little for his driver’s license and automobile registration and confirmed that the license had been suspended. He then called for backup and arrested Little.\nAt the Whitman police station, Little’s pockets were emptied, and for the first time, Stokinger smelled a strong odor of marijuana. In the crotch of Little’s pants, the officers found a plastic bag holding fifteen smaller plastic bags, each containing a green, leafy substance. They also found a cellular telephone and $254 in his pockets. The officers did not find any smoking paraphernalia in Little’s possession.\n2. Discussion, a. Expert testimony. “Otherwise qualified expert testimony is admissible if, ‘in the judge’s discretion, the subject [of such testimony] is not within the common knowledge or common experience’ of the trier of fact, and the testimony will assist the trier of fact in determining a fact in issue or in understanding the evidence.” Commonwealth v. Miranda, 441 Mass. 783, 792-793 (2004), quoting Commonwealth v. Francis, 390 Mass. 89, 98 (1983). That rule, however, is not rigid; and even in cases where the subject matter may be within the knowledge or common experience of the trier of fact, expert testimony will be admissible if, in the judge’s discretion, it may be of assistance. See Commonwealth v. Miranda, supra at 793, citing P.J. Liacos, M.S. Brodin, & M. Avery, Massachusetts Evidence § 7.6.1 (7th ed. 1999). See generally Mass. G. Evid. § 702, at 204-213 (2008-2009).\nIt is well established that “trial judges have broad discretion to allow the use of narcotics investigators as experts in drug cases.” Commonwealth v. Miranda, supra, citing Commonwealth v. Johnson, 413 Mass. 598, 604 (1992). The judge’s decision to allow this type of evidence “will be reversed only where the admission constitutes an abuse of discretion or error of law.” Commonwealth v. Johnson, 410 Mass. 199, 202 (1991).\nNarcotics investigators may testify as experts to describe how drug transactions occur on the street. Commonwealth v. Miranda, supra at 794, quoting Commonwealth v. Robinson, 43 Mass. App. Ct. 257, 259 (1997) (“Characteristics of two-person street-level drug transactions are beyond the common store of knowledge of the average juror”). For example, this court and the Appeals Court have upheld decisions to allow testimony on the use of “lookouts” in drug transactions, Commonwealth v. Miranda, supra at 794-795 & n.13, and the significance of the purity of seized drugs, Commonwealth v. Bienvenu, 63 Mass. App. Ct. 632, 636 (2005).\nWe have also repeatedly held that there is no error in allowing “a police detective to testify that in his opinion the amount of [drugs] possessed by the defendant was not consistent with personal use but was consistent with an intent to distribute.” Commonwealth v. Johnson, 410 Mass, at 202. See Commonwealth v. Wilson, 441 Mass. 390, 400-401 (2004) (Wilson); Commonwealth v. Gollman, 436 Mass. 111, 116 (2002) (Gollman). “An element of the Commonwealth’s case in proving a charge of drug possession with intent to distribute is whether the subject drugs, connected to a given defendant, were for personal use or for distribution. This is not a matter within the common experience of jurors.” Commonwealth v. Grissett, 66 Mass. App. Ct. 454, 457 (2006), citing Wilson, supra at 401.\nIn this case, as in Gollman and Wilson, the judge permitted Keating to opine as an expert witness whether the facts of the case were more consistent with distribution or personal use of drugs. Keating testified that he had been employed with the Brockton police department since 1987; that he had worked in the narcotics unit since 1994; that he had attended at least 200 hours of training in narcotics investigation; that he holds a master’s degree in criminal justice; that he had been involved in close to 200 marijuana investigations; and that he had been involved in about fifty undercover purchases of marijuana. The judge did not abuse his discretion in permitting Keating to testify as an expert on the distribution issue, and Little lodged no objection to his doing so.\nLittle also challenges the content of Keating’s testimony. At no point during direct or cross-examination did Little object on the ground that Keating’s testimony went beyond his area of expertise, or on the ground that he gave an opinion on the ultimate question before the jury. The conviction will therefore be reversed only if the testimony created a substantial risk of a miscarriage of justice. See Commonwealth v. Daye, 411 Mass. 719, 741-742 (1992); Commonwealth v. Villanueva, 47 Mass. App. Ct. 905, 907 (1999).\nIn Wilson and Gollman, we upheld convictions when experts offered testimony similar to Keating’s. In Wilson, supra at 400-401, a narcotics detective opined that possession of one-half ounce of marijuana packaged in twenty smaller bags, $476 in cash, a pager, and a cellular telephone, and an absence of smoking paraphernalia, were more consistent with an intent to distribute than personal use. In Gollman, supra, a narcotics officer opined that possession of “crack” cocaine with street value of $540 and a pager, and an absence of smoking paraphernalia, were more consistent with an intent to distribute than personal use.\nKeating’s testimony fits squarely within the Wilson and Gollman framework. He began by testifying that drug dealers usually sell marijuana in “dime bags” (one gram, ten dollars), one-eighth of an ounce (3.5 grams, twenty-five dollars), one-half ounce (fourteen grams, seventy-five dollars), and one ounce (twenty-eight grams, $125 to $150). He testified that the absence of smoking paraphernalia could be significant in determining whether drugs are for personal use or for distribution. He admitted that “everybody carries a cell phone,” but noted that drug dealers use them to communicate with potential buyers. The prosecutor then asked, in the form of a hypothetical, for Keating to consider a case where a defendant is arrested with fifteen individually packaged bags of marijuana, $254 in loose currency, a cellular telephone, and no smoking paraphernalia. Keating testified that in his opinion, that situation was more consistent with distribution than personal use.\nOn cross-examination, Keating testified that he had “never dealt with a person buying marijuana in fifteen individual bags like that,” but admitted that the purchaser could not control how the drugs were packaged. He acknowledged that the total weight of the marijuana alone was insufficient to infer an intent to distribute. He also offered an imprecise economic argument to explain why a drug buyer would never purchase fifteen individual packages instead of a larger bulk package. Finally, he testified that marijuana users usually (though not always) carry smoking paraphernalia with them.\nAs we have noted, expert witnesses must limit their opinions to “matters within the witness’s field of expertise.” Commonwealth v. Pikul, 400 Mass. 550, 554 (1987), quoting Simon v. Solomon, 385 Mass. 91, 105 (1982). See Mass. G. Evid. § 702, at 208. Keating’s economic argument is likely beyond his expertise as a narcotics investigator, especially when he testified how theoretical buyers “would” behave; however, the defendant did not object to it. Keating had stated, “I never saw in my twenty year career or since October of [1994] a person buying fifteen . . . individual bags for personal use, they’ll buy in bulk.” That testimony appears to be within Keating’s experience, and is more consistent with his qualifications as an expert. Evaluated in context, and in light of Gollman and Wilson, Keating’s economic explanation did not create a substantial risk of a miscarriage of justice.\nFinally, Little essentially argues that reversal is required because the evidence “was equally consistent with possession for personal use as with possession with the intent to distribute.” Wilson, supra at 401. “We review the evidence in the light most favorable to the Commonwealth to determine whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Id., quoting Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).\nThe Commonwealth’s evidence was sufficient to prove the elements of the crime. In Wilson, supra at 401-402, we stated:\n“A reasonable jury could have found that the Commonwealth met its burden by relying on the amount of marijuana the defendant possessed in the absence of any smoking paraphernalia, the manner in which the marijuana was packaged, the defendant’s possession of $476 in cash, a pager, and a cellular telephone, and Detective Smith’s testimony that the aforementioned facts are consistent with an intent to distribute.”\nThe facts of this case are remarkably similar. Here, as in Wilson, a rational jury could have found the elements of the crime beyond a reasonable doubt. Therefore, the judge did not err in denying Little’s motion for a required finding of not guilty.\nb. Prior convictions. Little contends that the judge erred in ruling that if Little testified, the Commonwealth would be permitted to introduce in evidence Little’s prior convictions of drug distribution to impeach his credibility. We agree.\n“A judge has discretion to exclude evidence of a prior conviction, otherwise admissible to be used for impeachment under G. L. c. 233, § 21, if the danger of unfair prejudice resulting from such evidence outweighs its probative value.” Commonwealth v. Crouse, 447 Mass. 558, 565 (2006), citing Commonwealth v. Leftwich, 430 Mass. 865, 869 (2000). “The judge must balance the danger of unfair prejudice which can result from the admission of evidence of prior convictions against the probative value of the evidence for the purpose of impeachment.” Commonwealth v. Fono, 400 Mass. 296, 302 (1987), citing Commonwealth v. Maguire, 392 Mass. 466, 470 (1984). A careful balancing is essential because the “admission of evidence of a prior conviction, particularly a conviction of a crime not involving the defendant’s truthfulness and one closely related to or identical to the crime with which the defendant is charged, may well divert the jury’s attention from the question of the defendant’s guilt to the question of the defendant’s bad character.” Commonwealth v. Maguire, supra at 469. See generally Mass. G. Evid. § 609, at 179-183.\nWe consider seasonably raised challenges to the admission of evidence of prior convictions under the abuse of discretion standard. Commonwealth v. Fono, supra, citing Commonwealth v. Maguire, supra at 470. The defendant may challenge the judge’s ruling even if he never testifies. Commonwealth v. Crouse, supra at 564 (declining to adopt holding of Luce v. United States, 469 U.S. 38 [1984]). However, “[i]t is well established that a motion in limine, seeking a pretrial evidentiary ruling, is insufficient to preserve appellate rights unless there is an objection at trial.” Commonwealth v. Whelton, 428 Mass. 24, 25 (1998), citing Commonwealth v. Keniston, 423 Mass. 304, 308 (1996). “[B]ecause the defendant did not object at trial, we review the claim to determine whether there was a substantial risk of a miscarriage of justice.” Commonwealth v. Whelton, supra at 26. See Commonwealth v. Crouse, supra. But see Commonwealth v. Brown, 451 Mass. 200, 210 (2008) (Botsford, J., dissenting) (concluding that objection preserved even though not renewed at trial).\nIn conducting a review for an abuse of discretion, we have analyzed several factors, including whether the prior conviction is substantially similar to the crime charged, Commonwealth v. Drumgold, 423 Mass. 230, 250 (1996); whether the prior conviction involves a crime implicating truthfulness, Commonwealth v. Maguire, supra at 469; whether there were other prior convictions that the Commonwealth could have used to impeach the defendant, Commonwealth v. Whitman, 416 Mass. 90, 95 (1993); and whether the judge conducted the required balancing test, Commonwealth v. Paulding, 438 Mass. 1, 12 (2002).\nWe have repeatedly held that “no defendant should be convicted of a crime by proof of his reputation or propensity to commit similar crimes.” Commonwealth v. Fano, 400 Mass. 296, 303 (1987), quoting Commonwealth v. DiMarzo, 364 Mass. 669, 681 (1974) (Hennessey, J., concurring). As a result, when deciding whether to admit evidence of a prior conviction, a paramount factor is whether the crimes have “substantial similarity.” Commonwealth v. Maguire, supra at 471, and cases cited. Although substantial similarity alone does not create “per se error,” Commonwealth v. Whitman, supra at 94, quoting Commonwealth v. Reid, 400 Mass. 534, 538 (1987), it may be impossible to show an abuse of discretion otherwise. Commonwealth v. Drumgold, supra, quoting Commonwealth v. Preston, 27 Mass. App. Ct. 16, 23 (1989). See Mass. G. Evid. § 609, at 181-182.\nIn this case, the Commonwealth does not dispute that the crimes involved in the prior convictions are substantially similar to the ones at issue in the current charges. Little was charged with possession with the intent to distribute a Class D drug; if Little had testified, the Commonwealth intended to introduce evidence that he had been convicted of both distribution and possession with the intent to distribute controlled substances. Because the underlying crimes are so similar, there is a higher attendant risk that Little might improperly be convicted based on his reputation or his propensity to commit a crime.\nAdditionally, “admission of evidence of prior convictions solely because of the similarity of the conviction to the crime being tried is reversible error” (emphasis in original). Commonwealth v. Fono, supra at 302 n.11, citing Commonwealth v. Guilfoyle, 396 Mass. 1003, 1004 (1985) (judgments reversed where judge considered “similarity of crimes to be the basis for admission of the records of conviction instead of a reason for excluding them”). In this case, the judge committed precisely that error. After hearing the attorneys’ arguments on Little’s motion in limine to exclude the prior convictions, he stated, “If the issue is did he have the intent to distribute, then these prior convictions become much more relevant.” The judge appears to have conflated the analysis; because the sole issue was whether Little had an intent to distribute, admitting the prior convictions for drug distribution carried a high risk that the jury would convict Little because of his supposed propensity to commit that crime. The similarity of the crimes should have raised a “red flag.” Instead, that factor was employed as a basis for admitting the convictions.\nFinally, the judge gave short shrift to the required balancing of the convictions’ probative value against their potential prejudicial impact. While the judge stated several times that he believed the convictions would be probative, he made only one passing reference in his analysis of the possible prejudice: “I agree the prejudice increases.” This falls short of the careful balancing that is required, especially because the judge was aware that his decision to deny Little’s motion might make it “unwise, at best, for him to testify.”\nThe judge’s error created a substantial risk of a miscarriage of justice. In this case, although the evidence is sufficient under the “rational trier of fact” test, Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), it is far from overwhelming. Only two witnesses testified, both called by the Commonwealth. The expert witness, Keating, admitted that “everyone” carries cellular telephones; that drug purchasers have no control over the way drugs are packaged; that the weight of drugs in Little’s possession was not sufficient to infer intent; and that not all marijuana users carry smoking paraphernalia. The judge’s decision that he would admit the prior convictions effectively prevented Little from testifying. Because this case was a close one, Little’s ability to testify in his own defense might have had a significant effect on the outcome of the trial. The judge’s decision effectively prevented him from doing so, thereby creating a substantial risk of a miscarriage of justice.\n3. Conclusion. We reverse the judgment, set aside the jury verdict, and remand the case for a new trial.\nSo ordered.\nThose prior convictions included possession with the intent to distribute a Class B substance (cocaine) in violation of G. L. c. 94C, § 32A (c); possession with the intent to distribute a Class D substance in violation of G. L. c. 94C, § 32C; distribution of a Class B substance in violation of G. L. c. 94C, § 32A (a); and conspiracy to violate the Controlled Substance Act in violation of G. L. c. 94C, § 40.\nAt trial, Little did not challenge Detective Keating’s qualifications as an expert. Little also failed to request a hearing pursuant to Commonwealth v. Lanigan, 419 Mass. 15, 24 (1994), to establish “the reliability of the theory or process underlying the expert’s testimony.” In this appeal, Little advances no argument based on the Lanigan case; therefore, we do not address the application of that case to narcotics investigators testifying as experts.\nThe judge did not make a specific finding that Keating was qualified to act as an expert witness. In the absence of a request by the defendant, however, a judge is not required to explicitly find that the officer is qualified to testify as an expert. See Commonwealth v. Salcedo, 405 Mass. 346, 350 (1989) (“It is evident from the transcript that the judge believed the . . . officer was qualified, and his allowing the testimony implies he made that finding”).\nWe have also evaluated whether the judge provided limiting instructions to the jury and whether the prosecutor referred to the prior convictions in the closing argument. Commonwealth v. Brown, 451 Mass. 200, 211 (2008) (Botsford, J., dissenting), citing Commonwealth v. Walker, 401 Mass. 338, 346 (1987). These factors do not apply in this case. The prior convictions were never introduced at trial and, therefore, were not mentioned to the jury by either the judge or the prosecutor.\nThe defendant’s prior conviction of conspiracy to violate the Controlled Substance Act was placed “on file.” We express no view whether that conviction, which did not charge distribution, or possession with intent to distribute a controlled substance, might properly be used to impeach the defendant’s credibility at a retrial, after the required balancing by the judge.\n“If the issue is did he have the intent to distribute, then these prior convictions become much more relevant. . . . And the fact that someone has two prior convictions for dealing in drugs, I think, is a substantial factor that goes to a person’s credibility. Should a fact finder believe someone who has two prior drug convictions? ... I think here [the convictions have] a substantial impact on the defendant’s credibility with two prior drug convictions.”\nThe final two factors also inure to Little’s benefit. The Commonwealth has not argued that these were Little’s only prior convictions, and that the Commonwealth was therefore limited in its ability to impeach the defendant. Additionally, the prior convictions do not reflect “previous untruthfulness.” Commonwealth v. Maguire, 392 Mass. 466, 469 (1984), quoting Commonwealth v. Chase, 372 Mass. 736, 750 (1977). Therefore, they are not particularly well suited for impeachment purposes.\nThe dissent correctly points out that the defendant failed to make an offer of proof to show how his testimony would have aided his defense. Post at 778. While such a failure is not fatal in this case, it is a close question. Where the defendant chooses not to testify in the face of a ruling on the admissibility of his prior convictions, the failure to make such an offer properly may be construed against him on the questions of prejudice and substantial risk."", ""type"": ""majority"", ""author"": ""Cordy, J.""}, {""text"": ""Spina, J.\n(dissenting). I agree that the judge below stated an impermissible reason in his ruling to admit the defendant’s prior convictions, namely, that they were particularly probative of his credibility precisely because they were similar to the crimes charged in the complaint. Ante at 774. However, the judge’s erroneous reasoning should not necessarily mean that his ruling was incorrect. An incorrectly reasoned ruling nevertheless may be correct for a different reason, and thus may be affirmed. See Commonwealth v. Jones, 403 Mass. 279, 289 (1988); Commonwealth v. Reed, 23 Mass. App. Ct. 294, 298 n.1 (1986). I believe that, notwithstanding the erroneous reasoning behind the judge’s ruling to admit the defendant’s prior convictions, his ruling was correct. Even if it was not correct, the defendant failed to show that it created a substantial risk of a miscarriage of justice. His conviction should be affirmed.\nI agree that the court must go through a balancing of factors, and I agree that the prior convictions here are substantially similar to the crime charged, a factor which weighs heavily in the prejudice column. However, use of such convictions is not per se error, as the court acknowledges. Ante at 773, citing Commonwealth v. Whitman, 416 Mass. 90, 94 (1993).\nI also agree that the defendant’s prior convictions are not strong indicators of truthfulness, ante at 775 n.6, but every qualifying prior conviction, as here, has some probative value on the question of credibility, and the Legislature has so determined. See Commonwealth v. Reed, 397 Mass. 440, 446 (1986) (Lynch, L, dissenting), quoting Advisory Committee Note to First Draft of Proposed Fed. R. Evid. 609(a), reprinted in 46 F.R.D. 161, 297 (1969) (“A demonstrated instance of willingness to engage in conduct in disregard of accepted patterns is translatable into willingness to give false testimony”). This factor should be resolved in favor of the Commonwealth.\nThe court implies that the Commonwealth’s failure in the trial court to argue that these were the defendant’s only prior convictions signifies that there were others by which the defendant could have been impeached. Ante at 775 n.6. See Commonwealth v. Whitman, supra at 95. It is not the Commonwealth’s burden to show the existence of other convictions by which it could impeach the defendant. The burden is on the defendant to show the judge’s ruling was erroneous and caused a substantial risk of a miscarriage of justice. The defendant never argued in his motion in limine that the Commonwealth had other convictions by which he could be impeached and therefore these similar convictions should be excluded. Nor did he argue that the Commonwealth should be limited, in the alternative, to merely one of the prior convictions in question. It was his burden to present all material favorable to him for the balancing process. Because the defendant has failed to show the existence of other available prior convictions, I would resolve this factor in favor of the Commonwealth.\nThe court also concludes that because the prior convictions never were introduced at trial, factors concerning the effect of limiting instructions and whether the prosecutor referred to the convictions in his closing argument are not applicable in this case. I disagree. As the court acknowledges, these are factors to be considered in the balancing process before a judge decides to admit prior convictions for impeachment purposes. They are factors that we also must consider when deciding if the judge’s ruling was correct. “[W]e accept the basic premise that jurors can understand and will apply instructions that certain evidence is to be used by them for one purpose and not for another. Instructions concerning the jury’s use of evidence of prior convictions are not more difficult to understand and apply than many other instructions.” Commonwealth v. Leno, 374 Mass. 716, 719 (1978). We have said that a judge’s instructions limiting the use of a defendant’s prior convictions, both immediately after they are used and again in the general instructions, tend to lessen the possibility of unfair prejudice. Commonwealth v. Walker, 401 Mass. 338, 346 (1987). A judge is expected to do as much. See, e.g., Commonwealth v. Leno, supra at 718-719. Limiting instructions are a significant factor that weigh in favor of the Commonwealth.\nWe have noted that a prosecutor’s decision to omit any reference to a defendant’s prior convictions during closing argument has a similar salutary effect. Id. A judge has discretion to order a prosecutor to refrain from any such reference in closing argument. We have every reason to expect that a defendant will request such instructions and orders in the face of a ruling permitting the use of prior convictions, and we have every reason to expect that a prudent judge would take such precautions, sua sponte, and give a standard instruction, even if his own reasons for admitting the convictions were faulty. This factor should be weighed in favor of the Commonwealth.\nTwo additional factors were not considered here, namely, that a judge may consider “the importance of the defendant’s taking the stand, [and] the weight of the factor of the defendant’s credibility in the decision of the issues of fact.” Commonwealth v. Diaz, 383 Mass. 73, 81 (1981). “A judge can prepare himself for an early ruling by inquiring about the nature of the proof the parties intend to present, including what the defendant himself would offer if he took the stand; and an advance ruling may be made contingent on the evidence coming forward as thus indicated.” Id. at 82. These factors should be considered, because a judge cannot intelligently assess whether to admit prior convictions without knowing what a defendant will say. The defendant has failed to make an offer of proof and show how his testimony was important to his defense. We may infer from the absence of an offer of proof that his testimony would not likely have aided his defense.\nI believe the only factor that weighs in favor of the defendant in the balancing process is the similarity of his prior convictions to the crime charged. All others weigh in favor of the Commonwealth. The court acknowledges that the similarity between the prior convictions and the crime charged is but one factor in a balancing process, and although it is a significant factor, it alone is not enough to tip the balance. Ante at 773-774. See Commonwealth v. Bly, 444 Mass. 640, 654 (2005); Commonwealth v. Whitman, 416 Mass. 90, 94 (1993); Commonwealth v. Fano, 400 Mass. 296, 301-305 (1987); Commonwealth v. Reid, 400 Mass. 534, 538 (1987). There is every reason to believe that forceful limiting instructions and an order that the prosecutor make no reference to the prior convictions in closing argument adequately would have addressed any potential for unfair prejudice and would have allowed the Commonwealth to have the benefit of otherwise useful evidence of credibility. See Commonwealth v. Crouse, 447 Mass. 558, 565 (2006); Commonwealth v. Whitman, supra at 93. In my view, the ruling permitting the use of this impeachment evidence is warranted by a proper application of the balancing analysis we have approved. I would conclude there was no error.\nThe court concludes that the judge’s ruling was error because his reasoning for admitting the prior convictions was erroneous. Ante at 774. This analysis proceeds from reasoning used in other cases, see Commonwealth v. Fano, supra at 302 n.11, and cases cited, which I believe is faulty. The appeal is from the ruling, not the reasoning. The judge’s reasoning in these circumstances is not determinative; it is the correctness of the ruling to which we should look. For example, if a judge’s reasons for admitting a document or a photograph are faulty, we look to see whether there was some valid reason that would have supported the ruling. If such a reason exists, the ruling will be affirmed. See Commonwealth v. Jones, 403 Mass. 279, 289 (1988); Commonwealth v. Reed, 23 Mass. App. Ct. 294, 298 n.1 (1986). In no other area do we confine our inquiry to the judge’s reasoning. There is no reason to believe the judge would have informed the jury of his reasoning. There is no reason to believe the judge would not have given a standard instruction and correctly charged the jury on the proper use of prior convictions for impeachment. The judge’s thought process does not determine the correctness of his ruling.\nAt the end of the discussion of the balancing process the court states that “ ‘admission of evidence of prior convictions solely because of the similarity of the conviction to the crime being tried is reversible error’ (emphasis in original).” Ante at 774, quoting Commonwealth v. Fono, supra at 302 n.11. This sounds like per se error. If indeed our jurisprudence were so clear, there would have been no need to go through the balancing process undertaken by the court. The cases cited in Commonwealth v. Fono, supra, follow the same pattern. If the use of similar convictions constitutes reversible error, as the court concludes, then there was no need to discuss the judge’s erroneous reasoning in Commonwealth v. Guilfoyle, 396 Mass. 1003 (1985), there was no need to discuss the judge’s erroneous reasoning or to apply the balancing process in Commonwealth v. Roucoulet, 22 Mass. App. Ct. 603, 608-610 (1986), and there was no need to apply the balancing process in Commonwealth v. Fano, supra. The language in the Fano case on which the court relies conflicts with a more recent holding that it is not per se error to impeach with substantially similar convictions, and that a balancing process must be used. Commonwealth v. Whitman, supra at 94.\nEven if the judge’s ruling were erroneous, the defendant has failed to show that it has caused a substantial risk of a miscarriage of justice. In Commonwealth v. Crouse, supra at 564, 565, we held that a defendant who does not testify may challenge, on appeal, a decision by a trial judge to allow impeachment by use of prior convictions. We never suggested, however, that the rule we adopted in the Crouse case would reheve a defendant of his burden to create an adequate record for appellate review, such as making an offer of proof as to the substance of his proffered testimony. The record on appeal is silent regarding the defendant’s proffered testimony, including his explanation for keeping fifteen small baggies of marijuana in the crotch of his pants, or how he happened to have $254 in his pockets, predictably obvious questions that would have arisen on cross-examination. A defendant cannot improve his position by not testifying, as compared to a defendant who testifies and thereby creates a record by which an appellate court may consider the significance of his testimony as a factor in the balancing process. See Commonwealth v. Chase, 372 Mass. 736, 749 (1977).\nThe decision not to testify in response to a ruling that admits similar prior convictions for impeachment does not implicate any constitutional right. See id. at 751 (this approach “has not commended itself as raising a valid due process challenge”). See also Commonwealth v. Crouse, supra at 566 n.7, and cases cited. The defendant’s failure to make an adequate record from which we properly may decide whether there has been a substantial risk of a miscarriage of justice leads to the inescapable conclusion that he has failed to satisfy his burden.\nThe court suggests that the “decision [to] admit the prior convictions effectively prevented [the defendant] from testifying.” Ante at 775. This is a finding of fact for which there is no record support. It also ignores the result in cases where a defendant did testify and was impeached by prior convictions that were substantially similar to the crimes charged, and the judgment of conviction was reversed. See, e.g., Commonwealth v. Roucoulet, supra at 608. Moreover, there is nothing in the record that reveals the number of times testifying defendants have been acquitted, notwithstanding impeachment by convictions similar to the crime charged. Today’s decision encourages defendants to refrain from testifying and from making an offer of proof. It also bodes poorly for the Commonwealth in cases where Commonwealth witnesses may be impeached with prior convictions, but the defendant might not be impeachable if the convictions are for similar offenses, a situation that distorts the fact-finding process.\nAlthough the Commonwealth’s case is not overwhelming, I do not believe this case is as close as the court suggests. Ante at 775. The defendant had fifteen packets of marijuana secreted in the crotch of his pants, and he had $254 in his pockets. Unlike the defendant in Commonwealth v. Roucoulet, supra at 609, who had but a single marijuana cigarette, the defendant’s prior convictions here do not create the unfair prejudice by overkill that was presented in that case.\nI do not believe there was error, and I do not believe the defendant has shown a substantial risk of a miscarriage of justice. I respectfully dissent."", ""type"": ""dissent"", ""author"": ""Spina, J.""}], ""attorneys"": [""John J. Roemer, Committee for Public Counsel Services, for the defendant."", ""Christine M. Kiggen, Assistant District Attorney, for the Commonwealth."", ""David M. Siegel, for Suffolk Lawyers for Justice, amicus curiae, submitted a brief.""], ""corrections"": """", ""head_matter"": ""Commonwealth vs. Christopher L. Little.\nPlymouth.\nJanuary 6, 2009.\nMay 14, 2009.\nPresent: Marshall, C.J., Ireland, Spina, Cowin, Cordy, & Botsford, JJ.\nControlled Substances. Narcotic Drugs. Evidence, Expert opinion, Prior conviction. Practice, Criminal, Motion in limine.\nAt the trial of a criminal complaint charging the defendant with possession of a Class D substance (marijuana) with the intent to distribute, the judge did not abuse his discretion in permitting a police detective to testify as an expert witness on the issue whether the facts of the case were consistent with an intent to distribute [768-770]; further, no substantial risk of a miscarriage of justice arose from the witness’s imprecise economic explanation why a drug buyer would never purchase fifteen individual packages instead of a larger bulk package [770-771].\nThe evidence at the trial of a criminal complaint was sufficient to prove that the defendant possessed a Class D substance (marijuana) with the intent to distribute. [771-772]\nAt a criminal trial, the judge abused his discretion in ruling on a motion in limine that, if the defendant testified, the Commonwealth would be permitted to impeach the defendant’s credibility by introducing in evidence the defendant’s prior convictions, where the substantial similarity of the crimes underlying those convictions to the crime alleged in this case gave rise to a higher attendant risk that the defendant might improperly be convicted based on his reputation or his propensity to commit a crime; where the similarity of the crimes was the sole basis for admitting the convictions; and where the judge failed to balance carefully the convictions’ probative value against their potential prejudicial impact; moreover, the judge’s error, which effectively prevented the defendant from testifying, created a substantial risk of a miscarriage of justice requiring reversal of the conviction. [772-775] Spina, J., dissenting.\nComplaint received and sworn to in the Brockton Division of the District Court Department on October 13, 2006.\nThe case was tried before James F.X. Dinneen, J.\nThe Supreme Judicial Court granted an application for direct appellate review.\nJohn J. Roemer, Committee for Public Counsel Services, for the defendant.\nChristine M. Kiggen, Assistant District Attorney, for the Commonwealth.\nDavid M. Siegel, for Suffolk Lawyers for Justice, amicus curiae, submitted a brief.""}, ""cites_to"": [{""cite"": ""372 Mass. 736"", ""year"": 1977, ""case_ids"": [4029933], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""750""}], ""case_paths"": [""/mass/372/0736-01""], ""opinion_index"": 0}, {""cite"": ""401 Mass. 338"", ""year"": 1987, ""case_ids"": [3877438], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""346""}], ""case_paths"": [""/mass/401/0338-01""], ""opinion_index"": 0}, {""cite"": ""405 Mass. 346"", ""year"": 1989, ""case_ids"": [3882960], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""350"", ""parenthetical"": ""\""It is evident from the transcript that the judge believed the . . . officer was qualified, and his allowing the testimony implies he made that finding\""""}], ""case_paths"": [""/mass/405/0346-01""], ""opinion_index"": 0}, {""cite"": ""419 Mass. 15"", ""year"": 1994, ""case_ids"": [823726], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""24""}], ""case_paths"": [""/mass/419/0015-01""], ""opinion_index"": 0}, {""cite"": ""396 Mass. 1003"", ""year"": 1985, ""case_ids"": [898073], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""1004"", ""parenthetical"": ""judgments reversed where judge considered \""similarity of crimes to be the basis for admission of the records of conviction instead of a reason for excluding them\""""}], ""case_paths"": [""/mass/396/1003-01""], ""opinion_index"": 0}, {""cite"": ""27 Mass. App. Ct. 16"", ""year"": 1989, ""case_ids"": [3998858], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""23""}], ""case_paths"": [""/mass-app-ct/27/0016-01""], ""opinion_index"": 0}, {""cite"": ""400 Mass. 534"", ""year"": 1987, ""case_ids"": [880002], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""538""}], ""case_paths"": [""/mass/400/0534-01""], ""opinion_index"": 0}, {""cite"": ""364 Mass. 669"", ""year"": 1974, ""case_ids"": [289719], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""681"", ""parenthetical"": ""Hennessey, J., concurring""}], ""case_paths"": [""/mass/364/0669-01""], ""opinion_index"": 0}, {""cite"": ""438 Mass. 1"", ""year"": 2002, ""case_ids"": [201327], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""12""}], ""case_paths"": [""/mass/438/0001-01""], ""opinion_index"": 0}, {""cite"": ""416 Mass. 90"", ""year"": 1993, ""weight"": 2, ""case_ids"": [819104], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""95""}, {""page"": ""94""}], ""case_paths"": [""/mass/416/0090-01""], ""opinion_index"": 0}, {""cite"": ""423 Mass. 230"", ""year"": 1996, ""weight"": 2, ""case_ids"": [1027972], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""250""}], ""case_paths"": [""/mass/423/0230-01""], ""opinion_index"": 0}, {""cite"": ""451 Mass. 200"", ""year"": 2008, ""weight"": 2, ""case_ids"": [3788607], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""210"", ""parenthetical"": ""Botsford, J., dissenting""}, {""page"": ""211"", ""parenthetical"": ""Botsford, J., dissenting""}], ""case_paths"": [""/mass/451/0200-01""], ""opinion_index"": 0}, {""cite"": ""423 Mass. 304"", ""year"": 1996, ""case_ids"": [1028018], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""308""}], ""case_paths"": [""/mass/423/0304-01""], ""opinion_index"": 0}, {""cite"": ""428 Mass. 24"", ""year"": 1998, ""weight"": 2, ""case_ids"": [651213], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""25""}, {""page"": ""26""}], ""case_paths"": [""/mass/428/0024-01""], ""opinion_index"": 0}, {""cite"": ""469 U.S. 38"", ""year"": 1998, ""case_ids"": [11958370], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/469/0038-01""], ""opinion_index"": 0}, {""cite"": ""392 Mass. 466"", ""year"": 1984, ""weight"": 6, ""case_ids"": [3876090], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""470""}, {""page"": ""469""}, {""page"": ""470""}, {""page"": ""469""}, {""page"": ""471""}, {""page"": ""469""}], ""case_paths"": [""/mass/392/0466-01""], ""opinion_index"": 0}, {""cite"": ""400 Mass. 296"", ""year"": 1987, ""weight"": 4, ""case_ids"": [879997], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""302""}, {""page"": ""303""}], ""case_paths"": [""/mass/400/0296-01""], ""opinion_index"": 0}, {""cite"": ""430 Mass. 865"", ""year"": 2000, ""case_ids"": [1157359], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""869""}], ""case_paths"": [""/mass/430/0865-01""], ""opinion_index"": 0}, {""cite"": ""447 Mass. 558"", ""year"": 2006, ""weight"": 3, ""case_ids"": [3730468], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""565""}, {""page"": ""564""}], ""case_paths"": [""/mass/447/0558-01""], ""opinion_index"": 0}, {""cite"": ""385 Mass. 91"", ""year"": 1982, ""case_ids"": [900794], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""105""}], ""case_paths"": [""/mass/385/0091-01""], ""opinion_index"": 0}, {""cite"": ""400 Mass. 550"", ""year"": 1987, ""case_ids"": [880042], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""554""}], ""case_paths"": [""/mass/400/0550-01""], ""opinion_index"": 0}, {""cite"": ""47 Mass. App. Ct. 905"", ""year"": 1999, ""case_ids"": [480292], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""907""}], ""case_paths"": [""/mass-app-ct/47/0905-01""], ""opinion_index"": 0}, {""cite"": ""411 Mass. 719"", ""year"": 1992, ""case_ids"": [3897364], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""741-742""}], ""case_paths"": [""/mass/411/0719-01""], ""opinion_index"": 0}, {""cite"": ""66 Mass. App. Ct. 454"", ""year"": 2006, ""case_ids"": [3770899], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""457""}], ""case_paths"": [""/mass-app-ct/66/0454-01""], ""opinion_index"": 0}, {""cite"": ""436 Mass. 111"", ""year"": 2002, ""weight"": 2, ""case_ids"": [1178193], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""116"", ""parenthetical"": ""Gollman""}], ""case_paths"": [""/mass/436/0111-01""], ""opinion_index"": 0}, {""cite"": ""441 Mass. 390"", ""year"": 2004, ""weight"": 6, ""case_ids"": [411758], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""400-401"", ""parenthetical"": ""Wilson""}, {""page"": ""401""}, {""page"": ""400-401""}, {""page"": ""401""}, {""page"": ""401-402""}], ""case_paths"": [""/mass/441/0390-01""], ""opinion_index"": 0}, {""cite"": ""63 Mass. App. Ct. 632"", ""year"": 2005, ""case_ids"": [1582815], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""636""}], ""case_paths"": [""/mass-app-ct/63/0632-01""], ""opinion_index"": 0}, {""cite"": ""43 Mass. App. Ct. 257"", ""year"": 1997, ""case_ids"": [382257], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""259"", ""parenthetical"": ""\""Characteristics of two-person street-level drug transactions are beyond the common store of knowledge of the average juror\""""}], ""case_paths"": [""/mass-app-ct/43/0257-01""], ""opinion_index"": 0}, {""cite"": ""410 Mass. 199"", ""year"": 1991, ""weight"": 2, ""case_ids"": [3894673], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""202""}, {""page"": ""202""}], ""case_paths"": [""/mass/410/0199-01""], ""opinion_index"": 0}, {""cite"": ""413 Mass. 598"", ""year"": 1992, ""case_ids"": [3901027], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""604""}], ""case_paths"": [""/mass/413/0598-01""], ""opinion_index"": 0}, {""cite"": ""390 Mass. 89"", ""year"": 1983, ""case_ids"": [916733], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""98""}], ""case_paths"": [""/mass/390/0089-01""], ""opinion_index"": 0}, {""cite"": ""441 Mass. 783"", ""year"": 2004, ""weight"": 5, ""case_ids"": [411757], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""792-793""}, {""page"": ""793""}, {""page"": ""794""}], ""case_paths"": [""/mass/441/0783-01""], ""opinion_index"": 0}, {""cite"": ""378 Mass. 671"", ""year"": 1979, ""weight"": 3, ""case_ids"": [337417], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""677-678""}, {""page"": ""677""}, {""page"": ""677""}], ""case_paths"": [""/mass/378/0671-01""], ""opinion_index"": 0}, {""cite"": ""22 Mass. App. Ct. 603"", ""year"": 1986, ""weight"": 3, ""case_ids"": [3988607], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""608-610""}, {""page"": ""608""}, {""page"": ""609""}], ""case_paths"": [""/mass-app-ct/22/0603-01""], ""opinion_index"": 1}, {""cite"": ""444 Mass. 640"", ""year"": 2005, ""case_ids"": [985806], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""654""}], ""case_paths"": [""/mass/444/0640-01""], ""opinion_index"": 1}, {""cite"": ""383 Mass. 73"", ""year"": 1981, ""weight"": 2, ""case_ids"": [813540], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""81""}, {""page"": ""82""}], ""case_paths"": [""/mass/383/0073-01""], ""opinion_index"": 1}, {""cite"": ""374 Mass. 716"", ""year"": 1978, ""weight"": 3, ""case_ids"": [3872040], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""719""}, {""page"": ""718-719""}], ""case_paths"": [""/mass/374/0716-01""], ""opinion_index"": 1}, {""cite"": ""46 F.R.D. 161"", ""year"": 1969, ""category"": ""reporters:specialty"", ""reporter"": ""F.R.D."", ""pin_cites"": [{""page"": ""297"", ""parenthetical"": ""\""A demonstrated instance of willingness to engage in conduct in disregard of accepted patterns is translatable into willingness to give false testimony\""""}], ""opinion_index"": 1}, {""cite"": ""397 Mass. 440"", ""year"": 1986, ""case_ids"": [874780], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""446"", ""parenthetical"": ""Lynch, L, dissenting""}], ""case_paths"": [""/mass/397/0440-01""], ""opinion_index"": 1}, {""cite"": ""23 Mass. 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+3665547,"{""id"": 3665547, ""name"": ""Cumis Insurance Society, Inc., & others vs. BJ's Wholesale Club, Inc., & another"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""fd0c29cd1e34df1c9cac5a83816e040b1d6ccf030cda5c57081d07d5965af532"", ""simhash"": ""1:e323f5f1a604d608"", ""pagerank"": {""raw"": 0.00000047669164027508166, ""percentile"": 0.930417564885057}, ""char_count"": 48526, ""word_count"": 7318, ""cardinality"": 1309, ""ocr_confidence"": 0.931}, ""casebody"": {""judges"": [], ""parties"": [""Cumis Insurance Society, Inc., & others vs. BJ’s Wholesale Club, Inc., & another.""], ""opinions"": [{""text"": ""Cowin, J.\nThis dispute arose after unauthorized parties obtained access to magnetic stripe data from approximately 9.2 million credit cards used by cardholders to purchase merchandise at stores of the defendant BJ’s Wholesale Club, Inc. (BJ’s). Using the stolen data, the thieves were able to engage in fraudulent credit card transactions worth millions of dollars. The plaintiff credit unions, which had issued the compromised Visa U.S.A., Inc. (Visa), and MasterCard International (MasterCard) credit cards to the cardholders, were reimbursed for some of the fraudulent charges by their insurer, plaintiff Cumis Insurance Society, Inc. (Cumis), but sustained additional costs to cancel the compromised credit cards and reissue new ones.\nThe plaintiffs claim that the thieves were able to obtain the credit card information from BJ’s computer systems because BJ’s and its acquiring bank, defendant Fifth Third Bank (Fifth Third), had committed a breach of their contractual obligations, both to each other and to Visa and MasterCard, not to store the magnetic stripe data from the back of the cards after a credit card transaction had been authorized or declined. BJ’s and Fifth Third had agreements with each other that contained provisions requiring them to comply with Visa and MasterCard’s operating regulations; those regulations included a prohibition on retaining magnetic stripe data after a cardholder’s transaction was completed. Fifth Third, as an acquiring bank, also had agreements with Visa and MasterCard that similarly required compliance with Visa and MasterCard’s operating regulations.\nThe plaintiffs assert that they are entitled to relief under the terms of the defendants’ contracts with each other because, as issuing banks, the plaintiff credit unions are intended third-party beneficiaries of the contracts between BJ’s and Fifth Third. The plaintiff credit unions assert also that they are intended beneficiaries of the contracts between Fifth Third and Visa and MasterCard, provisions of which “includ[ed] Fifth Third’s compliance with the Card Operating Regulations.” The plaintiffs contend further that each time BJ’s submitted a credit card transaction for approval, through Fifth Third as acquiring bank to the Visa and MasterCard computer system and ultimately to the plaintiff credit unions as issuing banks, both defendants falsely represented that they were in compliance with their contractual obligations to comply with the regulations, specifically those regulations requiring them to maintain the security of the plaintiff credit unions’ cardholders’ information by not storing magnetic stripe data.\nThe plaintiff credit unions and Cumis commenced an action in the Superior Court claiming breach of contract as third-party beneficiaries, as well as fraud, negligence, negligent misrepresentation, violations of G. L. c. 93A, § 11, and equitable indemnification. Cumis also brought a claim for subrogation. A Superior Court judge (first judge) dismissed the third-party beneficiary breach of contract claims. She concluded, based on an explicit provision in BJ’s contract with Fifth Third, that the parties intended to exclude enforcement of the contract by third parties. The judge ruled also that the economic loss doctrine required dismissal of the negligence claims. The judge denied the defendants’ motions to dismiss the other claims.\nA different judge ordered limited discovery on the fraud and negligent misrepresentation claims. In this regard, the parties stipulated that, if summary judgment were granted in favor of the defendants on those claims, the remaining claims would be dismissed. After discovery was completed, the plaintiffs moved for partial summary judgment on the issue whether the defendants made representations that would support the plaintiffs’ surviving claims, and the defendants moved for summary judgment on all remaining claims. Another judge (second judge) allowed the defendants’ motion for summary judgment on the fraud and negligent misrepresentation claims and dismissed the remaining claims pursuant to the parties’ agreement. The plaintiffs appealed, and we transferred the case to this court on our own motion.\nThe plaintiffs maintain that the first judge erred in concluding that they were not intended third-party beneficiaries of the defendants’ contracts with each other because the contracts included references to Visa and MasterCard regulations that were intended to benefit the plaintiffs. The plaintiffs claim also that the first judge erred in relying on the economic loss doctrine to dismiss their negligence claims, arguing that the millions of credit cards they were required to reissue constituted harm to physical property. The plaintiffs maintain further that the second judge erred in granting summary judgment on the fraud and negligent misrepresentation claims, because the plaintiffs reasonably relied on provisions in the Visa and MasterCard regulations with which the defendants were contractually obligated to comply. The plaintiffs contend further that the G. L. c. 93A claims, and the claims for indemnification and subrogation, were wrongly dismissed since summary judgment should not have been granted on the fraud and negligent misrepresentation claims. Concluding that the motion judges’ thorough analysis of each of the plaintiffs’ claims was correct, we affirm.\nBackground. We recite the undisputed facts in the summary judgment record, reserving some facts for later discussion. Visa and MasterCard are membership organizations in which issuing and acquiring banks join in order to participate in point of sale transactions using the Visa and MasterCard brands. Issuing banks such as the plaintiff credit unions issue the physical plastic credit cards to cardholders, determine the amount of the authorized credit line available to each cardholder, and approve or decline each transaction when the cardholder presents the credit card to make a purchase.\nWhen a cardholder presents a credit card to a merchant, the merchant transmits the information encoded on the back of the credit card to the acquiring bank. The acquiring bank, in turn, transmits the information to Visa or MasterCard, which submits the request to the appropriate issuer. The issuer then relays its decision to approve or decline the transaction back through the same channels to the merchant. After the transaction is approved, the acquiring bank acquires the merchant’s Visa or MasterCard receipt, pays the merchant for the amount of the transaction, and seeks payment from the issuing bank; the issuing bank pays the acquiring bank and debits the cardholder’s account. Approximately 16,000 issuers are members of the Visa organization and approximately 20,000 issuers are members of MasterCard. At least 20 million merchants participate in the Visa and MasterCard payment processing systems, but none are members and none contract directly with Visa or MasterCard.\nVisa and MasterCard each issue extensive operating regulations that govern the payment processing system and their members’ obligations. Every financial institution that becomes a member of the Visa and MasterCard organizations must sign a contract that includes a provision that it will comply with these regulations; acquirers are also contractually obligated to ensure that their merchants comply. Both Visa and MasterCard regulations prohibit merchants and acquirers from storing magnetic stripe data from the back of credit cards, in whole or in part, after a transaction is completed.\nIn February, 2004, Visa and MasterCard determined that computer thieves had gained access to the computer systems on which BJ’s stored credit card transaction data at more than 150 stores, and that the breach had been ongoing since July, 2003. The breach provided the thieves access to the full magnetic stripe data from approximately 9.2 million cardholder accounts, allowing them access to cardholder names, account numbers, account expiration dates, and proprietary Visa and MasterCard security data. It was ultimately determined that the third-party transaction processing software used by BJ’s was permanently storing the magnetic stripe data in transaction logs. The agreements between BJ’s and Fifth Third contained a requirement that BJ’s comply with Visa and MasterCard’s regulations, including those prohibiting BJ’s from storing any magnetic stripe data after a transaction was completed; the agreements among Fifth Third and Visa and MasterCard required Fifth Third to ensure that its merchants complied with the regulations. BJ’s conceded that it was retaining the magnetic stripe data.\nVisa and MasterCard notified all their member issuing banks that had issued any of the possibly compromised accounts. In response to this notification, the plaintiff credit unions closed all their potentially compromised accounts, without regard to whether fraudulent charges had been made on a particular account; advised cardholders to destroy their old plastic credit cards; and issued new account numbers and new plastic credit cards to all affected cardholders. Cumis paid the plaintiff credit unions millions of dollars for fraudulent transactions made using the compromised accounts; the plaintiff credit unions and Cumis then commenced this action.\nDiscussion. 1. Third-party beneficiary contract claims. “In order to recover as a third-party beneficiary, the plaintiffs must show that they were intended beneficiaries of the contract. . . .” Spinner v. Nutt, 417 Mass 549, 555 (1994). That the plaintiffs derive a benefit from a contract between others does not make them intended third-party beneficiaries and does not give them the right to enforce that agreement. Id. at 555-556. Where the parties have expressly and unambiguously stated an intention to exclude third-party beneficiaries, that intent is controlling. See Volpe Constr. Co. v. First Nat’l Bank, 30 Mass. App. Ct. 249, 256-257 (1991), quoting 4 Corbin, Contracts § 777, at 25 (1951) (“it is plain that, ‘if two contracting parties expressly provide that some third party who will be benefited by performance shall have no legally enforceable right, the courts should effectuate the expressed intent by denying the party any direct remedy’ ”).\nThe complaint states that Fifth Third, “[i]n contracting with Visa and MasterCard to serve as acquiring bank, . . . intended that the issuing credit unions, including the plaintiff credit unions, have the benefits of the contract between Fifth Third and Visa and MasterCard, including Fifth Third’s compliance with the Card Operating Regulations.” The complaint makes no factual assertions in support of its allegation concerning Fifth Third’s intent, and contains no assertions about the intent of Visa or MasterCard. Apart from this single statement in the complaint, the parties and both motion judges have proceeded as though the only agreements at issue for purposes of the third-party beneficiary claims are the agreements between BJ’s and Fifth Third. Before us, as in their complaint, the plaintiffs cite the agreements between Fifth Third and Visa and MasterCard only to the extent that those agreements require Fifth Third’s compliance with the operating regulations. The plaintiffs assert no error concerning the contracts between Fifth Third and Visa and MasterCard, and these contracts were not part of the record until the defendants filed their motions for summary judgment; the plaintiffs also asserted no such error in the trial court. Therefore, we consider any claims as to intended third-party beneficiary status in the contracts between Fifth Third and Visa and MasterCard to be waived. See Doe v. Superintendent of Schools of Stoughton, 437 Mass. 1, 7 (2002).\nThe agreements between BJ’s and Fifth Third provide: “This Agreement is for the benefit of, and may be enforced only by, [Fifth Third] and [BJ’s] and their respective successors and permitted transferees and assignees, and is not for the benefit of, and may not be enforced by, any third party.” The agreements also include a clause stating that all disputes under the agreements will be governed by the law of the State of Ohio.\nWithout explicitly deciding what law applied, the first judge observed that both Massachusetts and Ohio incorporate the provision on third-party beneficiaries set forth in Restatement (Second) of Contracts § 302 (1981). See Miller v. Mooney, 431 Mass. 57, 62 (2000); Hill v. Sonitrol of Southwestern Ohio, Inc., 36 Ohio St. 3d 36, 40 (1988). This provision allows intended third-party beneficiaries to enforce contracts “[ujnless otherwise agreed between promisor and promisee.” Restatement (Second) of Contracts, supra. Under Massachusetts law, a contract does not confer third-party beneficiary status unless the “language and circumstances of the contract” show that the parties to the contract “clear [ly] and definite [ly]” intended the beneficiary to benefit from the promised performance. See Anderson v. Fox Hill Village Homeowners Corp., 424 Mass. 365, 366-367 (1997). Similarly, Ohio law states that, regardless of whether a third party receives some benefit from a contract, a third party is only an incidental beneficiary unless the “intent to benefit” test establishes that the promisee intended the third party to receive the benefit of the performance. See Hill v. Sonitrol of Southwestern Ohio, Inc., supra at 40-41.\nRelying on the unambiguous language in their agreements, the first judge concluded that BJ’s and Fifth Third had “otherwise agreed” not to allow their contracts to be enforced by third parties and, therefore, that there were no circumstances in which the plaintiffs could prevail on their third-party beneficiary breach of contract claims. In discussing the first judge’s decision on the third-party beneficiary claims, the second judge stated that, at most, the plaintiff credit unions were incidental beneficiaries of BJ’s and Fifth Third’s agreements. The second judge observed also that, in regard to Visa and MasterCard’s intent to allow third-party enforcement of their regulations, Visa and MasterCard expressly reserved for themselves, in their contracts with the plaintiff credit unions as issuers, and with Fifth Third as an acquirer, “the sole right to interpret and enforce” the Visa and MasterCard regulations.\nNotwithstanding the expressly stated exclusion of third-party beneficiaries in the defendants’ agreements, the plaintiffs contend that the judge erred and that they are intended third-party beneficiaries of the agreements between BJ’s and Fifth Third because the agreements provide that the signatories will comply with Visa and MasterCard’s regulations (including the regulation prohibiting storage of magnetic stripe data). The plaintiffs assert, despite the contrary language, that the prohibition against retention of magnetic stripe data was intended to benefit issuers such as the plaintiff credit unions. We agree with the well-reasoned decision of the first judge that the plaintiff credit unions are not intended third-party beneficiaries of the contracts between BJ’s and Fifth Third, and thus conclude that the breach of contract claims were properly dismissed. See Nader v. Citron, 372 Mass. 96, 98 (1977), quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (complaint sufficient “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”).\nAs stated, in their complaint, the plaintiffs assert merely the conclusion that they were third-party beneficiaries to the defendants’ agreements without setting forth any factual allegations concerning the defendants’ intentions or Visa and MasterCard’s purported intention in establishing the regulation concerning magnetic stripe data. Neither the complaint on its face nor the attached agreements offer any basis to support an intention on the part of the defendants that the contract be performed for the benefit of the plaintiffs.\nThe plaintiffs suggest that the provision in the defendants’ agreements to exclude third-party beneficiaries is a “secret disclaimer” that conflicts with the purpose of the regulation prohibiting retention of magnetic stripe data, a regulation that the plaintiffs assert is intended to protect issuers. However, nothing in the Visa and MasterCard operating regulations prohibits Fifth Third or BJ’s from entering into agreements that explicitly exclude enforcement by third parties. We agree with the reasoning in a recent decision by the United States District Court for the District of Massachusetts in a case involving the Visa and MasterCard operating regulations and agreements between Fifth Third and another merchant. In that case, a Federal District Court judge decided that the agreements excluded third-party beneficiaries and that the operating regulations did not conflict with the contracts excluding third-party beneficiaries. See In re TJX Cos. Retail Sec. Breach Litig., 524 F. Supp. 2d 83, 89-90 (D. Mass. 2007). The judge concluded that, even if the issuing banks were intended beneficiaries of the operating regulations, those regulations “make clear” that only Visa and MasterCard “can enforce their terms and thus that the issuing banks have no right to file suit to achieve that end.” Id. at 89. Therefore, the judge held, provisions denying third parties such as issuing banks the ability to enforce the terms of the contracts between an acquiring bank and a merchant did not conflict with the operating regulations. Id. at 90.\nThe plaintiffs emphasize that Visa and MasterCard representatives testified at deposition that the regulations prohibiting storage of magnetic stripe data were intended to ensure the security of the Visa and MasterCard network and to protect all participants in the system, including issuers. However, this deposition was not available when the motions to dismiss were allowed, and the plaintiffs did not later file a motion for reconsideration of the first judge’s decision. Nor would it have made a difference given the explicit and unambiguous disclaimer in the defendants’ agreement; whatever their intent in implementing the regulations, neither Visa nor MasterCard is a party to the defendants’ contracts. Moreover, as stated, the operating regulations expressly provide that Visa and MasterCard reserve the right to interpret and enforce the regulations; at least one court has held that this expressed exclusion indicates an intent to prohibit others, such as the plaintiff issuers in this case, from doing so. See In re TJX Cos. Retail Sec. Breach Litig., supra.\nThe plaintiffs contend further that, without the ability to recover as third-party beneficiaries, they have no alternative means to recoup damages resulting from the theft of data wrongfully stored on BJ’s computer systems. This claim is without merit. The operating regulations set forth a detailed “compliance” mechanism pursuant to which the plaintiff credit unions could have filed claims with Visa and MasterCard to recoup losses they suffered due to fraudulent use of the compromised accounts. One provision in MasterCard’s rules states that compensation for compromised data may include issuers’ costs for issuing new cards or monitoring potentially compromised accounts.\n2. Negligence claims. To prevail against the defendants’ motions to dismiss their negligence claims, the plaintiffs must establish that the defendants owed them a legal duty and that the defendants’ breach of this legal duty was the cause of the plaintiffs’ injuries. Davis v. Westwood Group, 420 Mass. 739, 742-743 (1995). In addition, the economic loss doctrine bars recovery unless the plaintiffs can establish that the injuries they suffered due to the defendants’ negligence involved physical harm or property damage, and not solely economic loss. See Aldrich v. ADD Inc., 437 Mass. 213, 222 (2002), quoting FMR Corp. v. Boston Edison Co., 415 Mass. 393, 395 (1993) (“purely economic losses are unrecoverable in tort. . . actions”).\nThe first judge determined that the plaintiffs suffered only economic harm due to the theft of the credit card account informotion, and therefore that the economic loss doctrine barred recovery on their negligence claims. See Aldrich v. ADD Inc., supra at 222. The plaintiffs assert that the judge erred and that the economic loss doctrine does not apply because the plastic credit cards are tangible personal property and their damages included physical harm to the plastic cards that had to be canceled following the thefts. However, as courts in other jurisdictions have observed, the question here is not whether the credit cards are tangible property, but rather the nature of the damages sought by the plaintiffs. See Pennsylvania State Employees Credit Union v. Fifth Third Bank, 398 F. Supp. 2d 317, 330 (M.D. Pa. 2005), aff’d in part, Sovereign Bank v. BJ’s Wholesale Club, Inc., 533 F.3d 162, 176-178 (3d Cir. 2008). As the United States District Court judge stated, the damages sought by the plaintiffs in that case, the costs of replacing credit cards for compromised accounts, were economic losses. Id. We are persuaded that the damages the plaintiff credit unions seek in this case for the costs of reissuing credit cards for all their compromised accounts are likewise economic losses. See In re TJX Cos. Retail Sec. Breach Litig., supra at 90-91 (adopting reasoning in Pennsylvania State Employees Credit Union v. Fifth Third Bank and holding that destruction of compromised credit cards should be considered economic losses).\nIn affirming the Federal District Court’s decision to grant summary judgment on the plaintiffs’ negligence claims in Pennsylvania State Employees Credit Union v. Fifth Third Bank, supra, a case involving very similar circumstances with different credit union plaintiffs and BJ’s and Fifth Third as defendants, the United States Court of Appeals for the Third Circuit concluded that the credit cards themselves were not harmed and were still functional to make purchases after the information was compromised; the plaintiffs chose to cancel the accounts and issue new cards to prevent economic losses from future liability. See Sovereign Bank v. BJ’s Wholesale Club, Inc., supra at 179-180. We concur with that court’s holding, and conclude that the cards at issue here were also canceled by the plaintiff credit unions for the purpose of avoiding future economic losses. Therefore, the first judge properly dismissed the plaintiffs’ negligence claims as barred by the economic loss doctrine.\n3. Fraud and negligent misrepresentation claims. The plaintiffs assert in their complaint that the defendants “falsely represented that [they] would comply with the Card Operating Regulations,” and that Fifth Third falsely represented that it would ensure that BJ’s complied with the regulations, “in order to induce [the plaintiff] credit unions to act as issuing credit unions.” The complaint states that the plaintiff credit unions “would not have agreed to act as issuing credit unions or would have taken additional steps to protect themselves but for the false representations/omissions made by [the defendants].” In their negligent misrepresentation claims, the plaintiffs assert that, “[i]n contracting with Fifth Third and/or Visa and MasterCard, BJ’s, in the course of its business with plaintiffs, falsely represented that . . . it was not storing magnetic stripe information” and Fifth Third “falsely represented that BJ’s was not storing magnetic stripe information.” The plaintiffs contend that they “justifiably relied upon the false representations made by [the defendants] regarding the security and confidentiality of the Visa and MasterCard credit card information” and BJ’s “failure to comply with the Card Operating Regulations,” and that the plaintiffs suffered losses from fraudulent charges and the costs incurred in canceling and reissuing compromised credit cards because of the defendants’ negligence in supplying such false information.\nTo recover on their fraud claims, the plaintiffs must establish that the defendants made a false representation of material fact, with knowledge of its falsity, for the purpose of inducing the plaintiffs to act on this representation, that the plaintiffs reasonably relied on the representation as true, and that they acted upon it to their damage. Masingill v. EMC Corp., 449 Mass. 532, 540 (2007). Unlike fraud, negligent misrepresentation does not require an intent to deceive or actual knowledge that a statement is false. To prevail on their negligent misrepresentation claims, the plaintiffs must establish in this context that the defendants, “in the course of [their] business, profession or employment, or in any other transaction in which [they had] a pecuniary interest, supplied] false information for the guidance of others in their business transactions” without exercising “reasonable care or competence in obtaining or communicating the information,” that those others justifiably relied on the information, and that they suffered pecuniary loss caused by their justifiable reliance upon the information. See Nycal Corp. v. KPMG Peat Marwick LLP, 426 Mass. 491, 496 (1998), quoting Restatement (Second) of Torts § 552 (1977).\nFollowing discovery, the plaintiff credit unions conceded that the defendants had made no direct representations to them concerning the Visa and MasterCard operating regulations or the defendants’ compliance with these regulations. The second judge determined that there was no evidence that the defendants “made any direct representations, negligent or otherwise, to the plaintiffs or supplied them with false information to induce them to issue Visa or MasterCards [szc] or to continue to participate in the credit card system.” The plaintiffs do not dispute that their claims for fraudulent and negligent misrepresentation are based only on the requirements in the Visa and MasterCard operating regulations and the defendants’ contracts with each other that require the defendants to abide by these regulations. The plaintiffs also do not dispute that, prior to this litigation, they never saw the agreements between the defendants, and were not aware of the content of these agreements, other than the knowledge that Visa and MasterCard required the agreements to include compliance with the operating regulations.\nAlthough the plaintiffs appealed from the second judge’s decision allowing summary judgment on the fraud and negligent misrepresentation claims, the focus of their brief is on the negligent misrepresentation claims; indeed, the brief presents both sets of claims as “the[] misrepresentation claims.” As to the fraud claims, the second judge observed that, notwithstanding the plaintiff credit unions’ claims that they were induced to participate as issuers for BJ’s transactions in reliance on the defendants’ misrepresentations concerning the defendants’ compliance with the operating regulations, they presented no affidavits, deposition testimony, or other evidence showing that they would have acted differently with respect to their participation in the Visa and MasterCard organizations had they been aware of the defendants’ breach of their contractual obligations to abide by the operating regulations. Indeed, the plaintiff credit unions stated at the summary judgment hearing and in their brief that they continue to participate as issuers in the Visa and MasterCard system and to rely on the regulations because the system is 99.94 per cent effective and only six cents of every one hundred dollars in transactions within the system are fraudulent. Because the plaintiff credit unions have presented no evidence that any representations by the defendants induced them to become or remain issuers in the Visa and MasterCard system, or that they have withdrawn from or altered their participation in the system after becoming aware of the defendants’ breach, the defendants’ motions for summary judgment on the fraud claims were properly allowed. Moreover, summary judgment was also appropriate because, as discussed infra, the plaintiffs cannot establish that any reliance on the defendants’ implied misrepresentations would have been reasonable or justifiable.\nWe conclude also that the judge properly granted the defendants’ motions for summary judgment on the negligent misrepresentation claims. Since the plaintiffs concede that the defendants made no direct representations to the plaintiffs concerning the defendants’ level of compliance with the Visa and MasterCard regulations, the plaintiffs base their negligent misrepresentation claims, like their fraud claims, on the defendants’ “promises to Visa and MasterCard” and BJ’s “promises to Fifth Third” to abide by their contractual obligations to comply with Visa and MasterCard’s operating regulations.\nThe defendants do not contest that they failed to comply with the regulations prohibiting storage of magnetic stripe data after a transaction is completed. However, failure to perform a contractual duty does not give rise to a tort claim for negligent misrepresentation. See Anderson v. Fox Hill Village Homeowners Corp., 424 Mass. 365, 368 (1997). See also Sound Techniques, Inc. v. Hoffman, 50 Mass. App. Ct. 425, 433 (2000). Plaintiffs who are unable to prevail on their contract claims may not repackage the same claims under tort law. See Arcidi v. National Ass’n of Gov’t Employees, Inc., 447 Mass. 616, 622 (2006). Moreover, “false statements of opinion, of conditions to exist in the future,” and promises to perform an act cannot sustain a claim for negligent misrepresentation, see Yerid v. Mason, 341 Mass. 527, 530 (1960), unless the promisor had no intention to perform the promise at the time it was made. See Brewster Wallcovering Co. v. Blue Mountain Wallcoverings, Inc., 68 Mass. App. Ct. 582, 601 n.45 (2007). There was no evidence or contention by the plaintiffs that the defendants never intended to perform their contractual obligations to comply with the operating regulations at the time they entered into the contracts.\nEven assuming, as the plaintiffs argue, that the submission of a proposed purchase for approval constituted a representation to the plaintiff credit unions that the defendants were in compliance with the regulations prohibiting storage of magnetic stripe data, to survive the defendants’ motion for summary judgment on both sets of misrepresentation claims the plaintiffs must show also that their reliance on any such representation was reasonable and justifiable. See Kuwaiti Danish Computer Co. v. Digital Equip. Corp., 438 Mass. 459, 467-468 (2003). Although usually a question for the jury, whether the plaintiffs’ reliance was reasonable and justifiable can be a question of law where the undisputed facts permit only one conclusion. See Fox v. F & J Gattozzi Corp., 41 Mass. App. Ct. 581, 587-588 (1996).\nAs the second judge determined, no rational jury could have found reasonable reliance on the regulations prohibiting storage of magnetic stripe data in the circumstances here. First, as the judge observed, Visa and MasterCard compliance regulations explicitly provide for fines for breach of regulations such as storage of magnetic stripe data. This indicates that the system is designed with the expectation that breaches will occur. In addition, the plaintiff credit unions anticipated and insured themselves through plaintiff Cumis against fraudulent losses arising from such storage.\nSecond, the plaintiffs concede that, prior to the theft at issue here, the plaintiff credit unions, as issuers, received numerous and repeated alerts from Visa and MasterCard concerning specific instances of improper storage of magnetic stripe data and subsequent fraudulent activities involving these compromised accounts. In 2003 alone, Visa and MasterCard issued alerts concerning over 15 million compromised accounts due to theft of improperly retained magnetic stripe data; a Visa representative testified in a deposition that account compromises resulted in approximately $1 billion in fraudulent transactions annually. Security alerts in April, 2003, involving 400,000 accounts, and September, 2003, involving approximately 3.7 million accounts, stated that the accounts were compromised through improper retention of magnetic stripe data and notified issuers of their potential eligibility for reimbursement due to the compromised accounts. The plaintiff credit unions do not dispute that they received these notifications. Accordingly, given the plaintiffs’ actual knowledge of ongoing instances of noncompliance with the magnetic stripe regulation involving millions of accounts, the plaintiffs’ asserted reliance on the existence of the regulation in the defendants’ agreements could not be deemed reasonable.\nThus, the summary judgment record is “so clear as to permit only one conclusion,” Nota Constr. Corp. v. Keyes Assocs., 45 Mass. App. Ct. 15, 20 (1998), and the second judge determined correctly that the plaintiffs could not reasonably have relied on any implied representations by the defendants.\n4. Dismissal of the G. L. c. 93A, § 11, equitable indemnification, and subrogation claims. As stated, the parties stipulated that, if summary judgment were entered for the defendants on the fraud and negligent misrepresentation claims, the remaining claims would be dismissed. Because the defendants’ motions for summary judgment on the fraud and negligent misrepresentation claims were properly allowed, the other claims were correctly dismissed pursuant to the terms of the parties’ agreement.\nJudgments affirmed.\nAlthough both debit and credit cards were compromised, for purposes of this litigation there is no relevant distinction between the two types of cards; we refer to all the cards as “credit cards.”\nCumis Insurance Society, Inc. (Cumis), is a plaintiff both on its own behalf and as assignee of sixty-nine credit unions.\nAcquiring banks, also called merchant banks or acquirers, contract with individual merchants to process that merchant’s credit card transactions.\nIssuing banks, also known as issuers, issue credit cards to individual cardholders with whom they enter into separate contractual agreements; issuing banks approve or decline transactions when the cardholder presents the credit card to make a purchase.\nAs issuing banks, each of the plaintiff credit unions had separate agreements with Visa U.S.A., Inc. (Visa), and MasterCard International (MasterCard); these agreements required compliance with Visa and MasterCard’s operating regulations.\nIn their complaint, the plaintiffs assert that, “[u]pan information and belief, BJ’s [Wholesale Club, Inc. (BJ’s),] has a contract with Fifth Third [Bank (Fifth Third)] and/or Visa and MasterCard that requires BJ’s to comply with the Card Operating Regulations.” BJ’s has no contracts with Visa or MasterCard, but is required to comply with both Visa’s and MasterCard’s regulations under the terms of its contracts with Fifth Third. As the complaint accurately states, “Fifth Third has a contract with Visa and a contract with MasterCard that requires Fifth Third to comply with the Card Operating Regulations” and that also requires Fifth Third to include a provision in its contracts with BJ’s requiring BJ’s compliance with the regulations.\nFollowing the decision on the defendants’ motion to dismiss, eighty-five of the plaintiff credit unions dismissed their remaining claims.\nThe stipulation provided that resolution of the fraud and negligent misrepresentation claims in favor of the defendants would terminate the litigation in the trial court, but would not affect the plaintiffs’ right of appeal.\nIn order to resolve potential customer disputes, merchants are permitted to store the customer’s name, credit card number, and the card’s expiration date.\nIn addition, MasterCard reimbursed issuers, including the plaintiff credit unions, $2.4 million for fraudulent transactions.\nIndeed, the plaintiffs claim error in the first judge’s failure to consider the operating regulations, which were not before her, but which the plaintiffs assert “comprise the remaining documents that make up the contracts at issue in this case.” Although the plaintiffs cited and relied on specific contractual and regulatory provisions in their complaint, the plaintiffs did not attach any of the contracts or regulations at issue to the complaint, and also did not attach any such documents to their opposition to the defendants’ motions to dismiss. The defendants attached copies of the agreement between BJ’s and Fifth Third to their motions to dismiss, and the first judge properly considered those agreements. See Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43, 45 n.4 (2004). See also Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991), cert. denied sub nom. Cortee Indus., Inc. v. Westinghouse Credit Corp., 503 U.S. 960 (1992).\nAs issuers, the plaintiff credit unions signed agreements with Visa and MasterCard requiring them to comply with the Visa and MasterCard regulations; thus, the plaintiffs had access to the regulations prior to any discovery, and could have chosen to attach them to their filings. The defendants also attached copies of Fifth Third’s agreements with Visa and MasterCard, and portions of the regulations, to their motions for summary judgment, and the second judge properly considered those documents in his decision granting summary judgment to the defendants.\nFifth Third’s statement that the first judge had the regulations before her is inaccurate; the portions of the record that Fifth Third cites in support of this statement refer only to a single section of Visa’s regulations, entitled “dispute resolution,” that Fifth Third filed separately, not attached to its motion to dismiss, prior to the first judge’s decision. The other documents cited, including the provisions at issue, which appear in other sections of Visa’s full “operating regulations” and MasterCard’s “rules,” are attached to the defendants’ motions for summary judgment.\nThere is one agreement for credit cards and a separate agreement for debit cards; both contain identical language concerning third-party enforcement.\nVisa and MasterCard did proceed against Fifth Third under the terms of the compliance regulations; Fifth Third paid $555,000 in fines for an “egregious” violation of the operating regulations.\nThe motion to dismiss standard under Nader v. Citron, 372 Mass. 96, 98 (1977), is applicable because the judge’s decision was made before the change in the standard set forth in Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). The plaintiffs would fare no better under the new, more stringent standard required by the Iannacchino case.\nThe cases from other States cited by the plaintiffs in support of their argument that, despite the explicit disclaimer, they are intended third-party beneficiaries of the defendants’ contracts are inapposite. In these cases, notwithstanding the express disclaimer prohibiting enforcement by third-party beneficiaries, other contractual provisions indicated that performance under the contracts was specifically owed to third parties. See, e.g., Versico, Inc. v. Engineered Fabrics Corp., 238 Ga. App. 837, 840-841 (1999) (contract contained disclaimer but also had clause requiring defendant to assume specific product liability and warranty commitments to third parties); State v. Marion County Landfill, Inc., 276 Kan. 328, 349-350 (2003) (original contract contained disclaimer but parties later executed guaranty requiring them to pay specific third party).\nVisa and MasterCard representatives also testified, however, that the operating regulations were not intended to create rights of enforcement between members.\nBy contrast, in the case from the United States Court of Appeals for the Third Circuit on which the plaintiffs rely, Visa was a party to the contract at issue, which was between Visa and Fifth Third as acquiring bank. That case involved the same defendants and the same security breach at issue here, but concerned whether the plaintiff issuers were intended third-party beneficiaries of the contract between Fifth Third and Visa; that contract did not expressly exclude third-party beneficiaries. See Sovereign Bank v. BJ’s Wholesale Club, Inc., 533 F.3d 162, 168-173 (3d Cir. 2008).\nIn contrast to claims for negligence, where physical harm must be established, an exception to the economic loss doctrine, see part 2, supra, permits recovery for financial harm resulting from negligent misrepresentation. See Craig v. Everett M. Brooks Co., 351 Mass. 497, 499-501 (1967); Nota Constr. Corp. v. Keyes Assocs., 45 Mass. App. Ct. 15, 20 (1998).\nIn addition, liability for negligent representation is limited to:\n“ ‘loss suffered (a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and (b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.’ ”\nSee Nycal Corp. v. KPMG Peat Marwick LLP, 426 Mass. 491, 496 (1998), quoting Restatement (Second) of Torts § 552 (1977).\nBecause the plaintiffs, as issuers, had full access to the Visa and MasterCard regulations upon which the complaint depends, as well as the knowledge that Visa and MasterCard required all acquirers and merchants contractually to agree to comply with the regulations, and required acquirers to ensure that their merchants complied, the first judge properly did not convert the defendants’ motions to dismiss into motions for summary judgment, notwithstanding that the contracts were not attached to the complaint. See note 14, supra.\nThis aspect of the plaintiffs’ reliance applies only to the fraud claims, which allege that the plaintiffs were induced to become and remain issuers by the defendants’ actions. The negligent misrepresentation claims make no similar allegations, and allege simply financial loss due to justifiable reliance.\nPlaintiffs rely on a line of cases that have established a very narrow exception of “foreseeable reliance” pursuant to which a plaintiff may assert a negligent misrepresentation claim based on representations in a third-party contract for professional services. These cases, however, are readily distinguishable from the circumstances here. The cases cited require some type of direct link (“near privity”) between the specific third party or limited group of third parties and the contracting parties, as well as actual knowledge by the contracting parties that the particular third party or limited group of third parties will be relying on the specific professional services to be provided under the contract. See, e.g., Nycal Corp. v. KPMG Peat Marwick LLP, 426 Mass. 491, 495- 498 (1998); Craig v. Everett M. Brooks Co., 351 Mass. 497, 498-499, 501 (1967). By contrast, the plaintiffs agree that the defendants had no direct communication or connection with any of the 16,000 Visa issuers or the 20,000 MasterCard issuers, and had no knowledge that any particular issuer was relying on any particular provision in the confidential merchant agreements.\nIn addition, Visa and MasterCard provided its members detailed information and guidance on the ongoing general issue of improper storage of magnetic stripe data. For instance, a May 20, 2003, article, available to members via the Internet, stated that full magnetic stripe data was frequently being stored at various points during transaction processing and that such retention had a negative impact on the effectiveness of Visa’s risk control procedures. The article emphasized that retention of magnetic stripe data was prohibited under the operating regulations and that duplication of transaction data was a likely result of such retention. The article offered support and educational materials to assist members in complying with the regulations, and stated that acquirers should review software systems used by their merchants to ensure that the software did not retain magnetic stripe data."", ""type"": ""majority"", ""author"": ""Cowin, J.""}], ""attorneys"": [""Constantinos G. Panagopoulos, of the District of Columbia (F Joseph Nealon, of the District of Columbia, & Allen N. David with him) for the plaintiffs."", ""W. Breck Weigel, of Ohio (Timothy C. Blank with him) for Fifth Third Bank."", ""James W. Prendergast (Gordon Pearson, of the District of Columbia, with him) for BJ’s Wholesale Club, Inc.""], ""corrections"": """", ""head_matter"": ""Cumis Insurance Society, Inc., & others vs. BJ’s Wholesale Club, Inc., & another.\nMiddlesex.\nSeptember 9, 2009.\nDecember 11, 2009.\nPresent: Marshall, C.J., Ireland, Spina, Cowin, Cordy, Botsford, & Gants, JJ.\nCredit Union. Practice, Civil, Motion to dismiss, Summary judgment. Contract, Credit card, Performance and breach, Third party beneficiary. Negligence, Economic loss, Misrepresentation. Fraud.\nIn a civil action brought in Superior Court by plaintiffs seeking, inter alla, to recover as third-party beneficiaries for damages arising from the alleged breach of certain contracts, the judge did not err in granting the defendants’ motion to dismiss the third-party beneficiary claims, where the plaintiffs, by failing to make any assertions regarding the contracts between one defendant and two credit card companies, waived any claims as to the plaintiffs’ intended third-party beneficiary status under those contracts [464-465]; and where, with regard to the remaining contract, the unambiguous language contained in that agreement demonstrated that the parties thereto (the two defendants in the instant case) had agreed not to allow the contract to be enforced by third parties [465-469].\nIn a civil action arising from the theft of magnetic stripe data from credit cards issued by the plaintiff credit unions and used by cardholders to purchase merchandise at stores owned by one defendant, a Superior Court judge properly granted the defendants’ motion to dismiss the plaintiffs’ negligence claim as barred by the economic loss doctrine, where the nature of the damages sought by the plaintiffs (i.e., the costs of reissuing credit cards for all their compromised accounts, for the purpose of avoiding future liability) were economic losses that did not involve physical harm or property damage. [469-470]\nIn a civil action arising from the theft of magnetic stripe data from credit cards, issued by the plaintiff credit unions and used by cardholders to purchase merchandise at stores owned by one defendant, a Superior Court judge properly granted summary judgment in favor of the defendants (the store owner and its bank) on the plaintiffs’ fraud claims, where the plaintiffs presented no evidence that any misrepresentation by the defendants induced the plaintiffs to act differently with respect to their participation in the credit card system, or that any reliance on the defendants’ implied misrepresentations would have been reasonable or justifiable [470-473]; further, the judge properly granted summary judgment in favor of the defendants on the plaintiffs’ negligent misrepresentation claims, where the defendants’ failure to comply with third-party contractual obligations regarding proper credit card operating procedures did not give rise to a tort claim for negligent misrepresentation, and where, given the plaintiffs’ actual knowledge of ongoing instances of noncompliance with the operating procedures, any asserted reliance on such misrepresentations was neither reasonable nor justifiable [473-476],\nCivil action commenced in the Superior Court Department on April 4, 2005.\nA motion to dismiss was heard by Regina L. Quinlan, J., and motions for summary judgment on the remaining claims were heard by Thayer Fremont-Smith, J.\nThe Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.\nConstantinos G. Panagopoulos, of the District of Columbia (F Joseph Nealon, of the District of Columbia, & Allen N. David with him) for the plaintiffs.\nW. Breck Weigel, of Ohio (Timothy C. Blank with him) for Fifth Third Bank.\nJames W. Prendergast (Gordon Pearson, of the District of Columbia, with him) for BJ’s Wholesale Club, Inc.\nIndividually and as assignee of sixty-nine credit unions.\nAmerican Airlines Federal Credit Union, Clearview Federal Credit Union, Coastal Federal Credit Union, Crescent Credit Union, ESM-NS Federal Credit Union, Georgia Telco Credit Union, Navy Federal Credit Union, Northeast Credit Union, NRL Federal Credit Union, State Employees’ Credit Union, and Truliant Federal Credit Union. Eighty-five credit unions signed a joint stipulation of dismissal, see note 10, infra, and five others subsequently dismissed their claims. The remaining credit unions that were plaintiffs below did not join in this appeal.\nFifth Third Bank.""}, ""cites_to"": [{""cite"": ""351 Mass. 497"", ""year"": 1967, ""weight"": 2, ""case_ids"": [3862215], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""499-501""}, {""page"": ""498-499, 501""}], ""case_paths"": [""/mass/351/0497-01""], ""opinion_index"": 0}, {""cite"": ""276 Kan. 328"", ""year"": 2003, ""case_ids"": [12163730], ""category"": ""reporters:state"", ""reporter"": ""Kan."", ""pin_cites"": [{""page"": ""349-350"", ""parenthetical"": ""original contract contained disclaimer but parties later executed guaranty requiring them to pay specific third party""}], ""case_paths"": [""/kan/276/0328-01""], ""opinion_index"": 0}, {""cite"": ""238 Ga. App. 837"", ""year"": 1999, ""case_ids"": [903818, 903794], ""category"": ""reporters:state"", ""reporter"": ""Ga. App."", ""pin_cites"": [{""page"": ""840-841"", ""parenthetical"": ""contract contained disclaimer but also had clause requiring defendant to assume specific product liability and warranty commitments to third parties""}], ""case_paths"": [""/ga-app/238/0837-02"", ""/ga-app/238/0837-01""], ""opinion_index"": 0}, {""cite"": ""451 Mass. 623"", ""year"": 2008, ""case_ids"": [3789079], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""636""}], ""case_paths"": [""/mass/451/0623-01""], ""opinion_index"": 0}, {""cite"": ""503 U.S. 960"", ""year"": 1992, ""case_ids"": [6388929, 6389410, 6388323, 6387141, 6389255, 6388555, 6388429, 6387312, 6388785, 6387792, 6387446, 6389083], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/503/0960-09"", ""/us/503/0960-12"", ""/us/503/0960-05"", ""/us/503/0960-01"", ""/us/503/0960-11"", ""/us/503/0960-07"", ""/us/503/0960-06"", ""/us/503/0960-02"", ""/us/503/0960-08"", ""/us/503/0960-04"", ""/us/503/0960-03"", ""/us/503/0960-10""], ""opinion_index"": 0}, {""cite"": ""949 F.2d 42"", ""year"": 1991, ""case_ids"": [11932449], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""47-48""}], ""case_paths"": [""/f2d/949/0042-01""], ""opinion_index"": 0}, {""cite"": ""442 Mass. 43"", ""year"": 2004, ""case_ids"": [1183096], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/442/0043-01""], ""opinion_index"": 0}, {""cite"": ""45 Mass. App. Ct. 15"", ""year"": 1998, ""weight"": 2, ""case_ids"": [1707017], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""20""}, {""page"": ""20""}], ""case_paths"": [""/mass-app-ct/45/0015-01""], ""opinion_index"": 0}, {""cite"": ""41 Mass. App. Ct. 581"", ""year"": 1996, ""case_ids"": [1038757], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""587-588""}], ""case_paths"": [""/mass-app-ct/41/0581-01""], ""opinion_index"": 0}, {""cite"": ""438 Mass. 459"", ""year"": 2003, ""case_ids"": [201324], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""467-468""}], ""case_paths"": [""/mass/438/0459-01""], ""opinion_index"": 0}, {""cite"": ""68 Mass. App. Ct. 582"", ""year"": 2007, ""case_ids"": [3497380], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""case_paths"": [""/mass-app-ct/68/0582-01""], ""opinion_index"": 0}, {""cite"": ""341 Mass. 527"", ""year"": 1960, ""case_ids"": [3852931], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""530""}], ""case_paths"": [""/mass/341/0527-01""], ""opinion_index"": 0}, {""cite"": ""447 Mass. 616"", ""year"": 2006, ""case_ids"": [3730961], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""622""}], ""case_paths"": [""/mass/447/0616-01""], ""opinion_index"": 0}, {""cite"": ""50 Mass. App. Ct. 425"", ""year"": 2000, ""case_ids"": [235405], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""433""}], ""case_paths"": [""/mass-app-ct/50/0425-01""], ""opinion_index"": 0}, {""cite"": ""426 Mass. 491"", ""year"": 1998, ""weight"": 3, ""case_ids"": [369494], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""496""}, {""page"": ""496""}], ""case_paths"": [""/mass/426/0491-01""], ""opinion_index"": 0}, {""cite"": ""449 Mass. 532"", ""year"": 2007, ""case_ids"": [3816970], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""540""}], ""case_paths"": [""/mass/449/0532-01""], ""opinion_index"": 0}, {""cite"": ""533 F.3d 162"", ""year"": 2008, ""weight"": 3, ""case_ids"": [4039191], ""category"": ""reporters:federal"", ""reporter"": ""F.3d"", ""pin_cites"": [{""page"": ""176-178""}, {""page"": ""168-173""}], ""case_paths"": [""/f3d/533/0162-01""], ""opinion_index"": 0}, {""cite"": ""398 F. Supp. 2d 317"", ""year"": 2005, ""case_ids"": [1588454], ""category"": ""reporters:federal"", ""reporter"": ""F. Supp. 2d"", ""pin_cites"": [{""page"": ""330""}], ""case_paths"": [""/f-supp-2d/398/0317-01""], ""opinion_index"": 0}, {""cite"": ""415 Mass. 393"", ""year"": 1993, ""case_ids"": [3906191], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""395"", ""parenthetical"": ""\""purely economic losses are unrecoverable in tort. . . actions\""""}], ""case_paths"": [""/mass/415/0393-01""], ""opinion_index"": 0}, {""cite"": ""437 Mass. 213"", ""year"": 2002, ""case_ids"": [735025], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""222""}], ""case_paths"": [""/mass/437/0213-01""], ""opinion_index"": 0}, {""cite"": ""420 Mass. 739"", ""year"": 1995, ""case_ids"": [826186], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""742-743""}], ""case_paths"": [""/mass/420/0739-01""], ""opinion_index"": 0}, {""cite"": ""524 F. Supp. 2d 83"", ""year"": 2007, ""weight"": 5, ""case_ids"": [5611321], ""category"": ""reporters:federal"", ""reporter"": ""F. Supp. 2d"", ""pin_cites"": [{""page"": ""89-90""}, {""page"": ""89""}, {""page"": ""90""}, {""page"": ""90-91""}], ""case_paths"": [""/f-supp-2d/524/0083-01""], ""opinion_index"": 0}, {""cite"": ""355 U.S. 41"", ""year"": 1957, ""case_ids"": [6161830], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""page"": ""45-46"", ""parenthetical"": ""complaint sufficient \""unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief\""""}], ""case_paths"": [""/us/355/0041-01""], ""opinion_index"": 0}, {""cite"": ""372 Mass. 96"", ""year"": 1977, ""weight"": 2, ""case_ids"": [4029123], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""98""}, {""page"": ""98""}], ""case_paths"": [""/mass/372/0096-01""], ""opinion_index"": 0}, {""cite"": ""424 Mass. 365"", ""year"": 1997, ""weight"": 2, ""case_ids"": [117638], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""366-367""}, {""page"": ""368""}], ""case_paths"": [""/mass/424/0365-01""], ""opinion_index"": 0}, {""cite"": ""36 Ohio St. 3d 36"", ""year"": 1988, ""weight"": 2, ""case_ids"": [1830022], ""category"": ""reporters:state"", ""reporter"": ""Ohio St. 3d"", ""pin_cites"": [{""page"": ""40""}, {""page"": ""40-41""}], ""case_paths"": [""/ohio-st-3d/36/0036-01""], ""opinion_index"": 0}, {""cite"": ""431 Mass. 57"", ""year"": 2000, ""case_ids"": [286810], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""62""}], ""case_paths"": [""/mass/431/0057-01""], ""opinion_index"": 0}, {""cite"": ""437 Mass. 1"", ""year"": 2002, ""case_ids"": [734979], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""7""}], ""case_paths"": [""/mass/437/0001-01""], ""opinion_index"": 0}, {""cite"": ""30 Mass. App. Ct. 249"", ""year"": 1991, ""case_ids"": [1418670], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""256-257""}], ""case_paths"": [""/mass-app-ct/30/0249-01""], ""opinion_index"": 0}, {""cite"": ""417 Mass 549"", ""year"": 1994, ""weight"": 2, ""case_ids"": [482594], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""555""}, {""page"": ""555-556""}], ""case_paths"": [""/mass/417/0549-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""455 Mass. 458"", ""type"": ""official""}], ""file_name"": ""0458-01"", ""last_page"": ""476"", ""first_page"": ""458"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T17:53:06.508752+00:00"", ""decision_date"": ""2009-12-11"", ""docket_number"": """", ""last_page_order"": 494, ""first_page_order"": 476, ""name_abbreviation"": ""Cumis Insurance Society, Inc. v. BJ's Wholesale Club, 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+3685620,"{""id"": 3685620, ""name"": ""Commonwealth vs. Solange Anestal"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""8645a98830ab59574e52fee0632cfd5fb60385b990bcbdab1752f2da51b2dea1"", ""simhash"": ""1:d020f2193c0e4590"", ""pagerank"": {""raw"": 0.0000001781406137143124, ""percentile"": 0.7135456545922175}, ""char_count"": 60165, ""word_count"": 9723, ""cardinality"": 1968, ""ocr_confidence"": 0.886}, ""casebody"": {""judges"": [], ""parties"": [""Commonwealth vs. Solange Anestal.""], ""opinions"": [{""text"": ""Lenk, J.\nThe defendant was convicted by a Superior Court jury of murder in the first degree on a theory of deliberate premeditation in the 2003 stabbing death of her boy friend, Baby Petitry. Before us are the defendant’s consolidated appeals from both her conviction and the denial of her motion for a new trial. We conclude that, because on multiple occasions, over objection, the trial judge erroneously allowed the Commonwealth to introduce highly prejudicial evidence of the defendant’s prior bad acts, and because the judge later declined to provide an instruction as to the excessive use of force in self-defense that was supported by the evidence, the conviction must be reversed and the matter remanded for a new trial.\n1. Background, a. The Commonwealth’s case-in-chief. We recite the facts as the jury could have found them, reserving certain details for later discussion.\nOn June 26, 2003, the defendant and Petitry lived together in an apartment in Brockton. Goudy Richemond, a friend of Petitry, was at their apartment repairing a broken baby crib. One of Richemond’s friends, Ivens Fouyolle, was also present at the apartment. The defendant’s and Petitry’s infant daughter and the defendant’s son, who was around “five or six years old,” ordinarily would have been home, but the children had been taken into custody by the Department of Social Services (DSS) eight days earlier because of a complaint against the defendant.\nAbout ten to twenty minutes after Fouyolle arrived at the apartment, the defendant said that she was leaving to spend the evening out with friends. Petitry refused to let her go, saying that a DSS investigator would be coming the following day to discuss the removal of the children and that he did not want her to spend the night out with other men smoking marijuana. An argument ensued. The defendant made a telephone call and said that Petitry was treating her like a “slave,” and according to Fouyolle, Petitry’s “tone of voice was like she’s not going out, like, you know, he’s telling his woman that she’s not going out, and he means it.”\nThe three men —■ Petitry, Richemond, and Fouyolle — then went downstairs to smoke cigarettes. From where they were smoking, they could still hear the defendant on the telephone, saying she was a “slave” and that Petitry thought he “own[ed]” her. While Richemond and Fouyolle continued smoking, Petitry went back upstairs.\nBy the time all three men had returned to the apartment, Petitry had threatened to move out and had started packing his belongings. The pair continued to argue, shutting the bedroom door so Fouyolle and Richemond could not overhear. Through the door, Fouyolle could still make out arguing and swearing, including the defendant saying that Petitry was not leaving her. At some point during the argument, Richemond felt the need to open the door, telling Petitry to “relax” because “[t]he people downstairs [are] going to call the cops.” With the door opened, Fouyolle could see that Petitry was positioned on top of the defendant, holding her down on the bed. She was spitting in Petitry’s face, telling him to move. Petitry told the men to “mind [their] fucking business” and Richemond closed the door.\nSoon thereafter, Fouyolle heard a sound of breaking glass. The argument continued. When Petitry later left the bedroom, the defendant followed “[n]ot even ten seconds” later, holding a sixteen-inch piece of glass. On her way out the door, the defendant said, “[M]other fucker, I’m going to kill you,” and proceeded to stab Petitry in the chest. The glass entered Petit-ry’s chest under the left mid-collarbone and penetrated four and one-half inches into his left lung. Once Petitry started to bleed, the defendant appeared shocked, pleading, “[D]on’t die, please don’t die.” Fouyolle immediately called the police.\nWhen the police arrived at approximately 10:40 p.m., they found the defendant visibly upset, “shaking and crying.” When paramedics stated that they would cease cardiopulmonary resuscitation, the defendant started to thrash uncontrollably; she slammed her head against the wall and headboard of the bed and screamed that “if [Petitry] dies, [I] want[] to die.” Petitry’s heart stopped before the paramedics could get him out of the apartment.\nb. The defendant’s claimed lack of criminal responsibility. The defendant largely conceded the sequence of events but argued that she was not criminally responsible for her actions because, due to a mental disease or defect — specifically post-traumatic stress disorder (PTSD) resulting from years of physical and emotional abuse — she lacked the substantial capacity at the time of the stabbing both to appreciate the wrongfulness of her conduct and to conform her conduct to the requirements of the law. See Commonwealth v. McHoul, 352 Mass. 544, 546-547 (1967). In support of this claim, the defense offered the testimony of two expert witnesses; the Commonwealth did the same in response.\nThe evidence admitted at trial indicated that the defendant suffered from a long history of abuse. Bom in Haiti in 1980, she was one year old when her father left her family. During her early childhood, she lived with her mother and stepfather; “[t]here was abuse all through that period.” At the age of ten, she left Haiti to come to the United States. When she arrived, she lived in a number of shelters before her father was located and she was placed with him in Florida. Her father’s wife, with whom she also lived, was physically abusive toward her. At the age of fourteen, someone in the defendant’s neighborhood sexually assaulted her. After her father’s death in 1996, she went to live with her aunt and uncle, where she encountered another abusive household.\nWhile she was living in Florida, she became involved with a man, Claudel Gellete, who would become the father of her first child, a son. Her relationship with Gellete was marked by violence. Police reports from Florida, dated September, 1998, indicate that, on one occasion, officers noticed broken blood vessels in her eyes, as well as swelling and bruising around her face. She told the officers that Gellete had caused the injuries by punching her multiple times. Florida hospital records indicate that, seven months later, in April, 1999, the defendant was hit over the head by a beer bottle so hard that it caused the skin on her scalp to split apart, requiring staples to repair the damage. On that trip to the hospital, she reported that she did not know where she was. She returned to the hospital yet again, complaining of pain in her stomach and reporting that Gellete had hit her. She also reported that she suffered black eyes and migraine headaches from his beatings. According to these reports, he had also threatened to kill her.\nAfter her relationship with Gellete ended, the defendant moved to Massachusetts. In 2001, the defendant was hospitalized after a suicide attempt and was diagnosed with major depression. While living in Massachusetts, she began a relationship with a man named John Colson. According to the defendant, Colson too was abusive — the defendant described this relationship as “like being in hell” — particularly when he was drinking or smoking marijuana. The abuse was so extreme that the defendant and her son moved into a shelter hotel in June, 2002, to get away from him. When Colson tracked her down at the shelter, he attempted to suffocate her with a pillow. During this attack, the defendant suffered swollen temples and cheeks, as well as having a mole bitten off the side of her head.\nAfter this incident, from “June 2002 into July 2002,” the defendant sought counselling at New Bedford Child and Family Services and was diagnosed with major depression and PTSD. She described herself as depressed, irritable, and prone to angry outbursts. The same diagnoses were later made at South Bay Mental Health Center (South Bay), where she was treated for several months beginning in July, 2002. At the time of this diagnosis, the defendant was also reported to have made bizarre statements to mental health professionals, including that she believed she would become president of Haiti before she turned thirty years old, and that she had been baptized by the Pope himself. Clinicians at South Bay continued to treat her, describing the defendant as “very depressed” before the birth of her daughter, “tired and stressed” after the birth, and increasingly stressed by the defiant behavior of her son. While being treated at South Bay, the defendant was “on low doses of antidepressants intermittently,” which she ceased during her pregnancy and did not resume until after the date of the stabbing.\nAfter she began dating Petitry, apparently in mid to late 2002, the defendant described herself as “helpless and powerless” in the relationship. The defendant stated that his abuse was primarily verbal but that he would punch her repeatedly on occasion. She reported that he would become “aggressive and verbally abusive” when he was drinking. A police report stated that, on one occasion, in April, 2003, several months before the stabbing, the defendant had called the police because Petitry had been abusive, and “it took the police to get him out of the house.” Attorney Thomas D. Lawton testified that, in the course of representing the defendant in the Juvenile Court in relation to the complaint filed by DSS, he witnessed an incident on June 23, 2003 (three days before the stabbing), in which Petitry stood over the defendant with his fists clenched, cursing and screaming that he was going to kill her. With Petitry standing over her in an “assaultive position,” the defendant “leaned over with her face ti[lt]ed away from [Petitry] with tears pouring off her nose and her lip.” When Lawton intervened, Petitry told the defendant to “keep her mouth shut and watch what she said.” The defendant, who was “crying” and “shaking” even after she had been moved away from Petitry, refused Lawton’s offer to help her obtain a restraining order against Petitry, telling Lawton that if she did so, Petitry would kill her.\nAs to the circumstances of the stabbing itself, although the defendant remembered the moments immediately before and after the incident, she claimed to have no memory of inflicting the blow. The next day, the defendant was admitted to Taunton State Hospital, by court order, for a thirty-day evaluation of her competency; she was determined to be competent.\nDr. Ann Burgess, a registered and advance practice nurse with a doctorate in nursing, testified that, based upon her evaluation of the defendant and her review of the defendant’s history, she believed that the defendant lacked criminal responsibility at the time of the stabbing because of her diagnosed PTSD. Burgess described Petitry as “aggressive,” “abusive,” and “controlling” in his relationship with the defendant, as evidenced by, among other things, the instances of his physical and verbal abuse, his forcing her to have sexual intercourse soon after the birth of their daughter, and his “insist[ing]” that she accompany him on a trip to New York when she was “within days of her due date.” Burgess also testified that she believed the defendant was suffering from postpartum depression at the time, in addition to her previously diagnosed depression and PTSD. She opined that, during the stabbing, the defendant was in the midst of a posttraumatic stress reaction to the circumstances of the argument. The fact that the defendant did not remember the stabbing itself was indicative of a PTSD reaction to the circumstances of the argument. According to Burgess, the defendant left the bedroom because of “the fear and needing to get away from the noxious environment” and to avoid feeling like she was being held “captive.” She picked up the piece of glass because “she thought somebody was going to come after her” so it “could [have been] an automatic reaction to have that in her hand.” Overall, “her mental level was far below what would be needed to think clearly about [the] situation.”\nDr. Terence Keane, a professor of psychiatry and psychology at Boston University School of Medicine, similarly testified that he believed the defendant lacked criminal responsibility because of her PTSD. Keane testified that, at the time of the stabbing, the defendant was suffering from PTSD “accompanied by a dissociative reaction” and was in a “dissociative state.” According to Keane, when an individual is in a dissociative state, “there’s a lack of appreciation of the events . . . and there’s a real compromise of what is happening in reality.” When Petitry was on top of the defendant, that may have reminded her of the previous attack by Colson, which could have acted as a “key trigger,” provoking similar emotions from that earlier incident and leading to her dissociative state on this occasion. The defendant’s statements in the immediate aftermath indicated that the stabbing had “shock[ed her] into [an] awakened state . . . reinstating the true reality of what’s just happened.”\nIn response, the Commonwealth called Dr. Michael Murphy, a psychologist at Taunton State Hospital and director of psychology at the Barnstable County sheriff’s office. According to Murphy, the defendant was criminally responsible for her acts because “she did not display active symptoms of a major mental illness.” Murphy based this opinion, in part, on her mannerisms during their interviews, which indicated that she was not experiencing either depressive or psychotic symptoms. The defendant was also well oriented during the interviews, in that she knew where she was, the date and time, and the reason why she was there. Murphy stated that, during the defendant’s stay at Taunton State Hospital after the stabbing, she had displayed no signs or symptoms of PTSD.\nDr. Russell Vasile, a staff psychiatrist at Beth Israel Deaconess Medical Center, testified that, based on a mental status examination conducted in July and August, 2006, the defendant “was not suffering from a major thought disorder” or a “major active mental illness” at the time of the stabbing. According to Vasile, despite the earlier diagnosis, the defendant did not suffer from PTSD and was not in a dissociative state at the time of the 2003 stabbing. In addition, Vasile testified that the defendant had the substantial capacity to appreciate the wrongfulness of her conduct and had the capacity to conform her conduct to the requirements of the law.\nOn September 27, 2007, the jury found the defendant guilty of murder in the first degree on a theory of deliberate premeditation. After her direct appeal was entered before this court in November, 2009, the court granted a stay of the appeal to allow the defendant to file a motion for a new trial. In November, 2010, the defendant’s motion for a new trial was denied following a nonevidentiary hearing. The defendant’s appeal from that denial was consolidated with her direct appeal.\n2. Discussion. The defendant claims reversible error in four respects. First, she argues that the trial judge erred in admitting, on multiple occasions, prejudicial prior bad act evidence concerning two occasions on which she allegedly had struck her young son. Second, the defendant argues that the judge erred in declining to give a sought instruction as to the excessive use of force in self-defense, which mitigates murder to voluntary manslaughter. Third, the defendant maintains that the judge’s instructions regarding reasonable provocation were insufficient to convey the extent to which the jury could consider the defendant’s history of past abuse. Lastly, she argues that the judge erred in denying her motion for a new trial. In that motion, the defendant claimed both prosecutorial misconduct and ineffective assistance of counsel concerning the alleged existence of a second door in the bedroom through which the defendant could have fled.\nWe conclude that the improper admission on multiple occasions of prior bad act evidence, in combination with the refusal to instruct the jury as to the excessive use of force in self-defense, were prejudicial errors requiring a new trial.\na. Evidence of prior bad acts. The defendant maintains that she was prejudiced by the repeated admission in evidence of certain prior bad acts, namely the details of two occasions on which she allegedly abused her son.\nThe facts at trial established that DSS had removed the defendant’s children from their home on June 18, 2003, eight days before the stabbing. Both children had been removed because of an allegation that the defendant had struck her son with a sandal across the face. The defendant “denied and has always denied” that this incident took place. A DSS investigator was planning to come to their home on what proved to be the day after the killing to discuss the matter.\nThe admissibility of the details of this incident was disputed throughout the trial, from before opening statements to the testimony of the final witness. We address, in turn, the admissibility of this prior bad act evidence at each point at which its admissibility was addressed by the trial judge, as well as that of a second instance of abuse that predated the defendant’s relationship with Petitry and that took place at a shelter in 2002. In each instance, we review the ruling below for “palpable error.” Commonwealth v. McCowen, 458 Mass. 461, 478 (2010), quoting Commonwealth v. Fordham, 417 Mass. 10, 23 (1994).\ni. Initial admissibility determination. Before opening statements, the Commonwealth moved to admit the full details of the sandal incident forming the basis of the DSS complaint. The judge ruled that he was going to permit the admission in evidence only of the fact of the children’s removal by DSS (i.e., not assign responsibility for their removal to either the defendant or Petitry). The judge considered the likelihood that both sides would be trying to portray the other as responsible, and acknowledged that “this type of evidence is prejudicial to both sides.” However, after defense counsel, in his opening statement, suggested that Petitry “blamed [the defendant] for the loss of his daughter,” the judge ruled that he would allow only the fact that the complaint was against the defendant to be admitted, but not its underlying details.\nThe DSS case worker testified that her job was to “investigate families once [DSS] receives a report, a [G. L. c.] 51A report alleging that a kid has been physically abused or neglected.” The prosecutor then elicited that such an investigation had related specifically to the defendant, asking:\nQ: “And as part of your investigatory duties, did you have an occasion to become involved in an investigation relating to allegations against [the defendant]?”\nA: “Yes.”\nThe prosecution “may not introduce evidence that a defendant previously has misbehaved, indictably or not, for the purposes of showing [her] bad character or propensity to commit the crime charged.” Commonwealth v. Helfant, 398 Mass. 214, 224-225 (1986), and cases cited. But, “if relevant for some other purpose,” and if the probative value outweighs the risk of unfair prejudice, the judge may, in his discretion, admit evidence of a defendant’s prior bad acts. Commonwealth v. McCowen, supra at 478. See Mass. G. Evid. §§ 403, 404(b) (2012). We have long recognized the rationale for this rule:\n“Such evidence compels the defendant to meet charges of which the indictment gives him no information, confuses him in his defen[s]e, raises a variety of issues, and thus diverts the attention of the jury from the [crime] immediately before it; and, by showing the defendant to have been a knave on other occasions, creates a prejudice which may cause injustice to be done him.”\nCommonwealth v. Jackson, 132 Mass. 16, 20-21 (1882).\nWe generally restrict admission of prior bad act evidence to purposes such as “common scheme, pattern of operation, absence of accident or mistake, identity, intent or motive.” Commonwealth v. Marshall, 434 Mass. 358, 366 (2001), quoting Commonwealth v. Helfant, supra at 224. See Commonwealth v. Butler, 445 Mass. 568, 574 n.6 (2005) (collecting cases). Such evidence may also be admissible if it “rebut[s] the defendant’s contentions” made in the course of trial. Commonwealth v. Magraw, 426 Mass. 589, 595 (1998).\nThe judge was correct in his initial ruling, made prior to opening statements, that there was no independent basis for the admission of any details pertaining to the DSS complaint, including the sandal incident that precipitated it. To the extent that defense counsel, in his opening statement, thereafter suggested that Petitry had been responsible for the children’s removal, the judge did not abuse his discretion in permitting limited evidence to rebut it, i.e., that the DSS complaint had been brought against the defendant.\nWhile the fact that DSS had brought a complaint against the defendant may have had probative value, the details of that complaint nevertheless remained inadmissible as more prejudicial than probative. As to probative value, the details of the sandal incident were not relevant to any of the bases on which prior bad act evidence is considered admissible — “common scheme, pattern of operation, absence of accident or mistake, identity, intent or motive.” Commonwealth v. Marshall, supra at 366, quoting Commonwealth v. Helfant, supra. The removal of the defendant’s children by DSS was only relevant to shed light on the stress in the relationship between the defendant and Petitry, stress that may have triggered the argument leading to the stabbing. In this regard, once the jury heard that the DSS complaint was against the defendant, rather than Petitry, the details of that complaint would add no probative information and only heighten the risk of unfair prejudice to the defendant. See State v. Allery, 101 Wash. 2d 591, 598-599 (1984). Even were this evidence in some way relevant to one of the specific purposes for which prior bad acts may be admitted, the history and details of the DSS complaint were considerably more prejudicial than probative. Contrast Commonwealth v. McCo-wen, supra at 478-480.\nii. Admissibility as basis of expert testimony. After the Commonwealth rested, the defendant called Burgess, who testified about the extensive history of abuse the defendant had suffered at many hands during her life, as detailed supra. At the outset, defense counsel requested a sidebar conference to discuss with the judge how far he could go in examining Burgess without “opening the door” to the details of the DSS complaint. Burgess then testified that Petitry had been “aggressive,” “abusive,” and “controlling,” and described her diagnosis of PTSD.\nOn cross-examination and over objection, the judge allowed the prosecutor to elicit from Burgess the details of two occasions on which the defendant had allegedly struck her son. First, the prosecutor elicited the details of a 2002 incident, unrelated to the DSS complaint, and occurring before the defendant met Petitry, in which the defendant had been kicked out of a shelter for striking her son. As the basis for the admission of this evidence, the judge stated, during a sidebar conference, “[Burgess] relied on this. I’ll allow it in.” When asked about this instance of abuse, however, Burgess stated that she did not remember the incident but agreed with the prosecutor that it had appeared in the reports that had been provided to her.\nLater in his examination of Burgess, the prosecutor, over defense counsel’s continuing objection, was also permitted to elicit the full details of the sandal incident precipitating the DSS complaint. Again, Burgess never testified that she had relied on the DSS complaint or its details in reaching her opinion as to the defendant’s lack of criminal responsibility. In addition, the prosecutor suggested, by way of leading questions, that Petitry may have been concerned for the safety of his daughter because of the defendant’s actions. Burgess indicated that she “didn’t see any evidence on that.”\nThe rationale for allowing the jury to hear the previously excluded prior bad act evidence was, in essence, that this information, about which Burgess had known, arguably formed the basis of her expert opinion and, as such, must be disclosed on cross-examination. This rationale does not withstand scrutiny. As we discuss infra, the elicitation of information provided to an expert on cross-examination may be limited if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice to the defendant. Where, as here, the information known to the expert does not form the basis of the expert’s opinion, does nothing to clarify or discredit the expert’s opinion, and serves only to focus on the defendant’s prior bad acts, the balance — after a weighing of prejudice against probative value — plainly favors exclusion of the evidence.\nIn forming their opinions, experts must rely on facts or data that are independently admissible. See Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 531-532 (1986) (Department of Youth Servs.). “If a party believes that an expert is basing an opinion on inadmissible facts or data, the party may request a voir dire to determine the basis of the expert opinion.” Id. at 532. Here, the prosecutor did not request such a voir dire to challenge Burgess’s testimony. Instead, the prosecutor used cross-examination to elicit information provided to Burgess about the two alleged incidents.\n“The expert may testify in terms of opinion or inference and give reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.” Mass. G. Evid. § 705 (2012). See Department of Youth Servs., supra at 532. Our rule allowing the admission of the bases of expert testimony on cross-examination, however, “does not end the inquiry. In determining whether to allow an expert to testify to the facts underlying an opinion, the court must inquire whether. . .the testimony should be excluded because its probative value is substantially outweighed by the danger of unfair prejudice.” United States v. Gillis, 773 F.2d 549, 554 (4th Cir. 1985) (interpreting analogous Federal rule). In other words, just because an expert is aware of, or was provided with, information does not mean that the information must automatically be disclosed to the jury. It remains within the judge’s discretion to limit what information the expert can disclose during his or her testimony, see, e.g., Commonwealth v. Waite, 422 Mass. 792, 802-804 (1996), and to determine whether the expert can render his or her opinion on the basis of the evidence properly relied upon. See Commonwealth v. Roman, 414 Mass. 235, 237-239 (1993); Commonwealth v. Pikul, 400 Mass. 550, 555 (1987).\nOnce the Commonwealth sought to inquire over objection about this prior bad act evidence, it was incumbent on the judge in the sound exercise of his discretion to ascertain whether the evidence was probative and, if so, whether that probative value was substantially outweighed by the danger of unfair prejudice to the defendant. “[Ejvidence that poses a risk of unfair prejudice need not always be admitted simply because a defendant has opened the door to its admission; the judge still needs to weigh the probative value of the evidence and the risk of unfair prejudice, and determine whether the balance favors admission.” Commonwealth v. McCowen, 458 Mass. 461, 479 n.15 (2010).\nIn assessing the probative value of the evidence, particularly given the judge’s clear appreciation of the information’s potential for unfair prejudice, the judge should first have determined whether and to what extent the expert had in fact relied on the incidents in question in forming her opinion, since “the fact that a witness has been exposed to [inadmissible evidence] does not imply that he has relied on it in the formation of his opinion.” M.S. Brodin & M. Avery, Massachusetts Evidence § 7.5.3, at 433-434 (8th ed. 2007). Indeed, the record suggests that Burgess did not rely on these episodes in forming her expert opinion. To the contrary, she scarcely seemed to remember them. Contrast Commonwealth v. Adams, 434 Mass. 805, 821 (2001) (affirming admission of prior bad act evidence because it was “very significant” to expert’s evaluation of defendant’s mental state).\nMoreover, this was not a situation “where the purpose of cross-examination [was] ‘to shake the foundation of the defense experts’ opinions rather than to focus on the defendant’s prior [bad conduct].’ ” Commonwealth v. Colleran, 452 Mass. 417, 425-426 (2008), quoting Commonwealth v. Killelea, 370 Mass. 638, 650 (1976). Instead, there appears to have been no purpose for eliciting this testimony other than to prejudice the defendant. Nothing in the details of these incidents undermined Burgess’s diagnosis of PTSD or her opinion that the defendant, as a result thereof, lacked criminal responsibility. Commonwealth v. Trapp, 396 Mass. 202, 207 (1985), S.C., 423 Mass. 356, cert. denied, 519 U.S. 1045 (1996). At no point during cross-examination did the prosecutor try to use Burgess’s knowledge of these incidents to refute her opinion, or even ask whether these incidents affected her diagnosis. “An expert’s testimony explaining the foundation for [her] opinion should not, of course, serve as a channel for the introduction of unnecessary and prejudicial evidence.” Simon v. Solomon, 385 Mass. 91, 105 (1982), citing Hunt v. Boston, 152 Mass. 168, 171 (1890). The prosecutor simply extracted the details of the incidents from Burgess by use of leading questions, making no effort to use this information to discredit her opinion in the eyes of the jury.\nThe details of the defendant’s prior bad acts were not rendered admissible by Burgess’s testimony, and it was error for those details to be admitted during her cross-examination.\niii. Admissibility through other witnesses. Two subsequent witnesses were then permitted to testify, over objection, as to the details of the DSS complaint. During cross-examination of Lawton, the prosecutor asked whether the defendant “was alleged to have hit her five year old son in the face with a sandal.” Lawton, the defendant’s lawyer in the contested DSS matter, answered in the affirmative. The prosecutor thereafter recalled the DSS case worker, who described — again, over objection — in significant, protracted detail the reason that the children were taken away from their home. In particular, the DSS caseworker testified about the facial injury to the defendant’s son (“visible bruises on the left side of his face” that looked like “the sole of a shoe”), the entire process of the DSS investigation, the taking of the child to the hospital, the removal of the child from his home, and his placement in foster care.\nNothing in the record indicates why the prosecutor was allowed to introduce the prior bad act evidence again and in such detail. To the extent that the admission of such evidence was permitted in cross-examining Burgess to explore the basis of her expert opinion, that rationale, albeit flawed, has no application to Lawton or the DSS case worker. Having thus acquired no new probative value, the lengthy — and considerably more detailed — recitation of the incident from the DSS case worker only increased the prejudicial effect of this information. These details remained inadmissible through the testimony of these subsequent witnesses.\nFor the foregoing reasons, the repeated admission in evidence of the details of the defendant’s prior bad acts in allegedly striking her son on two occasions was palpable error.\niv. Prejudice. Given that the defendant objected in each instance to the erroneous admission of the prior bad acts, we must determine, “after pondering all that happened without stripping the erroneous action from the whole, [whether] the judgment was not substantially swayed by the error.” Commonwealth v. Vinnie, 428 Mass. 161, 163, cert. denied, 525 U.S. 1007 (1998), quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).\n“It is implicit in the general rule regarding the inadmissibility of prior bad acts evidence that the admission of such evidence carries with it a high risk of prejudice to the defendant.” Commonwealth v. Barrett, 418 Mass. 788, 795 (1994). See Commonwealth v. Adjutant, 443 Mass. 649, 660 n.14 (2005). The likelihood of prejudice from the repeated admission of detailed evidence of two previous occasions when the defendant allegedly struck her young son was quite considerable in these circumstances. The nature of this prior bad act evidence, relating as it did to the alleged physical abuse of a young child by his mother, made it particularly likely to prejudice the jury against the defendant, the child’s mother, on trial for murdering her live-in boy friend. See Valmonte v. Bane, 18 F.3d 992, 1004 (2d Cir. 1994), quoting Santosky v. Kramer, 455 U.S. 745, 762 (1982) (such evidence is “inherently inflammatory, and ‘unusually open to the subjective values of’ the fact[]finder”).\nFurthermore, the details of this incident were repeatedly introduced, through three separate witnesses, in significant detail. See Commonwealth v. Mahdi, 388 Mass. 679, 696-697 (1983) (“frequency of the reference” is factor in prejudicial error analysis). Allegations that the defendant slapped her son with a sandal so hard that he had to be taken to the hospital, and that she had struck him on a previous occasion, were very likely to prejudice the jury against the defendant because it was relevant to no other purpose than to show that the “defendant has a propensity for criminal conduct,” here, a tendency to violence. Commonwealth v. Moure, 428 Mass. 313, 319 (1998). The DSS case worker, in particular, described the incident in considerable detail, cementing the prejudicial information in the minds of the jury. During Burgess’s testimony, no limiting instruction was provided to the jury narrowing their consideration of these facts only to an assessment of her opinion. The jury were allowed to consider the testimony for its truth, notwithstanding that it was improper character evidence. Contrast Commonwealth v. Jaime, 433 Mass. 575, 578 (2001).\nFinally, no other properly admitted evidence served to establish any details of violent episodes on the part of the defendant, such that admission of this evidence might be considered at least somewhat cumulative. Contrast Commonwealth v. Sharpe, 454 Mass. 135, 144 (2009). Moreover, the DSS case worker, who provided a lengthy recitation of the details of the alleged incident involving a sandal, was the final witness, which ensured that these details were “fresh in the jury’s mind when they began deliberations.” Commonwealth v. Chambers, 81 Mass. App. Ct. 624, 629 (2012), citing Yeboah Sefah v. Ficco, 556 F.3d 53, 78 (1st Cir.), cert. denied, 130 S. Ct. 639 (2009).\nWe need not decide, however, whether the erroneous seriatim admission of prior bad act evidence, standing alone, requires a new trial. As we discuss in part 2.b, infra, it was also error not to have instructed the jury as to the excessive use of force in self-defense, which mitigates murder to manslaughter. This alone requires a new trial. See Commonwealth v. Richards, 384 Mass. 396, 405 (1981). Certainly, when considered together, we cannot say that these errors had only a “very slight effect” on the jury. Commonwealth v. Flebotte, supra, quoting Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983). Thus, a new trial is required.\nb. Instruction on excessive use of force in self-defense. The defendant argues that the evidence entitled her to an instruction on excessive use of force in self-defense, which may mitigate a killing from murder to manslaughter. Commonwealth v. Pring-Wilson, 448 Mass. 718, 733 n.15 (2007). At trial, the judge, after initially allowing the defendant’s request to give an instruction on excessive use of force in self-defense, ultimately declined to provide such an instruction because it “requires a reasonable apprehension,” and the case “wasn’t tried that way.”\n“Before a judge is required to give a requested instruction, there must be some basis in evidence, viewed in the light most favorable to the proponent, supporting the requested instruction.” Commonwealth v. Cook, 419 Mass. 192, 201 (1994). To receive an instruction on the excessive use of force in self-defense, “the defendant must be entitled to act in self-defense,” Commonwealth v. Berry, 431 Mass. 326, 335 (2000), but “used more force than was reasonably necessary in all the circumstances of the case.” Commonwealth v. Glacken, 451 Mass. 163, 167 (2008). For a defendant to be entitled to use deadly force, as the defendant did here, she must have “a reasonable apprehension of great bodily harm and a reasonable belief that no other means would suffice to prevent such harm.” Commonwealth v. Houston, 332 Mass. 687, 690 (1955). See Commonwealth v. Walker, 443 Mass. 213, 215-219 (2005) (“If deadly force were used, then the deadly force standard should be applied”).\nThe defendant maintains that, although perhaps not reasonable if experienced by an individual without her history of abuse, the lifelong abuse the defendant has suffered could render reasonable her apprehension of great bodily harm and her belief that no other means would suffice to prevent it, thereby making appropriate an instruction on the excessive use of force in self-defense. The Commonwealth argues in response that the evidence was insufficient to establish the objective reasonableness of the defendant’s fear and, thus, that the instruction was not warranted.\nThe propriety of such an instruction turns on the application of G. L. c. 233, § 23F (§ 23F). As relevant here, § 23F not only allows the introduction of evidence of a defendant’s past instances of abuse, including, but not limited to, those involving the victim, but also permits the use of such evidence to establish “the reasonableness of the defendant’s apprehension that death or serious bodily injury was imminent.” As § 23F makes clear, the psychological consequences of a history of abuse are relevant to the consideration whether the defendant was in fear of serious injury or death. See Commonwealth v. Pike, 431 Mass. 212, 222-223 (2000).\nConsideration of this evidence does not, however, provide a “blanket justification for [the defendant] to use force in resolving disputes.” Commonwealth v. Haddock, 46 Mass. App. Ct. 246, 249 n.4 (1999). Instead, using the defendant’s past history of abuse as “one of many factors ... in determining the reasonableness of the defendant’s conduct,” id., we engage in a careful assessment of the circumstances of the stabbing, the defendant’s history of abuse, and the expert testimony in deciding whether — viewing the evidence in the light most favorable to the defendant (the proponent of the instruction), Commonwealth v. Cook, supra at 201 — the circumstances were sufficient to warrant the instruction sought.\nAccording to the testimony of the only percipient witness, Fouyolle, the defendant walked out of the bedroom, in which she and Petitry had been arguing, and stabbed Petitry in the chest with a shard of glass. The witness testified that, during the argument preceding the stabbing, he looked into the bedroom once and saw Petitry positioned on top of the defendant. There was also evidence that Petitry may have held the door closed momentarily after leaving the room, and may have been moving toward the defendant just before the stabbing as she stepped out of the bedroom. In her statements to the police, the defendant said that Petitry, who was a “big, strong, [and] muscular” man, had “hit her and she was afraid.”\nAccording to the defendant’s experts, the defendant, who had multiple diagnoses of PTSD and depression, was unmedicated at the time of the stabbing. These experts testified that “that glass was likely to be as much for defense, because . . . she was terrified.” Petitry — who had been “aggressive,” “abusive,” and “controlling” in the relationship — had an elevated blood alcohol content; the defendant had stated that “he became even more abusive and aggressive” when under the influence of alcohol. On one occasion, three days before the stabbing, the defendant expressed a fear that, if she sought a restraining order against Petitry, he would kill her.\nThe defendant’s experts also described how the defendant’s history of abuse could affect her assessment of the situation. According to Burgess, that Petitry had forced himself on top of the defendant “certainly had enough intensity to trigger the incident that she had with [her previous boy friend who had tried to suffocate her while biting a mole off her cheek].” Keane also viewed this as “a key trigger back to a prior experience that she was again being assaulted by someone on top of her.” Burgess testified that it did not matter whether the earlier abuse was at the hands of Petitry or another individual, because “it still is going after the fear response because it activates the memories, the traumatic memories, because it’s a similar kind of situation.” Even though Petitry had left the room, the defendant remained “frightened” and, by remaining in the room, was “captive, if you will, to further injury in her mind.”\nViewing this evidence in the light most favorable to the defendant, a jury instruction on the excessive use of force in self-defense was required. The defendant’s statements to the police and to the experts were sufficient to establish, for purposes of the requested instruction, that she was actually in fear of serious bodily injury, if not also in a dissociative state, at the time of the stabbing. Although the percipient witness testified that Petitry had left the room, expert testimony established that the argument in the bedroom, including Petitry’s positioning of himself on top of the defendant, had acted as a “trigger” in the defendant’s mind, from which she suffered continuing injury even in the “[n]ot even ten seconds” after he had left the room. Contrast State v. Hendrickson, 81 Wash. App. 397, 398-399 (1996). Assessing the reasonableness of the defendant’s fear in light of her history of abuse, as called for by § 23F, we cannot say, viewing the evidence in the light most favorable to the defendant, that this matter should have been removed from the province of the jury.\nDeclining to give this instruction prejudiced the defendant. “The evidence warranted a finding of excessive force in self-defense, and if the jury so found, the defendant was entitled to a verdict of manslaughter. There can be no doubt of a miscarriage of justice if a defendant guilty of manslaughter is serving the penalty for murder.” Commonwealth v. Santos, 454 Mass. 770, 776 (2009) (concluding that same error, by itself, requires reversal of conviction of murder in first degree).\n3. Conclusion. The defendant’s conviction of murder in the first degree is reversed, the verdict is set aside, and the case is remanded to the Superior Court for a new trial.\nSo ordered.\nEffective July 8, 2008, the Department of Social Services (DSS) is now the Department of Children and Families. See G. L. c. 18B, § 1, as amended by St. 2008, c. 176, § 25.\nThis complaint and its details will be discussed as it relates to the defendant’s first claim of error. See infra.\nThere was some evidence that Petitry closed the door behind him and held it closed momentarily so the defendant could not leave the room.\nAs brought out in cross-examination, Fouyolle testified differently at the grand jury; he did not indicate at that time that the defendant made this statement as she was leaving the bedroom.\nBecause “the effects of posttraumatic stress disorder, or battered woman syndrome, are [not] within the common experience of the ordinary juror,” Commonwealth v. Crawford, 429 Mass. 60, 67 (1999), we allow expert testimony on this subject. See, e.g., Commonwealth v. Pike, 431 Mass. 212, 221-222 (2000). See also G. L. c. 233, § 23F (b).\nThe entirety of the defendant’s history of abuse was admitted through expert testimony, primarily that of Dr. Ann Burgess. None of the police, hospital, or psychiatric records referenced in that testimony were separately admitted in evidence.\nAt the time of the stabbing, the defendant’s son was “very hyperactive” and exhibited “defiant behavior.”\nAccording to Burgess’s testimony, the defendant was still breast feeding her daughter at the time of the stabbing and was not taking the medication because “medicines can go to the baby” through the breast-feeding process.\nA postmortem toxicology report put Petitry’s blood alcohol content at .154 per cent at the time of his death, almost twice the legal limit for lawful operation of a motor vehicle on a public way. See G. L. c. 90, § 24 (1) (á) (1).\nThe defendant’s daughter was bom on May 18, 2003, approximately five weeks before the stabbing.\nThe jury heard during defense counsel’s cross-examination of Dr. Michael Murphy that another doctor at Taunton State Hospital, who did not testify at trial, diagnosed the defendant with posttraumatic stress disorder (PTSD). On her arrival at the hospital, the defendant said that she wanted to die, was placed on twenty-four hour watch, asked a staff member to kill her, and began taking antidepressants.\nGiven our disposition, we need not address the defendant’s remaining claims of trial error, or her request that we enter an order reducing the verdict to a lesser degree of guilt pursuant to our power under G. L. c. 278, § 33E. We also do not address the defendant’s claim of error in the denial of her motion for a new trial. In that motion, the defendant argued that either prosecutorial misconduct or the ineffective assistance of counsel had permitted the admission of evidence of an operational second door in the bedroom in which the defendant and Petitry argued just before the stabbing. According to the defendant, and affidavits from a number of individuals in support of her motion for new trial, this alleged “second door” was sealed shut and, thus, did not present an avenue for the defendant’s escape. The operability of any such second door, and its bearing on the legal issues raised in the case, are matters for the jury at any retrial.\nPetitry was the father only of the infant daughter.\nAccording to the judge, these statements had opened the door because defense counsel had “made some statements about [Petitry] blaming [the defendant] for the DSS [involvement], and it made it sound like it was an unreasonable position.”\nWe note that the sandal incident precipitating the DSS complaint did not involve any aggression against Petitry, which would have perhaps given it some probative value. See Commonwealth v. Baker, 440 Mass. 519, 531 (2003).\nDefense counsel: “I think I’m consistent with the Court’s — what the Court has said when you had said that the fact that the children were taken away elevated the stress level, and also that [Petitry] may have wanted her to give up custody of her son intensified the stress. That’s all she would be saying. And I think that’s consistent with the Court’s ruling that I can get into that without opening the door to the slapping. If that’s correct, I’d like to.”\nThe judge: “Okay.”\nDefense counsel: “Thank you.”\nNone of the reports relied on by any of the experts was admitted in evidence. See note 6, supra.\nIn determining whether the information relied on by the expert would be admissible, “[w]e note that the form in which information is ordinarily transmitted to an expert witness is often one that is not itself independently admissible. [However, i]t is not the form of the presentation to the expert that governs whether an opinion may be based thereon, but the nature of the facts or data contained in that presentation.” Commonwealth v. Markvart, 437 Mass. 331, 337 n.4 (2002).\nThe Commonwealth does not challenge the propriety of Burgess’s opinion testimony. In connection with such testimony, Burgess had reviewed hospital and police reports that were a “permissible basis for an expert to consider in formulating an opinion,” because “the underlying ‘facts or data’ contained [therein] would potentially [have been] admissible through appropriate witnesses.” Commonwealth v. Markvart, supra at 337, quoting Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 531 (1986).\nThis inquiry should have occurred at sidebar or at a voir dire.\nIn both Commonwealth v. Colleran, 452 Mass. 417, 425-426 (2008), and Commonwealth v. Killelea, 370 Mass. 638, 650 (1976), we affirmed the admission of prior bad act evidence on cross-examination of a defendant’s expert because those prior bad acts demonstrated that the defendant had not been entirely truthful during interviews with the expert. The defendant’s untruthfulness in those cases undermined the reliability of those experts’ opinions. Here, however, the prior bad act evidence was in no way probative of the defendant’s truthfulness, and thus did not undermine Burgess’s opinion. Burgess was aware of both incidents, and the Commonwealth never suggested that the defendant had withheld information or been untruthful in discussing these prior incidents with Burgess.\nNote that the opposing party may also undermine the expert’s opinion by pointing out the expert’s failure to rely on information that would seemingly be relevant to the expert’s assessment.\nIf anything, the allegation that the defendant had struck her son on two occasions would appear to strengthen the basis for Burgess’s diagnosis, as she testified that individuals with PTSD are prone to “angiy outbursts.”\nThe judge gave an additional limiting instruction at this point, telling the jury that this information was to put the information regarding DSS “into context” and could not be considered to show the defendant’s “propensity to commit the act which she’s charged with.”\nDuring closing argument, the prosecutor returned to this theme:\n“They were living together .... She had a five year old son, together they had a four week old daughter who were then in the custody of the Department of Social Services because of her, because of her conduct.”\nFor the first time on appeal, the Commonwealth argues that these details were relevant to rebut the defendant’s presentation of herself as “nothing but a long suffering victim.” This is not a proper basis on which to admit the details of these incidents. “Evidence of prior bad acts is not admissible to show that the defendant ... is of bad character.” Commonwealth v. Otsuki, 411 Mass. 218, 236 (1991), quoting Commonwealth v. Robertson, 408 Mass. 747, 750 (1990). Although we generally permit the Commonwealth properly to rebut a defendant’s factual contentions with such evidence, Commonwealth v. Magraw, 426 Mass. 589, 595 (1998), the defendant made no assertions during the trial that opened the door to this information. Uncontroverted evidence of the abuse suffered by the defendant was admitted to explain the basis for the multiple expert diagnoses of PTSD and the experts’ conclusions that the defendant was not criminally responsible for her actions. It did not serve to establish any character trait of the defendant as a “victim” that the Commonwealth could then rebut with instances when she acted as an aggressor. The Commonwealth’s argument to the contrary is without merit.\nThe judge gave a limiting instruction during the testimony of the DSS case worker that “because there’s been much testimony regarding what took place regarding DSS,” the evidence as to the incident involving the sandal could only be considered as “context.” But the details of the complaint added little, if anything, to the context that the jury properly could consider; the only purpose this evidence could have possibly served was to prejudice the jury against the defendant.\nThe defendant does not argue that she was entitled to an instruction on self-defense as a complete defense. We therefore do not consider this argument.\nAlthough the fact that death results does not necessarily require a conclusion that a defendant used deadly force, see Commonwealth v. Pike, 428 Mass. 393, 396 n.3 (1998) (“relevant inquiry is what level of force was used, not what the resulting injuries were”), here, we conclude that the use of a sharp sixteen-inch piece of glass constitutes deadly force as a matter of law. See Commonwealth v. Pring-Wilson, 448 Mass. 718, 733 (2007), citing Commonwealth v. Toon, 55 Mass. App. Ct. 642, 644 n.3 (2002) (knife constitutes deadly weapon).\nThe Commonwealth contends also that the defendant’s theories of self-defense, reasonable provocation, and lack of criminal responsibility are inconsistent. We disagree. The expert testimony is consistent with all three theories, i.e., the defendant’s reaction arose from Petitry’s alleged violence and her fear in response. An attack by a victim can give rise to a need for self-defense, see Commonwealth v. Rodriquez, 418 Mass. 1, 5 (1994), and a heat of passion resulting from reasonable provocation, see Commonwealth v. Acevedo, 446 Mass. 435, 444 (2006), and can trigger a defendant’s mental illness such that she lacks the substantial capacity at that time both to appreciate the wrongfulness of her conduct and to conform her conduct to the requirements of the law. See Commonwealth v. McHoul, 352 Mass. 544, 546-547 (1967). We see no inconsistency in allowing instructions on all three theories, particularly because we allow a defendant’s fear to form the basis of reasonable provocation. See Commonwealth v. Glover, 459 Mass. 836, 841 (2011), quoting Commonwealth v. Acevedo, supra at 443 (“Reasonable provocation is provocation that ‘would have been likely to produce in an ordinary person such a state of passion, anger, fear, fright, or nervous excitement as would eclipse his capacity for reflection or restraint’ ” [emphasis added]). See also Commonwealth v. Lapage, 435 Mass. 480, 486 n.7 (2001) (“In a case like this, the defendant is entitled to correct instructions on both provocation and self-defense, and the jury are to have an opportunity to consider voluntary manslaughter on both theories”); Dressier, Rethinking Heat of Passion: A Defense in Search of a Rationale, 73 J. Crim. L. & Criminology 421, 448-449 (1982) (describing consistency of heat of passion, voluntary manslaughter, and self-defense in such cases).\nGeneral Laws c. 233, § 23F, provides, in relevant part:\n“In the trial of criminal cases charging the use of force against another where the issue of defense of self or another, defense of duress or coercion, or accidental harm is asserted, a defendant shall be permitted to introduce either or both of the following in establishing the reasonableness of the defendant’s apprehension that death or serious bodily injury was imminent, the reasonableness of the defendant’s belief that he had availed himself of all available means to avoid physical combat or the reasonableness of a defendant’s perception of the amount of force necessary to deal with the perceived threat:\n“(a) evidence that the defendant is or has been the victim of acts of physical, sexual or psychological harm or abuse;\n“(b) evidence by expert testimony regarding the common pattern in abusive relationships; the nature and effects of physical, sexual or psychological abuse and typical responses thereto, including how those effects relate to the perception of the imminent nature of the threat of death or serious bodily harm; the relevant facts and circumstances which form the basis for such opinion; and evidence whether the defendant displayed characteristics common to victims of abuse.”\nThis is consistent with other evidentiary rules that have long allowed the admission of certain information known to the defendant for the purposes of a claim of self-defense. See Commonwealth v. Fontes, 396 Mass. 733, 735-736 (1986) (instances of victim’s prior acts of violence admissible); Commonwealth v. Edmonds, 365 Mass. 496, 502 (1974) (victim’s violent reputation admissible).\nThe evidence admitted in this case related to what is typically referred to as “battered woman syndrome.” “Battered woman syndrome has been described as a ‘series of common characteristics that appear in women who are abused physically and psychologically over an extended period of time by the dominant male figure in their lives.’ ” Commonwealth v. Pike, 431 Mass. 212, 221 (2000), quoting State v. Kelly, 97 N.J. 178, 193 (1984).\nWe are mindful that “the event to which a battered woman responds may seem imminently life-threatening only in the context of past abuse,” Taylor, Provoked Reason in Men and Women: Heat-of-Passion Manslaughter and Imperfect Self-Defense, 33 UCLAL. Rev. 1679, 1704 (1986), and that “because of her intimate knowledge of her batterer, the battered woman perceives danger faster and more accurately as she is more acutely aware that a new or escalated violent episode is about to occur.” Bechtel v. State, 840 P.2d 1, 10 (Okla. Crim. App. 1992).\nThe witness acknowledged previous testimony during cross-examination, in which he had stated that the defendant had made the statement, “I’m going to kill you,” only while she and Petitry were both still in the bedroom.\nBecause the defendant has not disputed whether the language of our model jury instructions on the excessive use of force in self-defense, see Model Jury Instructions on Homicide 31-33 (1999), sufficiently conveys the jury’s ability to consider her past history of abuse in assessing the reasonableness of her fear of serious injury or death, as called for by G. L. c. 233, § 23F, we do not address that point."", ""type"": ""majority"", ""author"": ""Lenk, J.""}], ""attorneys"": [""Robert F. Shaw, Jr., for the defendant."", ""Robert C. Thompson, Assistant District Attorney (Sharon E. Donatelle, Assistant District Attorney, with him) for the Commonwealth.""], ""corrections"": """", ""head_matter"": ""Commonwealth vs. Solange Anestal.\nPlymouth.\nJanuary 9, 2012.\nNovember 6, 2012.\nPresent: Ireland, C.J., Botsford, Gants, Duffly, & Lenk, JJ.\nHomicide. Evidence, Prior misconduct, Expert opinion, Cross-examination, Self-defense. Witness, Expert, Cross-examination. Self-Defense. Practice, Criminal, Instructions to jury. Battered Woman Syndrome.\nAt a murder trial, although the judge did not abuse his discretion in permitting the Commonwealth to introduce limited evidence of a prior bad act by the defendant (i.e., the fact that a Department of Social Services [DSS] complaint had been brought against her) for the purpose of rebutting a suggestion made by defense counsel in his opening statement [663-666], the judge erred in admitting details of that complaint, as well as details of an earlier, unrelated allegation that the defendant had abused her child, where the information, which was known to the expert witness, did not form the basis of her opinion, did nothing to clarify or discredit her opinion, and served only to focus on the defendant’s prior bad acts [666-671]; moreover, the judge also erred in admitting the testimony of two subsequent witnesses regarding the details of the complaint [671-672].\nAt a murder trial, the judge erred in declining to instruct the jury on excessive use of force in self-defense, where, assessing the reasonableness of the defendant’s fear in light of her history of abuse, as called for by G. L. c. 233, § 23F, it could not be said, viewing the evidence in the light most favorable to the defendant, that the matter should have been removed from the province of the jury. [674-679]\nThis court concluded that, when considered together, the erroneous admission at a murder trial of highly prejudicial evidence of the defendant’s prior bad acts and the judge’s erroneously declining to provide a jury instruction on the excessive use of force in self-defense (which was supported by the evidence) required a new trial. [672-674]\nIndictment found and returned in the Superior Court Department on August 15, 2003.\nThe case was tried before Richard J. Chin, J., and a motion for a new trial, filed March 29, 2010, was heard by him.\nRobert F. Shaw, Jr., for the defendant.\nRobert C. Thompson, Assistant District Attorney (Sharon E. Donatelle, Assistant District Attorney, with him) for the Commonwealth.""}, ""cites_to"": [{""cite"": ""840 P.2d 1"", ""year"": 1992, ""case_ids"": [12038326], ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""pin_cites"": [{""page"": ""10""}], ""case_paths"": [""/p2d/840/0001-01""], ""opinion_index"": 0}, {""cite"": ""33 UCLAL. Rev. 1679"", ""year"": 1986, ""category"": ""journals:journal"", ""reporter"": ""UCLA L. Rev."", ""pin_cites"": [{""page"": ""1704""}], ""opinion_index"": 0}, {""cite"": ""97 N.J. 178"", ""year"": 1984, ""case_ids"": [1384335], ""category"": ""reporters:state"", ""reporter"": ""N.J."", ""pin_cites"": [{""page"": ""193""}], ""case_paths"": [""/nj/97/0178-01""], ""opinion_index"": 0}, {""cite"": ""365 Mass. 496"", ""year"": 1974, ""case_ids"": [292126], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""502"", ""parenthetical"": ""victim's violent reputation admissible""}], ""case_paths"": [""/mass/365/0496-01""], ""opinion_index"": 0}, {""cite"": ""396 Mass. 733"", ""year"": 1986, ""case_ids"": [898116], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""735-736"", ""parenthetical"": ""instances of victim's prior acts of violence admissible""}], ""case_paths"": [""/mass/396/0733-01""], ""opinion_index"": 0}, {""cite"": ""73 J. Crim. L. & Criminology 421"", ""year"": 1982, ""category"": ""journals:journal"", ""reporter"": ""J. Crim. L. & Criminology"", ""pin_cites"": [{""page"": ""448-449"", ""parenthetical"": ""describing consistency of heat of passion, voluntary manslaughter, and self-defense in such cases""}], ""opinion_index"": 0}, {""cite"": ""435 Mass. 480"", ""year"": 2001, ""case_ids"": [993897], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""parenthetical"": ""\""In a case like this, the defendant is entitled to correct instructions on both provocation and self-defense, and the jury are to have an opportunity to consider voluntary manslaughter on both theories\""""}], ""case_paths"": [""/mass/435/0480-01""], ""opinion_index"": 0}, {""cite"": ""459 Mass. 836"", ""year"": 2011, ""case_ids"": [4270678], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""841""}], ""case_paths"": [""/mass/459/0836-01""], ""opinion_index"": 0}, {""cite"": ""446 Mass. 435"", ""year"": 2006, ""weight"": 2, ""case_ids"": [3783409], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""444""}, {""page"": ""443"", ""parenthetical"": ""\""Reasonable provocation is provocation that 'would have been likely to produce in an ordinary person such a state of passion, anger, fear, fright, or nervous excitement as would eclipse his capacity for reflection or restraint' \"" [emphasis added]""}], ""case_paths"": [""/mass/446/0435-01""], ""opinion_index"": 0}, {""cite"": ""418 Mass. 1"", ""year"": 1994, ""case_ids"": [480464], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""5""}], ""case_paths"": [""/mass/418/0001-01""], ""opinion_index"": 0}, {""cite"": ""55 Mass. App. Ct. 642"", ""year"": 2002, ""case_ids"": [299092], ""category"": ""reporters:state"", ""reporter"": ""Mass. 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+369544,"{""id"": 369544, ""name"": ""Michael Migliori vs. Airborne Freight Corporation & another"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""3a20a1180822359734e36417bc9b206ec7dff17e52941a1f8290f751f6efb0d7"", ""simhash"": ""1:34e2f8085395ee12"", ""pagerank"": {""raw"": 0.00000021048652147401852, ""percentile"": 0.7623216643132477}, ""char_count"": 22127, ""word_count"": 3598, ""cardinality"": 1091, ""ocr_confidence"": 0.889}, ""casebody"": {""judges"": [], ""parties"": [""Michael Migliori vs. Airborne Freight Corporation & another.""], ""opinions"": [{""text"": ""Fried, J.\nThis case comes before us on certification from the United States District Court for the District of Massachusetts of the following question:\n“Does a person who witnesses or comes upon the scene of an accident and voluntarily renders aid to a victim to whom he or she has no familial or other pre-existing relationship, have a cognizable claim for negligent infliction of emotional distress under Massachusetts law if 1) the rescue attempt fails, and as a result, 2) the rescuer suffers severe emotional distress which 3) further leads to physical problems?”\nFor the reasons set forth below, we answer the question in the negative.\ni\nGiven the procedural posture of this case, we accept as true all the factual allegations that the plaintiff makes and draw all reasonable conclusions in his favor.\nThe plaintiff, Michael Migliori, is a petty officer first class in the United States Navy. In August, 1990, he was stationed at the Navy-Marine Corps Reserve Center in Lawrence. He is trained in cardiopulmonary resuscitation (CPR), and his duties at Lawrence included giving CPR instruction to other military personnel and local high school students.\nAt approximately noon, on August 27, 1990, the plaintiff was walking down Congress Street in Boston. There, he came upon Joanne Perkins who had been negligently struck by a van operated by the defendant Louis Giangregorio and owned by the defendant Airborne Freight Corporation. It is not clear whether the plaintiff actually witnessed the accident or came upon the scene only after the accident. The plaintiff immediately went to Perkins’s aid. On discovering that Perkins had no pulse, the plaintiff began to administer CPR and managed to restore Perkins’s heartbeat on two brief occasions. Perkins was bleeding from her eyes, ears, nose, and mouth, as well as from other injured areas of her body, and the plaintiff became drenched in blood in the course of administering CPR. Public safety personnel soon responded to the accident, and the plaintiff watched as they placed Perkins in an ambulance and drove away. Perkins was taken to Massachusetts General Hospital and was pronounced dead at 12:30 p.m.\nAs a result of this failed rescue attempt, the plaintiff has developed various symptoms of emotional distress that have further led to physical problems. The plaintiff apparently blames himself for Perkins’s death, and is of the opinion that he has failed at the most important thing in his life. At the time of the accident, Perkins and the plaintiff were strangers.\nOn July 22, 1996, the plaintiff filed a Federal diversity action pursuant to 28 U.S.C. § 1331 (1994) asserting a claim for negligent infliction of emotional distress. The defendants, in response, filed a motion for prediscovery summary judgment and contended that, under Massachusetts law, the plaintiff cannot assert a claim for negligent infliction of emotional distress stemming from Perkins’s death because he did not have a preexisting familial or other close relationship with Perkins. The plaintiff responded by clairping that, under the rescue doctrine, he, as a rescuer, had the requisite close relationship with Perkins to enable him to bring a suit.\nAlthough the District Court judge was of the opinion that allowing the plaintiff to proceed on his theory would unduly expand the scope of liability for negligent conduct, he certified the question to this court for an authoritative determination of Massachusetts law.\nII\nOur past decisions dealing with claims of emotional or psychological injuries reflect two broad concerns. The first has to do with the difficulty of proving damages in cases involving claims of emotional injuries, or the difficulty of discriminating between real and fraudulent or imagined emotional injuries. See, e.g., Payton v. Abbott Labs, 386 Mass. 540, 546-547 (1982). The second arises from the need to impose some limits on the scope of liability, both with respect to the class of potential plaintiffs and the injuries for which such plaintiffs may claim compensation. Where the mechanism by which injury comes about includes the psychological, both the class of plaintiffs and kinds of claims are greatly and predictably expanded. We recognized in Dziokonski v. Babineau, 375 Mass. 555, 567 (1978), that the class of persons vicariously affected by a tortfeasor’s conduct may be very large. As the New York Court of Appeals once stated, “[ejvery injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree.” Tobin v. Grossman, 24 N.Y.2d 609, 619 (1969).\nThese two concerns have moved this court to draw various distinctions in dealing with emotional injuries. Thus, until very recently, moved primarily by the idea that attendant physical harms validate plaintiffs’ claims for emotional injuries, this court drew a sharp distinction between cases involving negligently caused emotional injuries with attendant physical harm, and those without attendant physical harm, and held that cognizable claims for recovery are stated only in the former. Compare Freyermuth v. Lutfy, 376 Mass. 612 (1978), with Payton v. Abbott Labs, supra. In Sullivan v. Boston Gas Co., 414 Mass. 129 (1993), we abandoned the so-called physical harm rule. While no longer considering attendant physical harm as a necessary condition of a cognizable claim for the negligent infliction of emotional injuries, we still required “objective corroboration of the emotional distress alleged.” Id. at 137-138, quoting Payton v. Abbott Labs, supra at 547.\nOur second concern, to limit the scope of potential liability, has led us to discriminate among classes of plaintiffs. Not every bystander plaintiff who can show emotional injury, the defendant’s negligence, and the causal connection between the two states a cognizable claim. We have imposed relational, temporal, and spatial limits on the scope of liability for emotional harm: Only a bystander plaintiff who is closely related to a third person directly injured by a defendant’s tortious conduct, and suffers emotional injuries as the result of witnessing the accident or coming upon the third person soon after the accident, states a claim for which relief may be granted. Ferriter v. Daniel O’Connell’s Sons, 381 Mass. 507, 518-519 (1980); Dziokonski v. Babineau, supra at 568.\nAt the same time, we have sought to draw lines that are not arbitrary. Dziokonski v. Babineau, supra at 568. The concern for proof seems to justify the requirement of close “familial or other relationship.” Id. A parent of or another person closely related to a third person directly injured by the tortfeasor’s conduct is more likely to suffer more severe emotional injuries than others who witness the accident or come upon the third person’s impaired condition. As a leading text noted: “It seems sufficiently obvious that the shock of a mother at danger or harm to her child may be both a real and a serious injury. All ordinary human feelings are in favor of her action against the negligent defendant.” W.L. Prosser & W.P. Keeton, Torts § 54 at 366 (5th ed. 1984). To be sure, a distant relative or an unrelated person may also genuinely suffer severe emotional distress on witnessing an accident. See Amaya v. Home Ice, Fuel & Supply Co., 59 Cal. 2d 295, 313 (1963), quoting Hambrook v. Stokes Bros., 1 K.B. 141, 158-159 (1925). Yet, as the Appeals Court once recognized in denying relief to a mother who suffered emotional distress upon witnessing an automobile accident that she erroneously believed involved her son, any distinction made is in “fair measure a pragmatic judgment rather than a systematic application of a general principle.” Barnes v. Geiger, 15 Mass. App. Ct. 365, 369 (1983).\nThe requirements of spatial and temporal proximity are even more obviously grounded in practical need to draw a determinate line against excessive liability. In Ferriter v. Daniel O’Connell’s Sons, supra at 518, we recognized that “[a] plaintiff who rushes onto the accident scene and finds a loved one injured has no greater entitlement to compensation for that shock than a plaintiff who rushes instead to the hospital.” In general, we must acknowledge that these requirements of proximity are based more on the pragmatic need to limit the scope of potential liability, than on grounds of fairness or other imperatives of corrective justice.\nIII\nWe now apply the distinctions and limitations growing out of the two concerns discussed above to answer the question presented in this case.\nA\nWe begin by affirming our reluctance to expand the class of bystanders who may recover for emotional distress or the circumstances in which the members of that class may recover. See Stockdale v. Bird & Son, 399 Mass. 249 (1987) (mother who did not see son’s injured body until twenty-four hours after accident at funeral home not entitled to recover); Cohen v. McDonnell Douglas Corp., 389 Mass, 327 (1983) (executor of estate of mother who did not learn of her son’s death in airplane crash until seven hours after the crash could not recover); Miles v. Edward O. Tabor, M.D., Inc., 387 Mass. 783 (1982) (mother who suffered emotional distress as the result of doctor’s negligence at her son’s birth, which led to the son’s death two months later, did not have a cause of action).\nIn recent years, other jurisdictions have declined to expand the scope of liability for negligent infliction of emotional injuries, and indeed have interpreted strictly the limitations already recognized in their case law. The Supreme Court of Cahfomia was the first to recognize that a bystander, who was in no danger himself, and who witnessed an accident directly injuring another, might have a cause of action for negligent infliction of emotional injuries. Dillon v. Legg, 68 Cal. 2d 728 (1968). The Dillon court confined its holding to cases involving familial, temporal, and spatial proximities. Id. at 740-741. Subsequently, however, confusion ensued in lower courts in delineating the scope of the proximities required. The California court’s intention to rein in the excesses of Dillon first surfaced in Elden v. Sheldon, 46 Cal. 3d 267 (1988). In that case, the court strictly interpreted the requirement of familial proximity, and held that an unmarried cohabitant of the person directly injured may not recover damages for emotional distress. Id. at 277. In Thing v. La Chusa, 48 Cal. 3d 644 (1989), the court abandoned a case-by-case approach to delineating the scope of the several proximities. The plaintiff in Thing was a mother who was nearby, but did not see or hear the automobile accident involving her son. She became aware of the injury to her son when her daughter informed her of the accident. She rushed to the scene where she suffered emotional injuries as the result of seeing her bloody and unconscious son and thinking him dead. The court denied that the mother stated a cognizable claim for relief, and reasoned:\n“Greater certainty and a more reasonable limit on the exposure to liability for negligent conduct is possible by limiting the right to recover for negligently caused emotional distress to plaintiffs who personally and contemporaneously perceive the injury-producing event and its traumatic consequences.\n“Similar reasoning justifies limiting recovery to persons closely related by blood or marriage since, in common experience, it is more likely that they will suffer a greater degree of emotional distress than a disinterested witness to negligently caused pain and suffering or death. Such limitations are indisputably arbitrary since it is foreseeable that in some cases unrelated persons have a relationship to the victim or are so affected by the traumatic event that they suffer equivalent emotional distress. As we have observed, however, drawing arbitrary lines is unavoidable if we are to limit liability and establish meaningful rules for application by litigants and lower courts.”\nId. at 666.\nThe Court of Appeals of New York has been even stricter in interpreting limitations to liability in cases involving claims for emotional injuries. Having initially declined to adopt the holding of Dillon, see Tobin v. Grossman, 24 N.Y.2d 609 (1969), the court later adopted the so-called zone of danger rule in Bovsun v. Sanperi, 61 N.Y.2d 219, 230-231 (1984): Where a defendant negligently exposes a plaintiff to an unreasonable risk of bodily injury or death, the plaintiff may recover damages for emotional injuries he sustained as a result of observing in close proximity the serious injury or death of a member of his immediate family. In Trombetta v. Conkling, 82 N.Y.2d 549 (1993), the New York court construed strictly its Bovsun holding, and held that a niece, who had had an unusually close relationship with her aunt, did not state a cognizable claim in bringing a suit to recover for emotional injuries suffered as a result of being in close proximity to an accident in which the aunt was hit by a truck and died. The court reasoned that a niece does not come within the boundaries of the “immediate family.” Id. at 552.\nB\nThe plaintiff asks us to include rescuers in the class of bystanders who state a cognizable claim for negligent infliction of emotional harm. He argues that foreseeability is the measure of duty, and that he, as a rescuer, was a foreseeable plaintiff. In Wagner v. International Ry. Co., 232 N.Y. 176, 180 (1921), Judge Cardozo famously observed:\n“Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer. . . . The risk of rescue, if only it be not wanton, is bom of the occasion. The emergency begets the man.”\nHe went on to conclude that a rescuer can sue a tortfeasor for injuries sustained in the attempt to rescue.\nWe too have recognized the rescue doctrine. But, as the Appeals Court pointed out once, our sparse case law on the matter goes no further than to hold that rescuers are not, as matter of law, precluded from recovery because they voluntarily placed themselves in danger. See Barnes v. Geiger, 15 Mass. App. Ct. 365, 370 (1983), citing Brown v. Hathaway Bakeries, Inc., 312 Mass. 110, 113-114 (1942); Burnett v. Conner, 299 Mass. 604, 607-608 (1938); Barnes v. Berkshire St. Ry., 281 Mass. 47, 49-50 (1932). See also Dixon v. New York, N.H. & H.R.R., 207 Mass. 126, 130 (1910).\nThe precise scope of the rescue doctrine in this Commonwealth is beside the point, however, as foreseeability is not the real issue. It is tme that our analysis in Dziokonski was framed in terms of reasonable foreseeability. Dziokonski v. Bab ineau, supra at 567-568. Also, the Supreme Court of California observed that the evaluation of the three proximity factors will indicate “the degree of the defendant’s foreseeability.” Dillon v. Legg, supra at 741. Yet, as we also noted in Dziokonski, the concept of reasonable foreseeability hardly offers guidance, as judging an event to be reasonably foreseeable is a legal conclusion. Dziokonski v. Babineau, supra at 567. As the Supreme Court of California once stated, “in all save the most obvious of cases a harm is ‘foreseeable’ only if, in the final analysis, a court or jury says that it is.” Amaya v. Home Ice, Fuel & Supply Co., 59 Cal. 2d 295, 310 (1963). Legal rules determine the extent to which actors have incentives to be mindful of consequences of their actions. The plaintiff simply begs the question in claiming that he has a cognizable claim because he, as a rescuer, was a reasonably foreseeable sufferer of emotional harm. “If foreseeability be the sole test, then once liability is extended the logic of the principle would not and could not remain confined.” Tobin v. Grossman, supra at 616. Cf. Nycal Corp. v. KPMG Peat Marwick LLP, ante 491, 494 (1998) (foreseeability should not be standard for the extent of accountants’ liability lest accountants be exposed to “a liability in an indeterminate amount for an indeterminate time to an indeterminate class”), quoting Ultramares Corp. v. Touche, 255 N.Y. 170, 179 (1931).\nWe have had no occasion to decide how closely a person has to be related to a third person directly injured by a tortfeasor in order to have a cognizable cause of action for negligent infliction of emotional distress. Persons bearing close “familial or other relationship” to the directly injured third person comprise a discrete and well-defined class, membership in which is determined by preexisting relationships. The class of rescuers, by contrast, may be very large indeed. It is called into being by the very event which is the occasion of liability, and inclusion within it is by virtue of a volunteered action by the putative claimant.\nFinally, it is far from clear what kind of action a person must take to be considered a rescuer. Can a witness to an accident from a fourth story window, who telephones 911, be considered a rescuer? If so, there is very little to distinguish the rescuer from the kind of unrelated bystander on whom we have declined to confer a cause of action. Yet, such a caller may well be taking more effective action, of a sort that the law should encourage, than one who becomes more intimately and dangerously involved.\nIV\nTo answer the question put to us by the District Court, we conclude that a person who witnesses or comes upon the scene of an accident and voluntarily renders aid to a victim to whom he or she has no familial or other preexisting relationship, does not have a cognizable claim for negligent infliction of emotional distress under Massachusetts law if (1) the rescue attempt fails, and as a result, (2) the rescuer suffers severe emotional distress which (3) further leads to physical problems.\nSimilar conditions are required in bystander cases involving' intentional or reckless inflictions of emotional injuries. Unlike cases involving negligently inflicted emotional injuries, this court has, from early on, allowed recovery for intentional or reckless inflictions of emotional injuries even in the absence of attendant physical harm. See Simon v. Solomon, 385 Mass. 91 (1982); Agis v. Howard Johnson Co., 371 Mass. 140 (1976). In Nancy P. v. D'Amato, 401 Mass. 516, 522 (1988), after deciding that a mother cannot recover for emotional distress she suffered after finding out that her daughter was sexually molested by a neighbor several months before, this court stated:\n“Even if the family member’s presence were not a condition of liability [for intentional or reckless infliction of emotional distress], we would normally require both (a) substantially contemporaneous knowledge of the outrageous conduct and (b) a severe emotional response.”\nWe followed California’s lead when we stated in Dziokonski that whether a bystander can recover depends on “a number of factors, such as where, when, and how the injury, to the third person entered into the consciousness of the claimant, and what degree there was of familial or other relationship between the claimant and the third person.” Dziokonski v. Babineau, 375 Mass. 555, 568 (1978), citing Dillon v. Legg, 68 Cal. 2d 728, 740-741 (1968).\nIn a 1985 case, two Justices writing separate opinions admitted that the proximity requirements of Dillon have proved to be troublesome and that the California Supreme Court must face many outstanding questions in the near future. See Ochoa v. Superior Court, 39 Cal. 3d 159, 178 (1985) (Grodin, J., concurring); id. at 182 (Bird, C.J., concurring and dissenting) (“What has followed in Dillon’s wake is confusion rather than clarity”).\nThe drafters of the Restatement (Second) of Torts also adopted the zone of danger rule. See Restatement (Second) of Torts § 313 (2) and comment d, § 436 (2), (3) and comment f (1965). The caveat to § 436 states that the drafters of the Restatement express no opinion as to cases involving a plaintiff’s “shock or fright at harm or peril to a third person who is not a member of his immediate family, or where the harm or peril does not occur in his presence.”\nWe note that the Court of Appeals of New York, although adhering to Wagner v. International Ry. Co., 232 N.Y. 176 (1921), held in a 1981 case that a rescuer cannot recover for emotional injuries sustained in an attempt to rescue. Lafferty v. Manhasset Medical Ctr. Hosp., 54 N.Y.2d 277, 279 (1981). A contrary decision, according to the Lafferty court, would have been an unwarranted expansion of liability. Id. Given New York’s rejection of Dillon and adoption of the zone of danger rule, Lafferty provides little guidance on the application to rescuers of our more generous rules of liability for emotional distress."", ""type"": ""majority"", ""author"": ""Fried, J.""}], ""attorneys"": [""Douglas J. Beaton for the plaintiff."", ""Steven C. Malone for the defendants.""], ""corrections"": """", ""head_matter"": ""Michael Migliori vs. Airborne Freight Corporation & another.\nSuffolk.\nDecember 9, 1997. -\nFebruary 5, 1998.\nPresent: Wilkins, C.J., Abrams, Lynch, Greaney, Fried, Marshall, & Ireland, JJ.\nNegligence, Emotional distress. Emotional Distress. Actionable Tort.\nDiscussion of the limits of the scope of liability under Massachusetts law for claims of emotional or psychological injuries. [631-633]\nDiscussion of appellate court decisions in other jurisdictions regarding the scope of liability for negligent infliction of emotional distress. [634-635] This court concluded that a person who witnesses or comes upon the scene of an accident and voluntarily renders aid to a victim to whom the person has no familial or other preexisting relationship, and who suffers severe emotional distress leading to physical problems after such a rescue attempt fails, does not have a cognizable claim for negligent infliction of emotional distress under Massachusetts law. [633, 636-638]\nCertification of a question of law to the Supreme Judicial Court by the United States District Court for the District of Massachusetts.\nDouglas J. Beaton for the plaintiff.\nSteven C. Malone for the defendants.\nLouis Giangregorio.""}, ""cites_to"": [{""cite"": ""54 N.Y.2d 277"", ""year"": 1981, ""weight"": 2, ""case_ids"": [2342375], ""category"": ""reporters:state"", ""reporter"": ""N.Y.2d"", ""pin_cites"": [{""page"": ""279""}], ""case_paths"": [""/ny-2d/54/0277-01""], ""opinion_index"": 0}, {""cite"": ""39 Cal. 3d 159"", ""year"": 1985, ""weight"": 2, ""case_ids"": [2011419], ""category"": ""reporters:state"", ""reporter"": ""Cal. 3d"", ""pin_cites"": [{""page"": ""178"", ""parenthetical"": ""Grodin, J., concurring""}, {""page"": ""182"", ""parenthetical"": ""Bird, C.J., concurring and dissenting""}], ""case_paths"": [""/cal-3d/39/0159-01""], ""opinion_index"": 0}, {""cite"": ""401 Mass. 516"", ""year"": 1988, ""case_ids"": [3878683], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""522""}], ""case_paths"": [""/mass/401/0516-01""], ""opinion_index"": 0}, {""cite"": ""371 Mass. 140"", ""year"": 1976, ""case_ids"": [320403], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/371/0140-01""], ""opinion_index"": 0}, {""cite"": ""385 Mass. 91"", ""year"": 1982, ""case_ids"": [900794], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/385/0091-01""], ""opinion_index"": 0}, {""cite"": ""255 N.Y. 170"", ""year"": 1931, ""case_ids"": [1994788], ""category"": ""reporters:state"", ""reporter"": ""N.Y."", ""pin_cites"": [{""page"": ""179""}], ""case_paths"": [""/ny/255/0170-01""], ""opinion_index"": 0}, {""cite"": ""207 Mass. 126"", ""year"": 1910, ""case_ids"": [3476396], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""130""}], ""case_paths"": [""/mass/207/0126-01""], ""opinion_index"": 0}, {""cite"": ""281 Mass. 47"", ""year"": 1932, ""case_ids"": [3831855], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""49-50""}], ""case_paths"": [""/mass/281/0047-01""], ""opinion_index"": 0}, {""cite"": ""299 Mass. 604"", ""year"": 1938, ""case_ids"": [12255198], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""607-608""}], ""case_paths"": [""/mass/299/0604-01""], ""opinion_index"": 0}, {""cite"": ""312 Mass. 110"", ""year"": 1942, ""case_ids"": [483135], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""113-114""}], ""case_paths"": [""/mass/312/0110-01""], ""opinion_index"": 0}, {""cite"": ""232 N.Y. 176"", ""year"": 1921, ""weight"": 2, ""case_ids"": [1898249], ""category"": ""reporters:state"", ""reporter"": ""N.Y."", ""pin_cites"": [{""page"": ""180""}], ""case_paths"": [""/ny/232/0176-01""], ""opinion_index"": 0}, {""cite"": ""82 N.Y.2d 549"", ""year"": 1993, ""weight"": 2, ""case_ids"": [2354221], ""category"": ""reporters:state"", ""reporter"": ""N.Y.2d"", ""pin_cites"": [{""page"": ""552""}], ""case_paths"": [""/ny-2d/82/0549-01""], ""opinion_index"": 0}, {""cite"": ""61 N.Y.2d 219"", ""year"": 1984, ""case_ids"": [2345054], ""category"": ""reporters:state"", ""reporter"": ""N.Y.2d"", ""pin_cites"": [{""page"": ""230-231""}], ""case_paths"": [""/ny-2d/61/0219-01""], ""opinion_index"": 0}, {""cite"": ""48 Cal. 3d 644"", ""year"": 1989, ""weight"": 2, ""case_ids"": [4614529], ""category"": ""reporters:state"", ""reporter"": ""Cal. 3d"", ""pin_cites"": [{""page"": ""666""}], ""case_paths"": [""/cal-3d/48/0644-01""], ""opinion_index"": 0}, {""cite"": ""46 Cal. 3d 267"", ""year"": 1988, ""weight"": 2, ""case_ids"": [1968797], ""category"": ""reporters:state"", ""reporter"": ""Cal. 3d"", ""pin_cites"": [{""page"": ""277""}], ""case_paths"": [""/cal-3d/46/0267-01""], ""opinion_index"": 0}, {""cite"": ""68 Cal. 2d 728"", ""year"": 1968, ""weight"": 4, ""case_ids"": [2306138], ""category"": ""reporters:state"", ""reporter"": ""Cal. 2d"", ""pin_cites"": [{""page"": ""740-741""}, {""page"": ""741""}, {""page"": ""740-741""}], ""case_paths"": [""/cal-2d/68/0728-01""], ""opinion_index"": 0}, {""cite"": ""387 Mass. 783"", ""year"": 1982, ""case_ids"": [908727], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""parenthetical"": ""mother who suffered emotional distress as the result of doctor's negligence at her son's birth, which led to the son's death two months later, did not have a cause of action""}], ""case_paths"": [""/mass/387/0783-01""], ""opinion_index"": 0}, {""cite"": ""389 Mass, 327"", ""year"": 1983, ""case_ids"": [912935], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""parenthetical"": ""executor of estate of mother who did not learn of her son's death in airplane crash until seven hours after the crash could not recover""}], ""case_paths"": [""/mass/389/0327-01""], ""opinion_index"": 0}, {""cite"": ""399 Mass. 249"", ""year"": 1987, ""case_ids"": [3794680], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""parenthetical"": ""mother who did not see son's injured body until twenty-four hours after accident at funeral home not entitled to recover""}], ""case_paths"": [""/mass/399/0249-01""], ""opinion_index"": 0}, {""cite"": ""15 Mass. 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+3696307,"{""id"": 3696307, ""name"": ""Resident Action Council, Respondent, v. The Seattle Housing Authority et al., Appellants"", ""court"": {""id"": 9029, ""name"": ""Washington Supreme Court"", ""name_abbreviation"": ""Wash.""}, ""analysis"": {""sha256"": ""5da74337a2fba5a214335ce4a47fdbf750cf3e7fe70f0190de0b6334598d259d"", ""simhash"": ""1:8035a736a3edb617"", ""pagerank"": {""raw"": 0.00000006380125665320789, ""percentile"": 0.3931431909736823}, ""char_count"": 41052, ""word_count"": 6724, ""cardinality"": 1636, ""ocr_confidence"": 0.756}, ""casebody"": {""judges"": [], ""parties"": [""Resident Action Council, Respondent, v. The Seattle Housing Authority et al., Appellants.""], ""opinions"": [{""text"": ""¶1\nC. Johnson, J.\nThis case involves a challenge to a housing regulation prohibiting the posting of signs on the exterior of resident apartment doors. The superior court granted summary judgment to Resident Action Council (RAC), enjoining enforcement of the regulation. The superior court held that the regulation violated residents’ free speech rights under the United States and Washington Constitutions. Seattle Housing Authority (SHA) appealed and we accepted certification. We affirm.\nFACTS\n¶2 SHA is a public housing authority, organized under the state Housing Authorities Law (ch. 35.82 RCW). Among the low-income housing programs it operates is the low-income public housing (LIPH) program, which is funded in part by the federal government. Clerk’s Papers (CP) at 160. There are roughly 5,300 LIPH units in Seattle.\n¶3 Tenancies in LIPH facilities are governed by lease agreements. SHA issues “house rules” which tenants must sign and are incorporated by reference into their leases. CP at 207. Residents have obligations, set out in the house rules, to maintain the interior and exterior appearance of the buildings in which they reside. For example, SHA restricts the installation of locks on unit doors and restricts the use of certain adhesives and the weight of items residents can hang on unit interior walls. CP at 202, 204. Rule violations are treated as violations of the lease. The lease agreement does not specifically state whether residents’ doors are included in the property leased to residents or not. Br. of SHA at 12.\n¶4 SHA considered issuing a rule limiting the amount and type of material that could be posted on unit doors. CP at 172-75. The record indicates that residents'have posted “signs,” including artistic images, flags, and political messages. CP at 210-16. -SHA claims that swastikas and nude images have appeared on residents’ doors. SHA rejected the idea of a limited regulation as likely ineffective in reducing SHA’s management burden and costs and resident disagreements. Br. of SHA at 9-10.\n¶5 Instead, SHA issued house rule number 42 (the rule), at issue in this case. The rule bans all signs, flyers, placards, advertisements, “or similar material” from exterior walls, interior common area walls and doors, and the surface of unit doors that face the hall or outside. CP at 162. The rule does not address the posting of materials inside resident units, and it permits postings in designated areas with prior written approval.\n¶6 The rule refers to SHA’s desire that its buildings be indistinguishable from other neighborhood buildings. The rule states that indiscriminate posting created “a negative appearance which detrimentally affects residents of the building, residents of the surrounding community, and the public generally.” In its briefing, SHA expands on this explanation, stating that some displays had been creating hostility among residents, which SHA managers were called upon to mediate. It also claims that it incurs significant costs in refinishing doors damaged by postings. Br. of SHA at 9.\nf 7 The RAC, a nonprofit organization composed of elected tenant representatives from LIPH communities, sued after SHA refused to withdraw or modify the rule. RA.C claimed that the rule violated residents’ rights of free speech guaranteed by the United States and Washington Constitutions. CP at 1-12. RAC moved for summary judgment, seeking an order declaring the rule unconstitutional and enjoining SHA from enforcing it. CP at 139.\n¶8 The superior court found that the signs and materials posted on exterior surfaces of residential doors are “residential signs” and hence constitutionally-protected speech under the First Amendment to the United States Constitution and entitled to heightened judicial scrutiny, applying the reasoning of City of Ladue v. Gilleo, 512 U.S. 43, 114 S. Ct. 2038, 129 L. Ed. 2d 36 (1994). The superior court found that residents could, but did not, cede their control over exterior surfaces of unit doors to SHA or designate those surfaces as “common areas.” Finally, the superior court held that the SHA’s cited interests were not sufficiently compelling to justify the regulation. The superior court permanently enjoined SHA from enforcing the rule in any way that infringed on tenants’ rights to use their doors for expressive purposes. CP at 222-25. We accepted certification from the Court of Appeals.\nANALYSIS\n¶9 The superior court found for RAC on RAC’s motion for summary judgment and enjoined enforcement of the rule. We review issues of law involving a constitutional challenge de novo, and the State bears the burden of justifying a restriction on speech. Ino Ino, Inc. v. City of Bellevue, 132 Wn.2d 103, 114, 937 P.2d 154, 943 P.2d 1358 (1997).\n¶10 The first issue we need to decide is, under the facts of this case, who has “control” or “ownership” of the exterior of the door. This determination is critical to deciding what analysis to apply. If SHA retains “ownership” of the door, SHA argues this would mean that a nonpublic forum analysis would apply, under which limitations on expressive conduct are reviewed more leniently. RAC argues that the doors are included in the leased premises and, as such, become the property of the tenant during the term of the lease. Under its argument, a government ban on all residential signs constitutes a violation of the First Amendment.\n¶11 Generally, a lease is a conveyance of a limited estate for a limited term with conditions attached. Under Washington law, as a general rule, areas that are necessary to a tenant’s use of the premises, and are for the exclusive use of the tenant and tenant’s invitees, pass as an appurtenant to the leased premises though not specifically mentioned or described therein. Andrews v. McCutcheon, 17 Wn.2d 340, 344-45, 135 P.2d 459 (1943).\n¶12 The issue in McCutcheon was whether McCutcheon, the landlord, had a duty to maintain a stairway. Patrons of the salon above McCutcheon’s store had to walk through McCutcheon’s store and then use an outside stairway at the store’s rear to reach the salon. A salon patron, Andrews, was injured descending the stairway. McCutcheon argued that he had no duty to maintain the stairs. He contended that when he leased the balcony above his store, the stairway also passed as an appurtenant thereto.\n¶13 The court stated that a basic right of ingress and egress through McCutcheon’s store would assumptively be covered by the lease. The salon owner’s exclusive use of the stairway, in contrast, entailed a greater right of control than that resulting from the tenants’ and customers’ need to pass through the store:\nIt is a general rule of law that, when premises are leased, a stairway necessary to be used with them, and which is intended shall be for the exclusive use of the tenant and his invitees, passes as an appurtenant to the leased premises and is covered by the lease, though not specifically mentioned or described therein; but, when premises are leased to several tenants and it is necessary, in the enjoyment thereof, that they use a common stairway and no mention is made of it when the lease is made, it is not deemed to be appurtenant to the leased premises and covered by the lease, but the tenants and their invitees have the right to use the same as a means of access to the leased property.\nMcCutcheon, 17 Wn.2d at 344-45. Under this rule, because the stairway was used exclusively by the tenant and his invitees, the salon owner would receive more than a mere right to use the stairway for access.\n¶14 McCutcheon involved control over a stairway, but its reasoning applies with equal force here. A tenant’s authority over his or her unit door is greater than that necessary for mere ingress or egress. When a door is necessary to a tenant’s use of the premises, and is for the exclusive use of the tenant and the tenant’s invitees, it passes as an appurtenant to the leased premises and is part of the leased premises. Put simply, the door that opens to the tenancy passes to the tenant unless the lease provides otherwise.\nf 15 This same reasoning would apply if the leased premises involved a single family residence. The general rule is that the tenant receives the right to possess and use the house, the yard, and everything else necessary to the use of the leased premises. An apartment lease operates on the same principle as does a lease of a single family residence.\n¶16 SHA argues that the “general rule” stated in McCutcheon should not apply here because SHA retained control over the doors. In McCutcheon the plaintiff argued that McCutcheon was liable, notwithstanding the general rule, because through McCutcheon’s actions he expressly and impliedly indicated intent to retain control over the stairway. The court agreed; rather than passing as appurtenant to the leased premises, the court found that Mc-Cutcheon retained ownership and control over the stairs.\n¶17 The facts here do not establish a reservation of control. Unlike SHA hallways and other such common areas, other tenants and the general public have no right of access to the outer surface of unit doors. Cf. de la O v. Hous. Auth., 417 F.3d 495 (5th Cir. 2005) (finding the common areas of public housing facilities are public property and nonpublic forums). Nor does a landlord’s control over a hallway, in itself, signal the landlord’s intent to reserve control over an adjoining surface that is not common. It is not significant to this inquiry that the door, when closed, serves as part of the hallway. To the extent that a resident’s use of his or her door does not interfere with use of the common area, the landlord’s control over the common area does not imply a reservation of control over the adjacent door.\n¶18 Nor would SHA impliedly retain control despite its responsibility for repair and replacement and liability for defective doors. Br. of SHA at 13-14. SHA has a duty to maintain doors under the Residential Landlord-Tenant Act of 1973 and local codes. See RCW 59.18.060; Seattle Municipal Code 22.206.120, .140. SHA has a duty to maintain that is a function of statutory responsibilities, so maintenance is not tantamount to asserting a right of control. For these reasons, we find that SHA residents have, and retained, control and dominion over the outer surfaces of their doors.\n¶19 In light of tenant control over their respective unit doors, RAC argues that Gilleo is directly on point. We agree with the tenants that the analysis in Gilleo controls the issue presented here.\n¶20 In Gilleo, Margaret Gilleo sued the city of Ladue, alleging that Ladue’s sign ordinance violated her First Amendment rights. That ordinance barred Ladue residents, like Gilleo, from erecting a wide variety of signs on their property “ ‘wherever placed out of doors in view of the general public or ... as a window sign.’ ” 512 U.S. at 46 n.5 (quoting App. to Pet. for Cert, at 39a). The ordinance exempted, among others, for sale signs and on-site commercial and organizational signs.\n¶21 The United States Supreme Court stated that a prohibition is not always invalid merely because it applies to a sizeable category of speech. For example, a ban on signs on public property poses a lesser threat to the ability to communicate effectively because the category of speech banned is not a uniquely valuable or important mode of communication. In contrast, residential signs are a means of communication that is “venerable . . . unique and important.” 512 U.S. at 54. Residential signs “reflect and animate change in the life of a community.” 512 U.S. at 54.\n¶22 The Court cited unique facets of this medium. The medium is inexpensive and convenient. Residential signs reach neighbors, an audience “that could not be reached nearly as well by other means.” 512 U.S. at 57. Further, residential signs have great value derived from their clear association with an identified speaker. “Displaying a sign from one’s own residence often carries a message quite distinct from placing the same sign someplace else____”512 U.S. at 56. In addition, the Court referred to the special respect for individual liberty in the home, a “principle [that] has special resonance when the government seeks to constrain a person’s ability to speak there.” 512 U.S. at 58. In response to the argument that the ordinance was merely a time, place, or manner restriction, the Court again emphasized the unique medium in question. It said it was not persuaded that adequate substitutes exist. The Court concluded that the provision prohibited “too much” speech. 512 U.S. at 50-51.\n¶23 Like the ordinance in Gilleo, the SHA rule bans too much speech. The signs in this case may reflect reactions to local events or signal support or opposition to political candidates or laws. They do so in a manner that is inexpensive. Of particular importance here, the signs are unique because “[d]isplaying a sign from one’s own residence carries a message quite distinct from placing the same sign someplace else” or by other means. 512 U.S. at 56. The identity of the resident is an “important component” of this means of communication. 512 U.S. at 56.\n¶24 SHA has failed to meet its burden of justifying a restriction on speech. In reaching this conclusion, we consider first SHA’s asserted interest in avoiding the cost of refinishing doors damaged by residents’ signs. CP at 199. SHA already restricts the installation of locks on unit doors and limits the weight of items residents can hang on interior walls. CP at 202, 204. SHA could impose restrictions that would prevent damage to its doors by requiring the use of nondamaging materials. A total ban on signs is unnecessary to support the claimed interest.\n¶25 Regarding SHA’s asserted interest in reducing clutter, “while aesthetic interests are legitimate goals, they require careful scrutiny when weighed against free speech interests because their subjective nature creates a high risk of impermissible speech restrictions.” Collier v. City of Tacoma, 121 Wn.2d 737, 752, 854 P.2d 1046 (1993) (finding Tacoma’s interests in aesthetics and traffic safety sufficient to justify reasonable content-neutral regulation of noncommunicative aspects like size and spacing).\n¶26 Aesthetic concerns may merit some type of regulation here. SHA residents do not own their living spaces, and some residents may act based on what they feel is a reduced incentive to maintain property values. Cf. Gilleo, 512 U.S. at 58 (Ladue residents had a strong incentive to keep their own property values up and to prevent visual clutter, “incentives markedly different from those of persons who erect signs on others’ land.”). However, “more temperate measures,” Gilleo, 512 U.S. at 58, are available to SHA in addressing this interest, including some limit on noncommunicative aspects of the signs. The same is true of SHA’s interest in avoiding conflict between residents. While a ban is an inexpensive solution, other measures could achieve this interest without foreclosing the medium altogether. We find that SHA has not met its burden of justifying the restriction on speech.\n¶27 An obvious purpose of the unit doors is to permit egress and ingress. However, that purpose is neither incompatible with expressive activity nor the sole purpose of this property. LIPH buildings provide a community for SHA residents, with all that that entails. Here, each unit door passed as appurtenant to the leased premises. In the eyes and minds of tenants and the public, the outer surface of the door represents the outer boundary of the tenants’ homes. A ban on signs placed there is subject to the same scrutiny applied to the ordinance in Gilleo. Cf. Spence v. Washington, 418 U.S. 405, 408, 94 S. Ct. 2727, 41 L. Ed. 2d 842 (1974) (statute forbidding the attachment of symbols to United States flag unconstitutional as applied; among “important” factors was that display occurred on private property).\n¶28 It does not matter that SHA tenants lease and do not own the unit. Gilleo makes no distinctions between privately-owned residences and publicly-owned surfaces leased as part of a residence to a private tenant. A sign placed on a unit door by the resident under these circumstances is a residential sign. We find Gilleo’s analysis persuasive and conclude that the rule violates the First Amendment rights of LIPH tenants. We affirm the decision of the trial court.\nAlexander, C.J.; Sanders and Owens, JJ.; and Bridgewater, J. Pro Tem., concur.\nUnder article I, section 5 of the Washington Constitution, “[e]very person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.” Under the First Amendment to the United States Constitution, “Congress shall make no law ... abridging the freedom of speech, or of the press.” Neither party makes independent arguments based on the state constitution."", ""type"": ""majority"", ""author"": ""C. Johnson, J.""}, {""text"": ""¶29\nMadsen, J.\n(dissenting) — The issue here is the constitutionality of rule 42, adopted by the Seattle Housing Authority (Housing Authority) to protect its tenants and its property. The Housing Authority, “ ‘no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.’ ” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46, 103 S. Ct. 948, 74 L. Ed. 2d 794 (1983) (internal quotation marks omitted) (quoting U.S. Postal Serv. v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 129-30, 101 S. Ct. 2676, 69 L. Ed. 2d 517 (1981)).\n¶30 The majority reaches the wrong result and strikes down rule 42 because it fails to engage in the forum analysis that should be applied when a question arises concerning access to government property for expressive purposes. In addition, the majority overlooks precedent dictating that the exterior of the doors leading to the tenants’ apartment units are within the control of the landlord, not the tenant. Indeed, contrary to the majority’s assertion, the Housing Authority has expressly retained control of the apartment doors abutting the common areas. The majority also concludes that City of Ladue v. Gilleo, 512 U.S. 43, 114 S. Ct. 2038, 129 L. Ed. 2d 36 (1994) controls. But Gilleo simply does not apply under the circumstances because when the Housing Authority adopted rule 42, it did so in a proprietary sense as the landlord of its apartment buildings, not as a governmental entity in the exercise of its police power. I dissent.\nANALYSIS\n1. Housing Authority Property Is a Nonpublic Forum\n¶31 The Housing Authority’s apartment buildings are public property. Accordingly, the standard that applies to evaluate limitations on access to the premises for purposes of expressive activity depends on the character of the property. Perry, 460 U.S. at 45. In cases where individuals have claimed violation of free speech rights resulting from restrictions imposed by a public housing authority courts have employed a forum analysis to determine what standard of review applies to assess the constitutionality of the challenged restrictions, de la O v. Hous. Auth., 417 F.3d 495 (5th Cir. 2005); Daniel v. City of Tampa, 38 F.3d 546 (11th Cir. 1994); Crowder v. Hous. Auth., 990 F.2d 586 (11th Cir. 1993); Daily v. N.Y. City Hous. Auth., 221 F. Supp. 2d 390 (E.D.N.Y. 2002).\n¶32 There are three categories of public property: traditional public forums, property designated as public forums, and nonpublic forums. Public forums are places that “ “by long tradition or by government fiat have been devoted to assembly and debate.’ ” Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802, 105 S. Ct. 3439, 87 L. Ed. 2d 567 (1985) (quoting Perry, 460 U.S. at 45); de la O, 417 F.3d at 502-03; Daniel, 38 F.3d at 549. A designated public forum is property that has been opened by the government for the use of the public as a place for expressive activity, such as a municipal theater or a university meeting hall. Cornelius, 473 U.S. at 802; see Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 555, 95 S. Ct. 1239, 43 L. Ed. 2d 448 (1975); Widmar v. Vincent, 454 U.S. 263, 267, 102 S. Ct. 269, 70 L. Ed. 2d 440 (1981); de la O, 417 F.3d at 503; Daniel, 38 F.3d at 549.\n¶33 Here, the Housing Authority property is neither a public forum nor a designated public forum. Doors to individual apartment units in apartment braidings have not traditionally been open to the public for expressive purposes, nor does the public generally have access to apartment buildings for such purposes. Indeed, the doors are generally seen only by residents and their invited guests.\nf 34 Further, the Housing Authority has not designated the doors as a place for expressive activity. In Crowder, by way of comparison, a public housing authority opened an auditorium to expressive activities, including classes, political speeches, and religious services, and the court held that the auditorium was a designated public forum for limited purposes. Crowder, 990 F.2d at 590-91.\n¶35 The apartment buildings at issue fall within the third category of property, nonpublic forums. A nonpublic forum is property that is not by tradition or designation a forum for public communication. Perry, 460 U.S. at 46. This “sweeping category” of property encompasses many types of property, including jails, military bases, and interstate highway rest stops, de la O, 417 F.3d at 503. With respect to such property, the United States Supreme Court has repeatedly explained that the “ ‘First Amendment does not guarantee access to property simply because it is owned or controlled by the government.’ ” Perry, 460 U.S. at 46 (quoting U.S. Postal Serv., 453 U.S. at 129). “ ‘[T]he State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.’ ” Id. (internal quotation marks omitted) (quoting U.S. Postal Serv., 453 U.S. at 129-30). “[T]he government need not permit all forms of speech on property that it owns and controls.” Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678, 112 S. Ct. 2701, 120 L. Ed. 2d 541 (1992). Accordingly, the government may reserve a nonpublic forum for its intended purposes, whether communicative or not, and impose regulations on speech provided they are reasonable and content-neutral. Id. Time, place, and manner restrictions may also be imposed.\n¶36 Public housing facilities have been held to be nonpublic forums. For example, where residents did not regularly or frequently meet for expressive purposes in the library of a public housing development, it was a nonpublic forum. Crowder, 990 F.2d at 591. A community center at a housing project was a nonpublic forum by default, and a limited public forum only at times other than during the regularly scheduled educational activities. Daily, 221 F. Supp. 2d at 399-400.\n¶37 Under article I, section 5 of the state constitution, the same analysis applies to a nonpublic forum as applies under the First Amendment to a nonpublic forum. City of Seattle v. Mighty Movers, Inc., 152 Wn.2d 343, 350-51, 96 P.3d 979 (2004). Thus, speech may be restricted if distinctions drawn are reasonable in light of the forum’s purpose and are viewpoint neutral. Id. at 351. This analysis applies here.\n138 Because rule 42 forbids all expressive activity on doors, it is content-neutral. It is also a reasonable restriction on access to the doors for expressive purposes in light of the purpose of the apartment buildings to provide decent, safe, sanitary public housing for low income people. As the Housing Authority explains, part of the commitment to quality low-income housing is an effort to maintain the appearance of both the interior and exterior of the properties and require residents to meet obligations for maintaining the interior and exterior of the buildings in which they live. To this end, the Housing Authority has implemented a number of house rules, included as an addendum to the lease, that require residents to maintain the premises.\n¶39 Signs and displays on doors became a particular • concern for management. Residents complained about the “cluttered,” “college dormitory” appearance of hall corridors where things are attached to doors. Specific items that have been placed on doors have generated strong reactions from residents. These have included swastikas, nude pictures and photographs, religious symbols, and profane language. Such door displays created hostility between residents and resulted in serious management problems for property managers. In addition, costs of refinishing decorated doors have been a significant expense for the Housing Authority.\n¶40 The Housing Authority initially considered restrictions less than a complete ban on placing things on doors but eventually concluded this was not a satisfactory solution. The Housing Authority decided that content-based restrictions would be legally questionable and difficult if not impossible to administer. Simply regulating the size of signs would also pose a significant burden on management, because it would involve keeping track of literally hundreds of doors and the signs placed on them. And in any event, size restrictions would not resolve the problem of offensive messages and would not eliminate the need for refinishing doors damaged when messages were placed on them.\n¶41 These reasons for adopting a complete ban on signage and decorations on the exterior sides of the doors leading to individual apartment units are reasonable in light of the purposes of the apartment buildings and the doors.\n¶42 Contrary to the majority’s approach, under well-settled precedent this court should apply a forum analysis to determine the standard to apply in assessing the constitutionality of rule 42. Under this analysis, the rule is constitutional under the First Amendment and article I, section 5.\n2. The Housing Authority as Landlord Retained Control over the Apartment Doors\n¶43 The majority refuses to follow the forum analysis because it says that the tenant, rather than the landlord, controls the exterior of the door leading into the individual apartment unit. The majority relies on authority addressing whether a landlord had a duty to maintain a stairway, Andrews v. McCutcheon, 17 Wn.2d 340, 135 P.2d 459 (1943), and concludes that the doors are appurtenant to the rented premises. I am not convinced that landlord-tenant cases resolve the question, but in any event the majority’s conelusion is not supported by precedent on landlord-tenant law in this state.\n¶44 “A landlord has a duty to maintain, control and preserve retained portions of the premises subject to a leasehold in a manner rendering the demised premises adequate for the tenant’s use and safe for occupancy by both the tenant and his invitees.” Cherberg v. Peoples Nat’l Bank of Wash., 88 Wn.2d 595, 601, 564 P.2d 1137 (1977). The Housing Authority retained ownership and control over the doors. Rule 16 requires all apartment entry doors to remain closed except when in use in order to maintain the fire rating of the apartment building and to ensure the privacy and security of all residents. Thus, the lease agreements between tenants and the Housing Authority expressly provide that the Housing Authority as landlord reserved control over the doors. It therefore has a duty to maintain and control these areas so that they are adequate for the tenants’ use and safety. If the Housing Authority fails to maintain a resident’s door, any resulting threat to a tenant’s safety would “constitute an actionable constructive eviction.” Cherberg, 88 Wn.2d at 601.\n¶45 In addition, a landlord is presumed to retain control over all common areas of its leased premises and is responsible for maintaining these areas. Leuch v. Dessert, 137 Wash. 293, 295, 242 P. 14 (1926). Common areas include “common passageways.” McCutcheon v. United Homes Corp., 79 Wn.2d 443, 445, 486 P.2d 1093 (1971). Apartment doors constitute an integral part of corridors in the apartment buildings and thus are an integral part of the common passageways, i.e., common areas. The Housing Authority concedes that it is fully responsible for repair and replacement of damaged apartment doors and is liable for injuries that result from defective doors. Thus, if a third party passing through the hall of one of the buildings kicked a resident’s door in, the landlord would have to repair the door. If a door was defective and injured a person passing by in the hall, the landlord would be responsible, not the tenant. The landlord, i.e., the Housing Authority, would be responsible for repair as well.\n¶46 Under our precedent, the doors are not within the tenants’ control because the Housing Authority as landlord expressly retained its interest in the doors to the apartments within the buildings and also because the exteriors of the doors constitute part of the common area. The majority’s assessment of state landlord-tenant law is unfortunately incomplete and erroneous. The court should hold that the landlord controls the exterior of the doors to the apartment units.\n3. City of Ladue v. Gilleo Does Not Apply\n¶47 Finally, the majority’s conclusion that this case is controlled by Gilleo is wrong because Gilleo simply does not apply to these circumstances. Gilleo involved a challenge to a city ordinance that banned all residential signs except those falling within 10 specified exemptions. The primary reason for the ban was minimizing visual clutter. The plaintiff challenged the ordinance, claiming it violated her free speech rights because she was prevented from displaying a political message on her property.\n¶48 The United States Supreme Court held that the ordinance violated the First Amendment. Central to its disposition was the fact that the ordinance, enacted in the exercise of the city’s police power, banned speech on private residential property. The Court first observed that although signs are a form of expression, “they pose distinctive problems that are subject to municipalities’ police powers.” Gilleo, 512 U.S. at 48 (emphasis added). Signs can be legitimately regulated because they “take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems.” Id. But the ordinance at issue “almost completely foreclosed a venerable means of communication that is both unique and important . . . residential signs.” Id. at 54-55. The Court explained that “[a] special respect for individual liberty in the home has long been part of our culture and our law.” Id. at 58. The Court explained that it had upheld an ordinance prohibiting the placement of signs on public property in Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 104 S. Ct. 2118, 80 L. Ed. 2d 772 (1984), but rejected the argument that the city’s asserted interest in aesthetics had been compromised because the city did not forbid signs on private property. Gilleo, 512 U.S. at 50. The Court emphasized the “ ‘private citizen’s interest in controlling the use of his own property.’ ” Id. (emphasis added) (quoting Vincent, 466 U.S. at 811).\n¶49 The Court held the ban violated the First Amendment. In doing so, the Court said that “[i]t bears mentioning that individual residents themselves have strong incentives to keep their own property values up and to prevent Visual clutter’ in their own yards and neighborhoods — incentives markedly different from those of persons who erect signs on others’ land ... or on public property.” Id. at 58.\n¶50 In the present case, in marked contrast, no government entity has enacted in the exercise of its police power any ordinance or regulation that applies within its governmental jurisdiction. The Housing Authority adopted rule 42 as a landlord, to apply to its rental property — a nonpublic forum. As explained above, and it bears repeating, “ ‘[t]he State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.’ ” Perry, 460 U.S. at 46 (alteration in original) (internal quotation marks omitted) (quoting U.S. Postal Serv., 453 U.S. at 129-30); see de la O, 417 F.3d at 505 (distinguishing Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Village of Stratton, 536 U.S. 150, 122 S. Ct. 2080, 153 L. Ed. 2d 205 (2002), where the Court invalidated an ordinance that required requesting a permit before engaging in door-to-door activities, on the ground that there the ordinance at stake applied to the entire municipality and was not limited to nonpublic forums such as the public housing facilities in de la O).\n¶51 The United States Supreme Court has recognized the difference between government regulations passed and enforced by a government entity in the capacity of sovereign and acts taken by the government in the capacity of the landlord of property it owns and controls. In Department of Housing & Urban Development v. Rucker, 535 U.S. 125, 122 S. Ct. 1230, 152 L. Ed. 2d 258 (2002), tenants challenged a provision of the Anti-Drug Abuse Act of 1988, 42 U.S.C. § 1437d(l)(6), that authorized eviction of tenants from public housing developments on the basis of drug-related criminal activity engaged in by the tenants’ household members, guests, or other persons, regardless of whether the tenants knew of the activity. The Court rejected claims of deprivation of property rights and violation of due process, and in doing so distinguished between cases where the government acted as sovereign and cases where the government is not attempting to criminally punish or civilly regulate individuals as members of the general populace, but is instead acting as the landlord of property that it owns. Rucker, 535 U.S. at 135.\n¶52 Here, the apartment buildings are owned and controlled by the Housing Authority; the apartment units are not the private property of the residents. This is a critical distinction, as a simple example shows. If a private owner imposed a restriction like rule 42 on its apartment complexes rented to tenants, there would be no merit to an argument that the restriction is unconstitutional under the First Amendment because the apartment units are the tenants’ residences. There would be no state action. Thus, it is clear that it is not merely the nature of the property as a residence that controls, but other factors must be considered as well. In Gilleo, the property involved was the challenger’s own private property. Here, the property is public property. In Gilleo, the ordinance was enacted by the city to apply to the general populace. Here, the Housing Authority is not attempting to criminally punish or civilly regulate but instead adopted rule 42 as a landlord attempting to manage its property and avoid signs and decorations on doors that are offensive to tenants, are unattractive, and cause damage to the doors. In Gilleo the property owners had strong incentives to keep their own property values up and prevent visual clutter in their own yards.\n¶53 The majority is wrong in concluding that the holding in Gilleo applies any time that a residence is involved. The Court simply did not address in Gilleo the question of whether the First Amendment would be offended by a sign restriction applying to public property owned and managed by a public housing authority acting as the owner-landlord. Nor did the Court say or imply that any and all residences would come within its holding. Moreover, in other cases the Court has not applied a blanket First Amendment protection to activity within apartments in a public housing development. See Rucker, 535 U.S. at 136 n.6 (rejecting tenants’ First Amendment freedom of association claim).\n¶54 The United States Supreme Court has also made it clear that the financial circumstances of the tenants, as low income persons entitled to public housing assistance, do not require that a different constitutional standard be applied here than would apply if wealthy individuals renting upscale penthouse apartments in a privately owned apartment building had to comply with a rule prohibiting signs on their doors. In Lyng v. International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, 485 U.S. 360, 180 S. Ct. 1184, 99 L. Ed. 2d 380 (1988), the Court addressed claims arising from a provision in the Food Stamp Act, 7 U.S.C. § 2015(d)(3), that precluded households from becoming eligible for food stamps if a member of the household was on strike, and also prohibited an increase in the food stamp allotment for a household if household income was decreased as a result of a member being on strike. Strikers argued that the law violated their First Amendment associational rights because it made it harder for strikers to maintain themselves and their families and exerted pressure on them to abandon their union.\n¶55 The Court recognized that the strikers would be better off if food stamps were available, but the right of association “does not require the Government to furnish funds to maximize the exercise of that right.” Lyng, 485 U.S. at 368. The Court observed that it had held in several contexts “ ‘that a legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right.’ ” Id. (quoting Regan v. Taxation with Representation of Wash., 461 U.S. 540, 549, 103 S. Ct. 1997, 76 L. Ed. 2d 129 (1983)). The Court then turned to the strikers’ claim that the law abridged their right to express themselves about union matters free of government coercion. The Court said that the law\nrequires no exaction from any individual; it does not “coerce” belief; and it does not require appellees to participate in political activities or support political views with which they disagree. It merely declines to extend additional food stamp assistance to striking individuals simply because the decision to strike inevitably leads to a decline in their income.\nId. at 369.\n¶56 Most significantly, for purposes of this case, the Court then said: “[E]ven where the Constitution prohibits coercive governmental interference with specific individual rights, it ‘ “does not confer an entitlement to such funds as may be necessary to realize all the advantages of that freedom.” ’ ” Id. (quoting Regan, 461 U.S. at 550 (quoting Harris v. McRae, 448 U.S. 297, 318, 100 S. Ct. 2671, 65 L. Ed. 2d 784 (1980))). Thus, while a tenant in low income public housing does not have the financial ability to own a private residence, to which the rule of Gilleo might be applied, that does not mean that constitutional principles must be altered to permit expressive activity where it would not be required if the tenants were wealthy individuals choosing to live in leased premises.\n¶57 Finally, while there is undoubtedly concern about tenants being able to express their views, it is also important to remember that there are neighbors with rights as well. The First Amendment does not require others “to listen to or view any unwanted communication, whatever its merit.” Rowan v. U.S. Post Office Dep’t, 397 U.S. 728, 737, 90 S. Ct. 1484, 25 L. Ed. 2d 736 (1970). And where that message is offensive, as a swastika, pornography, or profanity is to many individuals, the rights of the neighbors who must live in Housing Authority property should not be ignored.\nCONCLUSION\n¶58 A forum analysis is necessary to determine the standard that applies to assess the constitutionality of rule 42, which the Housing Authority adopted and which bans all signs and decorations on the exterior side of doors to individual apartment units. Under this analysis, the doors are a nonpublic forum and rule 42 does not violate the First Amendment or article I, section 5 because it is content-neutral and reasonable in light of the purpose of the public housing apartments and doors. The majority erroneously concludes that the doors are in the control of the tenants and erroneously applies case law that pertains to ordinances affecting privately owned property, not rules adopted by the government in its capacity as the landlord of public housing.\nChambers, Fairhurst, and J.M. Johnson, JJ., concur with Madsen, J.\nThe out of state authority relied on by the Resident Action Council in fact supports this conclusion. In Nyer v. Munoz-Mendoza, 385 Mass. 184, 430 N.E.2d 1214 (1982), the court held that a tenant who rented a three bedroom apartment consisting of two stories had control of the door to the tenant’s apartment and was entitled to place a sign there. However, the court expressly distinguished situations where a “letting of ‘rooms’ ” was at issue and situations where the use to which the exterior of a door is put interferes with or precludes use by the landlord and other tenants of common areas. Id. at 187 n.5, 188 n.7."", ""type"": ""dissent"", ""author"": ""Madsen, J.""}], ""attorneys"": [""James E. Fearn, Jr. (of Seattle Housing Authority), for appellants."", ""Erie Dunn (of Northwest Justice Project), for respondent.""], ""corrections"": """", ""head_matter"": ""[No. 80006-5.\nEn Banc.]\nArgued May 31, 2007.\nDecided January 3, 2008.\nResident Action Council, Respondent, v. The Seattle Housing Authority et al., Appellants.\nJames E. Fearn, Jr. (of Seattle Housing Authority), for appellants.\nErie Dunn (of Northwest Justice Project), for respondent.""}, ""cites_to"": [{""cite"": ""418 U.S. 405"", ""year"": 1974, ""weight"": 3, ""case_ids"": [6173167], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""page"": ""408"", ""parenthetical"": ""statute forbidding the attachment of symbols to United States flag unconstitutional as applied; among \""important\"" factors was that display occurred on private property""}, {""parenthetical"": ""statute forbidding the attachment of symbols to United States flag unconstitutional as applied; among \""important\"" factors was that display occurred on private property""}, {""parenthetical"": ""statute forbidding the attachment of symbols to United States flag unconstitutional as applied; among \""important\"" factors was that display occurred on private property""}], ""case_paths"": [""/us/418/0405-01""], ""opinion_index"": 0}, {""cite"": ""854 P.2d 1046"", ""year"": 1993, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""pin_cites"": [{""parenthetical"": ""finding Tacoma's interests in aesthetics and traffic safety sufficient to justify reasonable content-neutral regulation of noncommunicative aspects like size and spacing""}], ""opinion_index"": 0}, {""cite"": ""121 Wn.2d 737"", ""year"": 1993, ""case_ids"": [1365805], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""752"", ""parenthetical"": ""finding Tacoma's interests in aesthetics and traffic safety sufficient to justify reasonable content-neutral regulation of noncommunicative aspects like size and spacing""}], ""case_paths"": [""/wash-2d/121/0737-01""], ""opinion_index"": 0}, {""cite"": ""417 F.3d 495"", ""year"": 2005, ""case_ids"": [8941074], ""category"": ""reporters:federal"", ""reporter"": ""F.3d"", ""pin_cites"": [{""parenthetical"": ""finding the common areas of public housing facilities are public property and nonpublic forums""}], ""case_paths"": [""/f3d/417/0495-01""], ""opinion_index"": 0}, {""cite"": ""135 P.2d 459"", ""year"": 1943, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""17 Wn.2d 340"", ""year"": 1943, ""case_ids"": [2580977], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""344-45""}], ""case_paths"": [""/wash-2d/17/0340-01""], ""opinion_index"": 0}, {""cite"": ""943 P.2d 1358"", ""year"": 1997, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""937 P.2d 154"", ""year"": 1997, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""132 Wn.2d 103"", ""year"": 1997, ""case_ids"": [498215], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""114""}], ""case_paths"": [""/wash-2d/132/0103-01""], ""opinion_index"": 0}, {""cite"": ""512 U.S. 43"", ""year"": 1994, ""weight"": 14, ""case_ids"": [39640], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""page"": ""54""}, {""page"": ""54""}, {""page"": ""57""}, {""page"": ""56""}, {""page"": ""58""}, {""page"": ""50-51""}, {""page"": ""56""}, {""page"": ""56""}, {""page"": ""58"", ""parenthetical"": ""Ladue residents had a strong incentive to keep their own property values up and to prevent visual clutter, \""incentives markedly different from those of persons who erect signs on others' land.\""""}, {""page"": ""58""}], ""case_paths"": [""/us/512/0043-01""], ""opinion_index"": 0}, {""cite"": ""430 N.E.2d 1214"", ""year"": 1982, ""weight"": 2, ""category"": ""reporters:state_regional"", ""reporter"": ""N.E.2d"", ""opinion_index"": 1}, {""cite"": ""385 Mass. 184"", ""year"": 1982, ""case_ids"": [900723], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/385/0184-01""], ""opinion_index"": 1}, {""cite"": ""397 U.S. 728"", ""year"": 1970, ""weight"": 3, ""case_ids"": [12058121], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""page"": ""737""}], ""case_paths"": [""/us/397/0728-01""], ""opinion_index"": 1}, {""cite"": ""448 U.S. 297"", ""year"": 1980, ""weight"": 3, ""case_ids"": [1787609], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""page"": ""318""}], ""case_paths"": [""/us/448/0297-01""], ""opinion_index"": 1}, {""cite"": ""461 U.S. 540"", ""year"": 1983, ""weight"": 4, ""case_ids"": [11298910], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""page"": ""549""}, {""page"": ""550""}], ""case_paths"": [""/us/461/0540-01""], ""opinion_index"": 1}, {""cite"": ""7 U.S.C. § 2015"", ""category"": ""laws:leg_statute"", ""reporter"": ""U.S.C."", ""pin_cites"": [{""page"": ""(d)(3)""}], ""opinion_index"": 1}, {""cite"": ""180 S. Ct. 1184"", ""year"": 1988, ""category"": ""reporters:federal"", ""reporter"": ""S. Ct."", ""opinion_index"": 1}, {""cite"": ""485 U.S. 360"", ""year"": 1988, ""weight"": 4, ""case_ids"": [13296], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""page"": ""368""}], ""case_paths"": [""/us/485/0360-01""], ""opinion_index"": 1}, {""cite"": ""535 U.S. 125"", ""year"": 2002, ""weight"": 5, ""case_ids"": [354747], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""page"": ""135""}], ""case_paths"": [""/us/535/0125-01""], ""opinion_index"": 1}, {""cite"": ""536 U.S. 150"", ""year"": 2002, ""weight"": 3, ""case_ids"": [1255018], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/536/0150-01""], ""opinion_index"": 1}, {""cite"": ""466 U.S. 789"", ""year"": 1984, ""weight"": 4, ""case_ids"": [6206324], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""page"": ""811""}], ""case_paths"": [""/us/466/0789-01""], ""opinion_index"": 1}, {""cite"": ""486 P.2d 1093"", ""year"": 1971, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 1}, {""cite"": ""79 Wn.2d 443"", ""year"": 1971, ""case_ids"": [1070643], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""445""}], ""case_paths"": [""/wash-2d/79/0443-01""], ""opinion_index"": 1}, {""cite"": ""242 P. 14"", ""year"": 1926, ""category"": ""reporters:state_regional"", ""reporter"": ""P."", ""opinion_index"": 1}, {""cite"": ""137 Wash. 293"", ""year"": 1926, ""case_ids"": [812042], ""category"": ""reporters:state"", ""reporter"": ""Wash."", ""pin_cites"": [{""page"": ""295""}], ""case_paths"": [""/wash/137/0293-01""], ""opinion_index"": 1}, {""cite"": ""564 P.2d 1137"", ""year"": 1977, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 1}, {""cite"": ""88 Wn.2d 595"", ""year"": 1977, ""case_ids"": [1111226], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""601""}], ""case_paths"": [""/wash-2d/88/0595-01""], ""opinion_index"": 1}, {""cite"": ""96 P.3d 979"", ""year"": 2004, ""category"": ""reporters:state_regional"", ""reporter"": ""P.3d"", ""opinion_index"": 1}, {""cite"": ""152 Wn.2d 343"", ""year"": 2004, ""case_ids"": [1217438], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""350-51""}], ""case_paths"": [""/wash-2d/152/0343-01""], ""opinion_index"": 1}, {""cite"": ""505 U.S. 672"", ""year"": 1992, ""weight"": 4, ""case_ids"": [1480771], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""page"": ""678""}], ""case_paths"": [""/us/505/0672-01""], ""opinion_index"": 1}, {""cite"": ""454 U.S. 263"", ""year"": 1981, ""weight"": 3, ""case_ids"": [6185829], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""page"": ""267""}], ""case_paths"": [""/us/454/0263-01""], ""opinion_index"": 1}, {""cite"": ""420 U.S. 546"", ""year"": 1975, ""weight"": 3, ""case_ids"": [11644191], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""page"": ""555""}], ""case_paths"": [""/us/420/0546-01""], ""opinion_index"": 1}, {""cite"": ""473 U.S. 788"", ""year"": 1985, ""weight"": 4, ""case_ids"": [6206353], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""page"": ""802"", ""parenthetical"": ""quoting Perry, 460 U.S. at 45""}, {""parenthetical"": ""quoting Perry, 460 U.S. at 45""}, {""parenthetical"": ""quoting Perry, 460 U.S. at 45""}, {""page"": ""802""}], ""case_paths"": [""/us/473/0788-01""], ""opinion_index"": 1}, {""cite"": ""221 F. 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+3777457,"{""id"": 3777457, ""name"": ""Commonwealth vs. Steven J. Burgess"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""4a863bbb3295bd59bc088da07f3554391faa88f7197608acebe5a200f21e8962"", ""simhash"": ""1:44a43b4fc6888162"", ""pagerank"": {""raw"": 0.00000029583096801778747, ""percentile"": 0.8493829176913403}, ""char_count"": 44189, ""word_count"": 7027, ""cardinality"": 1528, ""ocr_confidence"": 0.929}, ""casebody"": {""judges"": [], ""parties"": [""Commonwealth vs. Steven J. Burgess.""], ""opinions"": [{""text"": ""Cowin, J.\nThe defendant, Steven Burgess, was convicted of murder in the first degree on theories of deliberate premeditation and extreme atrocity and cruelty. He was also convicted of violation of a protective order. The defendant appeals from his convictions. He raises several issues concerning two sets of statements made by the victim to police. He alleges that (1) these statements were “testimonial” and thus rendered inadmissible by the confrontation clause of the Sixth Amendment to the United States Constitution; (2) one set of the statements was admitted improperly in violation of the rule against hearsay; (3) the judge’s failure to instruct regarding the victim’s statements created a substantial likelihood of a miscarriage of justice; and (4) trial counsel’s failure to request a limiting instruction regarding the statements deprived the defendant of his right to effective assistance of counsel. The defendant maintains also that the Commonwealth’s hypothetical questions to expert witnesses improperly invaded the jury’s role in assessing the evidence, and that the judge erred by denying defense counsel’s request for jury instructions on voluntary manslaughter and on involuntary manslaughter. Finally, the defendant urges that, if the conviction for murder in the first degree is not reversed, we should exercise our extraordinary power under G. L. c. 278, § 33E, to order a new trial or direct the entry of a verdict of a lesser degree of guilt. We affirm the convictions, and we see no basis for exercising our power under G. L. c. 278, § 33E.\nFacts and background. We recite the facts the jury could have found, reserving further details for discussion in conjunction with the specific issues raised. In the early morning of May 1, 2000, the defendant walked into the Plymouth police station and reported that he had stabbed his father during a fight the previous night, and that his father was dead. Police officers were dispatched to the house that the defendant shared with his father; there, they found the body of the defendant’s father, James Burgess, in the bathtub. The two stab wounds on the victim were consistent with the victim having been attacked from behind. Either of the stab wounds would have been fatal, and death likely occurred within five to ten minutes. Evidence suggested that the victim was stabbed in or near the kitchen area of the house and then made his way down a hall to the bathroom, where he died. The murder weapon, a kitchen knife, was found on the edge of the bathroom sink; the defendant’s fingerprints were on the handle. Although the defendant claimed that he and his father had fought physically in the kitchen, there were no obvious signs of a struggle there, and the defendant had no bruises on his body save for a small cut on his right index finger and two marks on the side of his neck. One of the neck abrasions was consistent with a person having been scratched.\nThe defense at trial was that the defendant’s father had been the aggressor and that the defendant acted in self-defense. The judge instructed the jury on self-defense and voluntary manslaughter on the theory of excessive force in self-defense, but refused to instruct on voluntary manslaughter on a theory of reasonable provocation or sudden combat and also on involuntary manslaughter.\nDuring trial, the Commonwealth moved to introduce testimony from two police officers who had been called to the Burgess residence in the months before the murder, one on February 10, and the other on February 23, 2000. After conducting a voir dire of both police officers, the judge ruled that the victim’s statements on both occasions were admissible as spontaneous utterances. Before the jury, Officer William Bordello testified that, on February 10, 2000, he responded to what was described as an “unwanted guest” call at the Burgess home. The victim answered the door and told the officer that he was concerned for his son and for himself, and that he wanted his son to “get some type of medical evaluation.” The victim looked “very concerned” and the defendant seemed “very agitated.” The officer observed the defendant pacing back and forth, gesturing with his hands, and saying that he was being followed and that he believed his father was having him watched. The officers saw no sign of any physical altercation. The defendant was removed from the house.\nOfficer Dennis Hassan, Jr., testified that on February 23, 2000, he was dispatched to the house in response to a 911 hang-up call. He heard “loud yelling and arguing coming from the home” as he approached the house, and could distinguish “two voices.” Hassan knocked on the door; it was opened by the victim, who appeared “very upset” and “was shaking.” The officer asked him “if everything was okay”; the victim answered, “No, it’s not.” The officer asked “what was going on”; the victim answered that “he and his son were arguing,” “arguing over [the defendant] and [that the defendant] needed counseling, professional help,” but refused. The officer saw the defendant near the hall in a comer of the living room by the kitchen. The victim told the officer that they had been arguing about the defendant’s “living at the home,” and the defendant “became very angry” with his father. The victim said that the defendant “clenched his fists and started to advance towards [the victim], stating that he’d fucking kill [the victim].” The victim said he told the defendant he had to leave the home, and that the defendant responded “that he’d come back with a gun and shoot him dead.” Hassan testified that the victim indicated that he was afraid of the defendant, and told Hassan that he “felt that [the defendant] was very capable of coming back and doing something to him.” The officer spoke with the defendant, who acknowledged that he and his father had been arguing over the defendant. As on the previous occasion, the defendant was removed from the home; on this occasion, the victim obtained a restraining order against the defendant, requiring him to vacate the house and refrain from abusing the victim. The order was later modified to allow the defendant to move back into the victim’s house.\nDiscussion. Confrontation clause. The defendant contends that the admission in evidence of the victim’s statements to police on February 10 and 23, 2000, violate his right to confrontation under the Sixth Amendment to the United States Constitution. In particular, the defendant maintains that statements made by the victim to police were “testimonial” under the United States Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004) (Crawford), and there had been no opportunity to subject those statements to cross-examination.\nThe defendant was tried eleven months before the decision in Crawford, supra, in which the Court announced a “new rule” concerning the confrontation clause. Whorton v. Bockting, 127 S. Ct. 1173, 1181 (2007). The Commonwealth concedes that the Crawford principles govern the disposition of the defendant’s Sixth Amendment claims. Griffith v. Kentucky, 479 U.S. 314, 322 (1987) (“failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication”).\nIn Crawford, the Supreme Court held that a witness’s out-of-court “testimonial” statements were inadmissible at trial except where the witness was unavailable and the defendant had prior opportunity for cross-examination. Crawford, supra at 59. The Court stated that the confrontation clause applied to “witnesses” against the accused, “in other words, those who ‘bear testimony.’ ” Id. at 51. “ ‘Testimony,’ in turn, is typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” Id., quoting 2 N. Webster, An American Dictionary of the English Language (1828). By barring testimonial statements from evidence except in limited circumstances, the Sixth Amendment sought to avert the “principal evil [of the] civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.” Id. at 50. The Court declined to provide a “comprehensive definition” of testimonial statements, id. at 68, but discussed various formulations of the “core class” of testimonial statements:\n“[1] ‘ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially’ . . . ; [2] ‘extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions’, White v. Illinois, 502 U.S. 346, 365 (1992) (Thomas, J., joined by Scalia, J., concurring in part and concurring in judgment); [or, 3] ‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’ ”\nId. at 51-52. The Court held that statements “taken by police officers in the course of interrogations” are testimonial “under even a narrow standard.” Id. at 52. “Interrogation” was used colloquially, rather than in any technical legal sense. Id. at 53 n.4. The Court concluded that a wife’s statements to police officers during the course of a formal police interrogation were inadmissible against her husband at his trial for assault and attempted murder of a third party. Id. at 40, 68-69.\nIn Davis v. Washington, 126 S. Ct. 2266, 2273 (2006) (Davis), the Court discussed the nature of “testimonial” statements barred from admission in the specific context of police interrogation. The Davis decision involved two consolidated cases concerning 911 calls and initial police interrogation. In the first case, the victim, as she was being attacked, reported a domestic disturbance to the 911 dispatcher and identified her attacker as her former boy friend. Id. at 2270-2271. At trial, the caller did not testify, and the judge admitted a tape recording of the 911 conversation. Id. In the second case, police responded to a “reported domestic disturbance,” id. at 2272, but when they arrived, the wife told them that “nothing was the matter.” Id. The husband reported that the couple had been arguing but that no physical violence had occurred. Id. The police separated the spouses and took a statement from the wife in which she recounted that her husband “[bjroke” furniture, “shoved” and “[h]it’* her, and “[ajttacked my daughter.” Id. The husband was later charged with domestic battery and violating his probation. Id. At the subsequent bench trial, the wife was subpoenaed but did not appear; instead, the officer who had questioned her testified about her statements. Id. The Court held that the statements to the 911 operator in the first case were nontestimonial and thus admissible even without the unavailability of the witness and an opportunity for cross-examination. Id. at 2277. It concluded that the statements in the second case were testimonial. Id. at 2278.\nThe Davis Court again declined to produce an exhaustive definition of testimonial versus nontestimonial statements. Id. at 2273. It did, however, indicate that “[statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency . . . .” Id. at 2273-2274. In addition, the Court provided various indicia that help determine whether the “primary purpose” of a statement obtained during interrogation may be seen as testimonial, including (1) whether the declarant was speaking about “events as they were actually happening rather than describing] past events”; (2) whether a reasonable interrogator would recognize that the declarant was facing an “ongoing emergency”; (3) whether the question and answer were, viewed objectively, “necessary to be able to resolve the present emergency, rather than simply to learn . . . what had happened in the past,” including whether it was necessary for the interrogator to know the identity of the alleged perpetrator; and (4) the “level of formality” of the interview. Id. at 2276-2277 (emphasis in original). The Court noted that “statements made in the absence of any interrogation are [not] necessarily nontestimonial,” id. at 2274 n.1, and that “even when interrogation exists, it is in the final analysis the declarant’s statements, not the interrogator’s questions, that the [c]onfrontation [c]louse requires us to evaluate,” id.\nThe Court determined that the victim’s statements in the first case in Davis were made “in an environment that was not tranquil, or even (as far as any reasonable 911 operator could make out) safe.” Id. at 2277. The operator’s efforts to establish the identity of the assailant and the details of the crime scene were crucial “so that the dispatched officers might know whether they would be encountering a violent felon,” and were thus necessary to resolve the ongoing emergency. Id. at 2276. In contrast, the statements in the second case concerned past actions, and should have been excluded. Id. at 2278-2279.\nAfter the Supreme Court’s decision in Crawford, but before its decision in Davis, this court addressed the issue of testimonial statements in Commonwealth v. Gonsalves, 445 Mass 1 (2005), cert. denied, 126 S. Ct. 2980, 2982 (2006). Our decision in Gonsalves attempted to fill in the gaps left by the Supreme Court’s opinion in Crawford by providing a two-step procedure for distinguishing testimonial from nontestimonial statements. We held that statements “made in response to questioning by law enforcement agents are per se testimonial, except when the questioning is meant to secure a volatile scene or to establish the need for or provide medical care.” Commonwealth v. Gonsalves, supra at 3. “[O]ut-of-court statements made in response to questions from people who are not law enforcement agents” and “statements offered spontaneously, without prompting, regardless of who heard them,” are not testimonial per se. Id. at 11. However, “out-of-court statements that are not testimonial per se must be examined to determine if they are nonetheless testimonial in fact by evaluating whether a reasonable person in the declarant’s position would anticipate his statement being used against the accused in investigating and prosecuting a crime.” Id. at 3. We adopted this articulation as the approach most consistent with Crawford and the historical purpose of the confrontation clause. Id. at 12.\nApplying this two-step test to the facts of the Gonsalves case, we concluded that the complainant’s answers to police questioning were testimonial per se because, “although the complainant remained upset, the situation had diffused”; nothing in the record indicated that the officer’s questioning of the complainant was designed to secure the scene or to inquire about medical needs. Id. at 16-17. The complainant’s responses to her mother’s questions before the police arrived, however, were nontestimonial. Id. at 17-18. The statements were not testimonial per se because the mother’s questioning could not be considered to be police interrogation, id. at 17; they were not testimonial in fact because nothing in the record indicated that the complainant offered the statements in order to establish the facts for later use by law enforcement, and we saw “no reason why a reasonable person in the complainant’s position would anticipate that her statement, made in her own bedroom, to her mother, apparently without any knowledge that the police would become involved, would be used against the defendant in investigating and prosecuting the alleged assault.” Id. at 18.\nOur rationale in the Gonsalves decision is in accord with the Supreme Court’s decision in Davis, and we apply the Gonsalves two-step test to the facts of the present case. We conclude that all but one of the victim’s statements to police on February 10 and 23 were testimonial, and that it was therefore error to admit them. The victim’s statements to Officer Borriello on February 10 were per se testimonial because they were made in response to police interrogation that was not meant to secure a volatile situation or procure needed medical attention. Commonwealth v. Gonsalves, supra at 3, 17. The circumstances indicated that there was no ongoing emergency, Davis, supra at 2273-2274. Although the victim appeared distressed, whatever may have prompted his call to the police had ended. The officer saw no sign of any physical altercation, and the victim’s statements that he was concerned for his son and for himself, and that he wanted his son to “get some sort of medical evaluation,” were not in response to questioning meant to address immediate medical needs. Nor did they indicate a need for urgent medical attention. They did not provide information “necessary to be able to resolve the present emergency, rather than simply to leam . . . what had happened in the past.” Davis, supra at 2276 (emphasis in original).\nAll but one of the victim’s statements to Officer Hassan on February 23 were testimonial. The victim’s response, “No, it’s not,” to Hassan’s initial inquiry whether “everything was okay” is nontestimonial. Hassan had just arrived in response to a 911 hang-up call, had heard loud voices arguing and yelling, and saw a person who “was shaking.” In these circumstances, the officer’s query and the victim’s response were part of an attempt by the police to comprehend and deal with what appeared to be a volatile situation. Commonwealth v. Gonsalves, supra at 3. Further, the victim’s response was not testimonial in fact, as a reasonable person in the victim’s position would not anticipate that his response regarding whether the general situation was “okay” would be used against a specific defendant in investigating and prosecuting a crime. Id. In contrast, the officer’s subsequent questions and the victim’s responses were testimonial per se, as it was then visible to the officer that the defendant was not behaving dangerously; the victim was providing more extended answers to the officer’s inquiries; and it was reasonable to conclude that his responses could subsequently be used in a prosecution of the defendant. See id. at 16-17.\nThe defendant did not object on the basis of the confrontation clause either in pretrial hearings or at trial. He thus failed to preserve a challenge to the February statements on constitutional grounds. Commonwealth v. Galicia, 447 Mass. 737, 746 (2006). Nevertheless, we excuse the failure to raise a constitutional issue at trial or on direct appeal when the constitutional theory on which the defendant relies was not sufficiently developed at the time of trial or direct appeal to afford the defendant a genuine opportunity to raise his claim at those junctures of the case. Commonwealth v. Rembiszewski, 391 Mass. 123, 126 (1984), citing DeJoinville v. Commonwealth, 381 Mass. 246, 248 (1980). If constitutional error has occurred, we reverse the conviction unless the error was harmless beyond a reasonable doubt. Commonwealth v. Rembiszewski, supra. We conclude that the error here was harmless beyond a reasonable doubt.\nThe defendant argues that the February statements substantiated the Commonwealth’s theory that the defendant murdered his father with deliberate premeditation. However, the “erroneously admitted evidence was ‘merely cumulative’ of evidence properly before the [fact finder].” Commonwealth v. Galicia, supra at 748, quoting Commonwealth v. Sinnott, 399 Mass. 863, 872 n.8 (1987). Deliberate premeditation consists of “a plan to murder . . . formed after the matter had been made a subject of deliberation and reflection,” but “in view of the quickness with which the mind may act,” such deliberation may take “a matter of days, hours, or even seconds.” Commonwealth v. Tucker, 189 Mass. 457, 494-495 (1905). “It is not so much a matter of time as of logical sequence. First the deliberation and premeditation, then the resolution to kill, and lastly the killing in pursuance of the resolution; and all this may occur in a few seconds.” Id. at 495.\nThere was substantial other evidence of premeditation from the testimony of the defendant’s sister, Kelly Burgess; his former girl friend, Meredith Porter; and the victim’s girl friend, Kristine Fox. Meredith Porter stated that in March, 2000, the defendant seemed unusually “upset and angry.” He told her that he had argued with his father about money, that his father did not help the defendant obtain a job, and that his father suggested that the defendant obtain counseling. The defendant told Porter that he “hated” his father, and that “he wanted to get him.”\nKelly Burgess testified that the relationship between the defendant and the victim “deteriorated” into frequent arguments between January, 2000, and the time of the murder, and that, by March, 2000, the victim seemed to be “walking on eggshells” around the defendant. She stated that she spoke with the victim by telephone the night before the murder. During that conversation, the defendant had taken the telephone; his tone was “[v]cry sarcastic and he was angry,” and the victim sounded “preoccupied and scared.” Kristine Fox testified that, in the three months before the murder, the victim’s demeanor changed from happy and outgoing to nervous and afraid, and that in March, 2000, the defendant had told her in a “loud and angry” tone that he hated his father. She also stated that, a month or two before the murder, the victim had brought a bag of guns from his house to the bar that he operated.\nThis testimony was supported further by the properly admitted observations of Officers Borriello and Hassan when they responded to the victim’s telephone calls. Borriello said that the victim made an “unwanted guest” call, that the victim looked “very concerned,” and that the defendant was removed from the house. Hassan observed that he responded to a 911 hang-up call at the victim’s home, that he heard two voices yelling and arguing, that the victim looked “very upset” and “was shaking” and told him that everything was not “okay,” and that the defendant said that he and the victim were arguing; as a result, the officer removed the defendant from the home. These observations further attest to the troubled relationship between the defendant and victim. Similarly, there was evidence that the victim obtained a restraining order against the defendant, requiring him to vacate the house and refrain from abusing the victim.\nIn addition, a finding of deliberate premeditation was clearly warranted from the stab wounds and forensic evidence. As we indicated above, deliberate premeditation can occur “within a few seconds,” Commonwealth v. Garabedian, 399 Mass. 304, 312 (1987), citing Commonwealth v. Tucker, supra at 494-495. “The severe injuries inflicted on the victim . . . demonstrated ‘a conscious and fixed purpose to kill continuing for a length of time . . . .’ ” Commonwealth v. Garabedian, supra at 312, quoting Commonwealth v. Satterfield, 362 Mass. 78, 82 (1972). The victim had two deep knife wounds, as well as a “punctate stab wound” most likely inflicted before the deeper wounds by the tip of a knife. Either of the stab wounds would have been fatal, and death likely occurred within five to ten minutes. The victim’s sweatshirt had been torn and stretched around the front of the collar. The evidence permitted the jury to find that the defendant “poked” the victim with the knife, grabbed the victim by the front of the victim’s shirt collar, perhaps as the victim attempted to escape, and stabbed him twice deeply from behind. The jury could infer that in this brief period of time, the defendant formulated a plan to kill the victim and executed that plan.\nHypothetical questions. The defendant argues that the judge erred by allowing the prosecutor to ask hypothetical questions to two expert witnesses because the questions contained facts not reasonably supported by the evidence and improperly invaded the fact-finding province of the jury. A hypothetical question must be “based on the facts in evidence,” Commonwealth v. Federico, 425 Mass. 844, 850 (1997), that is, “facts . . . testified to by [the expert witness] or upon facts assumed in the questions put to [the witness] and supported either by admitted facts or by the testimony of other witnesses already given or to be given at the trial, or upon facts derived partly from one source and partly from the other.” Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 527 (1986), quoting Commonwealth v. Russ, 232 Mass. 58, 73 (1919).\nThe hypothetical that the defendant claims are improper were posed to Detective Lieutenant Kenneth Martin, who had supervised evidence collection at the scene of the crime, and to Dr. James Weiner, who performed the autopsy of the victim. The prosecutor asked Martin two hypotheticals regarding the victim’s stab wounds and the blood spatters and trails in the victim’s home. The prosecutor first asked the expert to assume, among other facts, that (1) the victim “is poked by the assailant with the point of a knife in the abdomen area causing a punctate wound”; (2) “the assailant while behind and slightly to the right side of the victim takes the knife that he is holding in his right hand, blade down . . . and stabs the victim in a right to left, slightly downward direction once in the right chest or abdomen”; (3) “the assailant then removes the knife”; (4) “the victim places his hand with the fingers slightly curled to the wound”; (5) “the assailant in the same position as previously stated delivers a second stab wound to the right chest or abdomen; again right to the left and slightly downward; the knife comes in contact with the victim’s left hand, slicing the middle and index fingers and the thumb, either at the time of insertion or extraction”; and (6) “[t]he victim deposits blood droplets in the hall just outside the entrance to [a] kitchen [similar to the victim’s kitchen].” At the conclusion of this hypothetical, the prosecutor asked the witness: “Assuming those facts, do you have an opinion whether this scenario is consistent with what your observations were [of the crime scene]?” Over the defendant’s objection, the witness answered that the assumptions were consistent. The prosecutor then asked the witness to assume a second set of facts, including (1) “the bleeding victim, moving in the direction of the bathroom, comes into contact with the left and right foyer walls outside the bathroom and deposits blood stains in that area”; (2) the victim deposits blood on various surfaces in the bathroom, including the back and hinge side of the bathroom door; (3) the victim’s body is found in the bathtub; and (4) “at some point the assailant enters the bathroom and places the knife on the top of the vanity.” The prosecutor asked Martin whether, “[ajssuming those fact [sz'c], ... do you have an opinion whether they are consistent with your observations of the [crime] scene?” Martin again responded, over the defendant’s objection, that the assumptions were consistent with his observations at the victim’s home.\nThe defendant argues that the Martin hypotheticals contained facts not reasonably supported by the evidence. Our review of the record indicates that the Commonwealth’s hypotheticals were reasonably based on the evidence. There was evidence of three dime-sized drops of blood that marked the beginning of the blood trail from the kitchen to the bathroom, blood smears along the hall and in the bathroom, the location of the wounds, the fact that the victim’s sweatshirt had been tom and stretched around the front of the collar, and the positioning of the defendant’s fingerprints on the knife. The victim was found dead in the bathtub, and the murder weapon, a kitchen knife, was on the edge of the bathroom sink.\nHowever, we agree with the defendant that the hypotheticals were improper. First, the questions do not seek an expert opinion, but instead ask for Martin’s observations, phrased as expert opinion. Expert testimony is admissible when the testimony is “beyond the jury’s common knowledge and may aid them in reaching a decision.” Commonwealth v. Colin C., 419 Mass. 54, 60 (1994). “An expert may not, however, offer his opinion on issues that the jury are equally competent to assess, such as the credibility of witnesses.” Simon v. Solomon, 385 Mass. 91, 105 (1982). Martin’s observations are not an appropriate subject for an expert question; rather, Martin was asked to perform the jury function of evaluating whether his own testimony was consistent with other testimony. Second, the prosecutor essentially asked Martin to comment on the credibility of the Corm monwealth’s theory of the case by asking whether its theory was “consistent” with Martin’s observations. “On such questions, the influence of an expert’s opinion may threaten the independence of the jury’s decision.” Id. Because the objections were preserved, we evaluate them for prejudice, Commonwealth v. Jaime, 433 Mass. 575, 577 (2001). We determine that the errors were nonprejudicial. “[T]he error[s] did not influence the jury, or had but very slight effect,” because of the abundant physical and testimonial evidence against the defendant as to deliberate premeditation and extreme atrocity or cruelty. Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).\nIn contrast, the prosecutor’s hypothetical questions to Dr. Weiner were proper. The prosecutor asked Weiner, among other questions, whether the victim’s injuries were “consistent with the attacker coming up from behind and being slightly to the right side of the victim and coming in with the knife in ... a downward fashion.” The prosecutor’s questions were based on the evidence. They concerned a proper subject of expert testimony, as they asked the qualified witness to express an opinion based on the shape and placement of the wounds. Simon v. Solomon, supra (“expert testimony on matters within the witness’s field of expertise is admissible whenever it will aid the jury in reaching a decision”).\nClosing argument. The defendant also alleges that the prosecutor, in closing, improperly asked the jury to draw inferences that were not reasonably based on the evidence. In particular, the defendant points to the prosecutor’s statements to the jury that the defendant pursued the victim into the bathroom. As there were no objections to these statements at trial, our inquiry is confined to determining if they were improper and, if so, whether they created a substantial likelihood of a miscarriage of justice. Commonwealth v. Degro, 432 Mass. 319, 326 (2000).\nThere was no error. The Commonwealth may “attempt to assist the jury in their task of analyzing, evaluating, and applying evidence. Such assistance includes suggestions by counsel as to what conclusions the jury should draw from the evidence. Counsel may ‘fit all the pieces of evidence together so that they form a comprehensive and comprehensible picture for the jury.’ ” Commonwealth v. Corriveau, 396 Mass. 319, 336 (1985), quoting Commonwealth v. Ferreira, 381 Mass. 306, 316 (1980). The prosecutor’s portrayal of the defendant pursuing the victim into the bathroom was a reasonable inference from the evidence; there is evidence that, at some point, the defendant followed the victim into the bathroom, as the knife, with the defendant’s fingerprints, was found in the bathroom sink.\nJury instructions. The defendant contends that the judge erred in declining defense counsel’s request to instruct the jury on possible verdicts of voluntary manslaughter under a theory of heat of passion induced by reasonable provocation or by sudden combat and of involuntary manslaughter. The defendant’s trial counsel requested and received an instruction on self-defense. The judge also gave an instruction on voluntary manslaughter based on a theory of excessive force in self-defense.\nA manslaughter instruction is given when “any view of the evidence will permit a finding that the offence is manslaughter and not murder.” Commonwealth v. Brown, 387 Mass. 220, 227 (1982), quoting Commonwealth v. LePage, 352 Mass. 403, 419 (1967). Manslaughter is “the taking of human life by an act not justified in law, but without malice aforethought which is necessary to constitute murder.” Commonwealth v. Campbell, 352 Mass. 387, 396-397 (1967). Voluntary manslaughter is defined as a killing committed in “a sudden transport of passion or heat of blood, upon reasonable provocation and without malice, or upon sudden combat.” Id., quoting Commonwealth v. Bouvier, 316 Mass. 489, 494 (1944). “Sudden combat” is “one of the events which may provoke the perturbation of mind that can end in a killing without malice.” Commonwealth v. Peters, 372 Mass. 319, 324 (1977). Voluntary manslaughter may be based on a theory of the excessive use of force in self-defense. Commonwealth v. Walden, 380 Mass. 724, 729 (1980), citing Commonwealth v. Kendrick, 351 Mass. 203, 211-212 (1966).\nThe jury must be able to infer that a “reasonable person would have become sufficiently provoked and that, in fact, the defendant was provoked.” Commonwealth v. Garabedian, 399 Mass. 304, 313 (1987). Furthermore, “[a] verdict of voluntary manslaughter requires the trier of fact to conclude that there is a causal connection between the provocation, the heat of passion, and the killing.” Id., quoting Commonwealth v. Schnopps, 383 Mass 178, 180-181 (1981), S.C., 390 Mass. 722 (1984).\nThe evidence does not warrant a finding of reasonable provocation. Construing the evidence in the light most favorable to the defendant, Commonwealth v. Schnopps, supra at 179, in the defendant’s version of the encounter, he told the victim that the victim hurt his mother, and the victim responded by saying, “I’ll hurt you.” Insults and arguments are insufficient provocation for manslaughter. Commonwealth v. Dustin, 391 Mass. 481, 487, cert. denied, 469 U.S. 844 (1984). The defendant admitted to the police that the victim did not attack him with the knife, but claimed that the victim pushed him hard enough to cause the defendant to strike his back against the refrigerator or some object and bruise him. Physical contact between a defendant and a victim is not always sufficient to warrant a manslaughter instruction, even when the victim initiated the contact. Commonwealth v. Rembiszewski, 363 Mass. 311, 321 (1973) (“It is an extravagant suggestion that scratches [inflicted by the victim on the defendant’s face] could serve as provocation for a malice-free but ferocious attack by the defendant with a deadly instrument”). The alleged push against the refrigerator could not have roused “in an ordinary person such a state of passion, anger, fear, fright, or nervous excitement as would eclipse his capacity for reflection or restraint, and . . . actually . . . produce such a state of mind in the defendant.” Commonwealth v. Walden, supra at 728. The defendant did not testify at trial, and his statement to the police does not appear to explain how the argument became physical or how a knife became involved. The police found no marks on the defendant other than on the right side of his neck, and saw no sign of a struggle in the house. “The jury could not be permitted merely to speculate on whether the defendant in the course of the struggle might have been roused to the heat of passion.” Id.\nWe similarly discern no evidence to warrant an instruction on involuntary manslaughter. Involuntary manslaughter is “an unlawful homicide, unintentionally caused (1) in the commission of an unlawful act, malum in se, not amounting to a felony nor likely to endanger life . . . , or (2) by an act which constitutes such a disregard of probable harmful consequences to another as to constitute wanton or reckless conduct” (citation omitted). Commonwealth v. Campbell, supra at 397. The defendant requested that the judge instruct the jury on involuntary manslaughter under two theories, either that he killed in the commission of a battery or that he killed by an act of wanton or reckless conduct and without malice. When it is obvious “that the risk of physical harm to the victim created a plain and strong likelihood that death will follow, an instruction on involuntary manslaughter is not required.” Commonwealth v. Fryar, 425 Mass. 237, 249, cert. denied, 522 U.S. 1033 (1997), quoting Commonwealth v. Pierce, 419 Mass. 28, 33 (1994). The defendant stabbed the victim twice with a knife. These injuries to the victim’s chest and abdomen were deep and fatal, creating “a plain and strong likelihood that death would follow,” Commonwealth v. Sires, 413 Mass. 292, 303 (1992), and as such, do not warrant an instruction regarding a lesser offense.\nGeneral Laws c. 278, § 33E. The defendant asks that we exercise our power under G. L. c. 278, § 33E, to order a new trial or direct the entry of a verdict of a lesser degree of guilt if the conviction for murder in the first degree is not reversed. We see no basis for doing so.\nJudgments affirmed.\nThe Sixth Amendment to the United States Constitution provides, in relevant part: “In all criminal prosecutions, the accused shall enjoy the right. . . to be confronted with the witnesses against him.”\nThe defendant initially opposed both motions; after voir dire of Officer William Bordello, however, the defendant withdrew his objection to testimony about the February 10 incident.\nThe judge also admitted one of the victim’s utterances on February 23 under the state of mind exception to the hearsay rule.\nA 911 hang-up call occurs when a caller dials 911, but hangs up the telephone before speaking to a 911 operator.\nThe defendant also contends that the February 23 statements were inadmissible hearsay. Because we determine that all but one of the February 23 statements were inadmissible as a violation of Crawford v. Washington, 541 U.S. 36, 52 (2004) (Crawford), we consider the defendant’s hearsay argument regarding only the one statement that was nontestimonial under the criteria of Crawford and Davis v. Washington, 126 S. Ct. 2266, 2273-2274 (2006) (Davis). See note 6, infra.\nTypicaIly, a statement must first be evaluated for admissibility under normal evidence rules, i.e., whether it qualifies as a hearsay exception. Here, the victim’s statement that everything was not “okay” is admissible as a spontaneous utterance. Commonwealth v. Nunes, 430 Mass. 1, 4 (1999), quoting Commonwealth v. Zagranski, 408 Mass. 278, 285 (1990) (statement may be deemed spontaneous if “made under the influence of an exciting event and before the declarant has had time to contrive or fabricate the remark, and thus it has sufficient indicia of reliability”). Then, the statement must be appraised under the criteria of Crawford-Davis and Commonwealth v. Gonsalves, 445 Mass. 1, 3 (2005), to determine if it satisfies the confrontation clause of the Sixth Amendment. Here, the statement is nontestimonial by virtue of one of the Gonsalves exceptions.\nBecause we determine that the admission of the February 10 and 23 statements was harmless beyond a reasonable doubt, we need not address the defendant’s contentions regarding the judge’s failure to provide a limiting instruction on the statements and the ineffective assistance of counsel in failing to request such an instruction. Similarly, we need not consider the Commonwealth’s argument that the right to confrontation may be forfeited by a defendant’s wrongdoing, see Commonwealth v. Edwards, 444 Mass. 526, 536 (2005), i.e., that the defendant had forfeited his right to confront the victim’s testimonial statements by killing the victim.\nThe defendant contends also that the prosecutor improperly asked Detective Lieutenant Martin’s opinion whether the condition of the kitchen indicated that there was a “struggle,” because Martin’s testimony was not beyond the jury’s common knowledge. Passing that there was no objection to the question, the inquiry was not improper. An experienced police officer, or possibly even a lay witness, could opine whether a scene was suggestive of a struggle, just as a lay witness may testify regarding another person’s sobriety. Cf. Holton v. Boston Elevated Ry., 303 Mass. 242, 246 (1939) (“the principal objective symptoms [of intoxication] are so well known that witnesses have always been permitted to express their opinion as to the inebriety of a person”).\nThere is a similar lack of evidence to warrant instructions on self-defense and on voluntary manslaughter based on the excessive use of force in self-defense, and the judge need not have given these instructions. Any error, however, was harmless. The defendant received more than that to which he was entitled. Commonwealth v. Curtis, 417 Mass. 619, 632 (1994)."", ""type"": ""majority"", ""author"": ""Cowin, J.""}], ""attorneys"": [""Kathleen M. McCarthy for the defendant."", ""Robert J. Bender, Special Assistant District Attorney, for the Commonwealth.""], ""corrections"": """", ""head_matter"": ""Commonwealth vs. Steven J. Burgess.\nPlymouth.\nNovember 9, 2007.\nJanuary 11, 2008.\nPresent: Marshall, C.J., Ireland, Spina, Cowin, & Cordy, JJ.\nHomicide. Constitutional Law, Confrontation of witnesses. Evidence, Testimonial statement, Hearsay, Hypothetical question, Self-defense. Practice, Criminal, Hearsay, Instructions to jury, Assistance of counsel, Argument by prosecutor. Self-Defense.\nDiscussion of case law regarding the admission in evidence of testimonial statements at a criminal trial, in light of the right to confrontation under the Sixth Amendment to the United States Constitution. [426-430]\nAt a murder trial, the judge erred in admitting, as evidence of premeditation, statements made by the victim to two police officers who had been called to the victim’s residence in the months before the murder, where all but one of the statements were testimonial, as they were made in response to police interrogation that was not meant to secure a volatile situation or procure needed medical attention, and it was reasonable to conclude that the responses could subsequently be used in a prosecution of the defendant [430-431]; however, the erroneously admitted statements were cumulative of other properly admitted evidence, and therefore their admission was harmless beyond a reasonable doubt [431-434].\nAt the trial of an indictment for murder, the judge erred in allowing the prosecutor to ask hypothetical questions to a police detective testifying as an expert witness, where the questions, although reasonably based on the evidence, did not seek an expert opinion, but rather asked for observations phrased as opinion on an improper subject of expert testimony (namely, whether the witness’s testimony was consistent with other testimony), and where the questions asked the witness to comment on the credibility of the Commonwealth’s theory of the case; nevertheless, the error was nonprejudicial, given the abundant physical and testimonial evidence against the defendant regarding the issues in question, i.e., deliberate premeditation and extreme atrocity or cruelty [434-436]; in contrast, hypothetical questions that the prosecutor posed to a medical expert were proper, where they were based on the evidence and concerned a proper subject of expert testimony [436-437],\nAt a murder trial where the defendant argued self-defense, the prosecutor’s statements, in closing, that the defendant pursued the victim into another room properly asked the jury to draw a reasonable inference from the evidence. [437]\nThe evidence at a murder trial did not warrant an instruction either on a possible verdict of voluntary manslaughter under a theory of heat of passion induced by reasonable provocation or by sudden combat [437-439] or on a possible verdict of involuntary manslaughter [439].\nIndictments found and returned in the Superior Court Department on May 12, 2000.\nThe cases were tried before Charles M. Grabau, J.\nKathleen M. McCarthy for the defendant.\nRobert J. Bender, Special Assistant District Attorney, for the Commonwealth.""}, ""cites_to"": [{""cite"": ""417 Mass. 619"", ""year"": 1994, ""case_ids"": [482597], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""632""}], ""case_paths"": [""/mass/417/0619-01""], ""opinion_index"": 0}, {""cite"": ""303 Mass. 242"", ""year"": 1939, ""case_ids"": [869768], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""246"", ""parenthetical"": ""\""the principal objective symptoms [of intoxication] are so well known that witnesses have always been permitted to express their opinion as to the inebriety of a person\""""}], ""case_paths"": [""/mass/303/0242-01""], ""opinion_index"": 0}, {""cite"": ""444 Mass. 526"", ""year"": 2005, ""case_ids"": [985750], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""536""}], ""case_paths"": [""/mass/444/0526-01""], ""opinion_index"": 0}, {""cite"": ""408 Mass. 278"", ""year"": 1990, ""case_ids"": [3891333], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""285"", ""parenthetical"": ""statement may be deemed spontaneous if \""made under the influence of an exciting event and before the declarant has had time to contrive or fabricate the remark, and thus it has sufficient indicia of reliability\""""}], ""case_paths"": [""/mass/408/0278-01""], ""opinion_index"": 0}, {""cite"": ""430 Mass. 1"", ""year"": 1999, ""case_ids"": [1157258], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""4""}], ""case_paths"": [""/mass/430/0001-01""], ""opinion_index"": 0}, {""cite"": ""413 Mass. 292"", ""year"": 1992, ""case_ids"": [3901200], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""303""}], ""case_paths"": [""/mass/413/0292-01""], ""opinion_index"": 0}, {""cite"": ""419 Mass. 28"", ""year"": 1994, ""case_ids"": [823659], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""33""}], ""case_paths"": [""/mass/419/0028-01""], ""opinion_index"": 0}, {""cite"": ""522 U.S. 1033"", ""year"": 1997, ""case_ids"": [11581764, 11581957, 11581928, 11581833, 11581738, 11581865, 11581673, 11581649, 11581810, 11582003, 11581714, 11582039, 11581787, 11581693, 11581631], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/522/1033-07"", ""/us/522/1033-13"", ""/us/522/1033-12"", ""/us/522/1033-10"", ""/us/522/1033-06"", ""/us/522/1033-11"", ""/us/522/1033-03"", ""/us/522/1033-02"", ""/us/522/1033-09"", ""/us/522/1033-14"", ""/us/522/1033-05"", ""/us/522/1033-15"", ""/us/522/1033-08"", ""/us/522/1033-04"", ""/us/522/1033-01""], ""opinion_index"": 0}, {""cite"": ""425 Mass. 237"", ""year"": 1997, ""case_ids"": [274558], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""249""}], ""case_paths"": [""/mass/425/0237-01""], ""opinion_index"": 0}, {""cite"": ""363 Mass. 311"", ""year"": 1973, ""case_ids"": [287643], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""321"", ""parenthetical"": ""\""It is an extravagant suggestion that scratches [inflicted by the victim on the defendant's face] could serve as provocation for a malice-free but ferocious attack by the defendant with a deadly instrument\""""}], ""case_paths"": [""/mass/363/0311-01""], ""opinion_index"": 0}, {""cite"": ""469 U.S. 844"", ""year"": 1984, ""case_ids"": [11996353, 11996931, 11996005, 11996587, 11997021, 11996846, 11995919, 11996500, 11996758, 11996662, 11995866, 11996282, 11996060, 11996221, 11996159], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/469/0844-08"", ""/us/469/0844-14"", ""/us/469/0844-03"", ""/us/469/0844-10"", ""/us/469/0844-15"", ""/us/469/0844-13"", ""/us/469/0844-02"", ""/us/469/0844-09"", ""/us/469/0844-12"", ""/us/469/0844-11"", ""/us/469/0844-01"", ""/us/469/0844-07"", ""/us/469/0844-04"", ""/us/469/0844-06"", ""/us/469/0844-05""], ""opinion_index"": 0}, {""cite"": ""391 Mass. 481"", ""year"": 1984, ""case_ids"": [918609], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""487""}], ""case_paths"": [""/mass/391/0481-01""], ""opinion_index"": 0}, {""cite"": ""390 Mass. 722"", ""year"": 1984, ""case_ids"": [916672], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/390/0722-01""], ""opinion_index"": 0}, {""cite"": ""383 Mass 178"", ""year"": 1981, ""case_ids"": [813534], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""180-181""}], ""case_paths"": [""/mass/383/0178-01""], ""opinion_index"": 0}, {""cite"": ""351 Mass. 203"", ""year"": 1966, ""case_ids"": [3861749], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""211-212""}], ""case_paths"": [""/mass/351/0203-01""], ""opinion_index"": 0}, {""cite"": ""380 Mass. 724"", ""year"": 1980, ""weight"": 3, ""case_ids"": [478458], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""729""}, {""page"": ""728""}], ""case_paths"": [""/mass/380/0724-01""], ""opinion_index"": 0}, {""cite"": ""372 Mass. 319"", ""year"": 1977, ""case_ids"": [4029064], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""324""}], ""case_paths"": [""/mass/372/0319-01""], ""opinion_index"": 0}, {""cite"": ""316 Mass. 489"", ""year"": 1944, ""case_ids"": [925436], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""494""}], ""case_paths"": [""/mass/316/0489-01""], ""opinion_index"": 0}, {""cite"": ""352 Mass. 387"", ""year"": 1967, ""weight"": 3, ""case_ids"": [304858], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""396-397""}, {""page"": ""397""}], ""case_paths"": [""/mass/352/0387-01""], ""opinion_index"": 0}, {""cite"": ""352 Mass. 403"", ""year"": 1967, ""case_ids"": [304778], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""419""}], ""case_paths"": [""/mass/352/0403-01""], ""opinion_index"": 0}, {""cite"": ""387 Mass. 220"", ""year"": 1982, ""case_ids"": [908823], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""227""}], ""case_paths"": [""/mass/387/0220-01""], ""opinion_index"": 0}, {""cite"": ""381 Mass. 306"", ""year"": 1980, ""case_ids"": [816171], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""316""}], ""case_paths"": [""/mass/381/0306-01""], ""opinion_index"": 0}, {""cite"": ""396 Mass. 319"", ""year"": 1985, ""case_ids"": [898075], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""336""}], ""case_paths"": [""/mass/396/0319-01""], ""opinion_index"": 0}, {""cite"": ""432 Mass. 319"", ""year"": 2000, ""case_ids"": [285239], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""326""}], ""case_paths"": [""/mass/432/0319-01""], ""opinion_index"": 0}, {""cite"": ""417 Mass. 348"", ""year"": 1994, ""case_ids"": [482592], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""353""}], ""case_paths"": [""/mass/417/0348-01""], ""opinion_index"": 0}, {""cite"": ""433 Mass. 575"", ""year"": 2001, ""case_ids"": [343601], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""577""}], ""case_paths"": [""/mass/433/0575-01""], ""opinion_index"": 0}, {""cite"": ""385 Mass. 91"", ""year"": 1982, ""weight"": 3, ""case_ids"": [900794], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""105""}, {""parenthetical"": ""\""expert testimony on matters within the witness's field of expertise is admissible whenever it will aid the jury in reaching a decision\""""}], ""case_paths"": [""/mass/385/0091-01""], ""opinion_index"": 0}, {""cite"": ""419 Mass. 54"", ""year"": 1994, ""case_ids"": [823665], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""60""}], ""case_paths"": [""/mass/419/0054-01""], ""opinion_index"": 0}, {""cite"": ""232 Mass. 58"", ""year"": 1919, ""case_ids"": [61554], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""73""}], ""case_paths"": [""/mass/232/0058-01""], ""opinion_index"": 0}, {""cite"": ""398 Mass. 516"", ""year"": 1986, ""case_ids"": [877648], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""527""}], ""case_paths"": [""/mass/398/0516-01""], ""opinion_index"": 0}, {""cite"": ""425 Mass. 844"", ""year"": 1997, ""case_ids"": [274590], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""850""}], ""case_paths"": 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""case_paths"": [""/mass/399/0863-01""], ""opinion_index"": 0}, {""cite"": ""381 Mass. 246"", ""year"": 1980, ""case_ids"": [816107], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""248""}], ""case_paths"": [""/mass/381/0246-01""], ""opinion_index"": 0}, {""cite"": ""391 Mass. 123"", ""year"": 1984, ""weight"": 2, ""case_ids"": [918560], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""126""}], ""case_paths"": [""/mass/391/0123-01""], ""opinion_index"": 0}, {""cite"": ""447 Mass. 737"", ""year"": 2006, ""weight"": 2, ""case_ids"": [3730487], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""746""}, {""page"": ""748""}], ""case_paths"": [""/mass/447/0737-01""], ""opinion_index"": 0}, {""cite"": ""126 S. 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+3817576,"{""id"": 3817576, ""name"": ""Commonwealth vs. Eric Brown"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""1a84ac092046aad94882877b3442f84d40f030fbc5f4b15fd5d60c4a267d3aca"", ""simhash"": ""1:8376aac2b52c374d"", ""pagerank"": {""raw"": 0.00000016163844788163738, ""percentile"": 0.6865043097107206}, ""char_count"": 64242, ""word_count"": 10402, ""cardinality"": 1989, ""ocr_confidence"": 0.916}, ""casebody"": {""judges"": [], ""parties"": [""Commonwealth vs. Eric Brown.""], ""opinions"": [{""text"": ""Cordy, J.\nDuring the early hours of June 16, 1996, Athos Oliveira and Thomas Meyer, while walking separately along Appleton Street in the South End section of Boston, encountered an assailant fitting the description of the defendant, Eric Brown. Each was shot at close range with a shotgun. Both men died almost instantly from severe wounds to the face and neck. Ten days later, police in Lincoln stopped an automobile driven by Brown. Inside the car they found the shotgun that had fired the spent shell casings found near the victims’ bodies.\nAfter his arrest, Brown underwent extensive psychiatric evaluation and spent several years at Bridgewater State Hospital (Bridgewater) before finally being found competent to stand trial in March, 2001. A jury found him guilty on two indictments charging murder in the first degree, each on the theory of deliberate premeditation.\nOn appeal, Brown contends that he was incompetent to stand trial and that the Commonwealth’s evidence was insufficient to prove his guilt beyond a reasonable doubt. Brown also assigns legal error to various aspects of his trial. These include claims that (1) the prosecutor improperly introduced evidence of Brown’s purported postarrest silence, (2) the judge improperly failed to hold a voir dire to determine the voluntariness of certain statements made by Brown, (3) the judge improperly declined to give the jury an instruction on intoxication, (4) the judge improperly excluded from evidence certain Bridgewater medical records, and (5) the judge improperly and systematically excluded students from the jury. Finally, Brown seeks relief under G. L. c. 278, § 33E, noting particularly the extensive evidence that he suffered a mental disease at the time of the killings. We affirm.\n1. Procedural background. On August 5, 1996, a grand jury returned four indictments against Brown, charging him with murder in the first degree for the killings of Athos Oliveira and Thomas Meyer, G. L. c. 265, § 1; unlawful possession of a dangerous weapon, G. L. c. 269, § 10 (a); and unlawful possession of ammunition, G. L. c. 269, § 10 (h).\nAfter his arrest, Brown was sent to Bridgewater for evaluation pursuant to G. L. c. 123, § 18 (a). Following a hearing held on April 9, 1998, he was found not competent to stand trial and committed to Bridgewater under G. L. c. 123, § 16 (b): This commitment was periodically renewed by various judges in the Superior Court. In January, 2001, approximately two months prior to the scheduled trial date, a report was filed with the court pursuant to G. L. c. 123, § 15 (a), concluding that Brown’s symptoms were “under good control due to his compliance with his medication regimen and treatment at Bridgewater State Hospital,” but that he could be “at risk for becoming more symptomatic as his trial approaches.” The judge brought Brown into court and held a hearing at which he concluded that Brown was competent to stand trial. See G. L. c. 123, § 15 (d). As a precaution, the judge ordered that a further evaluation of Brown, pursuant to § 15 (a), be performed by the court clinical psychologist on March 7, 2001, the day that the trial was scheduled to begin.\nOn March 7, defense counsel submitted to the court a report of a private forensic psychiatrist stating that Brown was no longer compliant with his medication regimen and was not competent to stand trial. The judge then ordered that Brown be further evaluated by the court clinical psychologist, who also opined that Brown was incompetent to stand trial. The judge continued the trial and ordered that Brown be evaluated by the Commonwealth’s psychologist. That psychologist’s evaluation report was filed on March 9, and a competency hearing was held over four days during the period March 12 through March 21. At the competency hearing, a psychiatrist retained by the Commonwealth opined that Brown “ha[d] the sufficient ability to consult with his attorney with a reasonable degree of rational understanding and that he ha[d] a rational as well as a factual understanding of the court proceedings” and that therefore he was competent to stand trial. The defense called three witnesses, including a psychiatrist who testified that Brown was not competent to stand trial.\nThe judge issued a written ruling finding Brown competent to stand trial on March 23, 2001. On that same day, the trial began. After four weeks of trial, the jury returned verdicts of guilty on all four indictments. Brown was sentenced to consecutive terms of life on the murder convictions and to from two and one-half to five years for unlawful possession of a dangerous weapon to be served concurrently with one of the life sentences. The ammunition conviction was placed on file with Brown’s consent.\n2. Facts. Based on the evidence at trial, the jury were warranted in finding the following facts. On the morning of Saturday, June 15, 1996, Brown asked his friend Dwight Bobbitt, a security guard who possessed a firearms identification card, to purchase a shotgun for him. Brown told Bobbitt that he needed the gun “for business.” Brown gave Bobbitt $280 cash, and the two men boarded a bus to travel from the Roxbury neighborhood of Boston to the Bob Smith’s Sporting Goods store in downtown Boston. Brown told Bobbitt that he would look at the guns, then point at the one he wanted and say “that’s the freshest, that’s the one I want.”\nWhen the two arrived at the store, they went to the gun department. As Bobbitt looked at a particular shotgun, Brown told him, “that’s the freshest.” Brown walked away, and Bobbitt approached the salesman and purchased the gun, a “Moss-berg 500” twenty-gouge shotgun with an eighteen inch barrel, along with one box of ammunition, at a total cost of $268.21. Brown and Bobbitt then took a taxicab back to Roxbury. When they parted so that Bobbitt could go to work, Brown took the shotgun and ammunition with him. Bobbitt told Brown to remove the serial number from the gun with a file because he would report the gun stolen in two weeks.\nWhen Bobbitt returned home from work after midnight, he found Brown in the company of two friends outside Brown’s residence in Roxbury. Brown brought the shotgun outside, fired it into the air three or four times, and picked up the spent shell casings. Brown then went inside, came back outside, fired the gun into the air again, and then went back inside. Responding to a call reporting shots fired, two Boston police officers arrived at Brown’s residence at about 2 a.m. When questioned by police, Bobbitt and the others denied having heard any shots. The officers then left. Fifteen minutes later, Brown came outside again. He was wearing a thigh-length green jacket and black boots. Brown pulled the shotgun out from under his jacket and again fired it into the air three times. He then left on foot, heading in the direction of the South End.\nIt was warm, and despite the early hour, people on Appleton Street were outside socializing and walking about. Among them was Athos Oliveira, who had driven to the South End from his home in Somerville. At approximately 3:30 a.m., a man approached Oliveira in front of 106 Appleton Street, pointed a shotgun at him, and fired twice. The first shot grazed Oliveira’s head, taking off his cap and shredding its bill. The second shot was a direct hit to Oliveira’s face and neck. He was killed almost instantly.\nThe man then ran down Appleton Street toward the intersection with Dartmouth Street. A group of men getting out of an automobile parked along Dartmouth Street saw the shooter approach them, hesitate, then continue down Appleton Street. The assailant soon encountered Thomas Meyer, who was standing across from 131 Appleton Street. Meyer was dressed in a black tuxedo because he had attended a friend’s wedding reception in the Back Bay section of Boston earlier that evening. The assailant fired a single shot into the back of Meyer’s head, killing him instantly. He then continued down Appleton Street, heading toward West Canton Street.\nWitnesses who observed the man who shot Oliveira and Meyer described him as a black male with Afro-style hair wearing a thigh-length green jacket. This general description matched that of Brown. Police investigators responding to the scene also found several spent shotgun shell casings near where the bodies of Oliveira and Meyer lay. A ballistics expert later determined that all of the shells had been fired from the same shotgun.\nIt is unclear where the assailant went after he shot Meyer and continued down Appleton Street. The next witness to report seeing Eric Brown was Bobbitt. They met in front of Brown’s residence sometime on the morning of Sunday, June 16, 1996. Bobbitt asked him if he had heard about the killings in the South End that had occurred earlier that morning. Brown said, “No. Why you asking me. Do I look like that type?” Bobbitt testified that during this exchange Brown did not appear to have any problem understanding what he was saying; nor did Bobbitt have trouble understanding Brown.\nTen days later, at approximately 3:25 a.m. on June 26, 1996, a police officer in Lincoln observed a van driving erratically along an otherwise quiet two-lane road. The officer stopped and approached the van. Brown was in the driver’s seat, alone in the vehicle. Music was blaring from the radio. Without prompting, Brown presented the officer with an expired Rhode Island driver’s license. Brown would not, however, make eye contact with the officer, nor did he respond to a request that he turn down the radio’s volume. When asked where he was coming from, Brown told the officer that he had taken two girls from a party in Cambridge to Winchester, and was now returning home.\nThe officer became concerned for his safety and called for backup. When another officer arrived, Brown was asked to step out of the vehicle. The officers asked Brown if they could search the van for drugs and weapons, and he assented. Inside they found a loaded shotgun and a spent shotgun shell. Brown was placed under arrest for unlawful possession of a firearm and given Miranda warnings.\nUsing the serial number on the shotgun, the officers determined that it had been purchased at Bob Smith’s Sporting Goods and reported stolen to the Boston police by Bobbitt. The shotgun was later test fired for ballistic analysis. The marks on the casings matched those on the casings found on Appleton Street. In a subsequent search of the apartment where Brown lived, the police found an empty box of twenty-gouge shotgun shells on the floor of his bedroom bearing a price tag from Bob Smith’s Sporting Goods. They also found a thigh-length green coat.\nThe defense proceeded principally on the theory that Brown was not criminally responsible for his actions because of severe mental disease. This involved presenting extensive expert testimony, as well as testimony from Brown’s family and friends regarding their observations of his mental deterioration in the years leading up to the murders.\nThe primary defense witness was a forensic psychiatrist, whose observations were based on eight examinations of Brown (involving twenty-one hours), discussions with witnesses, and review of the records of other professionals. The expert opined that, at the time of the murders, Brown suffered from paranoid schizophrenia. He exhibited many symptoms of this disease, including delusions, hallucinations, some disorganized speech, flat affect, and a loss of interest in friends, work, and social life. The expert testified that, even with these symptoms, those suffering paranoid schizophrenia are not completely impaired cognitively and maintain the capacity to do detailed planning.\nThe expert further opined that Brown exhibited signs of schizophrenia as early as 1993. This included social withdrawal, moodiness, and decreased attention to personal hygiene. By 1995, Brown had become “grossly psychotic.” As a result, Brown suffered a host of visual and auditory delusions. One of these involved a woman in a chariot called “Helen and the Hell Dogs” whom Brown thought was following him. Brown also believed that he had invented a ray gun and a perpetual motion machine that ran on magnets. At various times he also thought he was the Messiah or an “anti-Christ,” and that he had to write important books. Brown also had delusions about a real estate deal in which he would construct one hundred three-family houses in Roxbury in association with a group called the Tribe of Judah.\nHomophobic delusions were particularly prominent in Brown’s schizophrenia. These often involved a group of friends with whom Brown socialized and went to dance clubs. Brown became convinced that members of his social group were secretly homosexuals, in league with the devil, with an intent to “convert” him. He also believed that he had a “special role” regarding “sexual immoralizers” related to the Bible and the government. Some of Brown’s delusions were particularly graphic, involving homosexual violence and rape.\nAccording to the expert, Brown’s homophobic delusions were particularly prominent around the time of the killings. He obtained the gun because the delusional voices in his head told him to kill the “sexual immoralizers”; and he went to the South End because “that’s where the gays live.” Brown told the defense expert during one interview that the voices in his head told him to kill two men, “one for Sodom, one for Gomorrah.” When he saw Oliveira, the voices said, “Let him be the first.” As he moved down the street after the first shooting, the voices told Brown to “shoot some more.” When he saw Meyer, Brown thought Meyer was “walking like a lady,” and so the voices told him to “shoot him when he gets close.” At another point Brown told the expert: “The gay people were sexual immoralizers. It was my job [to kill them] because I was communicating with the voices. When I would read the Bible almost every night, they would say, ‘this is what we want you to do.’ ” When asked by the expert if he thought killing was not right, Brown told him, “I didn’t think of that.”\nDuring another interview, Brown told the expert that on the night of the murders, he drank vodka and beer, and smoked marijuana. The voices then told him that it was time to kill the “sexual immoralizers.” Brown told the expert that he asked one man he encountered if he were a homosexual. When that man said he was not, Brown moved on. When a second man — apparently Oliveira — answered, “Yes” to the question, the voices told Brown to shoot him. Brown said that he was scared but did not feel as though he had any choice but to shoot, otherwise the voices might kill him. The voices were saying repeatedly to him, “One for Sodom, one for Gomorrah.” When Brown then encountered Meyer, he told the expert that he asked him if he were a homosexual. Meyer replied, “Yes,” and the voices told Brown, “This is the second one. Shoot him.” Brown then ran away and hid in an alley for an hour, afraid of harm from a higher power and convinced that it was the end of the world.\nThe expert further testified that, at the time of the shootings, Brown was in a state of extreme psychosis, with his delusions and hallucinations overwhelming his ability to control himself. This caused panic, extreme fear, and confusion. Consequently, in the expert’s opinion, Brown lacked the substantial capacity to appreciate the legal wrongfulness or illegality of his actions; and he lacked substantial capacity to conform his conduct to the requirements of law. The expert also opined that Brown was not malingering, and that he had no nonpsychotic motive to kill the victims.\nTwo of Brown’s family members testified to his mental deterioration. His older brother testified that between 1995 and June, 1996, Brown’s dress changed from neat to sloppy. He became angry and confrontational. He told his brother that there were people after him. Between October, 1994, and March, 1995, Brown lived with a female cousin. She testified that, beginning in January, 1995, Brown became withdrawn, often staying in his room playing loud music. His dress and grooming habits deteriorated, and Brown became irritable and hostile.\nMembers of Brown’s social group also observed a change in him. When he first began associating with them, Brown was well groomed, well dressed, and in good physical shape. He was a particularly talented dancer. By early 1995, though, Brown had dropped out of his dancing group without explanation. In the fall of that year, one member of the group passed Brown in the street, but Brown did not seem to recognize him. Brown appeared in total disarray, with bulging eyes, dirty clothes, and a scraggly beard.\nBobbitt testified that, in December, 1995, Brown asked him to drive with him to Philadelphia and back. Throughout the trip, Brown asked Bobbitt repeatedly to look behind their vehicle to see if they were being followed. Brown repeatedly said, “I wish you mother fuckers would stop following me.” Bobbitt also observed Brown “having a conversation with the radio.” The conversation seemed nonsensical to Bobbitt. Brown did not, however, have any difficulty driving the vehicle. On the return trip the two men were arrested in Pembroke, New Jersey, after Brown made an illegal U-turn in front of a police car.\nTwo of Brown’s former employers also testified. Beginning in May, 1991, Brown worked as a technician in a laboratory at Massachusetts General Hospital (MGH). He did well in the job, improved his skills, and seemed popular with his coworkers. By December, 1994, Brown had become more “disheveled” than before, and eventually he quit the job. He told his employer that he was going to work on home renovations with his brother. In December, 1995, Brown was hired to work in another laboratory at MGH. By March, 1996, Brown was arriving late to work and not completing his assignments. Then, in May, 1996, Brown became drunk and behaved badly at a party held for laboratory staff. Brown was asked for his resignation.\nIn rebuttal, the Commonwealth called its own expert, a psychiatrist in private practice, whose testimony continued over three days. He opined that Brown did not suffer from a psychotic illness on the day of the killings. In his opinion, Brown did not lack the substantial capacity to appreciate the wrongfulness of his conduct or to conform his behavior to the requirements of law. Based on a test he gave Brown, the Commonwealth’s expert testified that Brown might have been malingering. A defense surrebuttal expert who examined the same test results reached a different conclusion, and testified that Brown was not malingering.\n3. Competency to stand trial. Brown argues that the judge’s pretrial rulings on his competency deprived him of a fair trial. He asserts that the competency hearing was “constitutionally inadequate” because the judge only ordered an “examination” under § 15 (a) yet refused to order “observation and further examination” under G. L. c. 123, § 15 (b), at Bridgewater prior to the hearing. He also asserts that his hearing was inadequate because the judge refused to order the production of Brown’s Bridgewater medical records and the tape recording of the District Court hearing held pursuant to Rogers v. Commissioner of the Dep’t of Mental Health, 390 Mass. 489, 494-499 (1983) (Rogers hearing), see note 7, supra, for use at the competency hearing. He also asserts that the evidence of competency was insufficient to satisfy the Commonwealth’s burden. We disagree with each of his contentions.\n“It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.” Commonwealth v. Crowley, 393 Mass. 393, 398 (1984), quoting Drope v. Missouri, 420 U.S. 162, 171 (1975). See Medina v. California, 505 U.S. 437, 439 (1992) (“It is well established that the Due Process Clause of the Fourteenth Amendment prohibits the criminal prosecution of a defendant who is not competent to stand trial”). General Laws c. 123, § 15, provides the framework for a court to ensure that a defendant is competent prior to bringing him to trial. Section 15 (a) states that “[wjhenever a court of competent jurisdiction doubts whether a defendant in a criminal case is competent to stand trial ... it may . . . order an examination of such defendant to be conducted by one or more qualified physicians or one or more qualified psychologists.” After the § 15 (a) examination, “the court may order that the person be hospitalized at. . . Bridgewater state hospital ... for observation and further examination, if the court has reason to believe that such observation and further examination are necessary in order to determine whether mental illness or mental defect have so affected a person that he is not competent to stand trial.” G. L. c. 123, § 15 (b). If the court is not satisfied that the defendant is competent to stand trial, “the court shall hold a hearing on whether the defendant is competent to stand trial.” G. L. c. 123, § 15(d).\nA judge’s determination of competency is entitled to substantial deference “because the judge had the opportunity to view the witnesses in open court and to evaluate the defendant personally.” Commonwealth v. Prater, 420 Mass. 569, 574 (1995). The test for competency to stand trial is “whether the defendant has ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.’ ” Commonwealth v. Crowley, supra, quoting Dusky v. United States, 362 U.S. 402, 402 (1960). The Commonwealth must prove by a preponderance of the evidence that the defendant is competent to stand trial. Commonwealth v. Crowley, supra at 400.\nBrown suggests that the court “simply bypass[ed] the step of sending [him] to Bridgewater for evaluation when a serious question regarding [his] competency remain[ed]” after the § 15 (a) evaluation. However, the language of G. L. c. 123, § 15 (b) (“the court may order that the person be hospitalized” [emphasis added]) is permissive rather than mandatory. See Commonwealth v. Lameire, 50 Mass. App. Ct. 271, 276 (2000) (judge may decide competency question after receiving report of § 15 [a] evaluation). See also Wiedmann v. Bradford Group, Inc., 444 Mass. 698, 709-710 (2005) (term “may” is permissive rather than mandatory). At the time he requested the § 15 (b) examination, Brown had been committed to Bridgewater for several years pursuant to § 18 (a), and evaluations of him had already been filed with the court periodically during that commitment. We find no support in the record for Brown’s assertion that the trial judge declined to order a “necessary [15 (h)] evaluation” because of his “desire to avoid delay or to punish the defendant for voluntarily going off his medication.” The judge’s decision to rule on Brown’s competency based on the § 15 (a) evaluations and the extensive psychiatric testimony at the competency hearing was not an abuse of discretion and it did not make the judge’s subsequent determination of competency “fundamentally flawed.” See Commonwealth v. Lameire, supra at 276-277 (no abuse of discretion where judge relied on psychologist’s preliminary examination of defendant for competency determination, without ordering § 15 [£>] evaluation).\nIn addition, the judge’s refusal to order the production of Brown’s Bridgewater medical records and the tape recording of the Rogers hearing did not render the hearing constitutionally inadequate. The competency hearing was four days long and included the testimony of four witnesses — two of whom testified regarding their observations of Brown at Bridgewater and his treatment while committed there. One of the witnesses testified about the Rogers hearing, including the resulting court order and the fact that Brown subsequently resumed taking his medications. Admission of the Bridgewater medical records and the tape recording of the hearing would have been cumulative of this testimony.\nFinally, we turn to the judge’s substantive conclusion that Brown was competent to stand trial. The judge credited the testimony of the Commonwealth’s expert, which included discussion of Brown’s medical history, the witness’s comprehensive psychiatric evaluation of Brown, and the witness’s conclusion that Brown was competent to stand trial. The judge also noted Brown’s conduct and demeanor during the proceeding and his interaction with his attorneys, observing that he “was attentive and appeared at all times to interact appropriately with defense counsel.” Although Brown is correct that a defendant’s demeanor is not dispositive of the issue of competency, it is a relevant factor, see Commonwealth v. Lameire, supra. The judge was not obliged to accept the testimony of other experts who opined that the defendant was not competent. See Commonwealth v. Prater, supra at 575, and cases cited. The evidence the judge found credible sufficed to meet the Commonwealth’s burden, and support the judge’s finding of competency. Id.\n4. Sufficiency of the evidence. At the close of the Commonwealth’s case, Brown moved for required findings of not guilty on all charges. The motions were denied after hearing. On appeal, Brown challenges this ruling, arguing that the evidence was insufficient to support the guilty verdicts. We disagree.\nIn reviewing the denial of a motion for a required finding of not guilty, we must determine whether the evidence, viewed in its light most favorable to the Commonwealth, was sufficient to satisfy a rational trier of fact that each element of the crime had been proved beyond a reasonable doubt. Our analysis asks not whether the evidence requires a finding of guilt, but whether it permits such a finding beyond a reasonable doubt. Commonwealth v. Platt, 440 Mass. 396, 400-401 (2003). Accord Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). Because the motions were made at the close of the Commonwealth’s case, before the defense presented its evidence, we consider only the evidence admitted when the motions were filed — that is, only the Commonwealth’s case-in-chief. Commonwealth v. Berry, 431 Mass. 326, 330 (2000). Commonwealth v. Kelley, 370 Mass. 147, 150 n.1 (1976).\nOn the basis of that evidence, the jury could have found that Brown, with the help of Bobbitt, obtained a twenty-gouge shotgun and ammunition on Saturday, June 15, 1996; that he fired the gun several times in front of his residence in Roxbury at approximately 2 a.m. on Sunday, June 16, 1996; and that, after evading the police who responded to the fired shots, he left his residence with the shotgun and went to the South End. The jury could have found further that Brown was the man who encountered Oliveira in front of 106 Appleton Street in the South End at approximately 3:30 a.m.; that he fired the shotgun twice at Oliveira, killing him; that he then ran down Appleton Street and across Dartmouth Street, encountering Meyer near 131 Appleton Street; that Brown shot Meyer in the back of the head, killing him instantly; and that he then fled by continuing down Appleton Street toward West Canton Street. The jury were also warranted in concluding that Brown obtained the gun intending to use it for the “business” of killing, and that he approached and shot each victim deliberately, without provocation, and at close range, intending to cause death.\nIn sum, based on the evidence in the Commonwealth’s casein-chief, it was both reasonable and possible for the jury to find beyond a reasonable doubt that Brown murdered Oliveira and Meyer, and that he did so with deliberate premeditation. Accordingly, the judge properly denied the motions for required findings of not guilty.\n5. Purported introduction of postarrest silence. Following his arrest in Lincoln, Brown was interrogated by a police lieutenant. Brown told the lieutenant essentially what he had told the arresting officer: that he had dropped two girls off in Winchester and was returning home. After discussing this with Brown, the lieutenant “asked him if he had anything further to add to his statement that he had given to the officers during the night. And he responded, ‘no, he did not.’ ” Brown claims that by eliciting this testimony, the prosecutor impermissibly introduced evidence of his postarrest silence. Because there was no objection at trial, our review asks whether any error created a substantial likelihood of a miscarriage of justice. G. L. c. 278, § 33E. See Commonwealth v. Mahdi, 388 Mass. 679, 690 (1983) (Mahdi).\nA defendant’s decision to remain silent during postarrest custodial interrogation cannot be used against him at trial, and the provision of Miranda warnings involves an implicit assurance that a defendant’s exercise of his rights will not penalize him at trial. Commonwealth v. Peixoto, 430 Mass. 654, 657 (2000), and cases cited. Contrary to Brown’s characterization, the lieutenant’s testimony that Brown had nothing further to say merely indicated that Brown’s statement to him was complete. This did not constitute an assertion by Brown of his right to remain silent. See Commonwealth v. Hussey (No. 1), 410 Mass. 664, 671, cert. denied, 502 U.S. 988 (1991) (defendant’s statement that “he had nothing else he could say” did not amount to invocation of right to remain silent). Indeed, Brown had already waived his Miranda rights, told the lieutenant that he was aware of his rights and of the waiver, and answered the lieutenant’s questions.\nSimilarly unavailing is Brown’s challenge to a question concerning the lieutenant’s interrogation posed by the prosecutor to the Commonwealth’s rebuttal expert. Over the course of his examination, the expert was asked a range of questions about various pieces of evidence and whether they were significant in the formation of his opinion of criminal responsibility. Specifically, the prosecutor asked the expert if it were significant to him that the lieutenant had a “conversation regarding [his Miranda waiver] with Mr. Brown on the early morning of June twenty-sixth of 1996 and that [Brown] acknowledged understanding each of those rights and that he thereafter signed or read and then signed [the waiver form]?” Brown argues that this testimony, which was intended to undermine the insanity defense, led to an impermissible inference that Brown’s “exercise of the right to remain silent is inconsistent with insanity.” See Mahdi, supra at 695 (“Fundamental unfairness results from the use of evidence of such silence regardless whether the person exercising his or her constitutional right to remain silent claims insanity as a defense”).\nThis testimony does not involve the exercise of the right to remain silent, which Brown waived, or the improper use at trial of the exercise of such a right. Rather, the prosecutor’s question properly focused on Brown’s apparent comprehension of the content of what the lieutenant said to him, and as such was relevant to the question of his sanity. Mahdi protects the exercise of rights, not the understanding of their content.\n6. Voluntariness of statements. In the Commonwealth’s casein-chief, statements that Brown made between June 15 and June 26, 1996, were introduced through the testimony of various civilian and police witnesses. The defense did not object to the admission of these statements on voluntariness grounds either pretrial or at the time of their admission. On the tenth day of trial, once the defense case was underway, the Commonwealth filed a motion requesting that the judge rule that certain statements already admitted in evidence were voluntary. Defense counsel asked the judge to wait before ruling on the voluntariness of the statements until after he had heard psychiatric testimony whether Brown was suffering from a mental illness. The judge declined to delay his ruling, and ruled, over objection, that the Commonwealth had proved beyond a reasonable doubt that each of the enumerated statements was made freely, willingly, and voluntarily. At the conclusion of the trial, the judge provided a “humane practice” instruction to the jury pertaining to all of Brown’s statements. See Commonwealth v. Tavares, 385 Mass. 140, 149-152, cert. denied, 457 U.S. 1137 (1982) (“humane practice” instruction provides that jury should not consider defendant’s confession or admission unless jury are satisfied that it was voluntary act). Brown argues here that the judge’s failure to hold a voir dire on the voluntariness of these statements deprived him of a fair trial. We reject this claim.\n“It is . . . fundamental that a confession, or ... an admission, whether made to police or to a civilian, is admissible only if it is voluntarily made.” Commonwealth v. Sheriff, 425 Mass. 186, 192 (1997). See Jackson v. Denno, 378 U.S. 368, 376 (1964); Commonwealth v. Brady, 380 Mass. 44, 48 (1980). “Statements that are attributable in large measure to a defendant’s debilitated condition, such as insanity ... are not the product of a rational intellect or free will and are involuntary.” Commonwealth v. Hunter, 416 Mass. 831, 834 (1994), S.C., 427 Mass. 651 (1998), quoting Commonwealth v. Allen, 395 Mass. 448, 455 (1985). When a defendant raises the issue of voluntariness, the judge must conduct a voir dire out of the jury’s presence to determine whether the statements in question were voluntary. Commonwealth v. Brady, supra. If the defendant does not raise the issue of voluntariness, the judge has a sua sponte obligation to conduct a voir dire only if the voluntariness of the statements is a live issue such that there is evidence of a “substantial claim of involuntariness.” Commonwealth v. Stroyny, 435 Mass. 635, 646 (2002). See Commonwealth v. Murphy, 426 Mass. 395, 398 (1998). If a substantial issue of involuntariness is raised, a judge’s conclusion that a defendant’s statements are voluntary beyond a reasonable doubt “must appear from the record with unmistakable clarity.” Commonwealth v. Tavares, supra at 152, quoting Sims v. Georgia, 385 U.S. 538, 544 (1967). “In looking at the totality of the circumstances to determine the voluntariness of a statement, the judge may consider, among other things, the defendant’s age, education, intelligence, physical and mental stability, and experience with and in the criminal justice system.” Commonwealth v. Anderson, 445 Mass. 195, 203 (2005).\nAs a threshold matter, we note that the statements Brown made to Bobbitt prior to the shootings are not subject to a voluntariness analysis, because the purchase of the gun was part and parcel of the crime. As we said in Commonwealth v. Boateng, 438 Mass. 498, 504 (2003), “While the rule [requiring voluntariness hearings] covers statements made by defendants to private parties in the aftermath of their criminal conduct ... we have never applied it to statements made by a defendant during the commission of his crime.” Accord Commonwealth v. Netto, 438 Mass. 686, 699 (2003). With respect to the remainder of Brown’s statements, we conclude that the judge did not err in failing to conduct a voir dire hearing sua sponte.\nBrown concedes that he did not raise the issue of voluntariness prior to trial or at the time of the admission of the statements. He argues instead that voluntariness “was clearly a live issue in light of [Brown’s] evidence of mental illness.” However, when a defendant raises an insanity defense, the voluntariness of all his statements does not automatically become a live issue. See, e.g., Commonwealth v. Benoit, 410 Mass. 506, 515 (1991) (no live issue of voluntariness where judge lacked substantial evidence of defendant’s insanity at time he made statements). When the statements were admitted in evidence there was no substantial claim that at the time they were made Brown was suffering from the effects of mental illness and that the statements were attributable in large measure to that mental illness. The testimony during the Commonwealth’s case-in-chief was that Brown appeared to understand what was said to him and that the witnesses who testified to his statements did not have trouble understanding him. See Commonwealth v. Benoit, supra at 514. Defense counsel’s strategy with respect to the statements was to question whether they, in fact, had been made, rather than challenging their voluntariness.\nTo the extent that the voluntariness of Brown’s statements became a live issue after their admission (during the defense case), the judge properly submitted the voluntariness issue to the jury by providing the humane practice instruction. See id. at 512 (“if the voluntariness of a confession or admission remains a live issue after evidence of the confession or admission has been presented to the jury, then the ‘humane practice’ of Massachusetts dictates that the judge instruct the jury that they may consider the voluntariness of the confession or admission and reject any statements which they consider involuntary”). See Commonwealth v. Girouard, 436 Mass. 657, 667 (2002) (whether defendant’s mental disability affected voluntariness of his statements properly left for jury’s determination where “it was only during the defendant’s presentation of his case at trial that he proffered evidence on this issue, namely, testimony from his expert witness who had performed a psychological evaluation of the defendant”).\nFinally, we address Brown’s contention that the Commonwealth did not meet its burden of proving the voluntariness of his statements beyond a reasonable doubt. The judge found that the Commonwealth had met this burden, even though he did not conduct (nor was he required to conduct) a voir dire. The finding, even if not required in this case as a predicate to the admission of the statements, was requested by the Commonwealth. It is supported by testimony that at the time Brown made statements to his friends he did not appear to have any trouble understanding questions posed to him nor did they have any trouble understanding him, see Commonwealth v. Cryer, 426 Mass. 562, 566 (1998) (judge’s conclusion that defendant’s confession voluntary supported by testimony of interrogating officers that “defendant appeared sober and coherent, that he did not appear to have any problems understanding them, and that they had no problems understanding him”), and, with respect to the statements made to police officers, by testimony that Brown signed two Miranda waivers after appearing to understand the rights they conveyed. See id.\n7. Intoxication instruction. The judge refused to instruct the jury on intoxication, as requested. Brown argues that this constituted error. “An instruction on voluntary intoxication is not required absent evidence of ‘debilitating intoxication.’ ” Commonwealth v. Chaleumphong, 434 Mass. 70, 78 (2001), quoting Commonwealth v. Erdely, 430 Mass. 149, 152 (1999). Such evidence must support the inference that, “at the time of the killing, intoxication impaired the defendant’s ability to form any requisite criminal intent.” Commonwealth v. Moses, 436 Mass. 598, 603 (2002). See Commonwealth v. Thomas, 448 Mass. 180, 188-189 (2007) (judge’s refusal to provide intoxication instruction not error where there was no evidence of defendant’s intoxication at time of killing).\nNeither Bobbitt nor any other witness who was in Brown’s company prior to the murders testified that Brown either consumed or appeared debilitated by the consumption of intoxicating substances. Consequently, in support of his argument, Brown points to the testimony of his psychiatric expert that Brown stated to him that prior to the shootings Brown had smoked marijuana and ingested vodka and beer. However, as the judge instructed the jury, this testimony was admitted only as a basis for the expert’s opinion, not for the truth of the underlying statements. See Commonwealth v. Jaime, 433 Mass. 575, 577-578 & n.1 (2001) (judge instructed jury that expert could testify to basis of his opinion but that where basis constituted statements of other people, those statements were “not admitted for the truth”); Simon v. Solomon, 385 Mass. 91, 106 (1982) (psychiatric witness’s testimony about facts that were the basis of his opinion, which was “admitted for the limited purpose of laying the foundation for his opinion,” was proper). Similarly, the testimony of the Commonwealth’s expert that Brown stated that he had been drinking prior to the shootings and that Brown was drinking excessively in the months leading up to the murders is based on hearsay that was not admitted as substantive evidence. In addition, none of this evidence — or any other evidence admitted at trial — demonstrated how much or for how long Brown had been drinking on the night of the shootings or what effect any alcohol that he may have ingested had on him, see Commonwealth v. Chaleumphong, supra (no evidence of debilitating intoxication where there was testimony that defendant was not drunk even though there was evidence he may have consumed alcohol), or whether his ability to form the requisite criminal intent was impaired, see Commonwealth v. Moses, supra (even though there was testimony that defendant had been drinking and smoking marijuana, judge correctly refused to instruct on intoxication where there was no evidence showing that intoxication impaired defendant’s ability to form requisite criminal intent). On this record, the evidence did not warrant or require an instruction on intoxication, and the judge did not err in declining to give it,\n8. Exclusion of certain of Brown’s psychiatric records. At trial, the judge refused to admit in evidence Brown’s Bridgewater medical records. Brown argues that this exclusion constituted error, and that it violated his right to present a defense under the Sixth and Fourteenth Amendments to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights, specifically his right to “place before the jury any evidence which is at all probative of his mental condition,” Commonwealth v. Louraine, 390 Mass. 28, 34 (1983). We disagree.\n“In the face of ‘legitimate demands of the adversarial system,’ ” the right to present a defense “may be tempered according to the discretion of the trial judge.” Commonwealth v. Carroll, 439 Mass. 547, 552 (2003), quoting Commonwealth v. Edgerly, 372 Mass. 337, 343 (1977). The judge may exclude evidence that is “cumulative, repetitive, or confusing.” Commonwealth v. Carroll, supra at 553, quoting Commonwealth v. Duming, 406 Mass. 485, 495 (1990). See Commonwealth v. Talbot, 444 Mass. 586, 590 (2005) (“judge did not abuse his discretion, or deny the defendant’s rights to present a defense . . . under art. 12 of the Massachusetts Declaration of Rights or the Sixth Amendment to the United States Constitution, by excluding testimony that essentially was cumulative”). Here, Brown introduced extensive evidence at trial about his mental condition during the period in which he was hospitalized at Bridgewater, including the detailed testimony of four expert witnesses pertaining to observations, evaluations, and the treatment of Brown during his commitment to Bridgewater. The Bridgewater medical records would have been cumulative of this evidence. The judge did not abuse his discretion in excluding the records and there was no constitutional violation.\n9. Exclusion of students from jury. Of the 155 members of the venire, twenty-four were college students. The judge excluded all of them on grounds of hardship. Of these, only three asked for a hardship excuse without prompting. The judge specifically suggested to twelve of the students that their service would create a hardship after they had initially indicated that they were not seeking a hardship excuse. Brown argues that this exclusion of students from the jury deprived him of a fair trial. Neither party objected to the exclusion of any specific student or to the exclusion of students generally. Accordingly our review is under the substantial likelihood of a miscarriage of justice standard.\nThe Sixth Amendment to the Federal Constitution and art. 12 of the Declaration of Rights require that a jury be “drawn from a source fairly representative of the community.” Commonwealth v. Bastarache, 382 Mass. 86, 96 (1980) (Bastarache), quoting Taylor v. Louisiana, 419 U.S. 522, 538 (1975) (Taylor). We have previously rejected the argument that college students constitute a distinctive group for purposes of the fair cross section analysis required by Bastarache, supra, and Taylor, supra. Commonwealth v. Evans, 438 Mass. 142, 149, cert. denied, 538 U.S. 966 (2003) (Evans). Brown offers no legal argument that would cause us to reconsider that conclusion, nor does he point to any evidence suggesting that the jury pool was not otherwise “fairly representative of the community.” Consequently, to the extent that the judge’s exclusion of students was improper, we do not conclude that it created a substantial likelihood of a miscarriage of justice here.\nWe do agree, however, that the judge’s exclusion of students, insofar as it was systematic, was improper. In Evans, supra at 149, we approved a judge’s exclusion of students on the ground of hardship insofar as it “was based on individual circumstances and not on the basis of any policy, and that the decision in each instance was within the judge’s discretion under G. L. c. 234A, § 40 (trial lasting more than three days may be ground to excuse juror for hardship).” In contrast, in this case the judge’s decision to exclude students without an individualized finding of hardship is apparent. Only three of the students in the venire asked for a hardship excuse. The rest were excused without discussion, or directly prompted by the judge to ask for such an excuse (which was then granted). The exclusion of students without an individualized finding of hardship violates G. L. c. 234A, § 3 (“No person shall be exempted or excluded from serving as a grand or trial juror because of . . . occupation”). Students are not to be excluded simply by virtue of their occupation. As with any other hardship excuse, those for students must be based on an individualized finding and not a blanket rule.\n10. Review under G. L. c. 278, § 33E. In addition to our consideration of the issues raised by the parties in this appeal, we have independently reviewed the entire record of the case as required by G. L. c. 278, § 33E. Brown asks that we exercise our extraordinary power under that section to reverse his convictions and grant him a new trial. In support he cites the extensive evidence of his mental illness, suggesting that the jury should have returned a verdict of not guilty by reason of insanity.\nWhile Brown did present substantial evidence supporting his insanity defense, our task is not to determine whether the verdicts are those we would have returned, but whether they are consonant with justice. Review under G. L. c. 278, § 33E, does not “convert this court into a second jury.” Commonwealth v. Smith, 357 Mass. 168, 181 (1970), quoting Commonwealth v. Gricus, 317 Mass. 403, 406-407 (1944). The insanity defense was fully and fairly presented to the jury, and the Commonwealth offered evidence in rebuttal. The judge’s instructions to the jury about the insanity defense were correct, comprehensible, and comprehensive. In similar cases, we have concluded, “Since the issue of the defendant’s criminal responsibility was fully and fairly before the jury . . . justice does not require that their verdict be disturbed.” Commonwealth v. Lunde, 390 Mass. 42, 50 (1983), citing Commonwealth v. Marshall, 373 Mass. 65, 72 (1977). Accord Commonwealth v. Lo, 428 Mass. 45, 54-55 (1998) (jury’s rejection of insanity defense not grounds for relief under G. L. c. 278, § 33E). Contrast Commonwealth v. Mutina, 366 Mass. 810, 815 (1975) (relief warranted when Commonwealth presented no independent evidence bearing on criminal responsibility, relying only on presumption of sanity). We see no basis for concluding differently here.\nJudgments affirmed.\nrown was also found guilty of illegal possession of a shotgun and ammunition.\nGeneral Laws c. 123, § 18 (a), provides that a person confined in a place of detention may be transferred to a mental health facility if he is in need of hospitalization because of mental illness.\nGeneral Laws c. 123, § 16 (b), allows for the commitment of a defendant found ta be incompetent to stand trial.\nGeneral Laws c. 123, § 15 (a), permits a judge to order a psychological examination when there is a doubt about the defendant’s competency to stand trial.\nBrown then filed a petition under G. L. c. 211, § 3, for review of the competency finding. A single justice of this court denied the petition.\nOn the same day, defense counsel informed the court that on or about February 16, 2001, Brown had voluntarily stopped taking his prescribed medications.\nOn March 14, 2001, a hearing was held in Brockton District Court pursuant to Rogers v. Commissioner of the Dep’t of Mental Health, 390 Mass. 489, 494-499 (1983), at which a District Court judge determined that Brown was not competent to make medical decisions and ordered that Brown resume taking his medications. Brown resumed taking his medications following the hearing.\nThe other two witnesses called by Brown were staff members at Bridge-water who testified that Brown was suffering from schizophrenia but did not provide opinions whether he was competent to stand trial.\nFurther details of the competency proceedings are discussed, infra, in our consideration of Brown’s challenge of the finding.\nAlthough he imposed sentence to be served at the Massachusetts Correctional Institution at Cedar Junction, the judge recommended that the defendant remain at Bridgewater for observation relative to his physical and mental safety. Cf. Commonwealth v. Alfonso, ante 738 (2007).\nBobbitt testified that on Saturday, June 15, 1996, he had no trouble understanding what Brown said to him; nor did Brown seem to have trouble understanding him.\nEarlier on Saturday, June 15, 1996, Brown had cashed a paycheck dated June 13, 1996, for $297.17 at All Checks Cashed in Roxbury.\nThe shotgun operated by a “pump action.” A tube below the barrel would hold several shells. The shooter would introduce a shell into the chamber by pulling a grip along the barrel and then fire by pulling the trigger. When the grip was pulled again, the used casing would be ejected to make room for the next shell.\nThe box of ammunition contained twenty-five twenty-gouge shotgun shells.\nBobbitt did subsequently report the gun stolen, telling the police that his brother had taken it. At trial, he admitted that this was false.\nA ballistics expert later determined that the shots at both Athos Oliveira and Thomas Meyer were fired at a range of from six to eight feet.\nOne shotgun shell casing was recovered in front of 106 Appleton Street; a second was found in front of 120 Appleton Street; and a third in front of 151 Appleton Street.\nThe license had expired on Brown’s birthday two years before. The officer later learned from his dispatcher that Brown had a valid Massachusetts driver’s license.\nAt trial, Bobbitt identified the weapon found in Brown’s car as the one he had purchased for Brown and later reported stolen.\nBrown signed a waiver of his Miranda rights. The officer receiving the waiver testified that Brown appeared to understand the rights he had explained to him.\nThree other expert witnesses called by the defense — two psychiatrists and a psychologist, all employed at Bridgewater State Hospital — also testified. Each made the same diagnosis as the primary expert.\nThe defense’s primary expert testified that homophobic delusions are common in paranoid schizophrenics who have conflicts about their own homosexual impulses.\nIn February, 1995, Brown was arrested in Miami, Florida. He told a doctor at the Dade County jail that he had come to Miami in order to flee the sexual assaults of his social group, and he recounted many of the delusions he later described to the defense expert. Brown was diagnosed with paranoid homophobic psychosis and forcibly medicated.\nThe man who appeared most prominently in Brown’s delusions was a member of Brown’s social and dancing group. He testified that he had never had any contact with Brown of a sexual nature.\nIn Commonwealth v. McHoul, 352 Mass. 544, 546-447 (1967), we adopted the Model Penal Code’s formulation for the insanity defense: “A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law.” Id., quoting Model Penal Code § 4.01 (Proposed Official Draft 1962).\nBobbitt was called as a witness by the Commonwealth during its case-in-chief; however, the defense elicited testimony on cross-examination that it later argued supported Brown’s insanity defense.\nThe defense expert testified that Brown made this trip in response to the delusional voices he was hearing.\nThe defense expert testified that Brown quit his job at the laboratory because of his delusion about the “Tribe of Judah,” involving construction of one hundred three-family residences in Roxbury.\nThe docket indicates that Brown filed motions for observation and examination pursuant to G. L. c. 123, § 15 (b), on February 28, 2001, and March 12, 2001. There is no indication that the judge took action on the first motion, and the second motion was denied after a hearing. During the competency hearing, on March 20, 2001, defense counsel again moved for a § 15 (b) examination, which the judge denied.\nThe judge explicitly noted in his written memorandum that the burden of proof was on the Commonwealth. Contrast Commonwealth v. Crowley, 393 Mass. 393, 400 (1984) (reversal warranted where “[i]t is not clear from the record . . . whether the judge placed the burden of proving competency on the prosecution, as is appropriate”).\nThis point is of particular importance in this case because the defense, which sought to negate Brown’s criminal responsibility on the basis of mental disease, effectively constituted an admission that Brown killed Oliveira and Meyer. Because the defense case is not considered, we also do not consider whether it caused deterioration of the Commonwealth’s case. See Commonwealth v. Pike, 430 Mass. 317, 323 (1999) (deterioration occurs when Commonwealth’s evidence shown to be incredible or conclusively incorrect).\nThe question to the rebuttal expert was one in a long line that recited portions of the evidence and asked the expert if they were significant. Even were we to find some error in the question about the lieutenant’s interrogation of Brown, it would not approach a substantial risk of a miscarriage of justice. Significantly, in his summation, which included an extended attack on Brown’s insanity defense, the prosecutor made no mention of Brown’s waiver of his Miranda rights.\nPrior to trial, Brown had filed a motion to suppress, inter alla, his statements to the police as fruits of an unlawful search of his automobile. Brown did not raise the issue of the voluntariness of his statements in the motion. The judge, however, briefly discussed the voluntariness of one of Brown’s statements to the police in his written memorandum denying the motion, noting that Brown failed to offer any evidence that the statement was involuntary, and concluding that Brown spoke voluntarily.\nBrown did object to the admission of some of these statements on hearsay grounds. These objections were correctly overruled.\nThe Commonwealth specifically listed statements to Bobbitt on June 15, 1996; Bobbitt and Jada Hill on June 16; Bobbitt on June 16 or June 17; Samuel Lewis on June 18; Lewis, Bobbitt, and Michael Holman on June 19; and Officers Richard McCarty and Randall Azzato and Lieutenant Kevin Mooney on June 26.\nBrown’s motion to suppress, see note 33, supra, which challenged statements made by Brown to the police as fruits of an unlawful search, did not serve to raise the issue of their voluntariness. See Commonwealth v. Benoit, 410 Mass. 506, 509-510 (1991).\nSee Commonwealth v. Zagrodny, 443 Mass. 93, 97 (2004) (“when a defendant has made a considered and tactical decision not to challenge voluntariness, the judge need not obstruct that strategy by conducting a voir dire”).\nBecause we hold that the judge’s ruling of voluntariness was based on adequate findings of fact, we reject Brown’s claim that the prosecutor’s use of his statements in closing argument constituted error.\nAlthough defense counsel submitted written requests for a number of instructions, including an instruction on intoxication, he did not raise or argue for the intoxication instruction at the charging conference (in which other contested instructions were discussed at some length); nor did he suggest in his closing argument that Brown was intoxicated at the time of the murders.\nBecause we conclude that an intoxication instruction was not warranted, we reject Brown’s argument that the judge’s failure to provide an intoxication instruction relieved the Commonwealth of a portion of its burden of proof in violation of his right to due process under the State and Federal Constitutions.\nThe defense correctly points out that the Commonwealth suggested in closing argument that Brown might have been “abusing alcohol and abusing marijuana” on the night of the shootings. Although Brown does not raise this as error, we examine it in the context of our review under G. L. c. 278, § 33E, see Commonwealth v. Passley, 428 Mass. 832, 834-835 (1999), and conclude that, to the extent the argument was improper, it did not create a substantial likelihood of miscarriage of justice. See Commonwealth v. Bregoli, 431 Mass. 265, 278 (2000) (although prosecutor’s argument was improper where he used evidence substantively in closing argument that was admitted only for limited purpose, any effect was minimal).\nBrown contends that his Bridgewater records were admissible under G. L. c. 233, § 79, which provides that “[r]ecords kept by hospitals . . . may be admitted by the court, in its discretion, as evidence in the courts of the commonwealth so far as such records relate to the treatment and medical history of such cases” (emphasis added).\nBased on our review of the trial transcript and the Bridgewater medical records that were offered but not admitted in evidence, we reject Brown’s argument that the experts who testified at trial were unable to summarize the Bridgewater records through testimony and that the jury’s access to the records while deliberating was essential.\nThe following exchange is representative of the judge’s questioning of students in the venire:\nThe judge: “What school do you go to?”\nThe juror: “Northeastern University.”\nThe judge: “All day?”\nThe juror: “Yes.”\nThe judge: “Every day?”\nThe juror: “Um-humh.”\nThe judge: “Are you looking for an excuse for that reason?”\nThe juror: “No.”\nThe judge: “You’re not looking for an excuse?”\nThe juror: “Well. . .”\nThe judge: “No; I just want to know, because a lot of full-time students say they can’t serve because they’re students.”\nThe juror: “Well, yes; I go all the time.”\nThe judge: “Well, let me try it again. If you go to school full time, you can’t be here at the same time, correct?”\nThe juror: “Yes.”\nThe judge: “Therefore, are you asking the court to be excused for that reason?”\nThe juror: “Yes.”\nThe judge: “Excused.”\nAlthough the challenges in both Commonwealth v. Bastarache, 382 Mass. 86, 96 (1980), and Taylor v. Louisiana, 419 U.S. 522, 538 (1975), involved jury lists, their teaching applies equally to systematic exclusion of members of a group who actually appear at a venire — that is, who are on the jury list, but then are systematically not seated based on group membership. Duren v. Missouri, 439 U.S. 357, 364 (1979)."", ""type"": ""majority"", ""author"": ""Cordy, J.""}], ""attorneys"": [""James L. Sultan for the defendant."", ""Donna Jalbert Patalano, Special Assistant District Attorney, for the Commonwealth.""], ""corrections"": """", ""head_matter"": ""Commonwealth vs. Eric Brown.\nSuffolk.\nFebruary 9, 2007.\nAugust 29, 2007.\nPresent: Marshall, C.J., Ireland, Spina, Cowin, & Cordy, JJ.\nMental Impairment. Insanity. Due Process of Law, Competency to stand trial. Practice, Criminal, Competency to stand trial, Required finding, Admissions and confessions, Voluntariness of statement, Voir dire, Instructions to jury, Empanelment of jury, Capital case. Homicide. Constitutional Law, Admissions and confessions. Evidence, Admissions and confessions, Relevancy and materiality, Voluntariness of statement, Sanity, Medical record. Intoxication. Jury and Jurors.\nIn the record of proceedings to determine a criminal defendant’s competence to stand trial, no support appeared for the defendant’s assertion that the trial court judge declined to order a necessary evaluation out of a desire to avoid delay or to punish the defendant [758-760]; in addition, the judge’s refusal to order the production of cumulative evidence did not render the hearing constitutionally inadequate [760-761], and the judge’s substantive conclusion that the defendant was competent to stand trial was supported by credible evidence [761],\nAt a murder trial, the judge properly denied the defendant’s motions for required findings of not guilty, where, based on the evidence in the Commonwealth’s case-in-chief, it was both reasonable and probable for the jury to find beyond a reasonable doubt that the defendant had murdered both victims, and that he did so with deliberate premeditation. [761-762]\nAt a murder trial, testimony from a police witness that the defendant, following interrogation by police, had nothing further to add merely indicated that the defendant’s statement was complete, and did not constitute impermissible evidence of the defendant’s postarrest silence [762-763]; further, the prosecutor’s questioning of the Commonwealth’s rebuttal expert did not lead to an impermissible inference that the defendant’s exercise of his right to remain silent was inconsistent with his insanity defense, but rather properly focused on the defendant’s apparent comprehension of the content of what the police officer had said to him, and as such was relevant to the question of his sanity [763-764],\nAt a murder trial at which the defendant raised an insanity defense, the judge’s failure, during the defense case, to hold a voir dire on the voluntariness of the defendant’s statements that had been admitted during the Commonwealth’s case-in-chief did not deprive the defendant of a fair trial, where, to the extent that the voluntariness of the statements became a live issue after their admission, the judge properly submitted the voluntariness issue to the jury by providing the humane practice instruction [764-767]; moreover, the judge did not err in finding that the Commonwealth had met its burden of proving the voluntariness of the statements beyond a reasonable doubt [767-768],\nThe evidence at a murder trial did not warrant or require an instruction on voluntary intoxication, and the judge did not err in declining to give it. [768-769]\nAt a murder trial, the judge’s refusal to admit in evidence the defendant’s psychiatric records, which were cumulative of the extensive evidence already presented by the defendant concerning his mental condition, did not constitute an abuse of discretion or violate the defendant’s constitutional right to present a defense. [769-770]\nAt a criminal trial, the judge’s systematic exclusion of college students from the jury without individualized findings of hardship, although improper, did not create a substantial likelihood of a miscarriage of justice. [770-772]\nNo reason appeared on the record of a murder trial for this court to exercise its power under G. L. c. 278, § 33E. [772-773]\nIndictments found and returned in the Superior Court Department on August 5, 1996.\nA pretrial hearing on the issue of the defendant’s competency was had before James D. McDaniel, Jr., J., and the case was tried before him.\nJames L. Sultan for the defendant.\nDonna Jalbert Patalano, Special Assistant District Attorney, for the Commonwealth.""}, ""cites_to"": [{""cite"": ""426 Mass. 562"", ""year"": 1998, ""weight"": 2, ""case_ids"": [369501], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""566"", ""parenthetical"": ""judge's conclusion that defendant's confession voluntary supported by testimony of interrogating officers that \""defendant appeared sober and coherent, that he did not appear to have any problems understanding them, and that they had no problems understanding him\""""}], ""case_paths"": [""/mass/426/0562-01""], ""opinion_index"": 0}, {""cite"": ""439 U.S. 357"", ""year"": 1979, ""case_ids"": [11330305], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""page"": ""364""}], ""case_paths"": [""/us/439/0357-01""], ""opinion_index"": 0}, {""cite"": ""431 Mass. 265"", ""year"": 2000, ""case_ids"": [286742], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""278"", ""parenthetical"": ""although prosecutor's argument was improper where he used evidence substantively in closing argument that was admitted only for limited purpose, any effect was minimal""}], ""case_paths"": [""/mass/431/0265-01""], ""opinion_index"": 0}, {""cite"": ""428 Mass. 832"", ""year"": 1999, ""case_ids"": [651228], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""834-835""}], ""case_paths"": [""/mass/428/0832-01""], ""opinion_index"": 0}, {""cite"": ""443 Mass. 93"", ""year"": 2004, ""case_ids"": [1276642], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""97"", ""parenthetical"": ""\""when a defendant has made a considered and tactical decision not to challenge voluntariness, the judge need not obstruct that strategy by conducting a voir dire\""""}], ""case_paths"": [""/mass/443/0093-01""], ""opinion_index"": 0}, {""cite"": ""430 Mass. 317"", ""year"": 1999, ""case_ids"": [1157399], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""323"", ""parenthetical"": ""deterioration occurs when Commonwealth's evidence shown to be incredible or conclusively incorrect""}], ""case_paths"": [""/mass/430/0317-01""], ""opinion_index"": 0}, {""cite"": ""352 Mass. 544"", ""year"": 1967, ""weight"": 2, ""case_ids"": [304754], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""546-447""}], ""case_paths"": [""/mass/352/0544-01""], ""opinion_index"": 0}, {""cite"": ""366 Mass. 810"", ""year"": 1975, ""case_ids"": [314583], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""815"", ""parenthetical"": ""relief warranted when Commonwealth presented no independent evidence bearing on criminal responsibility, relying only on presumption of sanity""}], ""case_paths"": [""/mass/366/0810-01""], ""opinion_index"": 0}, {""cite"": ""428 Mass. 45"", ""year"": 1998, ""case_ids"": [651237], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""54-55"", ""parenthetical"": ""jury's rejection of insanity defense not grounds for relief under G. L. c. 278, § 33E""}], ""case_paths"": [""/mass/428/0045-01""], ""opinion_index"": 0}, {""cite"": ""373 Mass. 65"", ""year"": 1977, ""case_ids"": [323797], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""72""}], ""case_paths"": [""/mass/373/0065-01""], ""opinion_index"": 0}, {""cite"": ""390 Mass. 42"", ""year"": 1983, ""case_ids"": [916728], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""50""}], ""case_paths"": [""/mass/390/0042-01""], ""opinion_index"": 0}, {""cite"": ""317 Mass. 403"", ""year"": 1944, ""case_ids"": [927331], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""406-407""}], ""case_paths"": [""/mass/317/0403-01""], ""opinion_index"": 0}, {""cite"": ""357 Mass. 168"", ""year"": 1970, ""case_ids"": [295956], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""181""}], ""case_paths"": [""/mass/357/0168-01""], 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+3844451,"{""id"": 3844451, ""name"": ""Joseph L. Long vs. Joseph J. Kaplan & another"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""cc8f7d9efaa6d9d2bb73daf2034ff007f0feee9bf5c57c23c7cd581a62ad5743"", ""simhash"": ""1:f627370c1a120876"", ""pagerank"": {""raw"": 0.00000008181548657099301, ""percentile"": 0.4754321583999685}, ""char_count"": 4671, ""word_count"": 847, ""cardinality"": 333, ""ocr_confidence"": 0.627}, ""casebody"": {""judges"": [], ""parties"": [""Joseph L. Long vs. Joseph J. Kaplan & another.""], ""opinions"": [{""text"": ""Whittemore, J.\nThese are the defendants’ exceptions to the denial of their motions for directed verdicts in an action of tort. The motions should have been allowed, as the evidence is insufficient to permit a finding of negligence.\nThe plaintiff was employed as a truck driver by a firm engaged in the waste paper business. On the day of the accident he was on the premises of the defendants, who were partners in the junk business, to pick up certain bales of rags. A bale, while being loaded onto the truck, fell or slid to the side and came to rest “with one corner on the truck and the other upper-hand corner” on a fence which was parallel to the side of the truck and from four to four and one half feet therefrom. The fence was seven or eight feet high, and the floor of the truck was three and one half to four feet above the ground. “[0]ne edge was resting on the truck but there was a ridge on the truck to prevent it from sliding.” The defendant Joseph Kaplan caused an employee of the defendants to tie a rope “onto the upper corner of the bale” or “on the top part of the bale” and he himself tied the rope to the fork lift which had been used to move the bale, and then backed the fork lift across the truck. This caused the bale to move somewhat. According to the plaintiff, and on the view of the evidence most favorable to him, while the bale was balanced on the edge of the truck and held off the fence by the taut rope “and on a slant,” Kaplan told the plaintiff and two of the defendants’ employees to “get out in the yard and push it as I try to pull it with the machine”; the plaintiff then got under the bale with the defendants’ employees on each side and pushed; the fork lift was operated and the bale rocked up and down; this went on for a minute or so and “after about a minute, he [the plaintiff] felt the bale going up and then felt it coming back down where they couldn’t hold it at the time, and then the other two men disappeared and the bale was coming down on top of him.”\nThe defendants were liable to the plaintiff for the consequences of their own negligence and that of their employees “in respect to risks not ordinarily incidental to obviously existing conditions.” Engel v. Boston Ice Co. 295 Mass. 428, 432-433. Carpenter v. Sinclair Refining Co. 237 Mass. 230, 234. We cannot say, however, from the fact that the bale fell that it is more likely that this happened because of negligence in the operation of the fork lift than that it resulted from the shifting or slipping of the bale or rope or from other change in the precariously unstable equilibrium in which the bale, obviously, was held, not related to the defendants’ lack of due care. Whether or not the jury believed the defendants’ very different version of the accident, there was no basis here for inferring negligence. Gilmore v. Kilbourn, 317 Mass. 358, 363. O’Meara v. Adams, 283 Mass. 396, 402. See Artz v. Hurley, 334 Mass. 606. Compare Couris v. Casco Amusement Corp. 333 Mass. 740.\nExceptions sustained. Judgments for the defendants.\nThe defendant Joseph Kaplan testified that after the abortive first effort with the fork lift he and the plaintiff exchanged some words and he then shut off the motor on the fork lift “and watched what they were going to do”; that the plaintiff was giving orders to the defendants’ two employees; that the three men were trying to twist the bale onto the truck; that the bale was still resting against the fence, the rope was not taut and the fork lift was not operating; and that he “heard someone hollering” and he jumped down and saw the bale fall. The testimony of the two employees tended to corroborate the testimony of Joseph Kaplan. ^"", ""type"": ""majority"", ""author"": ""Whittemore, J.""}], ""attorneys"": [""Joseph J. Walsh, (Christopher W. Sloane with him,) for the defendants."", ""Michael J. Dray, for the plaintiff, submitted a brief.""], ""corrections"": """", ""head_matter"": ""Joseph L. Long vs. Joseph J. Kaplan & another.\nPlymouth.\nNovember 7, 1956.\nDecember 3, 1956.\nPresent: Wilkins, C.J., Ronan, Counihan, Whittemore, & Cutter, JJ.\nNegligence, Heavy object, Res ipsa loquitur.\nIn an action by one who had gone to the defendant’s premises with a truck for a bale of rags, a finding of negligence on the part of the defendant toward the plaintiff was not warranted by evidence of the bale’s slipping or falling in loading into a position with one corner on the truck and another on a nearby fence, and of efforts of the defendant to move it with a rope and a fork lift while the plaintiff and others pushed it, culminating in its falling upon the plaintiff.\nTort. Writ in the Superior Court dated September 6, 1950.\nThere were verdicts for the plaintiff at the trial before Fairhurst, J., and the defendants alleged exceptions.\nJoseph J. Walsh, (Christopher W. Sloane with him,) for the defendants.\nMichael J. Dray, for the plaintiff, submitted a brief.""}, ""cites_to"": [{""cite"": ""333 Mass. 740"", ""case_ids"": [488233], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/333/0740-01""], ""opinion_index"": 0}, {""cite"": ""334 Mass. 606"", ""case_ids"": [3841816], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/334/0606-01""], ""opinion_index"": 0}, {""cite"": ""283 Mass. 396"", ""case_ids"": [478280], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""402""}], ""case_paths"": [""/mass/283/0396-01""], ""opinion_index"": 0}, {""cite"": ""317 Mass. 358"", ""case_ids"": [927238], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""363""}], ""case_paths"": [""/mass/317/0358-01""], ""opinion_index"": 0}, {""cite"": ""237 Mass. 230"", ""case_ids"": [60173], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""234""}], ""case_paths"": [""/mass/237/0230-01""], ""opinion_index"": 0}, {""cite"": ""295 Mass. 428"", ""case_ids"": [883769], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""432-433""}], ""case_paths"": [""/mass/295/0428-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""335 Mass. 94"", ""type"": ""official""}], ""file_name"": ""0094-01"", ""last_page"": ""96"", ""first_page"": ""94"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T16:36:40.176661+00:00"", ""decision_date"": ""1956-12-03"", ""docket_number"": """", ""last_page_order"": 136, ""first_page_order"": 134, ""name_abbreviation"": ""Long v. 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+385175,"{""id"": 385175, ""name"": ""Tina Leardi & others vs. Harold Brown & another"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""377546d7c912da7eb2d92c6d27bba713e0c605f0718dbc2939ce88028fa3c2d5"", ""simhash"": ""1:10a69785ce5a265c"", ""pagerank"": {""raw"": 0.0000014110672089034053, ""percentile"": 0.9908187697429464}, ""char_count"": 40387, ""word_count"": 6685, ""cardinality"": 1589, ""ocr_confidence"": 0.938}, ""casebody"": {""judges"": [], ""parties"": [""Tina Leardi & others vs. Harold Brown & another.""], ""opinions"": [{""text"": ""Hennessey, C.J.\nThis is an appeal from a judgment entered in the Housing Court of the City of Boston, and involves the interpretation of a recent amendment to G. L. c. 93A, the Consumer Protection Act. Specifically, we are asked to determine whether, within the meaning of that statute, the tenants comprising the plaintiff class have been “injured” by the use of deceptive and illegal clauses in the defendants’ standard apartment lease, despite the fact that the plaintiffs were unaware of, and the defendants have never attempted to enforce, these illegal provisions. We conclude that, in the particular circumstances presented here, the plaintiffs have been “injured,” and are thus entitled to an award of statutory damages under G. L. c. 93A.\nWe are also confronted with the appeal of the plaintiff Marla Allisan, who, in addition to her claims as a member of the class, asserts certain distinctive and additional claims on her own behalf. We conclude that there was no error in the judge’s order denying Allisan’s individual claims.\n1. Facts with Respect to the Class Claims.\nIn the spring of 1980, Tina Leardi received an offer from her landlord, Harold Brown, to renew her tenancy at an increased rental commencing on September 1, 1980. At the time this offer was made, Leardi occupied her premises pursuant to the landlord’s standard apartment lease. On or about August 1, 1980, after she had notified the landlord of her intention to renew, Leardi received an “Agreement to Extend Lease,” which was designed to extend the standard apartment lease for an additional year. After consulting with counsel, Leardi refused to sign the agreement to extend the lease on the ground that it, as well as the standard apartment lease which it incorporated, contained illegal and deceptive terms.\nOn August 13, 1980, Leardi’s counsel made a written demand for relief under G. L. c. 93A, § 9 (3). The demand was made on behalf of all individuals who had signed, or who had been asked to sign, the standard apartment lease containing the allegedly illegal provisions. The demand letter requested that the landlord cease using such illegal clauses in its lease, that the lease currently in use be deemed null and void, that a new lease without the offending provisions be offered, and that each tenant be awarded $25 for each illegal clause in the rental agreement. With respect to those individuals who had refused to sign the agreement to extend the lease, the letter demanded that the landlord charge them only the rent due under the preceding lease, until the tenants had been given the opportunity to enter into revised leases.\nThe landlord responded on August 21,1980. He denied that his leases were either unfair or deceptive, but he offered not to enforce or attempt to enforce “any provision of any lease which runs contrary to law and the law’s interpretation by the courts.” The landlord further advised that if Leardi failed to sign the agreement to extend the lease, or to vacate, by October 1, 1980, he would begin process to recover possession of the premises.\nOn August 28, 1980, Leardi filed a class action against Harold Brown and his managing agent (defendants) in the Housing Court of the City of Boston. The Housing Court judge later defined the class as made up of “those individuals who, on or after September 1, 1980, resided in the [premises owned or managed by the defendants Harold Brown and Robert G. Ward] under the agreements here challenged or who so occupied while refusing to enter such agreements.” The plaintiffs alleged that numerous provisions of the defendants’ standard apartment lease violated the Commonwealth’s statutory and decisional law, as well as public policy. The complaint sought declaratory and injunctive relief, damages under G. L. c. 93A, § 9, and damages for “restitution.”\nThe plaintiffs moved for partial summary judgment, conceding, for the purposes of the motion, that no member of the class had ever read, and that the landlord had never attempted to enforce, the offending portions of the lease. The Housing Court judge granted the motion on the c. 93 A claim, awarding each member of the class $75, while denying relief on the class claim for restitution. The parties cross appealed, and we granted the application for direct appellate review.\n2. Facts with Respect to the Plaintiff Allisan.\nThe plaintiff Marla Allisan also refused to sign the agreement to extend her lease, although in September, 1980, she began paying the increased rent called for by its terms. On September 11, she was served with a notice to quit which terminated her tenancy, and which offered her a new tenancy at $210 per month. She telephoned the defendants’ agent to discuss the notice. The agent, Susan Elliot, warned Allisan that the defendants would increase her rent $25 per month until Allisan signed the agreement to extend the lease. Allisan then wrote to Robert Ward, the managing agent for Hamilton Realty Company, explaining her reasons for refusing to sign the extension to her lease. Ward failed to respond to her letter. As a result of the defendants’ actions, Allisan claims she has suffered “emotional upset, crying, distraction, chest and shooting arm pains, indigestion, and concern and worry about the status of her tenancy.”\nAllisan joined the class action as a named plaintiff, and brought individual claims on the basis of interference with quiet enjoyment of the premises in violation of G. L. c. 186, § 14, and intentional infliction of emotional distress. The claims were tried, and on December 29, 1982, the judge of the Housing Court found in favor of the defendants. Allisan appealed.\n3. Defendant’s Appeal.\na. Validity of Lease Provisions. The defendants first contend that the Housing Court judge erred in holding various provisions of the standard apartment lease unlawful. A review of the record before the Housing Court establishes, however, that the defendants failed to argue the validity of these provisions in their papers opposing the plaintiffs’ motion for partial summary judgment. Since “[o]ur cases hold consistently that a nonjurisdictional issue not presented at the trial level need not be considered on appeal,” Royal Indem. Co. v. Blakely, 372 Mass. 86, 88 (1977), we decline to pass on the merits of the defendants’ contentions with respect to the validity of each of the challenged lease provisions. See General Elec. Co. v. Assessors of Lynn, 393 Mass. 591, 608 (1984); M. H. Gordon & Son v. Alcoholic Beverages Control Comm’n, 386 Mass. 64, 67 (1982); South Shore Bank v. H & H Aircraft Sales, Inc., 16 Mass. App. Ct. 472, 480 (1983).\nWe do note, however, that the result here would not be affected by our thorough consideration of the standard lease agreement. For instance, paragraph eight of the lease advises that “THERE IS NO IMPLIED WARRANTY THE PREMISES ARE FIT FOR HUMAN OCCUPATION (HABITABILITY) except so far as governmental regulation, legislation or judicial enactment otherwise requires.” By itself, the bold face provision is contrary to our decision in Boston Hous. Auth. v. Hemingway, 363 Mass. 184, 199 (1973), where we held that “in a rental of any premises for dwelling purposes . . . there is an implied warranty that the premises are fit for human occupation. . . . This warranty . . . cannot be waived by any provision in the lease or rental agreement.”\nThe defendants contend that this provision is rendered perfectly lawful by the inclusion, in small print, of words to the effect that the implied warranty is disclaimed “except so far as governmental regulation, legislation or judicial enactment otherwise requires.” We disagree. General Laws c. 93A, § 2 (b), expressly incorporates judicial interpretations of the Federal Trade Commission Act, 15 U.S.C. § 45 (a) (1) (1982). Under that statute, an act or practice is deceptive if it possesses “a tendency to deceive.” Trans World Accounts, Inc. v. FTC, 594 F.2d 212, 214 (9th Cir. 1979). In determining whether an act or practice is deceptive, “regard must be had, not to fine spun distinctions and arguments that may be made in excuse, but to the effect which it might reasonably be expected to have upon the general public.” P. Lorillard Co. v. FTC, 186 F.2d 52, 58 (4th Cir. 1950).\nTaken as a whole, paragraph eight clearly tends to deceive tenants with respect to the “landlord’s obligation to deliver and maintain the premises in habitable condition.” Boston Hous. Auth. v. Hemingway, supra at 198. Paragraph eight suggests, as the judge found, that the implied warranty of habitability is “the exception and not the rule, if it exists at all.” Indeed, the average tenant, presumably not well acquainted with our decision in Boston Hous. Auth. v. Hemingway, supra, is likely to interpret the provision as an absolute disclaimer of the implied warranty of habitability. The conjunction of bold face and small print suggests, as the judge recognized, “a clear and calculated effort to further mislead tenants.” It suggests to tenants that their signatures on the lease constitute a waiver of their right to habitable housing.\nParagraph five of the standard apartment lease, which the judge below characterized as “an unabashed attempt to annul or render less meaningful” rights guaranteed by the State sanitary code, seems drafted with the same impermissible purpose which evidently motivated paragraph eight. It provides that “[ujnless Tenant shall notify Landlord to the contrary within two (2) days after taking possession of the premises, the same and the equipment located therein shall be conclusively presumed to be in good, tenantable order and condition in all respects, except as any aforesaid notice shall set forth” (emphasis added). So even if tenants are sufficiently sophisticated to understand that paragraph eight is not an absolute disclaimer of the right to habitable housing, paragraph five unlawfully suggests that this right is waived unless notification is made within two days after the tenant moves in. Consequently, we conclude that there was no error in the judge’s conclusion that paragraphs five and eight were deceptive and unconscionable, particularly when those provisions are viewed in the context of the fundamental nature of the implied warranty of habitability.\nb. Injury Under G.L. c. 93A. The defendants next contend that, regardless of the alleged illegality of the lease, the plaintiffs have not suffered sufficient “injury” to support an award of damages under G. L. c. 93A, § 9. The defendants argue that, even though the 1979 amendment to c. 93A deleted the requirement that the plaintiffs show some loss of “money or property,”* *** nonetheless the plaintiffs still must show some quantum of harm. The defendants further argue that the mere presence of unlawful provisions in the lease does not constitute an injury, where the landlord never attempted to enforce the unlawful provisions, and where the plaintiffs have conceded, for the purposes of this motion, that they have never even read the offensive clauses in the lease.\nIn Baldassari v. Public Fin. Trust, 369 Mass. 33, 44-46 (1975), we held that a plaintiff’s claims under c. 93A should be dismissed where the plaintiff alleged “severe emotional distress,” and not the loss of “money or property” required by the version of c. 93A then in effect. The Legislature then amended the statute, providing a right of action to “[a]ny person . . . who has been injured by another person’s use or employment of any method, act or practice declared to be unlawful by section two or any rule or regulation issued thereunder.” The 1979 amendment appears to have been, in part, a reaction to the restrictiveness of our holding in Baldassari v. Public Fin. Trust, supra. See Greaney, Consumer Protection Law, 65 Mass. L. Rev. 88, 89 (1980); Gitlin, Consumer Law, 1979 Ann. Survey Mass. Law 333, 351-353. In fact, we have already recognized that the changes in statutory language “substantially broadened the class of persons who could maintain actions under G. L. c. 93A, § 9.” Van Dyke v. St. Paul Fire & Marine Ins. Co., 388 Mass. 671, 675 (1983).\n“Statutes are to be construed in the light of the preexisting common and statutory law with reference to the mischief probably intended to be remedied.” Ferullo’s Case, 331 Mass. 635, 637 (1954). We have noted that G. L. c. 93A is a “statute of broad impact,” which forms a “comprehensive substantive and procedural business and consumer protection package.” Slaney v. Westwood Auto, Inc., 366 Mass. 688, 693 (1975). “[technicalities are not to be read into the statute in such a way as to impede the accomplishment of substantial justice.” Baldassari v. Public Fin. Trust, supra at 41. We further note that tenants are among those for whose benefit the Consumer Protection Act was passed, Rice, New Private Remedies for Consumers: The Amendment of Chapter 93A, 54 Mass. L. Q. 307, 313 (1969); see, e.g., Wolfberg v. Hunter, 385 Mass. 390 (1982), and we have traditionally been zealous in protecting tenants who have shown that their landlords, for whatever reason, fail to fulfil the obligations imposed upon them by statute and decisional law. See, e.g., Berman & Sons v. Jefferson, 379 Mass. 196 (1979). The question before us now is a close one, but in light of all the circumstances we believe that the tenant class has been “injured” within the meaning of G. L. c. 93A.\nThe result we reach hinges on our interpretation of the word “injury.” “The interpretation of well-defined words and phrases in the common law carries over to statutes” as long as such interpretation “appear[s] fitting and in the absence of evidence to indicate contrary intent.” 2A C. Sands, Sutherland Statutory Construction § 50.03 (4th ed. 1983). See Comey v. Hill, 387 Mass. 11, 15 (1982). According to the Restatement (Second) of Torts § 7 (1965), the term “injury” denotes “the invasion of any legally protected interest of another.” Moreover, “[t]he most usual form of injury is the infliction of some harm; but there may be an injury although no harm is done.” Restatement (Second) of Torts § 7 comment a (1965). As Professor McCormick has explained, “What the law always requires as a basis for a judgment for damages is not loss or damage, but “injuria,” and hence damages are allowed, though there has been no loss or damage.” C. McCormick, Damages § 20 (1935). See, e.g., Rosnick v. Marks, 218 Neb. 499, 504-505 (1984).\nGeneral Laws c. 93A, § 9 (3), provides for recovery “of actual damages or twenty-five dollars, whichever is greater.” Accordingly, under circumstances where there has been an invasion of a legally protected interest, but no harm for which actual damages can be awarded, we conclude that the statute provides for the recovery of minimum damages in the amount of $25. Construed in this manner, the recent amendment to G. L. c. 93A merely conforms the statutory scheme of consumer remedies to that which prevails under the common law doctrine that, in certain circumstances, plaintiffs are entitled to nominal damages even where no actual damages are shown. See, e.g., Nathan v. Tremont Storage Warehouse, Inc., 328 Mass. 168, 171 (1951) (plaintiff entitled at least to nominal damages for breach of contract); Hooten v. Barnard, 137 Mass. 36, 37 (1884) (“As the plaintiff proved an invasion of her rights by the defendant, she was entitled to recover at least nominal damages”). See generally Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 45-48 (1984).\nOur interpretation of the injury requirement is consistent with opinions of the United States Supreme Court which have elucidated the “injury-in-fact” requirement of art. III of the Constitution of the United States. That Court recognized, in Linda R. S. v. Richard D., 410 U.S. 614, 617 n.3 (1973), that “Congress may enact statutes creating legal rights the invasion of which creates standing, even though no injury would exist without the statute” (emphasis added). See Warth v. Seldin, 422 U.S. 490, 500 (1975). As the Court recently emphasized, “The actual or threatened injury . . . may exist solely by virtue of ‘statutes creating legal rights.’” Havens Realty Corp. v. Coleman, 455 U.S. 363, 373 (1982), quoting Warth v. Seldin, supra. There is no reason to conclude that our Legislature does not possess a similar authority, and we conclude that, in amending G. L. c. 93A, § 9, the Legislature exercised its prerogative to create a legal right, the invasion of which, without more, constitutes an injury.\nConsumer protection legislation in force in other jurisdictions does not invariably require proof of actual harm. For example, “[i]t is well settled . . . that proof of actual deception or damages is unnecessary to a recovery of statutory damages” under the Truth in Lending Act, 15 U.S.C. § 1640 (1982). Gambardella v. G. Fox & Co., 716 F.2d 104, 108 n.4 (2d Cir. 1983). Brown v. Marquette Sav. & Loan Ass’n, 686 F.2d 608, 614 (7th Cir. 1982). Dryden v. Lou Budke’s Arrow Fin. Co., 630 F.2d 641, 647 (8th Cir. 1980). The Supreme Court of California has similarly construed the California Consumer Legal Remedies Act, Cal. Civ. Code §§ 1770 et seq. (Deering 1981). In Kagan v. Gibraltar Sav. & Loan Ass’n, 35 Cal. 3d 582, 593 (1984), the court held that “[a]s it is unlawful to engage in any of the deceptive business practices enumerated in section 1770, consumers have a corresponding legal right not to be subjected thereto. Accordingly, we interpret broadly the requirement of section 1780 that a consumer ‘ suffer[] any damage’ to include the infringement of any legal right as defined by section 1770” (footnote omitted). Finally, we note that other courts, interpreting a range of statutes, have accepted the Restatement’s construction of the term injury as “the invasion of any legally protected interest.” See Rosnick v. Marks, 218 Neb. 499, 504-505 (1984); Roth v. Cottrell, 112 Cal. App. 2d 621, 624-625 (1952); Fox v. Industrial Comm’n, 162 Ohio St. 569, 575 (1955).\nIn so interpreting the injury requirement of G. L. c. 93A, §9, we do not mean to authorize purely “vicarious suits by self-constituted private attorney s-general.” Baldassari v. Public Fin. Trust, supra at 46, quoting Rice, New Private Remedies for Consumers: The Amendment of Chapter 93A, 54 Mass. L. Q. 307, 314 (1969). One could hardly characterize the relationship of these plaintiffs to the illegal lease at issue here as vicarious. We need not, and do not, decide whether we would reach a similar result under G. L. c. 93A, § 9, in other circumstances. See Van Dyke v. St. Paul Fire & Marine Ins. Co., 388 Mass. 671, 677-678 (1983). Here the plaintiffs are tenants of the defendants, and the illegality of the defendants’ lease is the subject of the instant c. 93A action.\nc. Treble Damages. The Housing Court judge found that the landlord responded to the plaintiffs’ demand letter “in bad faith, with knowledge or reason to know that his insistence on including the challenged clauses in the tenants’ leases violated G. L. c. 93A, §2.” On this ground he awarded treble damages. Without reaching the issue of whether the defendants’ response was made in bad faith, we conclude that the judge erred in trebling the award of statutory damages.\nIn circumstances where the plaintiff is entitled to treble damages under G. L. c. 93A, and where the actual damages, when trebled, are less than $25, then the plaintiff is entitled to the statutory amount of $25, instead of $75. McGrath v. Mishara, 386 Mass. 74, 87 (1982). It follows that in this case, where no actual damages were shown, the award must be in the amount of $25, and not a multiple thereof.\nThe treble damage provision in G. L. c. 93A “reflect[s] the Legislature’s displeasure with the proscribed conduct and its desire to deter such conduct and encourage vindicative lawsuits.” McGrath v. Mishara, supra at 85. We conclude that the award of statutory damages, in circumstances where there is no actual harm, adequately fulfils these same purposes. See M. Minzer, J. Nates, C. Kimball, D. Axelrod, R. Goldstein, Damages in Tort Actions, § 2.12 (1982); Rice, Remedies, Enforcement Procedures and the Duality of Consumer Transaction Problems, 48 B.U.L. Rev. 559, 573 (1968). Thus, trebling the statutory amount is unnecessary to fulfil the aims of the statute. We further note that the inference we draw as to legislative intent is consistent with the common law rule, prevailing in many jurisdictions, that where no actual harm is shown, no punitive damages may be awarded. See, e.g., Skipper v. South Cent. Bell Tel. Co., 334 So. 2d 863, 865 (Ala. 1976); Kluge v. O’Gara, 227 Cal. App. 2d 207, 209 (1964); Pringle Tax Serv. v. Knoblauch, 282 N.W.2d 151, 153-154 (Iowa 1979); Cristman v. Voyer, 92 N.M. 772, 775 (1979); Cates v. Barb, 650 P.2d 1159, 1161 (Wyo. 1982); Sales & Cole, Punitive Damages: A Relic That Has Outlived Its Origins, 37 Vand. L. Rev. 1117, 1145 (1984); but see Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 50-51 (1984). Because the Legislature has determined that an award of $25 suffices as nominal damages, it would be incongruous and inconsistent with that determination to infer that in any circumstances the Legislature intended that the nominal sum should be multiplied.\nd. Multiplication of Statutory Damages by Number oflndividuals in Class. The defendants next argue that, even if the class is entitled to statutory damages, the statutory amount should not be multiplied by the number of individuals in the class. Instead, the defendants contend that they are only liable for a single award of $25, which should be divided among all of the class members.\nWe disagree. There are States where consumer protection legislation does not provide for an award of nominal damages to each member of a class, though nominal damages in individual actions are available. E.g., Mich. Comp. Laws § 445.911 (1979); N.H. Rev. Stat. Ann. § 358-A:10 (1984). In fact, this is the design of our Consumer Credit Cost Disclosure Statute, G. L. c. 140D, § 32. However, the recent “amendment to Chapter 93A in no way distinguishes between the relief that is available in the individual and class suits.” Rice, 54 Mass. L. Q., supra at 319. We conclude that the defendants’ interpretation of G. L. c. 93A, § 9 (2), would effectively eviscerate what was intended to be “a device for vindicating claims which, taken individually, are too small to justify legal action but which are of significant size if taken as a group.” Rice, supra at 316. See H. Newberg, Class Actions § 1010.5 (c) (1977). Dividing a single award of statutory damages among all class members would discourage the assertion of consumer class actions where injuries have taken place, though actual damages may be insignificant or nonexistent, and would thus be contrary to one of the basic purposes of the statute.\nWe note that the plaintiffs initially asserted a claim for statutory damages for each of the eight allegedly illegal provisions in the lease. Mindful of “piling on sanctions unthinkingly once an illegality is found,” Town Planning & Eng’g Assocs. v. Amesbury Specialty Co., 369 Mass. 737, 746 (1976), the judge only allowed one award of statutory damages per tenant. The plaintiffs have not cross appealed this ruling, and, accordingly, we need not consider it. See Boston Edison Co. v. Boston Redevelopment Auth., 374 Mass. 37, 43 n.5 (1977).\ne. Composition of Class Entitled to Damages. After the plaintiffs moved for clarification of the Housing Court’s initial order, the judge defined the class as “those individuals who, on or after September 1, 1980 resided in the subject premises under the agreements here challenged or who so occupied while refusing to enter such agreements.” In accord with this determination, the judge also ruled that damages were to be awarded per each individual occupant, and not merely per leasehold. We conclude that this was error, and that statutory damages should only have been awarded on a per leasehold basis.\nGeneral Laws c. 93 A requires an injury before an award of even nominal damages is justified. The only injury at issue here involves the leaseholder’s right to be free from deceptive clauses in a rental agreement. Accordingly, only those who were tenants on or after September 1, 1980, and who were either a party to the illegal lease agreement, or who were asked to sign the agreement, have been injured under c. 93A. This result is consistent with the contents of the plaintiffs’ demand letter, which was sent only on behalf of “all tenants . . . who have signed, or who have been asked to sign” leases incorporating illegal provisions. Of course, if the landlord had attempted to enforce an illegal provision against any occupant, then such occupant, regardless of whether he or she had signed the lease, may well have been injured and thus would be entitled to damages. Moreover, all occupants may well have been entitled to recover if injured by a breach of the implied warranty of habitability. But these are not the circumstances present here. The case presents an injury to the leaseholder, and thus damages are to be awarded on a leasehold basis.\nf. Adequacy of the Demand Letter. The defendants contend that the demand letter was defective because it failed to describe adequately the injury suffered. See Slaney v. Westwood Auto, Inc., 366 Mass. 688, 704 (1975). This claim is meritless. The plaintiffs’ c. 93A demand repeatedly and emphatically stated that the plaintiffs were injured by the inclusion of several illegal clauses in the standard apartment lease. The inclusion of the clauses, as we have noted, constitutes an injury cognizable under G. L. c. 93A regardless of a showing of actual harm. The defendants further urge that the demand letter was defective because it requested attorneys’ fees. We agree that the demand for fees at that stage was improper, Kohl v. Silver Lake Motors, Inc., 369 Mass. 795, 801 (1976), but conclude that this should not adversely affect the plaintiffs’ claim for statutory damages.\nFinally, the defendants emphasize that the demand letter requests that the defendants enter into a consent decree. Since the entry of a consent decree is, in part, a judicial act, see, e.g., United States v. ITT Continental Baking Co., 420 U.S. 223, 236-237 n.10 (1975), a demand that the defendants enter into such an agreement is at odds with one of the primary goals of G. L. c. 93A, i.e., encouraging “out-of-court settlements.” Wolfberg v. Hunter, 385 Mass. 390, 398 (1982). Nonetheless, since the defendants, in response, did not even suggest a willingness to enter into a private agreement to eliminate the illegal clauses, we conclude that the defendants were not prejudiced by this improper demand, and thus that reference to a consent decree should not bar relief under c. 93A.\ng. Reasonableness of the Defendants’ Response. The defendants also claim error in the judge’s finding that the relief tendered by the defendants was not “reasonable in relation to the injury actually suffered” by the plaintiff class. G. L. c. 93A, § 9 (3). With respect to the class claim, the defendants only offered not to “enforce nor attempt to enforce any provision of any lease which runs contrary to law and the law’s interpretation by the Courts.” We agree with the judge that this offer was “too indefinite ... to be regarded as reasonable.” Patry v. Harmony Homes, Inc., 10 Mass. App. Ct. 1, 6 (1980). Tenants have suffered injury as a result of the inclusion of several illegal clauses in the standard lease agreement. Reasonable relief, “in relation to the injury,” would only be afforded by an agreement to remove the offensive clauses.\nPlaintiff Allisan’s Cross Appeal.\na. G. L. c. 186, § 14. Allisan claims that the judge erroneously concluded that G. L. c. 186, § 14, requires “substantial” interference with her quiet enjoyment of the premises, and thus that he erroneously denied her claim under that statute. We disagree. “The phrase ‘quiet enjoyment’ is a familiar term in landlord-tenant law, signifying the tenant’s right to freedom from serious interferences with his tenancy ...” (emphasis added). Simon v. Solomon, 385 Mass. 91, 102 (1982). See Winchester v. O’Brien, 266 Mass. 33, 36 (1929) (injury must be “substantial” to afford ground for relief). The judge concluded that the conduct of the defendants’ agent did not substantially interfere with her right to quiet enjoyment, and this conclusion was not clearly erroneous.\nb. Intentional Infliction of Emotional Distress. Allisan also contends that the trial judge erred in denying her claim for damages based on the theory of intentional infliction of emotional distress. The judge concluded that the landlord’s agent “was playing hardball,” and that “the plaintiff did suffer distress as a result of the defendant’s actions.” Nonetheless, he found for the defendants, on the ground that the conduct was not “beyond all possible bounds of decency,” or “utterly intolerable in a civilized community.” Agis v. Howard Johnson Co., 371 Mass. 140, 145 (1976), quoting Restatement (Second) of Torts § 46 comment d (1965). These findings, on this record, were not clearly erroneous.\n5. Conclusion.\nThe judgment for the defendants as to the individual claims of Allisan is affirmed. The judgment in the class action is vacated and the case remanded to the Housing Court for (1) the entry of judgment in the amount of $25 for each member of the class who, on or after September 1, 1980, lived on the premises owned or managed by the defendants, and who had signed or been asked to sign the offensive lease, (2) the establishment and award of attorneys’ fees, including fees for services rendered in this appeal, for the plaintiffs’ counsel, the judge having reserved that matter pending this appeal, and (3) the administration and distribution of the class action award.\nSo ordered.\nThe defendants have not appealed the certification of the class.\nThe plaintiffs have appealed the denial of their claims for restitution, but state these claims only as alternatives to recovery under c. 93A. In light of our conclusions under the statute, we need not consider whether restitutionary damages are appropriate.\nOn June 18,1981, the Attorney General filed suit to restrain the defendant Harold Brown from using “improper and unlawful rental agreement forms in connection with the defendant’s business as a residential landlord in Massachusetts.” The matter was resolved in the form of a “Final Judgment,” to which the landlord consented without admitting any liability or wrongdoing. Under the terms of the judgment, the landlord was permanently enjoined from “enforcing, relying upon, or including in any residential rental agreement with any tenant any provision which states or suggests” that various rights of the tenants or responsibilities of the landlord, guaranteed by law, either did not exist or could be waived. On September 1, 1981, the defendants’ standard lease agreement was replaced by a lease drafted to comply with the terms of the “Final Judgment.”\nThe judge of the Housing Court also found five other provisions of the lease agreement to be unlawful. No purpose would be served by discussing them in depth here.\nGeneral Laws c. 93A, § 9 (1), as appearing in St. 1979, c. 406, § 1, provides that: “Any person, other than a person entitled to bring action under section eleven of this chapter, who has been injured by another person’s use or employment of any method, act or practice declared to be unlawful by section two or any rule or regulation issued thereunder or any person whose rights are affected by another person violating the provisions of clause (9) of section three of chapter one hundred and seventy-six D may bring an action in the superior court, or in the housing court as provided in section three of chapter one hundred and eighty-five C whether by way of original complaint, counterclaim, cross-claim or third-party action, for damages and such equitable relief, including an injunction, as the court deems to be necessary and proper.”\nThe predecessor to G. L. c. 93A, § 9 (1), provided that: “Any person who purchases or leases goods, services or property, real or personal, primarily for personal, family or household purposes and thereby suffers any loss of money or property, real or personal, as a result of the use or employment by another person of an unfair or deceptive act or practice declared unlawful by section two or by any rule or regulation issued under paragraph (c) of said section two may, as hereinafter provided, bring an action in the superior court whether by way of original complaint, counterclaim, cross-claim or third-party action for damages and such equitable relief, including an injunction, as the court deems to be necessary and proper.” St. 1970, c. 736, § 1, as amended by St. 1971, c. 241, and further amended by St. 1978, c. 478, § 45.\nAccording to G. L. c. 93A, § 9 (3), as appearing in St. 1979, c. 406, § 2, “recovery shall be in the amount of actual damages or twenty-five dollars, whichever is greater, or up to three but not less than two times such amount if the court finds that the use or employment of the act or practice was a willful or knowing violation of said section two or that the refusal to grant relief upon demand was made in bad faith with knowledge or reason to know that the act or practice complained of violated said section two. In addition, the court shall award such other equitable relief, including an injunction, as it deems to be necessary and proper.”\nGeneral Laws c. 93A, § 9 (2), inserted by St. 1969, c. 690, provides that: “Any persons entitled to bring such action may, if the use or employment of the unfair or deceptive act or practice has caused similar injury to numerous other persons similarly situated and if the court finds in a preliminary hearing that he adequately and fairly represents such other persons, bring the action on behalf of himself and such other similarly injured and situated persons; the court shall require that notice of such action be given to unnamed petitioners in the most effective practicable manner. Such action shall not be dismissed, settled or compromised without the approval of the court, and notice of any proposed dismissal, settlement or compromise shall be given to all members of the class of petitioners in such manner as the court directs.”\nThe defendants have not squarely raised the issue of the composition of the class which is entitled to damages. See Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 919 (1975). Nonetheless, we believe that the argument is implicit in their appeal of the judge’s multiplication of the statutory award, and we consider it to avoid the injustice which might otherwise result. See, e.g., McLeod’s Case, 389 Mass. 431, 434 (1983).\nEven though we have thus sharply limited the number of those permitted to recover, and have also limited recovery to $25 for each person, it seems clear from the record that the number of eligible tenants is such that the total amount awarded may be many thousands of dollars.\nGeneral Laws c. 93A, § 9 (3), as appearing in St. 1979, c. 406, § 2, provides in pertinent part that: “At least thirty days prior to the filing of any such action, a written demand for relief, identifying the claimant and reasonably describing the unfair or deceptive act or practice relied upon and the injury suffered, shall be mailed or delivered to any prospective respondent. Any person receiving such a demand for relief who, within thirty days of the mailing or delivery of the demand for relief, makes a written tender of settlement which is rejected by the claimant may, in any subsequent action, file the written tender and an affidavit concerning its rejection and thereby limit any recovery to the relief tendered if the court finds that the relief tendered was reasonable in relation to the injury actually suffered by the petitioner.”\nThe judge also found that the plaintiffs were entitled to rescission of the rental contracts “on account of the pervasive illegality inherent in the leases.” The defendants have not appealed from this ruling.\nThe relevant portion of G. L. c. 186, § 14, as amended through St. 1974, c. 192, § 1, provides that: “[A]ny lessor or landlord who directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant, or who attempts to regain possession of such premises by force without benefit of judicial process, shall be punished by a fine of not less than twenty-five dollars nor more than three hundred dollars, or by imprisonment for not more than six months. Any person who commits any act in violation of this section shall also be liable for actual and consequential damages or three month’s rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee, all of which may be applied in setoff to or in recoupment against any claim for rent owed or owing.”"", ""type"": ""majority"", ""author"": ""Hennessey, C.J.""}], ""attorneys"": [""M. Robert Dushman (Steven M. Brody with him) for the defendants."", ""Harvey S. Shapiro (Burton A. Nadder with him) for the plaintiffs."", ""Ernest L. Sarason, Jr., for Massachusetts Tenants Organization, amicus curiae, submitted a brief.""], ""corrections"": """", ""head_matter"": ""Tina Leardi & others vs. Harold Brown & another.\nSuffolk.\nNovember 7, 1984.\nFebruary 28, 1985.\nPresent: Hennessey, C.J., Wilkins, Liacos, Abrams, & Lynch, JJ.\nLandlord, and Tenant, Habitability, Lease, Quiet enjoyment. Consumer Protection Act, Landlord and tenant, Injury, Damages, Class action, Demand letter. Damages, Consumer protection case. Emotional Distress. Words, “Injury.”\nCertain language in a landlord’s printed form of lease which had a tendency to deceive residential tenants with respect to the landlord’s obligation to deliver and maintain the leased premises in a habitable condition and which suggested that the tenant, by his signature on the lease, waived his right to habitable housing was unlawful under G. L. c. 93A, the Consumer Protection Act. [155-157]\nA landlord’s inclusion of unlawful provisions in a printed lease form constituted an injury cognizable under G. L. c. 93 A, the Consumer Protection Act, even though the aggrieved residential tenants conceded, for purposes of a motion for summary judgment, that the landlord had never attempted to enforce the unlawful provisions against any of them and that none of them had ever read those provisions. [157-161]\nWhere the plaintiffs in an action under G. L. c. 93A showed that the defendant had invaded their legally protected interest in being free from unlawful provisions in their apartment leases, but did not show that they had suffered any actual harm as a result, it was error for the judge to award treble the minimum damages of twenty-five dollars. [162-163]\nWhere, in an action under G. L. c. 93A by a class of tenants against their landlord, in which the sole injury at issue was the tenants’ right to be free from certain unlawful provisions in their apartment leases, one award of statutory damages was to be made for each leasehold. [164-165] A demand letter under G. L. c. 93A, § 9 (3), from a class of tenants to their landlord, in which the tenants adequately described the injury they had suffered, was not rendered defective by the inclusion of improper requests that the tenants be paid their attorney’s fees and that the landlord consent to the entry of a judgment. [165-166]\nThe judge who heard an action under G. L. c. 93A correctly concluded that a landlord’s response to a demand letter from his tenants was “too indefinite ... to be regarded as reasonable,” where the landlord merely offered not to enforce any provision in the tenants’ apartment leases that was contrary to law. [166-167]\nA judge was not clearly wrong in concluding that the conduct of a landlord’s agent did not give rise to liability of the landlord either for interference with a tenant’s quiet enjoyment of her apartment or for intentional infliction of emotional distress. [167-168]\nCivil action commenced in the City of Boston Division of the Housing Court Department on August 28, 1980.\nThe case was heard by E. George Daher, J.\nThe Supreme Judicial Court granted a request for direct appellate review.\nM. Robert Dushman (Steven M. Brody with him) for the defendants.\nHarvey S. Shapiro (Burton A. Nadder with him) for the plaintiffs.\nErnest L. Sarason, Jr., for Massachusetts Tenants Organization, amicus curiae, submitted a brief.\nMarla Allisan, Daniel Button, and Kathleen Button, on behalf of themselves and all those similarly situated.\nDoing business as Hamilton Realty Company.\nRobert G. Ward, managing agent for Hamilton Realty Company.""}, ""cites_to"": [{""cite"": ""389 Mass. 431"", ""year"": 1983, ""case_ids"": [913004], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""434""}], ""case_paths"": [""/mass/389/0431-01""], ""opinion_index"": 0}, {""cite"": ""367 Mass. 919"", ""year"": 1975, ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""opinion_index"": 0}, {""cite"": ""371 Mass. 140"", ""year"": 1976, ""case_ids"": [320403], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""145""}], ""case_paths"": [""/mass/371/0140-01""], ""opinion_index"": 0}, {""cite"": ""266 Mass. 33"", ""year"": 1929, ""case_ids"": [846891], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""36"", ""parenthetical"": ""injury must be \""substantial\"" to afford ground for relief""}], ""case_paths"": [""/mass/266/0033-01""], ""opinion_index"": 0}, {""cite"": ""385 Mass. 91"", ""year"": 1982, ""case_ids"": [900794], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""102""}], ""case_paths"": [""/mass/385/0091-01""], ""opinion_index"": 0}, {""cite"": ""10 Mass. App. Ct. 1"", ""year"": 1980, ""case_ids"": [3964850], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""6""}], ""case_paths"": [""/mass-app-ct/10/0001-01""], ""opinion_index"": 0}, {""cite"": ""420 U.S. 223"", ""year"": 1975, ""case_ids"": [11643233], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/420/0223-01""], ""opinion_index"": 0}, {""cite"": ""369 Mass. 795"", ""year"": 1976, ""case_ids"": [309524], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""801""}], ""case_paths"": [""/mass/369/0795-01""], ""opinion_index"": 0}, {""cite"": ""374 Mass. 37"", ""year"": 1977, ""case_ids"": [3871265], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/374/0037-01""], ""opinion_index"": 0}, {""cite"": ""369 Mass. 737"", ""year"": 1976, ""case_ids"": [309772], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""746""}], ""case_paths"": [""/mass/369/0737-01""], ""opinion_index"": 0}, {""cite"": ""N.H. Rev. Stat. Ann. § 358"", ""category"": ""laws:leg_statute"", ""reporter"": ""N.H. Rev. Stat. Ann."", ""opinion_index"": 0}, {""cite"": ""Mich. Comp. Laws § 445.911"", ""year"": 1979, ""category"": ""laws:leg_statute"", ""reporter"": ""Mich. Comp. Laws"", ""opinion_index"": 0}, {""cite"": ""37 Vand. L. Rev. 1117"", ""year"": 1984, ""category"": ""journals:journal"", ""reporter"": ""Vand. L. Rev."", ""pin_cites"": [{""page"": ""1145""}], ""opinion_index"": 0}, {""cite"": ""650 P.2d 1159"", ""year"": 1982, ""case_ids"": [10436725], ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""pin_cites"": [{""page"": ""1161""}], ""case_paths"": [""/p2d/650/1159-01""], ""opinion_index"": 0}, {""cite"": ""92 N.M. 772"", ""year"": 1979, ""case_ids"": [1557190], ""category"": ""reporters:state"", ""reporter"": ""N.M."", ""pin_cites"": [{""page"": ""775""}], ""case_paths"": [""/nm/92/0772-01""], ""opinion_index"": 0}, {""cite"": ""282 N.W.2d 151"", ""year"": 1979, ""case_ids"": [10685093], ""category"": ""reporters:state_regional"", ""reporter"": ""N.W.2d"", ""pin_cites"": [{""page"": ""153-154""}], ""case_paths"": [""/nw2d/282/0151-01""], ""opinion_index"": 0}, {""cite"": ""227 Cal. App. 2d 207"", ""year"": 1964, ""case_ids"": [2138621], ""category"": ""reporters:state"", ""reporter"": ""Cal. App. 2d"", ""pin_cites"": [{""page"": ""209""}], ""case_paths"": [""/cal-app-2d/227/0207-01""], ""opinion_index"": 0}, {""cite"": ""334 So. 2d 863"", ""year"": 1976, ""case_ids"": [9667380], ""category"": ""reporters:state_regional"", ""reporter"": ""So. 2d"", ""pin_cites"": [{""page"": ""865""}], ""case_paths"": [""/so2d/334/0863-01""], ""opinion_index"": 0}, {""cite"": ""48 B.U.L. Rev. 559"", ""year"": 1968, ""category"": ""journals:journal"", ""reporter"": ""B.U. L. Rev."", ""pin_cites"": [{""page"": ""573""}], ""opinion_index"": 0}, {""cite"": ""386 Mass. 74"", ""year"": 1982, ""weight"": 2, ""case_ids"": [906621], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""87""}, {""page"": ""85""}], ""case_paths"": [""/mass/386/0074-01""], ""opinion_index"": 0}, {""cite"": ""162 Ohio St. 569"", ""year"": 1955, ""case_ids"": [1702347], ""category"": ""reporters:state"", ""reporter"": ""Ohio St."", ""pin_cites"": [{""page"": ""575""}], ""case_paths"": [""/ohio-st/162/0569-01""], ""opinion_index"": 0}, {""cite"": ""112 Cal. App. 2d 621"", ""year"": 1952, ""case_ids"": [2237126], ""category"": ""reporters:state"", ""reporter"": ""Cal. App. 2d"", ""pin_cites"": [{""page"": ""624-625""}], ""case_paths"": [""/cal-app-2d/112/0621-01""], ""opinion_index"": 0}, {""cite"": ""35 Cal. 3d 582"", ""year"": 1984, ""case_ids"": [4472195], ""category"": ""reporters:state"", ""reporter"": ""Cal. 3d"", ""pin_cites"": [{""page"": ""593""}], ""case_paths"": [""/cal-3d/35/0582-01""], ""opinion_index"": 0}, {""cite"": ""Cal. Civ. Code §§ 1770"", ""year"": 1981, ""category"": ""laws:leg_statute"", ""reporter"": ""Cal. Code"", ""pin_cites"": [{""page"": ""et seq.""}], ""opinion_index"": 0}, {""cite"": ""630 F.2d 641"", ""year"": 1980, ""case_ids"": [392683], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""647""}], ""case_paths"": [""/f2d/630/0641-01""], ""opinion_index"": 0}, {""cite"": ""686 F.2d 608"", ""year"": 1982, ""case_ids"": [1457382], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""614""}], ""case_paths"": [""/f2d/686/0608-01""], ""opinion_index"": 0}, {""cite"": ""716 F.2d 104"", ""year"": 1983, ""case_ids"": [1890666], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""case_paths"": [""/f2d/716/0104-01""], ""opinion_index"": 0}, {""cite"": ""15 U.S.C. § 1640"", ""year"": 1982, ""category"": ""laws:leg_statute"", ""reporter"": ""U.S.C."", ""opinion_index"": 0}, {""cite"": ""455 U.S. 363"", ""year"": 1982, ""case_ids"": [11305645], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""page"": ""373""}], ""case_paths"": [""/us/455/0363-01""], ""opinion_index"": 0}, {""cite"": ""422 U.S. 490"", ""year"": 1975, ""weight"": 2, ""case_ids"": [9528], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""page"": ""500""}], ""case_paths"": [""/us/422/0490-01""], ""opinion_index"": 0}, {""cite"": ""410 U.S. 614"", ""year"": 1973, ""case_ids"": [11957849], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/410/0614-01""], ""opinion_index"": 0}, {""cite"": ""97 N.J. 37"", ""year"": 1984, ""weight"": 2, ""case_ids"": [1384133], ""category"": ""reporters:state"", ""reporter"": ""N.J."", ""pin_cites"": [{""page"": ""45-48""}, {""page"": ""50-51""}], ""case_paths"": [""/nj/97/0037-01""], ""opinion_index"": 0}, {""cite"": ""137 Mass. 36"", ""year"": 1884, ""case_ids"": [757842], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""37"", ""parenthetical"": ""\""As the plaintiff proved an invasion of her rights by the defendant, she was entitled to recover at least nominal damages\""""}], ""case_paths"": [""/mass/137/0036-01""], ""opinion_index"": 0}, {""cite"": ""328 Mass. 168"", ""year"": 1951, ""case_ids"": [514030], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""171"", ""parenthetical"": ""plaintiff entitled at least to nominal damages for breach of contract""}], ""case_paths"": [""/mass/328/0168-01""], ""opinion_index"": 0}, {""cite"": ""218 Neb. 499"", ""year"": 1984, ""weight"": 2, ""case_ids"": [5461549], ""category"": ""reporters:state"", ""reporter"": ""Neb."", ""pin_cites"": [{""page"": ""504-505""}, {""page"": ""504-505""}], ""case_paths"": [""/neb/218/0499-01""], ""opinion_index"": 0}, {""cite"": ""387 Mass. 11"", ""year"": 1982, ""case_ids"": [908785], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""15""}], ""case_paths"": [""/mass/387/0011-01""], ""opinion_index"": 0}, {""cite"": ""379 Mass. 196"", ""year"": 1979, ""case_ids"": [5879462], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/379/0196-01""], ""opinion_index"": 0}, {""cite"": ""385 Mass. 390"", ""year"": 1982, ""weight"": 2, ""case_ids"": [900725], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""398""}], ""case_paths"": [""/mass/385/0390-01""], ""opinion_index"": 0}, {""cite"": ""366 Mass. 688"", ""year"": 1975, ""weight"": 2, ""case_ids"": [314547], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""693""}, {""page"": ""704""}], ""case_paths"": [""/mass/366/0688-01""], ""opinion_index"": 0}, {""cite"": ""331 Mass. 635"", ""year"": 1954, ""case_ids"": [936578], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""637""}], ""case_paths"": [""/mass/331/0635-01""], ""opinion_index"": 0}, {""cite"": ""388 Mass. 671"", ""year"": 1983, ""weight"": 2, ""case_ids"": [911010], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""675""}, {""page"": ""677-678""}], ""case_paths"": [""/mass/388/0671-01""], ""opinion_index"": 0}, {""cite"": ""65 Mass. L. Rev. 88"", ""year"": 1980, ""category"": ""journals:journal"", ""reporter"": ""Mass. L. Rev."", ""pin_cites"": [{""page"": ""89""}], ""opinion_index"": 0}, {""cite"": ""369 Mass. 33"", ""year"": 1975, ""weight"": 4, ""case_ids"": [309572], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""44-46""}, {""page"": ""41""}, {""page"": ""46""}], ""case_paths"": [""/mass/369/0033-01""], ""opinion_index"": 0}, {""cite"": ""186 F.2d 52"", ""year"": 1950, ""case_ids"": [1225954], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""58""}], ""case_paths"": [""/f2d/186/0052-01""], ""opinion_index"": 0}, {""cite"": ""594 F.2d 212"", ""year"": 1979, ""case_ids"": [512866], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""214""}], ""case_paths"": [""/f2d/594/0212-01""], ""opinion_index"": 0}, {""cite"": ""15 U.S.C. § 45"", ""category"": ""laws:leg_statute"", ""reporter"": ""U.S.C."", ""pin_cites"": [{""parenthetical"": ""a""}], ""opinion_index"": 0}, {""cite"": ""363 Mass. 184"", ""year"": 1973, ""weight"": 3, ""case_ids"": [287373], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""199""}, {""page"": ""198""}], ""case_paths"": [""/mass/363/0184-01""], ""opinion_index"": 0}, {""cite"": ""16 Mass. 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+3857316,"{""id"": 3857316, ""name"": ""Saxon Theatre Corporation of Boston vs. Robert Sage & others"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""432b809c085a8c52f984ddee133af08519ab08f4a0b4d2ba497fbe7bbe2b7e9e"", ""simhash"": ""1:232f0493407eecf8"", ""pagerank"": {""raw"": 0.0000005623390468949373, ""percentile"": 0.9483562555191442}, ""char_count"": 14007, ""word_count"": 2327, ""cardinality"": 671, ""ocr_confidence"": 0.503}, ""casebody"": {""judges"": [], ""parties"": [""Saxon Theatre Corporation of Boston vs. Robert Sage & others.""], ""opinions"": [{""text"": ""Spalding, J.\nThe plaintiff’s original declaration consisted of three counts in contract: one against Bobert Sage, Harry Sagansky, and Louis Fox; one against the Boston Motor Hotel Trust; and one against Bay State Motor Hotel Trust. Each count was basically the same and sought damages for the defendants’ breach of an alleged agreement, embodied in a letter, to construct a motion picture theatre and to lease it to the plaintiff on the terms set forth in the agreement. The defendants demurred on several grounds. One of them, which is decisive, was that the agreement was so lacking in essential terms as to be unenforceable. The defendants’ demurrer was sustained with leave to amend. The plaintiff appealed.\nThe plaintiff moved to amend its declaration by substituting a declaration in four counts: the first and third counts (in contract and tort respectively) were against Bobert Sage, Harry Sagansky, and Louis Fox; the second and fourth counts (in contract and tort respectively) were against the Bay State Motor Hotel Trust. The motion to amend with respect to the tort counts (3 and 4) was allowed; with respect to the contract counts (1 and 2) it was denied.\nThe counts in tort, which were based on deceit and are similar, alleged the following: The defendants told the plaintiff’s president “that their intention was to construct a theatre on ... [a certain] parcel of property, which they intended to lease to the plaintiff, to be operated by the plaintiff under a long-term lease.” The plaintiff, acting in reliance upon the representation, entered into an agreement, embodied in a letter, with the defendants for a lease of the theatre. The defendants stated that their intention was to perform the agreement. The defendants never intended to build the theatre, lease it to the plaintiff, or perform their agreement. The representations made by the defendants were made with the intent that the plaintiff would rely on them. The plaintiff did in fact rely on these representations and released publicity advertising the location of the proposed building. It also negotiated a contract with Cinerama, Inc. to exhibit its pictures. In June, 1962, the defendants informed the plaintiff that they would not perform their agreement to construct a theatre and lease it to the plaintiff. By reason of the defendants’ false representations, the plaintiff suffered special damages by being unable to perform the contract with Cinerama. ‘ ‘ The plaintiff was further damaged because ... if the representations of the defendants had been true, the plaintiff . . . would have made extensive profits from the operation and management of . . . [the] theatre.”\nThe defendants demurred to the third and fourth counts on the ground that they were insufficient in law to enable the plaintiff to maintain its action. The demurrer was sustained and the judge reported the case.\n1. A question of practice requires discussion. The defendants suggest that only the tort counts are before us. In support of this position they cite cases holding that after a demurrer to a declaration has been sustained and a superseding amendment has been allowed the demurrer to the original declaration will not be dealt with. Cases to this effect are Cole v. Wells, 224 Mass. 504, 512, Hushion v. McBride, 296 Mass. 4, 8, Revere v. Blaustein, 315 Mass. 93, 97, National Overall Dry Cleaning Co. v. Yavner, 321 Mass. 434, 436, Palmer v. Motley, 323 Mass. 129, 133. The reason for this rule is sound, because ordinarily the amended declaration would entirely supersede the original pleading, thereby making the question of its sufficiency academic. But that is not the situation here, for the amended declaration was allowed only as to the tort counts. Thus it cannot fairly be said that it superseded and made moot the contract counts in the original declaration. We are of opinion, therefore, that the sufficiency of these counts, as to which there was an appeal, ought to be considered.\n2. The original declaration presents the question whether the agreement embodied in the letter is sufficiently complete to support an action of contract. We are of opinion that it is not. The terms set out in the letter are uncertain in many material respects and indicate that the parties had reached the stage of “imperfect negotiation” and not that of a completed contract. Rosenfield v. United States Trust Co. 290 Mass. 210, 217. It left open for future determination many matters. There is only a general description of the location where the theatre would be placed and no description of the exact boundaries of the land to be leased. The rent to be paid in the final ten year period was left unsettled and the letter stated that it must be settled “prior to the execution of the lease.” The exact identities of the lessor and lessee were not settled. Finally, the basic plans and specifications were “to be mutually agreed upon.” We are of opinion that the letter is too indefinite to be enforced as an agreement. Lyman v. Robinson, 14 Allen, 252, 254. Kaufman v. Lennox, 265 Mass. 487. Geo. W. Wilcox, Inc. v. Shell E. Petroleum Prod. Inc. 283 Mass. 383, 387, 390. Rosenfield v. United States Trust Co., supra, at pp. 216-217.\n3. The third and fourth counts of the plaintiff’s amended declaration do not make out a case in deceit. Because of the nature of the alleged false representations set forth in the declaration, any reliance on them would not be reasonable. The representations were: an intention “to construct a theatre . . . [and] to lease [it] to the plaintiff, to be operated by the plaintiff under a long-term lease,” and to “perform the agreement for a lease.” Neither of these allegations can provide the basis for a reasonable reliance on successfully worldng out a long term lease where so much was left for future negotiations.\nThe representation of an intention to build a theatre and give a long term lease to the plaintiff is no more than an offer to negotiate. The court said in Rosenfield v. United States Trust Co., supra, at 216, “Normally the fact that parties contemplate the execution of a final written agreement justifies a strong inference that the parties do not intend to be bound by earlier negotiations or agreements until the final terms are settled.”\nWe are of opinion that the plaintiff could not reasonably rely on a representation of an intention to draw up and execute a mutually acceptable lease when essential terms of it had not yet been stated or settled. The proposed lease would involve detailed negotiations and it might turn out that no lease acceptable to the parties could be worked out. Lyman v. Robinson, 14 Allen, 242, 254.\nThe representation that the defendants would build the theatre and lease it to the plaintiff is hardly more than a statement of opinion — a prophecy, as it were — that a lease acceptable to both parties would be agreed upon in the future. The case “falls within the ordinary rule that false statements of opinion, of conditions to exist in the future, or of matters promissory in nature are not actionable.” Yerid v. Mason, 341 Mass. 527, 530, and cases cited. The case of Barrett Associates, Inc. v. Aronson, 346 Mass. 150, on which the plaintiff relies is not to the contrary, for there the intentions which were misrepresented were definite and precise.\nThe representation of intention to perform the agreement for a lease also does not provide a basis for an action in deceit. The plaintiff cites Restatement: Torts, § 530, and Schleifer v. Worcester No. Sav. Inst. 306 Mass. 226, for the proposition that a deceit action lies for a misrepresentation of intent to perform an agreement even if the agreement is unenforceable as a contract. However, that principle reaches only an agreement which is unenforceable because it is not in the required form, as where, because oral, it is obnoxious to the statute of frauds or the paroi evidence rule; it does not cover a contract unenforceable, as here, because essential terms are missing. Until all the essential terms are settled, it cannot reasonably be said that there is a meaningful intention which can be misrepresented.\nOrders sustaining demurrers affirmed.\nThe letter embodying the agreement, dated April 9, 1962, was written by the defendant Sage to the plaintiff, and one of the plaintiff’s officers indorsed its assent on the letter. It reads in part as follows:\n“This letter is written to express our mutual intent. Your signature hereto will indicate your accord.\n“I am to erect a theatre building with space for 1200 seats .... This theatre will be located on a part of the land of the present Jenney Gasoline Service Station at the junction of Commonwealth Avenue and Deerfield Street, Boston, Massachusetts. The Lessee will be obliged to paint, decorate, furnish and equip the theatre. . . . The Lessor, in substance, will deliver the building, including the men’s and women’s toilets, air conditioning, and will bring the electric power lines up to the place for the Lessee’s proposed installations, and all run-offs thereafter will be done by the Lessee. Plans and specifications of both parties to be mutually agreed upon. The Lessee agrees to make cash expenditures of a minimum of $200,000 for the performance of the Lessee’s work and the Lessee’s other responsibilities, as aforesaid, and will furnish satisfactory evidence thereof.\n‘ ‘ As security for the lease, the Lessee will execute a security instrument covering all personal property installed for use in the operation of the theatre.\n“The lease will be for the term of 30 years commencing upon availability of possession of the premises to the Lessee, and in no event, later than February 1, 1963. The Lessee agrees to take possession as soon as the Lessor has been able to complete the work and make possession available to the Lessee.\n“The minimum rental will be at the rate of $60,000 per year, payable in equal monthly installments in- advance during the first 12 years of the term, and the minimum rental for the next 8 years of the term will be at the rate of $35,000 per year, payable in equal monthly installments in advance, and for the balance of 10 years the minimum rental shall be such as the parties hereafter mutually agree upon prior to the execution of the lease.\n“As additional rental, the Lessee will agree to pay in equal monthly installments an amount equal to all taxes . . . levied or assessed upon the demised premises or any part thereof. . . . [As part of the rent the lessee also undertook to pay the cost of certain insurance policies. Provisions with respect to the assignment of the lease and the lessee’s duties to repair and restore were included.]\n“The parties understand that this rental has been computed based on projected costs of the Lessor; that the Lessor has not had adequate opportunity to verify these costs; and that, therefore, if, upon verification, the Lessor determines that its costs exceed those originally estimated, the Lessor shall have the right to terminate this proposed arrangement for a lease, and thereupon, all rights of both parties hereunder shall terminate. Also, the parties understand that this proposed arrangement for a lease is contingent upon the ability of the Lessor to arrange to borrow monies secured by a first mortgage from customary sources and in a customary amount and on customary terms. Therefore, if the Lessor shall determine that the Lessor is unable to accomplish this borrowing under construction and/or permanent mortgage, then the Lessor shall have the right to terminate this proposed arrangement, and thereupon, all rights of both parties hereunder shall terminate.\n‘ ‘ The lease will have such other terms and conditions as may be appropriate and reasonable for a lease of this type.’’\nThe agreement referred to is that set forth in footnote 1."", ""type"": ""majority"", ""author"": ""Spalding, J.""}], ""attorneys"": [""Walter H. McLaughlin, Jr., for the plaintiff."", ""Claude B. Cross (John M. Reed with him) for the defendants.""], ""corrections"": """", ""head_matter"": ""Saxon Theatre Corporation of Boston vs. Robert Sage & others.\nSuffolk.\nApril 7, 1964.\nJune 23, 1964.\nPresent: Wilkins, C.J., Spalding, Whittemore, Cutter, & Reardon, JJ.\nContract, What constitutes, Validity. Deceit. Practice, Civil, Amendment. Pleading, Civil, Demurrer.\nWhere a demurrer to a declaration in an action containing only counts in contract was sustained and the plaintiff appealed, a motion by the plaintiff to amend by substituting a declaration containing both counts in contract and counts in tort was allowed as to the tort counts but denied as to the contract counts, a demurrer to the tort counts was sustained, and the judge reported the case, the original contract counts as well as the tort counts were before this court. [665-666]\nAn alleged contract to build a theatre and give a long term lease of it was unenforceable in that it left many material items of the matter unsettled for subsequent determination, such as the definite land to be leased and location of the theatre, the rent to be paid for a portion of the term of the lease, the exact identities of the lessor and the lessee, and the basic plans and specifications of the theatre. [666]\nAn action of deceit could not be maintained based on alleged false representations by the defendant, allegedly relied on by the plaintiff to its damage, that the defendant intended to build a theatre and give the plaintiff a long term lease of it and intended to perform an agreement between the parties to that end, where many essential items of the transaction, as it was set forth in the allegations, were left unsettled for subsequent determination, and reliance by the plaintiff on the alleged false representations would be unreasonable. [666-668]\nContract. Writ in the Superior Court dated July 2, 1962.\nA demurrer to the declaration was sustained by Bolster, J., and the plaintiff appealed. Following an amendment of the action to one of contract or tort and an amendment of the declaration adding counts in tort, a demurrer to those counts was sustained by Beaudreau, J., who then reported the case.\nWalter H. McLaughlin, Jr., for the plaintiff.\nClaude B. Cross (John M. Reed with him) for the defendants.""}, ""cites_to"": [{""cite"": ""306 Mass. 226"", ""case_ids"": [871837], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/306/0226-01""], ""opinion_index"": 0}, {""cite"": ""346 Mass. 150"", ""case_ids"": [518419], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/346/0150-01""], ""opinion_index"": 0}, {""cite"": ""341 Mass. 527"", ""case_ids"": [3852931], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""530""}], ""case_paths"": [""/mass/341/0527-01""], ""opinion_index"": 0}, {""cite"": ""14 Allen, 242"", ""case_ids"": [2138234], ""category"": ""reporters:state"", ""reporter"": ""Allen"", ""pin_cites"": [{""page"": ""254""}], ""case_paths"": [""/mass/96/0242-01""], ""opinion_index"": 0}, {""cite"": ""283 Mass. 383"", ""case_ids"": [477654], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""387, 390""}], ""case_paths"": [""/mass/283/0383-01""], ""opinion_index"": 0}, {""cite"": ""265 Mass. 487"", ""case_ids"": [3824438], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/265/0487-01""], ""opinion_index"": 0}, {""cite"": ""14 Allen, 252"", ""category"": ""reporters:state"", ""reporter"": ""Allen"", ""pin_cites"": [{""page"": ""254""}], ""opinion_index"": 0}, {""cite"": ""290 Mass. 210"", ""case_ids"": [493995], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""217""}], ""case_paths"": [""/mass/290/0210-01""], ""opinion_index"": 0}, {""cite"": ""323 Mass. 129"", ""case_ids"": [504101], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""133""}], ""case_paths"": [""/mass/323/0129-01""], ""opinion_index"": 0}, {""cite"": ""321 Mass. 434"", ""case_ids"": [499801], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""436""}], ""case_paths"": [""/mass/321/0434-01""], ""opinion_index"": 0}, {""cite"": ""315 Mass. 93"", ""case_ids"": [904093], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""97""}], ""case_paths"": [""/mass/315/0093-01""], ""opinion_index"": 0}, {""cite"": ""296 Mass. 4"", ""case_ids"": [885005], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""8""}], ""case_paths"": [""/mass/296/0004-01""], ""opinion_index"": 0}, {""cite"": ""224 Mass. 504"", ""case_ids"": [44372], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""512""}], ""case_paths"": [""/mass/224/0504-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""347 Mass. 662"", ""type"": ""official""}], ""file_name"": ""0662-01"", ""last_page"": ""668"", ""first_page"": ""662"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T16:44:56.891498+00:00"", ""decision_date"": ""1964-06-23"", ""docket_number"": """", ""last_page_order"": 712, ""first_page_order"": 706, ""name_abbreviation"": ""Saxon Theatre Corp. of Boston v. 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+3865208,"{""id"": 3865208, ""name"": ""Harold Richman vs. Marguerite J. Seaberg"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""e98bfde063bcea6c0b8c94c209f0a4741823d884a052aa83f9f4aed6402580a5"", ""simhash"": ""1:8d65f60f26c7acb6"", ""pagerank"": {""raw"": 0.0000000403580807328026, ""percentile"": 0.11614190634280222}, ""char_count"": 2026, ""word_count"": 324, ""cardinality"": 196, ""ocr_confidence"": 0.599}, ""casebody"": {""judges"": [], ""parties"": [""Harold Richman vs. Marguerite J. Seaberg.""], ""opinions"": [{""text"": ""Rich-man, an experienced plumbing contractor, agreed to purchase a house and lot in Milton from Mrs. Seaberg. Prior to executing the agreement, he inspected the premises including the cellar. Mrs. Seaberg, seventy-three years old, remained upstairs. A sump pump and pipes were hidden from view by cartons and boxes. A drain under the floor was covered by a removable linoleum panel and was not seen because of the boxes and clothing hanging on the wall. No conversation about “any water problem with the house” took place between Richman and Mrs. Seaberg. After Mrs. Seaberg had vacated the house, Richman observed the sump pump, drain, and cement floors. The sump pump was installed after a 1955 hurricane. The cellar linoleum has been dry since then. Richman does not contend that any concealment was intentional. He seeks a declaration that he may have rescission of the agreement and return of his deposit. A master’s report was confirmed. By final decree specific performance was ordered. Richman appealed. The master’s report affords no basis for concluding that there was any misrepresentation by Mrs. Seaberg, or any legally significant intentional concealment of, or failure to disclose, the condition of the cellar. See Swinton v. Whitins-ville Sav. Bank, 311 Mass. 677, 678-679; Spencer v. Gabriel, 328 Mass. 1, 2. Cf. Williams v. Benson, 3 Mich. App. 9. Richman was not prevented from making any investigation. There was no inequitable conduct by the seller which should cause discretionary denial of specific performance. See Exchange Realty Co. v. Bines, 302 Mass. 93, 100. See also Yerid v. Mason, 341 Mass. 527, 529-531 (promissory representation did not warrant rescission). Cf. Yorke v. Taylor, 332 Mass. 368, 371 (innocent misrepresentation). If evidence excluded by the master had been admitted, the result should not have been affected.\nJoseph M. Cohen for the plaintiff.\nMax L. Glazer was not called upon.\nDecree affirmed with costs of appeal."", ""type"": ""majority"", ""author"": null}], ""attorneys"": [""Joseph M. Cohen for the plaintiff."", ""Max L. Glazer was not called upon.""], ""corrections"": """", ""head_matter"": ""Harold Richman vs. Marguerite J. Seaberg.\nDecember 1, 1967.""}, ""cites_to"": [{""cite"": ""332 Mass. 368"", ""case_ids"": [938184], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""371""}], ""case_paths"": [""/mass/332/0368-01""], ""opinion_index"": 0}, {""cite"": ""341 Mass. 527"", ""case_ids"": [3852931], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""529-531""}], ""case_paths"": [""/mass/341/0527-01""], ""opinion_index"": 0}, {""cite"": ""302 Mass. 93"", ""case_ids"": [867883], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""100""}], ""case_paths"": [""/mass/302/0093-01""], ""opinion_index"": 0}, {""cite"": ""3 Mich. App. 9"", ""case_ids"": [2030410], ""category"": ""reporters:state"", ""reporter"": ""Mich. App."", ""case_paths"": [""/mich-app/3/0009-01""], ""opinion_index"": 0}, {""cite"": ""328 Mass. 1"", ""case_ids"": [514015], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""2""}], ""case_paths"": [""/mass/328/0001-01""], ""opinion_index"": 0}, {""cite"": ""311 Mass. 677"", ""case_ids"": [889343], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""678-679""}], ""case_paths"": [""/mass/311/0677-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""353 Mass. 757"", ""type"": ""official""}], ""file_name"": ""0757-02"", ""last_page"": ""758"", ""first_page"": ""757"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T16:48:20.129664+00:00"", ""decision_date"": ""1967-12-01"", ""docket_number"": """", ""last_page_order"": 804, ""first_page_order"": 803, ""name_abbreviation"": ""Richman v. 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+3865593,"{""id"": 3865593, ""name"": ""Louis D. Reil, Jr. vs. Lowell Gas Company (and four companion cases)"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""4aea6d36e8d15c870d5a75cd873a8bc022963fbd0f1406d41b80e3b17857b9bf"", ""simhash"": ""1:26eaf64e8356c0c9"", ""pagerank"": {""raw"": 0.00000019673057477585198, ""percentile"": 0.7388737721774513}, ""char_count"": 40861, ""word_count"": 7131, ""cardinality"": 1439, ""ocr_confidence"": 0.51}, ""casebody"": {""judges"": [], ""parties"": [""Louis D. Reil, Jr. vs. Lowell Gas Company (and four companion cases).""], ""opinions"": [{""text"": ""Whittemore, J.\nThe five plaintiffs had verdicts for personal injuries sustained in an explosion, or explosions, followed immediately by a fire, on March 6, 1961, on premises of Louis O. Beede & Sons, Inc. (Beede) in Lowell wherein sawdust and wood flour were manufactured, stored, and packaged for sale. The defendant excepted to rulings on evidence, denial of motions to strike the auditor’s report or parts of it, the failure to direct verdicts for the defendant, and the failure to give certain requested instructions.\nThe plaintiffs relied on evidence, including the auditor’s report, tending to show that the explosion or explosions resulted from the escape of natural gas from a break in the service pipe. The defendant’s experts testified that the explosions were of wood dust and air, not attributable to gas.\nIt was undisputed that after the fire a break was discovered in the gas pipe between the street main and the meter. This break was in the so called sump room at the base of the steel casings that housed the endless chain bucket elevator which carried raw materials from the unloading platform to the top floor of the factory building. The service pipe from the street main passed through this ten foot square, masonry walled room and through other adjoining rooms to the meter in what had been the boiler room at an earlier time when the plant had been used as a brewery. The break was in a brass coupling or union that joined two sections of the one and one-quarter inch iron service pipe. The auditor found, and the plaintiffs’ evidence at the trial tended to show, that this break had resulted from galvanic corrosion due to the flow of electricity between dissimilar metals, that is, the brass of the coupling and the iron of the pipe.\nApart from the other testimony favorable to the plaintiffs, the findings in the auditor’s report, if properly admitted, were such as to take the cases to the jury.\nThe auditor found, as to the cause of the explosion and fire, as follows: “18. I find that the process of Galvanic Corrosion was occurring in the location in the ‘Sump’; that this process had been proceeding for a period of at least ten years before March 6, 1961; that for 5 years prior to March 6, 1961 the corrosion was open and obvious .... 24. I find that it was inevitable that the process of Galvanic Corrosion occurring and proceeding at the union in the ‘Sump’ would eventually cause a break or hole in the gas line resulting in the lealdng of gas, and that a hole or break approximately 3/10 of an inch by 4/10 of an inch did occur which allowed gas to leak; that this gas moved upward in the ‘ Sump ’ and in the building through many openings until there was explosive mixture of gas and air on all floors of the ‘Brew House’ in that part of the building which was nearest to Payton Street. 25. I find that on March 6, 1961, the natural gas and air mixture exploded; that within 10 or 15 seconds the entire front portion of the ‘Brew House’ from ground to roof was involved; that the explosion was immediately followed by fire which within one minute after the explosion involved all floors of the building; that within 10 or 15 seconds after the explosion, a substantial part of a brick tower at the top of the building disintegrated and fell to the street, that other portions of the roof of the building were blown off, that an employee on the top floor of the building was thrown off his feet and to the floor as the explosion occurred and other men on the ground floor were also thrown off their feet and to the floor by the explosion. ... 29. I find that wood dust when suspended in the air in sufficient quantity, when ignited by a sufficient source of energy, will explode .... 30. I find that the explosion which occurred in the ‘Brew House’ was consistent with, and caused by, a gas-air mixture, and was not consistent with wood dust, as a cause.”\nThe auditor made no finding as to the ownership of the service pipe. He found (No. 9) that the defendant had made and sold gas in the Lowell district for sixty years; also (No. 21), that the service pipe from the main to the sump room was installed in 1897. On the issue of control of that pipe he made several findings. He found (No. 33) that the defendant had been a member of the American Gas Association since at least 1950, and that this association incorporated all applicable rules of the American Standards Association (A. S. A.) in its publications for the guidance of its members, and that the defendant, with other gas distribution companies, operated under the rules and standards of the A. S. A. He also found (No. 34) that the custom and usage of gas distribution companies, at least since 1955, has been that the company has exclusive control over all gas service pipes, that is, the pipes from the main to the customer’s meter. He found that Beede first began to purchase gas from the defendant in 1957; that Beede in no way changed, modified or interfered with the gas pipe from the main to the meter; and that neither the defendant nor anyone else changed, modified or interfered with the gas pipe during the period from 1955 to March 6, 1961, except in one instance. On February 1, 1957, nine months before Beede bought the premises, an employee of the defendant entered the sump room and removed a gas meter of the defendant. “22. I find that service employees of the gas company had been in the ‘Brew House’ premises [Beede’s premises] on the business of the gas company on at least 6 occasions from 1955 and before March 6, 1961; that they replaced the meter in the boiler room on at least two occasions between 1955 and 1958. ... 36. I find the pipe and union referred to were in the exclusive control of the defendant ... at least since 1957 . . . that the defendant Gas Company and only the defendant Gas Company had a legal duty to exercise reasonable care to maintain the said pipe and union in a reasonably safe condition for the transmission of natural gas which it contained. ’ ’\nThe auditor did not expressly find (as the trial evidence showed) that Beede’s employees used the sump room for access to and maintenance of the hoisting machinery and for removal of material that fell from the hoist. He did find, however (No. 10), that at the time of the explosion there was a vertical and stationary steel ladder to allow workers to descend into the sump room, that the base of the vertical elevator extended into the sump room and there was space in it for a person to stand upright. The ladder was reached through a bulkhead. Air could pass from this masonry enclosed room into the elevator openings.\nOn the issue of negligence the auditor found as follows. (No. 14) “ [I]t is a principle well known in the gas distribution industry that a copper base metal is not compatible with iron and that joining these two metals at a place where moisture is present will cause . . . ‘galvanic corrosion. ’ ’ ’ The sump room was always damp; this condition was obvious; (No. 17) the presence of the two dissimilar metals would have been obvious and readily discoverable on any routine inspection by a trained inspector; the galvanic corrosion had been going on for at least ten years before March 6, 1961, and for five years prior to that date it was open and obvious; the defendant had never inspected the gas pipe in the sump room and had no provision or rules for periodic inspection of gas pipes located within the premises of its customers. The auditor also found (No. 16) that the union was made of a substandard copper based alloy, making it brittle and likely to break or crack and was unsuitable and improper metal for construction of a pipe or union which was to be used in the transmission of gas.\n1. We consider together the motion to strike the auditor’s report and so much of the motion to strike parts of the report as specifies the auditor’s ultimate conclusions and certain subsidiary findings on which those conclusions depend.\nThe defendant submitted to the trial judge a partial transcript of testimony before the auditor to support its assertion that the auditor’s “conclusion of responsibility is not warranted by the evidence of the four experts who testified.” This was not correct procedure and the judge rightly disregarded the contention. Even though Rule 90 of the Superior Court (1954) is inapplicable to an auditor’s report that is not final (see Rule 89), a motion to recommit is the proper means of dealing with a report containing findings not supported by any evidence. Levovsky v. Horvitz, 307 Mass. 475, 480.\nThere is nothing in the assertion of the motion that the auditor merely copied all the plaintiffs’ requests for findings ; there was no basis at the trial for going outside the report to ascertain this. Another asserted ground for striking the report was that the “auditor’s conclusion of responsibility is inconsistent with the subsidiary facts found by him. ” We see no inconsistency. This leaves the only issue under this motion whether the auditor’s conclusion of responsibility “is based on an erroneous conception of the law to be applied to the case.” This raises an issue under G. L. c. 221, § 56, as does the motion to strike findings 87, 88 and 90. The assertion of error in the ultimate findings is that they are based on an erroneous conception of the law and are unsupported by any subsidiary findings. The auditor’s conclusion of causal relation between the break and the explosion is fully supported by his subsidiary findings. The defendant relies on findings 27 and 28 to show a break in causation. We disagree. Although the auditor (No. 27) was “unable to ascertain . . . the nature or source of the exact energy which ignited the gas-air mixture,” it was enough to find (No. 28) “that any one of the many and unavoidable sources such as occur when metal contacts metal would be of sufficient energy to ignite [the] gas-air mixture.” The plant was in operation at the time of the explosion (No. 26) and the machines and electric motors were operating.\nThe defendant’s chief concern in respect of causation is the asserted absence of any direct evidence that there was a break in the pipe before the explosion. But any uncertainty as to the time of the break arises only from the testimony of the witnesses at the trial. The auditor’s report, as set out above, did find expressly that the galvanic corrosion caused a break in the gas line from which gas moved into the building and, on March 6, 1961, exploded. There were thus adequate subsidiary findings. Compare Deyo v. Athol Housing Authy. 335 Mass. 459, 463; Larson v. Brockton Agricultural Soc. 344 Mass. 463, 465.\nThe critical issue in respect of the report, and indeed, the whole of the plaintiffs ’ case, is whether, on the facts found, the conclusions were warranted of a duty of care and a failure in that duty. For reasons to be stated we hold that these conclusions were warranted.\nThe defendant used as the means of conveying its product to the meter in the boiler room a pipe with a union that was subject to corrosion because of contact with a dissimilar metal. Whether it owned the service pipe or some of it, or installed the union and the pipe, is beside the point. The sump room was accessible. The defendant’s gas had at one time been metered there. At whatever time it elected to place in the boiler room its means for measuring its gas for sale, it was under a duty to see that the pipe it was using, at least so far as visible and hence subject to inspection, was reasonably fit for the use to which the defendant was to put it. Particularly with an accessible union which was subject to deterioration, there was a continuing duty to inspect and take steps to replace the part when deterioration appeared. See n. 6.\nThe defendant had a statutory right of access. It exercised this right freely and \""without objection by Beede. The defendant had a right to insist, as a condition of supplying its product, that where the pipe used for that purpose went through a room used by others, the pipe be so protected that action of others would not disturb or break it. It had a right to install whatever shield or support was necessary to furnish such protection or, alternatively, to decline to deliver gas through the pipe.\nWe construe the finding of “exclusive control” (No. 36) to mean that the defendant had the right of access to the service pipe in the sump room and to make changes therein and to exclude others from doing anything to it. This was a mixed question of law and fact and the defendant’s motion to strike this finding was on the sole ground that it is based on an erroneous conception of the law.\nThe concluding part of finding 36 was only a ruling of law and had it been erroneous it should have been struck. It was, however, essentially right and stated the legal premise on which the auditor based his ultimate findings for the plaintiffs.\nThe defendant’s brief concedes that “the decisive factor in imposing the duty of inspection should be the means of access and extent of actual control.” Power and duty to exercise dominion over the service pipe is enough. Even if the jury found that the defendant had not exercised physical control of the service pipe at any time, this would not lessen its obligation.\nThe findings are fully adequate for the conclusion of failure in due care. Compare Metevia v. Athol, 348 Mass. 274, 282-283. The defendant specifically attacks finding No. 87 (see above) as unsupported by any subsidiary finding. It is plain that the auditor made no findings as to the rules of the industry specifically applicable to the inspection and maintenance of service pipes. Nevertheless, the conclusion that the defendant “failed to comply with the standards for inspection and maintenance provided by custom and usage in the . . . industry” was supported by the finding that, by that custom and usage, the defendant had control of the service pipe, taken with the inescapable inference that reasonable care of a pipe under the defendant’s control was required.\nAlthough the precise issue has not arisen in our cases, our holding is consistent with them and is to a degree foreshadowed by statements in certain of the opinions.\nIn Black v. Boston Consol. Gas Co. 325 Mass. 505, 508-509, we said: “The fact that the defendant did not lay this main in 1908 does not exempt it from liability if the jury found that it ought to have ascertained during the fourteen years it maintained this distributing system that the main was laid upon hardpan within the frost zone and that the roots of the tree located in the gutter were apt to interfere with the main, which was only four feet away. The damage done by the roots of this tree to the tar sidewalk was obvious and antedated the break by a long time. The damage which the roots were causing to the sidewalk might reasonably cause one to anticipate that damage might be incurred by the gas main especially since the tree was nearer to the main than it was to the sidewalk. The jury also had before them evidence that the defendant had no system for the inspection of the mains except to observe them as they were exposed when the city or some other agency happened to be making some excavation in the public ways for its own purposes. . . . The jury were warranted in finding that the defendant should reasonably have anticipated that a break might occur; that it negligently failed to prevent it; and that the defendant did not exercise reasonable care in the maintenance ánd supervision of its gas main used by it to convey a substance of a dangerous nature having a tendency to escape, which, if not kept confined to the main, might result in serious harm to another.” (Citing numerous cases.) See Stewart v. Worcester Gas Light Co. 341 Mass. 425, 431—432, in which the original papers show a stipulation that the gas company owned the service pipe; Wolff v. Buzzards Bay Gas Co. ante, 57. Compare Bristol Wholesale Grocery Co. v. Municipal Lighting Plant Commn. of Taunton, 347 Mass. 668, 669, 673 (no finding or basis for a finding of control of a steam service pipe).\nOther cases are distinguishable. In A. DaPrato Co. v. Boston, 334 Mass. 186, 188, we held that reasonable care did not require the digging up of buried water pipe for inspection, where there was “no evidence . . . that the pipe . . . was of a kind which after the length of time it had been in the street could not safely be used.” In Musolino LoConte Co. v. Boston Consol. Gas Co. 330 Mass. 161, 164, we held that the mere fact that gas escaped from a break in a gas main laid in a street many years before did not warrant a finding of negligence on the part of the gas company. The court noted that the defendant there had control over the pipe in only a limited sense and no control over the surrounding circumstances. Compare also Artz v. Hurley, 334 Mass. 606, 608 (negligence could not be inferred from failure of the defendant to inspect a water closet float).\nThere are cases elsewhere which place in the supplier responsibility for the service pipe up to the meter. Some of them state rules beyond that which determines this case. Mattson v. Central Elec. & Gas Co. 174 F. 2d 215 (8th Cir.), cert. den. sub nom. Central Elec. & Gas Co. v. Mattson, Admr. 338 U. S. 868 (duty of supplier to know probable life of gas line). Griffin v. McKneely, 101 Ga. App. 811, 818. Weiss v. Gas Serv. Co. 170 Kans. 43, 48. Manning v. St. Paul Gaslight Co. 129 Minn. 55, 57. Daugherty v. Nebraska Natural Gas Co. 173 Neb. 30, 33. Lovell v. Las Cruces, 54 N. M. 358. Northwestern Ohio Natural Gas Co. v. First Congregational Church, 126 Ohio St. 140, 160. Lone Star Gas Co. v. Veal, 378 S. W. 2d 89, 91-95 (Tex. Civ. App.), and cases cited. Stenger v. Hope Natural Gas Co. 141 W. Va. 347, 353.\nThe rule that the supplier has no responsibility for a service pipe not shown to be owned by it should not be applied to the instant facts. See Clare v. Bond County Gas Co. 356 Ill. 241, 244; Holsclaw’s Admr. v. Louisville Gas & Elec. Co. 267 Ky. 56, 63; and Steele v. Peoples Natural Gas Co. 386 Pa. 439, 445.\n2. What we have said disposes of most of the attack on other specific findings of the auditor’s report. Findings 17 and 18, relating to galvanic corrosion, for the reasons stated above, are not, as the defendant alleged in the motion, based on an erroneous conception of law. Finding 24 does not fail because of the absence of a precise finding of when the leak occurred.\nThe asserted basis for moving to strike No. 35 (that it is contrary to the evidence and other findings) is, we assume, based on the reference in the finding to a “hole in the pipe. ” We think it plain that the auditor was referring to the break in the brass union and in its joining with the iron piping, treating the entire assembly as the service pipe. The finding was in order.\nFinding 37, in respect of an act of dominion over the corroded pipe some weeks after the explosion and fire, was, in effect, struck by appropriate words in the supplementary charge.\nThe defendant’s brief specifies certain findings relating to the failure of the defendant’s employee, John Garland, to discover the corrosion, as a reason why the motion to strike the findings should have been allowed. The findings specified are 13, 17, 18, and 19. Findings 17 and 18 were referred to in the motion but they do not relate to Garland. Findings 13 and 19 do relate to Garland but, as they were not specified in the motion, no error is shown in failing to strike these findings or part of them.\n3. The defendant’s brief, in its argument for directed verdicts, lays stress on asserted deficiencies in the evidence taken at the jury trial. The auditor’s report, as noted, was such as to take the cases to the jury. Nevertheless we examine certain of the defendant’s contentions based on the testimony at the trial.\nAn expert witness, Roderick J. Cowles, testified that in his view it was a gas explosion and not a dust explosion. In his opinion, “it had to be gas that caused this explosion.” He supported this view with good reasons. The jury therefore could conclude that it was a gas explosion if there was any reasonable basis for concluding that gas could have been leaking into the premises. There was such a basis. Hence the expert’s opinion was not “invoked to supply the substantive facts necessary to support his conclusion.” For such a case see Ruschetti’s Case, 299 Mass. 426, 431. The other relevant facts, as the jury could have found them, were the fractured union, a weakening in the metal that at some point in time gave way instantaneously; a detection of the odor of gas at the sump room entrance, but only very close thereto, after the fire; and the inability to get gas in the office heaters on the morning after the fire. Beede used gas only for those heaters. The defendant’s brief relies on the lack of evidence that the heaters had failed at the time of the fire. There was, however, evidence that there were electric heaters in the office, and that the gas heaters were used to supplement them. The jury, notwithstanding evidence that the bills for gas had continued in substantial amounts, were not obliged to conclude that the gas heaters had been in use on March 6,1961, at the time of the fire.\nAlthough, as one metallurgical expert (called by the plaintiffs) testified, it was just as likely from the physical evidence that the fracture of the union occurred after the fire as before, the jury could weigh, with this evidence, the testimony that the explosion had the characteristics of a gas explosion.\nThe judge rightly instructed that experts ’ opinions based on assumptions are not of value if the jury do not find the assumed facts. Cowles agreed on cross-examination that, for his opinion, he assumed that gas was lealdng before the explosion. This testimony recognized that if gas had not been leaking the explosion could not have been due to gas, and did not weaken the force of his other testimony that the explosion had the attributes of a gas, and not a dust, explosion.\nMilch v. Boston Consol. Gas Co. 341 Mass. 230, is distinguishable for in that case there was no basis for an opinion that escaping gas was a more probable cause of the explosion than any other. There was no direct evidence of a break in any pipe or main. Compare also Nass v. Duxbury, 327 Mass. 396, 401 (a guess is not enough); Marcus v. Griggs, Inc. 334 Mass. 139 (equally likely that a pail, on which the plaintiff injured herself, had been moved by another person after the defendant had left).\nThe testimony that no one smelled gas before the explosion is not conclusive. There was evidence of other odors in the plant and from another industrial plant in \""the neighborhood.\nThe views of the defendant’s experts that forces directly or indirectly related to the explosion caused the break, that some force applied to the outside of the pipe caused the fracture, and that the explosion was a dust explosion, were ably and fully presented, but they did not require .findings for the defendant. Incidentally, we note that the circumstance of an external force operative at some time is suggested by the appearance of the broken union and the evidence that it was made of brittle metal. But this would not exclude a finding that the pipe, in whatever condition it was before the break (perhaps already weakened by external force), developed the leak before the fire. The defendant’s responsibility would not be negatived by the circumstance of outside force contributing to the fracture.\nThe defendant, as a part of its argument that verdicts should have been directed for it (but not as an independent ground for sustaining its exceptions), asserts that there was error in the admission of portions of the A. S. A. standards. \""We disagree. The standards, to which according to testimony the defendant subscribed, had relevance to the issue of control of the service pipe. The defendant’s brief notes that the standards were applicable to equipment “up to the outlet of the customer’s meter set assembly.” This warranted an inference of responsibility of the supplier for the pipe up to the meter. Accepting the defendant’s view that certain sections of the code refer only to inspections in connection with installation, nevertheless another section remains relevant. We quote from the defendant’s brief: “The relatively small portion of section eight of the code that deals with operation and maintenance, exclusive of installation, provides: ‘Because of many variables, it is not possible to prescribe in a national code a set of operating and maintenance procedures that will be adequate from. the standpoint of public safety in all cases without being burdensome and impractical in all.’ ” This section did not in any way negative the implication of control of the pipes up to the meter; indeed it recognizes such control, and leaves inspection standards to the particular case. It implies a requirement of due care in the circumstances.\nThe other evidential exceptions, which are not relied on apart from the argument for directed verdicts, relate to issues which we have discussed and do not warrant separate consideration.\n4. It was not error to exclude evidence of other fires. This was within the discretion of the judge. Robitaille v. Netoco Community Theatre of No. Attleboro, Inc. 305 Mass. 265. The excluded testimony described fires which occurred at the Beede plant in Lowell (1) on January 3,1961 (“friction sparks, motor, third and fourth floors involved”), and (2) in October, 1959, caused probably by sparks from a motor. Other testimony offered and excluded related to fires at another Beede plant in Lynn on (1) June 28, 1955; (2) July 27, 1955; (3) August 2, 1955; (4) October 20, 1955; and (5) June 11 to June 14, 1960, when fire started in a barn. On that occasion, two trucks in the barn were destroyed and several explosions occurred in the barn during the fire. There had been sawdust in the barn. We think the judge rightly concluded that evidence of these fires would have been of little help in determining the cause of the explosion on March 6,1961. The argument for the admission of the evidence of fires to show that es plosions are likely in a sawdust plant is not strong. That there were unexplained explosions in the course of the fire in the barn in Lynn did not even suggest that a dust explosion was the cause of that fire. There was ample testimony that certain mixtures of wood dust will explode.\n5. We discern no error in the denial of the defendant’s requests. The judge, in view of the auditor’s report, was not obliged to charge (No. 8) that there “is no evidence as to when the union fractured. ’ ’ It was appropriate for the judge to deal with the issue of causation as he did, that is, to instruct that the' jury must find whether, as the plaintiffs claimed, it was a gas explosion and that if they found that there was no gas explosion they ‘ ‘would find for the defendant.” This in substance gave request No. 9. It was not necessary to state in express terms (Nos. 2, 3, and 17) that the plaintiffs’ could not recover unless the union fractured and gas was escaping before the explosion or fire. The charge as to control (see requests No. 4 and 26) was fully adequate. The judge said, “Who had control of the pipes ? Naturally, if the Q-as Company was not in control of the pipes, then they would not be required to do anything concerning the pipes. If they were in control of the pipes, then there would be a certain duty owed . . ..” It was not necessary to charge (No. 6) that there was no statutory duty to inspect. In the circumstances there was, as we have ruled above, “a common law duty to inspect” (No. 7; see also No. 10). Whether to charge that a particular section of the industry code did not impose a duty to inspect lay in the discretion of the judge. The legal duty did not stem from the code; the significance of the code was in the defendant’s adherence to standards that included control up to the meter. As to request No. 24, the judge could not have charged that there was no evidence that the defendant should have had knowledge of a condition of the pipe requiring attention. Express knowledge of a potentially dangerous condition (brass in contact with iron) could have been inferred. The judge was not required to state that there was no evidence of a custom requiring regular inspection (No. 25).\nThe charge on contributory negligence was adequate. Fred Beede’s position with the corporation (Beede) did not warrant a charge that his recovery was barred because of the failure to have fire doors and sprinklers operating (Nos. 11 and. 13).\n6. We have considered all the points argued. The entry in each case must be\nExceptions overruled.\nThe auditor’s findings underlying this conclusion were stated in detail in finding 29 as follows: “I find that the volume of such wood dust suspended in air necessary to result in an explosion is in the amount of more than 500 times the amount of wood dust which the Commonwealth of Massachusetts Department of Labor and Industries allows a factory to have in the air in which workers have to work and breathe; I find that at the time of the explosion the only places in the ‘Brew House’ where wood dust could have been suspended in the air in sufficient quantity to permit an explosion were within the confined walls of certain of the production machines in operation in the ‘Brew House’; that if an explosion of wood dust had occurred within such a machine, it would have blown the walls of the machine outward; that it would have resulted in an explosion confined only to the machine, and would affect other areas of the factory only by a relatively slow process of fire spreading to other areas; I find that the only machine which showed any signs of an explosion from the inside outward was the vertical elevator; that the walls of the vertical elevator were constructed of heavy-gouge steel, and that these walls were blown outward by an explosion just a few feet above the place where the vertical elevator rises out of the ‘Sump,’ and a few feet above where the worm feeds sawdust into an opening in the elevator; I find that the explosion in the vertical elevator was caused by gas which had moved upward from the ‘Sump’ into the vertical elevator immediately above, and which gas also exploded at about the same time at points on all floors of the entire building. ’ ’\n‘ ‘ The auditor’s findings of fact shall be prima facie evidence . . . ; but the court at the trial shall exclude any finding of fact which appears in the report to be based upon an erroneous opinion of law, or upon inadmissible evidence” (emphasis supplied).\n“ 87. I find that the defendant failed to exercise reasonable care for the inspection and maintenance of the pipe and union here involved, and further find that the defendant failed to comply with the standards for inspection and maintenance provided by custom and usage in the gas distribution industry, including applicable A.S.A. standards. 88. I find the defendant, by its agents and servants, was negligent.” “90. I find that the negligence of the defendant was the cause of the explosion and the injuries and damages which were incurred by the plaintiffs.”\nGeneral Laws c. 164 § 116 (prior to its amendment by St. 1961, c. 305, § 1, effective June 28, 1961), read as follows: “An officer or servant of a gas or electric company who is duly authorized in writing by the president, treasurer, agent or secretary of said company, may at any reasonable time enter any premises supplied with gas or electricity by such company for the purpose of examining or removing the meters, pipes, wires, fittings and works for supplying or regulating the supply of gas or electricity and of ascertaining the quantity of gas or electricity consumed or supplied; and if any person, directly or indirectly, prevents or hinders such officer or servant from so entering such premises or from making such examination or removal, such officer or servant may make complaint to any court or magistrate authorized to issue criminal process, who may thereupon issue a warrant directed to the sheriff or to any of his deputies, or to a constable of the town where such company is located, commanding him to take sufficient aid and repair to said premises accompanied by such officer or servant, who shall examine such meters, pipes, wires, fittings and works for supplying or regulating the supply of gas or electricity, and ascertain the quantity of gas or electricity consumed or supplied therein, and shall, if required, remove any meters, pipes, wires, fittings and works belonging to said company.”\nThe defendant did not specify as a finding to be struck No. 33 (see above) that the defendant operated under industry rules and standards. Its objection to No. 34 (industry custom and usage put exclusive control of the service pipe in the supplier) was only that it was based on an erroneous con- ■ cept of law. Even though the issue of control of -a buried service pipe was not involved in this ease, the finding of a custom and usage of control of service pipes was relevant. The issue of law was' whether, that being the custom and usage, there was responsibility at least as to >an accessible, inadéquate pipe, and the auditor’s findings are soundly .based on the particular facts.\n‘ ‘ [T]here is testimony that . . . [Joseph 0. Purcell] forbade somebody from removing a pipe from the sump room. That was contained in the Auditor’s Report, and I instruct you to disregard it completely, that portion of it, because there is no evidence offered here that he had any such authority • • • to bind the Gas Company in doing it.....So I tell you to disregard it completely .... It is in the Auditor’s Report, and I am instructing you to strike it from your consideration of the evidence that is in this ease.”\n13. “ [T]hat neither the defendant Gas Co. or anyone else changed, modified, or interfered, with these gas pipes from 1955 to and including March 6, 1961, except in one instance, namely on February 1, 1957, nine months before the Beede Corp. agents and servants acquired ownership of the premises; that on this particular instance one John Garland, a witness and employee of the defendant Gas Co., and then acting within the scope of his employment, entered the ‘ Sump ’ and removed a gas meter, the property of the defendant Gas Co., and which until that time had been connected into the gas pipes; that the employee John Garland left an unused gas pipe suspended and unsupported; that he knew it was suspended and unsupported and knew it was his duty to provide proper support for such an unsupported pipe.” 19. \""I find this corrosion was open and obvious to the naked eye on February 1, 1957 when the employee John Garland removed a meter from a point approximately four feet away from the point where the galvanic corrosion was occurring; that his view of the place of the corrosion was unobstructed and if he had looked he would have seen it.”\nWe note further that the defendant requested the judge to instruct (request Ho. 5) that “Garland did not have any legal obligation to inspect the pipes in the sump when he removed the meter,” and, as the defendant’s brief asserts, the judge “correctly charged . . . that there was no evidence in the case at the trial that Garland had any other duty than to remove the meter . . . [and] that the scope of an employee’s duty was a question of fact, and, if Garland was a meter man, he had no duty to inspect and correct deficiencies in the pipes.” There was no request to charge specifically in respect of the auditor’s findings about Garland.\n(1) The walls of a room designated as “Room R” and the casing of the vertical bucket elevator were bulged out in a manner indicating that these were primary points of explosion. (2) The confined areas of Room R and the elevator casing provided pockets where escaping gas could reach explosive concentration. (3) The “fire engulfed or exploded in a room where there was no activity .... There was nothing going on in Room R. ” (4) In sawdust operations, the places most likely to have sawdust in sufficiently high concentration to cause an explosion are inside the operating equipment. (5) In the grinder and other machinery, there was “no evidence of any . . . bulging.” (6) For a sawdust explosion to occur, a concentration 500 times the maximum density allowed by State regulation would have to be present. With this concentration, the employees on the premises would hardly have been able to see each other. Every room would have to have been filled with sawdust for an explosion of this magnitude to occur. (7) Sawdust “propagates much slower than gas, and it would probably have . . . [taken] minutes instead of seconds . . . [for the fire] to go from one section to another.” (8) “The only places in the plant where there would be a sufficient concentration of wood flour to . . . [support] an explosion were inside of the cyclone separators which took off the wood dust near the pulverizing room, and in the pulverizer itself . . .. ” On inspection, he discovered no evidence of an explosion in any of them. (9) As described by some of the witnesses, the explosion, or first “loud” explosion, was throughout the plant, and was followed immediately by a fire. Cowles ’ opinion would not be altered if there were several explosions, as certain witnesses testified.\nThere was evidence that a wire sling extending from the service pipe gave some support to another pipe beneath it; also that the sump room was found to be filled with sawdust after the fire. We do not overlook the circumstance that the corrosion, as determined by the nature of the metals, was entirely in the base metal, that is the iron of the pipe, although the fracture was in the brass union. There was, however, testimony for the plaintiffs that the product of corrosion had caused internal stress on the union. Also, the threads on the iron pipe were so corroded as to afford little engagement with the threads of the brass union."", ""type"": ""majority"", ""author"": ""Whittemore, J.""}], ""attorneys"": [""Acheson E. Callaghan, Jr. (Paul J. Dolan with him) for the defendant."", ""Raymond J. Kenney, Jr. (Clement McCarthy with him) for the plaintiffs.""], ""corrections"": """", ""head_matter"": ""Louis D. Reil, Jr. vs. Lowell Gas Company (and four companion cases).\nMiddlesex.\nMarch 10, 1967.\nJuly 7, 1967.\nPresent: Spalding, Whittemore, Cutter, Spiegel, & Reardon, JJ.\nNegligence, Gas. Proximate Cause. Practice, Civil, Auditor: recommit-tal. Evidence, Opinion: expert; Relevancy and materiality; Judicial discretion.\nA motion to recommit to an auditor whose findings were not to be final is the proper method of raising the issue whether certain findings were supported by evidence. [125]\nIn an action for personal injuries sustained in an explosion in a sawdust and wood flour plant, conclusions were warranted that the defendant, a gas company supplying gas to the plant, -had exclusive control of an accessible gas service pipe in the plant and had a duty to inspect and maintain the pipe, that galvanic corrosion in a union on the pipe due to juxtaposition of dissimilar metals had been obvious for several years before the explosion, that the defendant failed to perform such duty of inspection and maintenance and was negligent thereby, that ultimately the corrosion in the union brought about a break therein which allowed gas to escape into parts of the plant, and that the explosion resulted from a mixture of such gas and air and not from a mixture of wood dust and air, and was proximately caused by the defendant’s negligence. [126-128]\nA conclusion by an expert witness at the trial of an action, that an explosion in a sawdust and wood flour plant resulted from a mixture of air with gas escaping from a broken gas service pipe in the plant, and not from a mixture of wood dust and air, was amply supported by facts which the jury could have found. [132-133]\nIn an action against a gas company for personal injuries sustained in an explosion in a plant allegedly due to gas escaping from a break in a gas service pipe in the plant, certain standards subscribed to by the defendant were relevant and admissible on the issue of control of the pipe. [13A-135]\nOn the issue in an action whether an explosion, followed immediately by a fire, in a sawdust and wood flour plant was due to gas escaping from a break in a gas service pipe in the plant or to wood dust, the judge in • his discretion properly excluded evidence of other fires in the plant and • in another plant of the same proprietor. [135]\nFite actions oe tort. Writs in the Superior Court dated April 21,1961, September 19,1961, and December 4,1961.\nFollowing the report of an auditor, the actions were tried before O’Malley, J.\nAcheson E. Callaghan, Jr. (Paul J. Dolan with him) for the defendant.\nRaymond J. Kenney, Jr. (Clement McCarthy with him) for the plaintiffs.\nThe plaintiffs in the other cases are Gordon Barton, James G. Alix, Fred L. Beede, and George T. Baldwin.""}, ""cites_to"": [{""cite"": ""305 Mass. 265"", ""case_ids"": [3837556], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/305/0265-01""], ""opinion_index"": 0}, {""cite"": ""334 Mass. 139"", ""case_ids"": [3841942], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/334/0139-01""], ""opinion_index"": 0}, {""cite"": ""327 Mass. 396"", ""case_ids"": [512032], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""401""}], ""case_paths"": [""/mass/327/0396-01""], ""opinion_index"": 0}, {""cite"": ""341 Mass. 230"", ""case_ids"": [3853572], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/341/0230-01""], ""opinion_index"": 0}, {""cite"": ""299 Mass. 426"", ""case_ids"": [12254808], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""431""}], ""case_paths"": [""/mass/299/0426-01""], ""opinion_index"": 0}, {""cite"": ""386 Pa. 439"", ""case_ids"": [1268315], ""category"": ""reporters:state"", ""reporter"": ""Pa."", ""pin_cites"": [{""page"": ""445""}], ""case_paths"": [""/pa/386/0439-01""], ""opinion_index"": 0}, {""cite"": ""267 Ky. 56"", ""case_ids"": [2471259], ""category"": ""reporters:state"", ""reporter"": ""Ky."", ""pin_cites"": [{""page"": ""63""}], ""case_paths"": [""/ky/267/0056-01""], ""opinion_index"": 0}, {""cite"": ""356 Ill. 241"", ""case_ids"": [5802896], ""category"": ""reporters:state"", ""reporter"": ""Ill."", ""pin_cites"": [{""page"": ""244""}], ""case_paths"": [""/ill/356/0241-01""], ""opinion_index"": 0}, {""cite"": ""141 W. Va. 347"", ""case_ids"": [8582108], ""category"": ""reporters:state"", ""reporter"": ""W. Va."", ""pin_cites"": [{""page"": ""353""}], ""case_paths"": [""/w-va/141/0347-01""], ""opinion_index"": 0}, {""cite"": ""378 S. W. 2d 89"", ""case_ids"": [10154365], ""category"": ""reporters:state_regional"", ""reporter"": ""S.W.2d"", ""pin_cites"": [{""page"": ""91-95""}], ""case_paths"": [""/sw2d/378/0089-01""], ""opinion_index"": 0}, {""cite"": ""126 Ohio St. 140"", ""case_ids"": [314178], ""category"": ""reporters:state"", ""reporter"": ""Ohio St."", ""pin_cites"": [{""page"": ""160""}], ""case_paths"": [""/ohio-st/126/0140-01""], ""opinion_index"": 0}, {""cite"": ""54 N. 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+3865965,"{""id"": 3865965, ""name"": ""Betty Corporation & another vs. Commonwealth & others"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""274ff030081b92a7d14780bc201d2d0a58300fe349c4828e37e098e0c0735533"", ""simhash"": ""1:ca2a95af05e8e52f"", ""pagerank"": {""raw"": 0.00000028155289771354575, ""percentile"": 0.8379476950200572}, ""char_count"": 24889, ""word_count"": 4245, ""cardinality"": 1097, ""ocr_confidence"": 0.6}, ""casebody"": {""judges"": [], ""parties"": [""Betty Corporation & another vs. Commonwealth & others.""], ""opinions"": [{""text"": ""Cutter, J.\nThis is a petition to determine the damages caused by a railroad grade crossing elimination. Betty Corporation (Betty) recovered a verdict against each respondent. After a trial which ran from May 12 to June 11, 1965, the jury assessed damages at $60,000. Motions for a new trial were denied on condition that Betty remit $25,000 of the verdict. Betty remitted the required amount. The case is here on an outline bill of exceptions. The long record appendix contains excerpts from a 700 page transcript. The affected area is shown on the annexed sketch plan.\nOn May 5, 1959, the commissioners of the State Department of Public Works (DPW) by order directed that a railroad grade crossing on Western Avenue, Lowell, be closed to all traffic by placing barriers (see annexed plan at [5] and [93) on the west and east side of the tracks for the full width of Western Avenue. A spur track to Betty’s plant was to be relocated.\nWestern Avenue (see [73 on plan), prior to the 1959 order, ran approximately east and west across the railroad’s two main line tracks (see [63 on plan). The main line tracks crossed Western Avenue at about a thirty degree angle, on a line north of Western Avenue west of the crossing, and south of Western Avenue east of the crossing. A spur track (marked [13 on the plan) ran from a coal or salt storage building (marked [23 on the plan) west to the main line, crossing Western Avenue north of, but very close to, Betty’s Building C (marked [33 on the plan) and loading platform (see [43 on plan). This spur track is shown on the plan as relocated a little south of its former route.\nBetty’s properties (the locus) he south of Western Avenue. These included a four story brick building, Building) A (see [103 on plan), separated on its east side by a dirt drive from a one story wooden building, Building B (see [113 on plan). Both buildings are close to Western Avenue. To the east of Building B was a covered loading platform. A wide door (at [43 on the plan) gave access to this platform from Western Avenue. Immediately south of the platform\nwas a large four story brick building, Building C (at [3] on the plan). Other buildings comprising the Betty plant he to the south and west of Building C. All the principal buildings are interconnected and have the same floor levels.\nThe loading platform (at £4] on the plan) was used, prior to the construction under the 1959 DPW order, for receiving yarns, machinery, and merchandise used in all the principal buildings. Goods thus received could be taken about forty to fifty feet to “one of the largest freight elevators ... in the entire plant that had access to the center of all these buildings.”\nThe routing of goods and materials from this loading platform around the plant, for further processing and for storage, was described in great detail by Betty’s principal operating official. The jury on this and other evidence would have been warranted in concluding that it was a very significant advantage to Betty, in the orderly and efficient conduct of operations, to have large trailer trucks back up to the door of the loading platform (at £4] on the plan) to deliver goods of various types.\nThe somewhat conflicting evidence also would have warranted the jury in reaching the following conclusions:\n(1) After the construction of the barriers, it became a practical impossibility to maneuver or back standard truck box trailers thirty-five feet long and eight feet wide to the old loading platform because the westerly barrier was only twenty-six to thirty feet from the old door (at £4] on plan). The erection of this barrier necessitated immediate changes in the routing of goods through the Betty plant. In 1964 (after developments in other litigation relating to grade crossing changes had made this possible) Betty built a new, and probably less satisfactory, loading platform and door at the northwest corner (at point £8] on the plan) of Building B (see £11] on the plan) at a cost of about $7,500. The changes resulted in the loss of useful office space and prevented some use of the dirt drive or alleyway between Building A (see £10] on the plan) and Building B (see £11] on plan). The moved spur track became an obstacle to the use of trucks at various loading gates on the locus because the slightly raised tracks cut truck tires.\n(2) For a substantial period of time during construction of the barriers, removal of railroad gates, and relocation of the spur track, usual operations at the old loading platform were interrupted.\n(3) On the west side of the new westerly barrier (see [5] on the plan), Western Avenue originally was about thirty-five feet wide in front of Buildings A and B. By the barriers the usable area of Western Avenue was effectively reduced, for a distance of about 130 feet of Betty’s frontage on the avenue, in an amount varying from thirty-five feet in width (north to south) to zero width. Betty was thus deprived, detrimentally and directly, of much of its principal access to a public way formerly available immediately adjacent to its property. The narrowing of the avenue made of slight, if any, value the remaining access to the northeastern part of the locus. In addition, Betty could be found to have owned the fee north of the locus as far as the center of Western Avenue, as it formerly ran, subject to the city’s easement of travel over Western Avenue and subject also to the railroad’s easement to cross the area with its tracks. This fee interest of Betty included a triangular area (the general location of which is marked Hl2] on the plan) north of the westerly barrier. The triangle was supposed to contain about 315 square feet.\n1. A major contention of the respondents, presented in various forms, is that there was no compensable taking of, or interference with, Betty’s land and property interests. The statute giving a right to damages is G. L. (Ter. Ed.) c. 159, § 75, the relevant part of which is set out in the margin. The practical effect of the 1959 BPW order was to discontinue so much of Western Avenue as lay between the barriers, even if it did not involve actual taking of the fee in such land.. The evidence permitted the jury to find not only that Betty was deprived of access, even for travel, to its land within Western Avenue between the barriers (see Bullard v. New York, N. H. & H. R.R. 178 Mass. 570, 574) but also that it was deprived of reasonable use, in the respects already noted, for trucks of the old loading platform (at [4] on the plan). The jury could also have found that (a) because of the arrangement of buildings on the locus, the deprivation of reasonable truck highway access to buildings B and C caused damage to Betty in a manner, and of a type, wholly different from the injury suffered by the public generally from the discontinuance of a part of Western Avenue, and (b) the damage did not arise merely because Western Avenue became a “dead-end street,” but rested in principal part upon the circumstance that reasonable truck access to Western Avenue from the old loading platform became impossible, an injury “confined only to . . . [Betty’s] property . . . [which] cannot be said to be ... of a general and public nature.” See Webster Thomas Go. v. Commonwealth, 336 Mass. 130, 138. See also Holbrook v. Massachusetts Turnpike Authy. 338 Mass. 218, 223. The present case involves special, direct, peculiar injury to an important part of Betty’s parcels, substantially more intense in its impact on the eastern part of the locus than any inconvenience suffered generally by other members of the public. See Wine v. Commonwealth, 301 Mass. 451, 458. This circumstance distinguishes this case from Tassinari v. Massachusetts Turnpike Authy. 347 Mass. 222, 225, and LaCroix v. Commonwealth, 348 Mass. 652, 657. It could have been found that Betty suffered damage compensable under G. L. c. 159, §§ 70, 75 (see fn. 3), read with the relevant provisions of c. 79. See Sheehan v. Fall River, 187 Mass. 356, 361 (access to building temporarily “rendered more difficult”); Cutter v. Boston, 200 Mass. 400, 402. See also Buck v. Great Barrington, 203 Mass. 372, 375-376.\n2. The respondents contend, in effect, that the use made by Betty of its old loading platform (at point [4] on the plan) was illegal, unreasonable, and in violation of statutes (see G. L. c. 90, § 15, as amended through St. 1961, c. 248) and a Lowell traffic ordinance. There was, indeed, testimony from which the jury could have found that trailers were left standing during unloading operations for as much as two hours, and that, when so standing, they extended as much as eighteen to twenty feet into Western Avenue. Examination of the annexed plan and the exhibits shows that the north end of a thirty-five foot trailer parked perpendicular to the north line of the old loading platform might come to a point about five feet from the south rail of the main line track. The present western barrier is about eleven feet from the nearest rail. The distance between freight cars passing in opposite directions on the main line tracks is two feet, which “is considered a safe and adequate distance.” There had been no prosecutions of Betty for alleged traffic violations because of its unloading methods. The police officer on the beat regarded Betty’s former practice of backing trucks up to the old loading platform as “a natural thing.”\nThe judge left to the jury the question whether, in all the circumstances, the parking ordinance had been violated by Betty in unloading about two trucks a day, and some loading, at the old platform. Because of the ordinance exception for unloading, Betty’s unloading practices if reasonable, would not have been violations of the letter of the ordinance. See Leveillee v. Wright, 300 Mass. 382, 386-387. A member of the general public does not create a nuisance, or act improperly, by standing a vehicle on a public way for a reasonable length of time, without violation of a specific prohibition or interfering “unreasonably . . . with the rights of the public,” and in a manner “reasonably necessary for the transaction of business.” See Loosian v. Goudreault, 335 Mass. 253, 256. Betty, in addition to the rights of a member of the general public, possessed the rights of an abutting owner which could have been found to own the fee under the south side of the traveled portion of Western Avenue. It was open to the jury to conclude that Betty did not exceed proper bounds in its unloading practices prior to the erection of the barriers even if (under the principles of the Loosian case, just cited) Betty was in a position successfully to prevent similar action, without its consent, by persons not abutters. The Lowell ordinance, if construed to permit the unloading practice, made a reasonable exception to the general prohibitions of the ordinance. See Commonwealth v. Sargent, 330 Mass. 690, 692.\nThe judge’s charge with respect to Betty’s former unloading practices was sufficiently favorable to the respondents. She instructed the jury that Betty could not recover damages based on the loss of an illegal use. See Joly v. Salem, 276 Mass. 297, 303. She correctly refused to instruct that there was a violation of G. L. c. 90, § 15 (fn. 6), a statute designed only to require motorists to reduce speed when approaching railroad grade crossings. See Verrocchi v. Boston & Maine R.R. 322 Mass. 376, 378. The evidence did not show that Betty’s unloading practices had created any such hazard as to require the judge to give instructions concerning that hazard and its nature. In any event the failure of the respondents’ counsel to renew objections to the charge, after the trial judge had given further instructions in response to objections by them and after their apparent acquiescence in the amended charge (see fn. 5), leaves them now in no position to contend that the further instructions were inadequate. See Cozzo v. Atlantic Ref. Co. 299 Mass. 260, 268-269; Duff v. Webster, 315 Mass. 102, 105; Bloomberg v. Greylock Bdcst. Co. 342 Mass. 542, 551. See also Herrick v. Waitt, 224 Mass. 415, 417.\n3. The respondents contend that the judge during the trial revealed a prejudice against them which prevented the jury from reaching a fair verdict. They interpret as a reproof of counsel a comment by the judge made when counsel for the Commonwealth submitted further requests for instructions (apparently in behalf of all the respondents) just before final arguments were to begin. This action of counsel seems to have been viewed by the judge as in contravention of some understanding, by the judge and all counsel, that requests would be submitted sufficiently early to enable the judge to study them in advance of the arguments. The incident appears to have been magnified in the respondents’ brief to an extent greatly disproportionate to any significance it may have had. In the context of a long trial the judge’s remarks seem of slight consequence. See Charles L. Hazelton & Son, Inc. v. Teel, 349 Mass. 617, 621; Commonwealth v. Leonard, 352 Mass. 636, 641-642. The impact of the remark was not such that explanation of it to the jury was essential.\nThe respondents also argue that they were prejudiced by the trial judge’s delaying closing arguments (until the next day) to afford her time to study the additional requests. This delay, they say, was in addition to the effect of other delays during trial to which the respondents make reference. After a trial of nearly a month, the jury, indeed, might have been “irked and frustrated” by further delay, as the respondents suggest. The respondents do not persuade us, however, that they were hurt more than Betty was by the particular postponement or by the long proceedings. This trial should have proceeded more rapidly. There should have been greater judicial effort to expedite it. Nevertheless, we cannot say that either the delay in arguments or the unnecessarily slow pace of the trial constituted prejudicial error.\n4. There is no merit to an exception to the judge’s action in preventing a line of argument by counsel for the Commonwealth on the ground that there was no evidence to warrant the contentions made. The judge, in a somewhat extended bench conference, gave counsel opportunity to point out such evidence, but no such evidence was intelligibly drawn to the attention of the judge.\n5. The judge did not err in refusing (on motion by counsel for the Commonwealth which did not specify grounds for the requested action) to strike expert testimony at the close of the trial. Much of it had been admitted without objection or exception. See Cummings v. National Shawmut Bank, 284 Mass. 563, 568; Leonardi v. Peabody, 351 Mass. 706. See also analogy of Costonis v. Medford Housing Authy. 343 Mass. 108, 116. Cf. Gazianis v. Clinton, 350 Mass. 758. Although the evidence originally had been admitted de bene, this appears to have been done solely because the witness was taken out of order. There was no clear showing that the witness had given such weight to elements of damage not properly to be considered as would require striking all his testimony. The judge, in any event, charged that the jury could not take these elements into account.\n6. Other exceptions have not been argued sufficiently, have not been adequately set out or referred to in the outline bill of exceptions (see S. J. C. Rule 1:22 [2], [8], [ICQ, 351 Mass. 742-745), relate to discretionary matters or to requested instructions adequately given in substance, or are not significant enough to merit discussion.\nExceptions overruled.\nThe deed to Betty dated December 28,1957, described the locus as bounded “northerly by Western Avenue by several lines measuring 305.21 feet, 101.92 feet, 91.79 feet, 100 feet and 119.19 feet.” See Brassard v. Flynn, 352 Mass. 185, 188-189, and cases cited. The evidence (including plans) indicated that Betty’s property extended along Western Avenue for a total distance of 718.11 feet and for 119.19 feet east of a stone bound two feet east of Building A (see [10] on plan). This would bring the easterly end of Betty’s property, as bounded by Western Avenue, to a point somewhat east of the east end of the new barrier, or of the portion of it north of the door (at point [4] on the plan) formerly used to reach the old loading platform. From the deeds and plans in evidence, the jury were warranted in concluding that Betty owned the locus, and that, along its whole frontage on Western Avenue, including the area near the new western barrier, Betty owned the fee to the avenue’s center line. The trial judge left it to the jury to determine Betty’s property lines.\nSection 75 reads in part, “All damages sustained by any person in his property by the taking of land for ... a public way, or by an abutter thereon by the discontinuance of such public way, to the same extent as damages are recoverable by abutters on ways discontinued by towns, or by the taking of an easement in land adjoining a public way, shall primarily be paid by the city . . . and all damages caused by the taking of land for the railroad. . . . shall primarily be paid by the railroad corporation. Any amount paid by way of damages by the commonwealth or the city ... or the railroad corporation primarily liable therefor shall be subject to investigation by the department of public works, unless such settlements are assented to. in writing by all parties .... If the parties interested cannot agree upon said damages, any party may have the damages determined under” c. 79 (emphasis supplied). See also G. L. c. 159, § 65 (as amended through St. 1937, c. 270) and § 70 (as amended through St. 1934, c. 357, § 1); New York, N. H. & H. R.R. v. Blacker, 178 Mass. 386, 390-391. The most relevant provision of c. 79 is § 12 (as amended through St. 1959, c. 626, § 4), which reads, in part, “The damages for property taken . . . shall be fixed at the value thereof before the. recording of the order of taking, and in case only part of a parcel of land is taken there shall be included damages for all injury to the part not taken caused by the taking or by the public improvement for which the taking is made . . . . In determining the damages to a parcel . . . injured when no part of it has been taken, regard shall be had only to such injury as is special and peculiar to such parcel ...” (emphasis supplied). Provisions of § 12 for deducting from damages the amount of benefit received by the parcel from the improvement are not here relevant.\nIn the Tassinari case (see p. 225), there was no taking of Mrs. Tassinari’s property and no diminution of the convenience of her access from her property to Ferry Street, which had been closed at one end at a point some distance from any part of her property. In the LaCroix case, although a small piece of LaCroix’s property was taken (see pp. 655, 657), that piece was at such a location as not to interfere in any way (sfee pp. 653, 656) with LaCroix’s access from his land to Howard Road, the street which LaCroix, before and after the taking, used for access to the general highway system.\nPortions of the charge directed to whether there had been any “taking” of Betty’s property were discussed, after the charge, with the trial judge by counsel. She gave somewhat diffuse further instructions and asked counsel if “that covers it.” She received an affirmative reply. See Duff v. Webster, 315 Mass. 102, 105. There was no exception to the additional instructions, as there was in Horowitz v. Bokron, 337 Mass. 739, 746.\nSection 15 reads in part: “Except as . . . otherwise provided, every person operating a motor vehicle, upon approaching a railroad crossing at grade, shall reduce . . . speed ... to a reasonable and proper rate before proceeding over the crossing, and shall proceed over the crossing at such rate of speed ... as is reasonable . . . .” The balance of the section deals with school bus operation and vehicles carrying explosive and inflammable cargo.\nThe Lowell ordinance defines (art. 1) “intersection” as including “any intersection of ways with a railroad,” and “parking” as including the “standing of a vehicle . . . otherwise than temporarily for the purpose of and while actually engaged in loading or unloading.” It also provides (art. 5) that “[n]]o person shall . . . park” a vehicle in violation of the traffic rules and “in particular at any time” (except with a permit of a type not shown in this case to have been issued to Betty) “[w]ithin an intersection.”"", ""type"": ""majority"", ""author"": ""Cutter, J.""}], ""attorneys"": [""Charles Ingram, Special Assistant Attorney General, for the Commonwealth (William D. K. Crooks, Jr., for the Boston and Maine Railroad, & Cornelius T. Finnegan, Jr., City Solicitor, for the city of Lowell, with him)."", ""Charles F. Barrett (Cordon L. Doerfer with him) for the petitioners.""], ""corrections"": """", ""head_matter"": ""Betty Corporation & another vs. Commonwealth & others.\nMiddlesex.\nMarch 5, 1968.\nMay 9, 1968.\nPresent: Wilkins, C.J., Cutter, Kirk, & Spiegel, JJ.\nEminent Domain, Damages, “Special and peculiar” injury. Way, Public: closing, nuisance, parking. Practice, Civil, Exceptions: renewal of exception; Comment by judge; Dilatory trial. Evidence, Opinion: expert.\nAt the trial of a petition under G. L. c. 159, § 75; c. 79, § 12, for assessment of damages from the abolition of a grade crossing of a railroad and a public way by the erection of barriers crossing the way on both sides of the tracks, a conclusion that the petitioner, a corporation owning buildings abutting the way and land inside the barriers, suffered “special and peculiar” injury not suffered by the public generally and was entitled to damages was warranted where it appeared that the petitioner was deprived of access, even for travel, to its land inside the barriers, that, because of the arrangement of its buildings, maneuvering or backing standard truck box trailers to the door of its loading platform became practically impossible, necessitating immediate changes in the routing of goods through its plant and the building of a new loading platform and door, that such changes resulted in the loss of useful office space and prevented some use of an alleyway between two buildings, that a relocated spur track cut truck tires, that usual operations at the old loading platform were interrupted for a substantial period of time during the construction of the barriers, and that the petitioner’s access to the way was effectively reduced. [317-319]\nAt the trial of a petition for assessment of damages from the abolition of a grade crossing of a railroad and a public way in a city by the erection of barriers crossing the way on both sides of the tracks, evidence warranted conclusions that before the abolition the petitioner, a corporation owning buildings abutting the way and the fee to the middle thereof, had not exceeded proper bounds in its practices with respect to loading and unloading at its platform box trailers which extended eighteen to twenty feet into the way and were left standing there for as much as two hours, and that no violation of a city parking ordinance by the petitioner barred it from recovery [319-321]; the judge correctly refused to instruct the jury that there was a violation of G. L. c. 90, § 15. [321]\nWhere, after a trial judge had given the charge and further instructions in response to an excepting party’s objections to it, the excepting party made no objection to the amended charge, he was in no position to contend that the further instructions were inadequate. [321]\nIn the context of a long trial, a comment by the judge interpreted by the respondents as a reproof of their counsel was not of sufficient consequence to require an explanation of it to the jury. [321-322]\nNeither an unnecessarily slow pace of a jury trial nor an overnight delay of closing arguments to afford the judge time to study requests for rulings constituted prejudicial error. [322]\nAfter testimony of an expert witness as to the damage suffered by the petitioner in a proceeding had been admitted, much of it without objection or exception, there was no error in the denial of a general motion by the respondent at the close of the trial to strike all such testimony where the record did not support the ground of the motion, that the witness had given undue weight to elements of damage not properly to be considered. [322-323]\nPetition for assessment of damages from the abolition of a grade crossing, filed in the Superior Court on January 22, 1962.\nThe case was tried before Barron, J.\nCharles Ingram, Special Assistant Attorney General, for the Commonwealth (William D. K. Crooks, Jr., for the Boston and Maine Railroad, & Cornelius T. Finnegan, Jr., City Solicitor, for the city of Lowell, with him).\nCharles F. Barrett (Cordon L. Doerfer with him) for the petitioners.\nThe petitioners are the corporate owner and a corporate tenant of premises on Western Avenue, Lowell. Both corporations have the same officers. Each is controlled by members of the same family. It is stipulated that damages are to be assessed as if Betty Corporation were the sole owner and occupant. The respondents are the Commonwealth, the city of Lowell, and the Boston and Maine Railroad (the railroad).""}, ""cites_to"": [{""cite"": ""337 Mass. 739"", ""case_ids"": [3847084], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""746""}], ""case_paths"": [""/mass/337/0739-01""], ""opinion_index"": 0}, {""cite"": ""178 Mass. 386"", ""case_ids"": [3480824], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""390-391""}], ""case_paths"": [""/mass/178/0386-01""], ""opinion_index"": 0}, {""cite"": ""352 Mass. 185"", ""case_ids"": [304939], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""188-189""}], ""case_paths"": [""/mass/352/0185-01""], ""opinion_index"": 0}, {""cite"": ""351 Mass. 742"", ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""opinion_index"": 0}, {""cite"": ""350 Mass. 758"", ""case_ids"": [526870, 526903], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/350/0758-01"", ""/mass/350/0758-02""], ""opinion_index"": 0}, {""cite"": ""343 Mass. 108"", ""case_ids"": [4022791], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""116""}], ""case_paths"": [""/mass/343/0108-01""], ""opinion_index"": 0}, {""cite"": ""351 Mass. 706"", ""case_ids"": [3862664, 3862445, 3862431], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/351/0706-01"", ""/mass/351/0706-02"", ""/mass/351/0706-03""], ""opinion_index"": 0}, {""cite"": ""284 Mass. 563"", ""case_ids"": [3835118], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""568""}], ""case_paths"": [""/mass/284/0563-01""], ""opinion_index"": 0}, {""cite"": ""352 Mass. 636"", ""case_ids"": [305035], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""641-642""}], ""case_paths"": [""/mass/352/0636-01""], ""opinion_index"": 0}, {""cite"": ""349 Mass. 617"", ""case_ids"": [524707], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""621""}], ""case_paths"": [""/mass/349/0617-01""], ""opinion_index"": 0}, {""cite"": ""224 Mass. 415"", ""case_ids"": [44309], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""417""}], ""case_paths"": [""/mass/224/0415-01""], ""opinion_index"": 0}, {""cite"": ""342 Mass. 542"", ""case_ids"": [3854994], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""551""}], ""case_paths"": [""/mass/342/0542-01""], ""opinion_index"": 0}, {""cite"": ""315 Mass. 102"", ""weight"": 2, ""case_ids"": [904127], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""105""}, {""page"": ""105""}], ""case_paths"": [""/mass/315/0102-01""], ""opinion_index"": 0}, {""cite"": ""299 Mass. 260"", ""case_ids"": [12254335], ""category"": 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+3869980,"{""id"": 3869980, ""name"": ""Mary Loschi vs. Massachusetts Port Authority"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""3808e796858cef30dbf158605eac0aeff5d65a20efe0dd4660fe90d76ae11c0c"", ""simhash"": ""1:848084593b028822"", ""pagerank"": {""raw"": 0.0000003546954804241802, ""percentile"": 0.885078628136235}, ""char_count"": 5968, ""word_count"": 995, ""cardinality"": 402, ""ocr_confidence"": 0.659}, ""casebody"": {""judges"": [], ""parties"": [""Mary Loschi vs. Massachusetts Port Authority.""], ""opinions"": [{""text"": ""Hennessey, J.\nThe sole issue presented for our determination in this eminent domain case is whether the judge abused his discretion in denying the respondent’s motion for a new trial. The motion was based on the ground that the damages awarded to the petitioner by the jury were excessive in amount. There was no error. The case is before us on a substitute bill of exceptions.\nThe petition arose out of the taking by the respondent of several contiguous parcels of land together with several buildings thereon owned by the petitioner and located on Neptune Road in East Boston. The jury did not take a view. The petitioner testified that the fair market value of the property as of the date of the taking was $59,500. She also described the property at great length and in great detail and offered many photographs of the locus which were received in evidence. The respondent introduced an expert witness who testified that the total fair market value of the property on the date of the taking was $33,300. He valued one of the several parcels of the land, including the building thereon, at $23,000. He testified that he arrived at that opinion by the income capitalization method, using for rental value the rents actually collected by the petitioner. The jury returned a verdict for the petitioner in the amount of $76,000.\nThe respondent contends that the judge abused his discretion in denying the motion for a new trial, particularly in view of the unusual circumstance that the jury returned a verdict substantially greater in amount than the highest opinion of money value ($59,500) placed in evidence. We have said on numerous occasions that the allowance of a motion for a new trial based upon an inadequate or excessive award of damages, and the direction of an addition or remittitur, rests in the sound discretion of the judge. Pelland v. Lincoln Rides, Inc. 340 Mass. 787. Haven v. Brimfield, 345 Mass. 529. Ellingsgard v. Silver, 352 Mass. 34. Herwitz v. Massachusetts Bay Transp. Authy. 353 Mass. 594. The judge’s action will be reversed only where the damages awarded were “greatly disproportionate to the injury proved” (Haven v. Brimfield, 345 Mass. 529, 534) or where “it appears to the judicial conscience . . . that otherwise a miscarriage of justice will result.” Bartley v. Phillips, 317 Mass. 35, 41. “Abuse of discretion in granting or refusing a new trial can so seldom be found that actual instances in which this court has set aside the action of the trial judge . . . are almost nonexistent, and it has repeatedly been stated that occasions when this court can do so are exceedingly rare.” Hartmann v. Boston Herald-Traveler Corp. 323 Mass. 56, 61.\nWe have consistently upheld such rulings of trial judges in eminent domain cases. Haven v. Brimfield, 345 Mass. 529. Leonardi v. Peabody, 351 Mass. 706. Jarvinen v. Commonwealth, 353 Mass. 339. We recently held that there was no abuse of discretion in a trial judge’s denial of a petitioner’s motion for a new trial in a case where the jury returned a verdict in an amount substantially less than the amount of the lowest opinion of value entered in evidence. Appelstein v. Boston Redevelopment Authy. 359 Mass. 746. A recognized authority has stated that the award may not be in excess of the amount claimed by the owner nor should it be less than the lowest estimate of value testified to by a witness, but the further statement is added that a difference of opinion between the jury and the witnesses does not necessarily dictate setting aside the award especially where there is “other evidence” upon which the award has been based. Nichols, Eminent Domain (Rev. 3d) § 17.3. The jury may use their general knowledge and experience in evaluating property and are not required to follow blindly the opinions of experts. Parks v. Boston, 15 Pick. 198, 209-211. Patterson v. Boston, 20 Pick. 159, 166. See Commonwealth v. Smith, 357 Mass. 168, 178; Head v. Hargrave, 105 U. S. 45, 47-50.\nUpon a review of the entire evidence, we conclude that there was no error in the judge’s denial of the motion for a new trial. There was meaningful and significant evidence other than the opinions of value expressed by the two witnesses. The many excellent color photographs warranted the jury in concluding that the buildings and grounds were unusually well preserved and attractive to a potential buyer of the property. Additionally, the jury learned considerable detailed information as to the nature of the property from the testimony of the two witnesses. The jury might properly have concluded, also, that the rents charged by the petitioner were comparatively low and that, as a consequence, the expert retained by the respondent had reached a disproportionately low opinion of the value of the property. Considering all of the evidence, we conclude that no abuse of discretion has been demonstrated in the judge’s ruling.\nExceptions overruled.\nIn the opinion of the Chief Justice and Justices Cutter and Spiegel, the verdict was not warranted by the evidence and should be set aside as matter of law."", ""type"": ""majority"", ""author"": ""Hennessey, J.""}], ""attorneys"": [""Donald R. Grant for the respondent."", ""Vincent R. Celeste (James A. Miraglia with him) for the petitioner.""], ""corrections"": """", ""head_matter"": ""Mary Loschi vs. Massachusetts Port Authority.\nSuffolk.\nJanuary 11, 1972.\nMay 2, 1972.\nPresent: Tauro, C.J., Cutter, Spiegel, Reardon, Quirico, Braucher, & Hennessey, JJ.\nPractice, Civil, Damages, New trial. Eminent Domain, Damages. Damages, Eminent domain.\nRefusal to grant a new trial and to set aside a jury verdict awarding damages for an eminent domain taking in an amount more than $16,000 greater than the highest value of the taken properties stated in opinion testimony was not an abuse of the trial judge’s discretion, especially where there was other evidence from which the jury could assess the value. [715-716] Tauro, C.J., dissenting, with whom Cutter and Spiegel, JJ., joined.\nPetition filed in the Superior Court on August 19, 1965.\nThe case was tried before Donahue, J.\nDonald R. Grant for the respondent.\nVincent R. Celeste (James A. Miraglia with him) for the petitioner.""}, ""cites_to"": [{""cite"": ""105 U. S. 45"", ""case_ids"": [3494615], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""page"": ""47-50""}], ""case_paths"": [""/us/105/0045-01""], ""opinion_index"": 0}, {""cite"": ""357 Mass. 168"", ""case_ids"": [295956], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""178""}], ""case_paths"": [""/mass/357/0168-01""], ""opinion_index"": 0}, {""cite"": ""20 Pick. 159"", ""case_ids"": [2038901], ""category"": ""reporters:state"", ""reporter"": ""Pick."", ""pin_cites"": [{""page"": ""166""}], ""case_paths"": [""/mass/37/0159-01""], ""opinion_index"": 0}, {""cite"": ""15 Pick. 198"", ""case_ids"": [2020316], ""category"": ""reporters:state"", ""reporter"": ""Pick."", ""pin_cites"": [{""page"": ""209-211""}], ""case_paths"": [""/mass/32/0198-01""], ""opinion_index"": 0}, {""cite"": ""359 Mass. 746"", ""case_ids"": [294544, 294574], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/359/0746-02"", ""/mass/359/0746-01""], ""opinion_index"": 0}, {""cite"": ""353 Mass. 339"", ""case_ids"": [3862720], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/353/0339-01""], ""opinion_index"": 0}, {""cite"": ""351 Mass. 706"", ""case_ids"": [3862664, 3862445, 3862431], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/351/0706-01"", ""/mass/351/0706-02"", ""/mass/351/0706-03""], ""opinion_index"": 0}, {""cite"": ""323 Mass. 56"", ""case_ids"": [503989], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""61""}], ""case_paths"": [""/mass/323/0056-01""], ""opinion_index"": 0}, {""cite"": ""317 Mass. 35"", ""case_ids"": [927212], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""41""}], ""case_paths"": [""/mass/317/0035-01""], ""opinion_index"": 0}, {""cite"": ""353 Mass. 594"", ""case_ids"": [3863096], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/353/0594-01""], ""opinion_index"": 0}, {""cite"": ""352 Mass. 34"", ""case_ids"": [304985], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/352/0034-01""], ""opinion_index"": 0}, {""cite"": ""345 Mass. 529"", ""weight"": 3, ""case_ids"": [47959], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""534""}], ""case_paths"": [""/mass/345/0529-01""], ""opinion_index"": 0}, {""cite"": ""340 Mass. 787"", ""case_ids"": [3853296, 3853343, 3853357, 3853311], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/340/0787-01"", ""/mass/340/0787-03"", ""/mass/340/0787-04"", ""/mass/340/0787-02""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""361 Mass. 714"", ""type"": ""official""}], ""file_name"": ""0714-01"", ""last_page"": ""716"", ""first_page"": ""714"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T16:53:02.641013+00:00"", ""decision_date"": ""1972-05-02"", ""docket_number"": """", ""last_page_order"": 730, ""first_page_order"": 728, ""name_abbreviation"": ""Loschi v. 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+3870209,"{""id"": 3870209, ""name"": ""Becker's Inc. vs. Daniel Breyare & another. (and three companion cases)"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""be43adc963200b1587c8930f3238909ab53df8d3433a29fb7a49359df1ed32d1"", ""simhash"": ""1:c820ff1b737bc7dd"", ""pagerank"": {""raw"": 0.0000001244604743472566, ""percentile"": 0.608732401000985}, ""char_count"": 15501, ""word_count"": 2622, ""cardinality"": 643, ""ocr_confidence"": 0.692}, ""casebody"": {""judges"": [], ""parties"": [""Becker’s Inc. vs. Daniel Breyare & another. (and three companion cases ).""], ""opinions"": [{""text"": ""Quirico, J.\nThese are four actions at law in tort for negligence seeking recovery for personal property damaged or destroyed by a fire in a building owned by three of the plaintiffs and in which the rest of the plaintiffs were tenants. The plaintiffs consist of a corporation and six individuals. In one action the corporation is suing two of its employees. In each of the other three actions certain of the individuals are suing the same corporation and its two employees. The four actions were tried together. We summarize the verdicts returned by the jury, the exceptions saved by the parties, and the questions thereby presented to us for decision.\nCount 1 of the declaration in each of the three actions brought by the individual plaintiffs stated claims against the corporate defendant, Becker’s Inc. only. The trial judge took the following action on each of these three counts: (a) he denied the motion of the defendant for a directed verdict in its favor, and (b) he submitted count 1 to the jury for decision on liability and damages limited to the issue whether the defendant “was negligent with respect to the storage of materials” in the place where the fire started. The defendant excepted to the denial of its motions, and the plaintiffs excepted to the refusal of the judge to submit the case to the jury on the issue of the liability of the defendant for the alleged negligence of its employees Poirier and Breyare. The jury returned a verdict for the individual plaintiffs on count 1 of all three actions.\nThe plaintiffs’ declarations in all four actions contained a count seeking recovery from the defendant Breyare for his alleged negligence in connection with the fire. The judge allowed Breyare’s motion for a directed verdict in his favor on each of these counts and all of the plaintiffs excepted thereto.\nThe plaintiffs’ declarations in all four actions also contained a count seeking recovery from the defendant Poirier for his alleged negligence in connection with the fire. The judge submitted all four of these counts to the jury. They returned verdicts in favor of the individual plaintiffs in three of the actions, and for the defendant Poirier in the fourth action brought by Becker’s Inc. There are no exceptions by Poirier. In connection with the count of Becker’s Inc. against Poirier, the plaintiff excepted to a portion of the judge’s instruction to the jury, and also excepted to the verdict “as inconsistent with the charge [to the jury].”\nWe summarize the evidence, to the extent necessary for our decision of the questions before us.\nOn March 19, 1964, all of the plaintiffs, with the exception of the plaintiff owners, occupied different portions of the same building on Main Street in Holyoke. Becker’s Inc. conducted a retail “Army-Navy” type store on the ground floor and in the basement. It employed the defendant Poirier, aged seventeen, as a part time bookkeeper, and the defendant Breyare, aged sixteen, on a part time basis for selling and putting up orders. It was one of Breyare’s duties with respect to the basement of the store to safeguard the premises against harm; and it was part of the duties of all employees of the store to look out for and report any fires.\nAn open wooden stairway ran from the first floor of the store to the basement. On one side of the stairs there was a brick wall, and on the other there were wooden shelves for merchandise. On these shelves were cardboard boxes containing rubbers and overshoes for sale. Although these boxes were not supposed to be open, some of them were open, thus exposing the tissue paper inside. The cardboard boxes of rubbers were piled to within two feet of the basement ceiling, where the wooden joists of the floor above were exposed. Some cloth bags were stored in cloth covered boxes at the foot of the stairway and there were some mannequins in cartons under the stairs. The fire department inspected the premises about every two months and would not allow cartons to be stored under the stairs. There was a sign at the top of the stairs prohibiting smoking by customers, but employees could smoke anywhere on the premises.\nAt 6:30 p.m. on the day of the fire, Poirier was standing at the top of the stairs talking to Breyare who was alone in the basement. Poirier threw about five lighted matches down the stairway. Breyare saw him do it and told him to stop, but Poirier threw at least one more lighted match down the stairway. Breyare made no attempt to search for or pick up any of the matches, and he did nothing further to make sure that they were out. He was smoking at the time, and he extinguished his cigarette in an ashtray before proceeding to the rear of the basement to obtain a cart. When he returned he saw a fire burning at the top of the cartons close to the staircase. This fire spread through a large part of the building and caused the damage to the plaintiffs’ property. Breyare expressed the opinion that one of the lighted matches could have fallen into the cartons.\nIn reviewing the court’s rulings on the various motions for directed verdicts for the defendants, the test as to each motion is whether “anywhere in the entire evidence [there is] any set of circumstances that will support a reasonable inference in favor of the plaintiff.” Mazzaferro v. Dupuis, 321 Mass. 718, 719. Donnelly v. Larkin, 327 Mass. 287, 289. If there is, the motion must be denied. Applying this test to the several motions involved in this case, our conclusions follow.\n1. There was no error in the judge’s denial of the motions of the defendant Becker’s Inc. for a directed verdict in its favor on count 1 of the declarations in the three actions brought by the individual plaintiffs. This is the count which alleges generally in each declaration that this defendant negligently “caused or permitted a fire to start on the premises occupied by it.” In submitting count 1 to the jury for decision the judge instructed them that “[t]he only issue that you are permitted to consider is the question of whether or not . . . Becker, Incorporated, was negligent with respect to the storage of materials in those shelves, in and about that stairway.” The judge had previously instructed the jury that Poirier’s “act had no relationship whatsoever to his employment and Becker’s Incorporated cannot be charged with liability or responsibility for it.” Verdicts had previously been directed in favor of the defendant Breyare.\nOn the basis of the limited area of liability under which count 1 was submitted to the jury, the obligation of Becker’s Inc. was to exercise reasonable care to keep the part of the building of which it had exclusive control and possession in such condition that others would not be injured in their persons or their property. Gilroy v. Badger, 301 Mass. 494, 496. Chalfen v. Kraft, 324 Mass. 1, 4-5. Ross v. Broitman, 338 Mass. 770, 772-773. Mason v. Lieberman, 349 Mass. 321, 323. The plaintiffs were not required to prove that the defendant corporation negligently set the fire which caused the damage. See Commonwealth v. Welansky, 316 Mass. 383, 401. They were required only to prove facts from which the jury could find that “the defendant should have contemplated that a fire or an intensified fire was a probable happening from the maintenance of the paper and cardboard” boxes and other flammable material on the shelves beside the stairs leading to the basement, and under the stairs. Ross v. Broitman, 338 Mass. 770, 773. See Chalfen v. Kraft, 324 Mass. 1, 5, and cases cited. We hold that the evidence was sufficient for that purpose.\n2. When the judge submitted count 1 in the declarations of the individual plaintiffs to the jury for decision on the limited area of liability described above, the plaintiffs excepted to his refusal to submit them for decision on the question of the corporate defendant’s liability for the negligence of its employee Breyare. However, in their joint brief the plaintiffs state that consideration of this point “will only be necessary if this court sustains the corporate defendant’s exception to the denial of a directed verdict.” We have not sustained such exceptions, and we therefore do not reach these additional exceptions.\n3. In the actions brought by the individual plaintiffs, it was error to allow the several motions of the defendant Breyare for the direction of verdicts in his favor on the count in each of the declarations charging him with negligence (count 4). This defendant was required to exercise the degree of care and standard of conduct which would have been exercised by the ordinary and reasonably prudent person in his position under the facts and circumstances immediately preceding and leading up to the fire. If, “either by omission or by action, [Breyare failed] to exercise that degree of care, vigilance and forethought which, in the discharge of the duty then resting on him, the person of ordinary caution and prudence ought to exercise under the particular circumstances,” he was negligent. Altman v. Aronson, 231 Mass. 588, 591. We hold that the evidence was sufficient to permit the jury to find or infer that Breyare, by reason of his actions or his failure to act in relation to the lighted matches which he saw Poirier throw, was negligent. Count 4 of the individual declarations should have been submitted to the jury for their determination whether Breyare was negligent, and, if he was, what damages were recoverable from him.\n4. Despite our holding above that it was error to direct verdicts in favor of the defendant Breyare in the actions brought by the individual plaintiffs, we do not sustain the exceptions of the plaintiff Becker’s Inc. to a similar ruling on its count against Breyare. The reason for this distinction is that the jury returned verdicts against Becker’s Inc. as a defendant, thus establishing that its negligence contributed to the fire damage to the property. Under the law applicable on the date of the fire, March 19, 1964, G. L. c. 231, § 85, as amended through St. 1952, c. 533, § 1, this contributory negligence of Becker’s Inc. was an absolute bar to its recovery from either Breyare or Poirier. No further trial is required thereon.\nThe only exceptions remaining to be considered are two taken by the plaintiff Becker’s Inc. Both are based on the premise that the jury might find that Becker’s Inc. was not negligent. The jury did not so find, and the exceptions are probably now of no import. Nevertheless we discuss them briefly.\nAt the close of the instructions to the jury, counsel for Becker’s Inc. stated to the judge that this plaintiff’s case “got extremely short shrift, and I think it got a one sentence referral.” The judge asked counsel what he wanted him to add, to which counsel replied: “If you find Poirier liable and Becker not liable, then Becker is entitled to recover in his plaintiff’s case just as in any plaintiff’s case.” The court did not give the requested instruction whereupon counsel said: “Would you note my exception on that one sentence referral?” Since the jury found Becker’s Inc. liable as a defendant, it suffered no harm from the judge’s refusal to give the instruction requested. This exception is overruled.\nWhen the jury returned verdicts for all of the individual plaintiffs against Poirier and Becker’s Inc., and a verdict for Poirier on the count by Becker’s Inc. as plaintiff, the latter’s counsel “excepted to this verdict as inconsistent with the charge of the Court.” The verdict was proper in view of the jury’s finding that Becker’s Inc. was guilty of negligence contributing to the fire in question. This exception is overruled.\nWe summarize our action on the exceptions considered above. The exceptions of Becker’s Inc. as the plaintiff in one action and as a defendant in the other three actions are overruled. The exceptions of the individual plaintiffs to the direction of verdicts for the defendant Breyare are sustained.\nSo ordered.\nCount 1 of the declaration in each of these three actions alleges in substance that the defendant, Becker’s Inc., by its agents and servants, negligently and carelessly caused or permitted a fire to start on the premises occupied by it, with resulting damage to property of the plaintiffs. By count 2 of each of these declarations the same plaintiffs sought recovery from Becker’s Inc. on the ground that it “negligently failed to maintain proper supervision over its minor employees [Poirier and Breyare].” The judge allowed the defendant’s motions for directed verdicts on count 2 in each action and, although the plaintiffs excepted thereto, they have not argued these exceptions in their brief.\nStatute 1969, c. 761, § 1, amended G. L. c. 231, § 85, to provide that “Contributory negligence shall not bar recovery in any action ... to recover damages for negligence,” and to provide further that there may be recovery on the basis of comparative negligence. However, by St. 1969, c. 761, § 2, the amendment was made effective only as to causes of action arising on or after January 1,1971."", ""type"": ""majority"", ""author"": ""Quirico, J.""}], ""attorneys"": [""Thomas J. Donoghue for Becker’s Inc."", ""John H. Madden, Jr., for Daniel Forest & others."", ""Alfred J. Monahan for Daniel Breyare.""], ""corrections"": """", ""head_matter"": ""Becker’s Inc. vs. Daniel Breyare & another. (and three companion cases ).\nHampden.\nDecember 8, 1971.\nFebruary 9, 1972.\nPresent: Tauro, C.J., Cutter, Quirico, Braucher, & Hennessey, JJ.\nNegligence, One owning or controlling real estate, Fire, Contributory.\nEvidence in an action that in a basement store occupied and controlled by the defendant cartons were piled beside an open stairway and within two feet of a ceiling with exposed wooden joists, that cloth bags were stored in boxes at the foot of the stairway, that cartons were stored under the stairway in violation of fire department orders, and that after an employee of the defendant threw lighted matches down the stairway a fire broke out in some of the cartons and spread to other parts of the building warranted a finding of negligence on the part of the defendant irrespective of its responsibility for the acts of its employee. [121-122]\nEvidence in an action that the defendant, an employee whose duties included safeguarding a basement store occupied by his employer and watching for and reporting fires, observed another employee throw lighted matches down a stairway to the basement near piled cartons, that the defendant did nothing to investigate or to ensure that the matches were out, that shortly thereafter a fire was discovered burning at the top of the cartons, and that the fire spread through a large part of the building and damaged property of other occupants warranted a finding of negligence on the part of the defendant toward such other occupants and the owners of the building. [122-123]\nIn an action by an employer against its employee for damage to its property in a fire in 1964 due to negligence of the employee, there was no error in directing a verdict for the employee where verdicts in other actions, by third persons against the employer, tried concurrently with the action against the employee, established negligence of the employer contributing to the fire. [123]\nFour actions of tort. Writs in the Superior Court dated March 22, 1965, January 18, 1965, November 18, 1965 and March 5,1966, respectively.\nThe actions were tried before Ford, J.\nThomas J. Donoghue for Becker’s Inc.\nJohn H. Madden, Jr., for Daniel Forest & others.\nAlfred J. Monahan for Daniel Breyare.\nThe actions involved and the parties to each are the following:\n* This defendant was eliminated by the allowance of his motion for a directed verdict and there is no exception thereto before us.""}, ""cites_to"": [{""cite"": ""231 Mass. 588"", ""case_ids"": [67473], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""591""}], ""case_paths"": [""/mass/231/0588-01""], ""opinion_index"": 0}, {""cite"": ""316 Mass. 383"", ""case_ids"": [925326], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""401""}], ""case_paths"": [""/mass/316/0383-01""], ""opinion_index"": 0}, {""cite"": ""349 Mass. 321"", ""case_ids"": [524654], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""323""}], ""case_paths"": [""/mass/349/0321-01""], ""opinion_index"": 0}, {""cite"": ""338 Mass. 770"", ""weight"": 2, ""case_ids"": [515495], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""772-773""}, {""page"": ""773""}], ""case_paths"": [""/mass/338/0770-01""], ""opinion_index"": 0}, {""cite"": ""324 Mass. 1"", ""weight"": 2, ""case_ids"": [510379], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""4-5""}, {""page"": ""5""}], ""case_paths"": [""/mass/324/0001-01""], ""opinion_index"": 0}, {""cite"": ""301 Mass. 494"", ""case_ids"": [866444], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""496""}], ""case_paths"": [""/mass/301/0494-01""], ""opinion_index"": 0}, {""cite"": ""327 Mass. 287"", ""case_ids"": [512231], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""289""}], ""case_paths"": [""/mass/327/0287-01""], ""opinion_index"": 0}, {""cite"": ""321 Mass. 718"", ""case_ids"": [499994], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""719""}], ""case_paths"": [""/mass/321/0718-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""361 Mass. 117"", ""type"": ""official""}], ""file_name"": ""0117-01"", ""last_page"": ""124"", ""first_page"": ""117"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T16:53:02.641013+00:00"", ""decision_date"": ""1972-02-09"", ""docket_number"": """", ""last_page_order"": 138, ""first_page_order"": 131, ""name_abbreviation"": ""Becker's Inc. v. 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+3878311,"{""id"": 3878311, ""name"": ""Commonwealth vs. Anthony Ianello"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""4b994c02f852472bac337b24c6f5bf14838152c28328c41bdc0766e2bb76a7c1"", ""simhash"": ""1:b0be2672d05c60bb"", ""pagerank"": {""raw"": 0.0000004298092100542295, ""percentile"": 0.9166275717232936}, ""char_count"": 14898, ""word_count"": 2398, ""cardinality"": 771, ""ocr_confidence"": 0.945}, ""casebody"": {""judges"": [], ""parties"": [""Commonwealth vs. Anthony Ianello.""], ""opinions"": [{""text"": ""Nolan, J.\nFrom his conviction of forcible rape of a child under sixteen years of age (G. L. c. 265, § 22A [1986 ed.]) and of indecent assault and battery on a child under fourteen (G. L. c. 265, § 13B [1986 ed.]), the defendant appeals. We allowed the defendant’s application for direct appellate review. He raises two issues: (1) the denial of his motion to dismiss the indictments on the ground of prosecutorial misconduct, and (2) the correctness of the judge’s exclusion of expert testimony on the credibility of a child victim of sexual abuse. We affirm the convictions.\n1. The defendant’s motion to dismiss. Prior to trial, the defendant moved to dismiss the indictments because of “prosecutorial misconduct with the Grand Jury which voted said indictments.” A grand juror after the indictments were returned informed the defendant of alleged misconduct by the prosecutor. The grand juror ultimately filed an affidavit detailing the alleged acts of impropriety. In his motion to dismiss, the defendant set forth the various acts and comments and claimed misconduct by the prosecutor. The motion judge denied the motion after reading the grand jury minutes, reviewing the grand juror’s affidavit and making findings of fact and rulings of law.\nThe grand juror reported in her affidavit that “[bjefore Mr. Ianello testified, the assistant District Attorney [presenting the case to the grand jury] said she had heard he was ‘hot tempered and knows Karate so be careful and don’t get him too mad. He’s about five feet tall but he’s all muscle.’ ” The juror also stated in the affidavit that “[s]ome of the unfairness took place at a time when the court stenographer was not present.” The comment about the defendant’s temperament does not appear anywhere in the grand jury minutes. However, for purposes of the motion, the motion judge assumed that the comment had been made by the prosecutor.\nIn determining whether dismissal of the indictments was required, the motion judge considered whether the “integrity of [the] grand jury . . . [was] impaired” by the comment. Commonwealth v. McJunkin, 11 Mass. App. Ct. 609, 613 (1981), quoting Commonwealth v. St. Pierre, 377 Mass. 650, 655 (1979). The judge began his inquiry with the assumption that prosecutorial misconduct, if found, would not generally result in dismissal of the indictments. However, dismissal would be required if he found a violation of the defendant’s constitutional rights or if he found that the prosecutor played an “ignoble part.” Commonwealth v. Lincoln, 368 Mass. 281, 285 (1975).\nThe judge found no constitutional violations nor evidence of the prosecutor playing an “ignoble part” by purposefully using false testimony. While the judge noted that such comments were improper, he did not believe that they subverted the integrity of the grand jury. We agree. The judge also observed correctly that the jurors had heard an abundance of evidence which justified the indictments, including that of the victim, prior to the improper statements by the prosecutor.\nThe defendant insists that the motion judge’s denial of his motion to dismiss was error of law. He claims that the judge used the incorrect standard, whether the integrity of the grand jury was impaired, in deciding whether the indictments should have been dismissed. Rather, the defendant claims that the assistant district attorney’s statement itself rendered the grand jury proceedings and indictments void without any further showing. For this proposition, the defendant relies upon Commonwealth v. Pezzano, 387 Mass. 69, 72-73 (1982), where we stated that “the presence of an unauthorized person before a grand jury will void an indictment.” The defendant argues that once the assistant district attorney made the improper comments, she no longer represented the Commonwealth but became instead an unauthorized “stranger” in the grand jury room. We firmly reject this argument, which is wholly lacking in authority.\nWe affirm the motion judge’s denial of the defendant’s motion to dismiss the indictments because we conclude that the integrity of the grand jury proceedings was not impaired by the assistant district attorney’s comments. The motion judge was correct in using this test to determine whether the indictments should have been dismissed. Commonwealth v. O’Dell, 392 Mass. 445, 447 (1984). While we agree that the comments, if made, were improper, the judge in his findings of fact and rulings of law acted within his discretion in concluding that they did not impair the integrity of the grand jury.\n2. Exclusion of expert testimony. We consider the defendant’s claim that the trial judge abused his discretion in refusing to allow a psychologist to give expert testimony as to the possibility of a false allegation of sexual abuse arising from a custody and visitation dispute. We begin with the proposition that the trial judge has broad discretion with respect to the admission of expert testimony. See, e.g., Commonwealth v. Gaulden, 383 Mass. 543, 549 (1981). The qualification of a witness to offer expert opinion on a question is determined by the judge as a preliminary issue of fact. Commonwealth v. Seit, 373 Mass. 83, 92 (1977). The judge’s conclusion in this matter will not lightly be overturned. Commonwealth v. Campbell, 378 Mass. 680, 704 (1979). Traditionally, the appellate courts have accorded great deference to the ruling of trial judges in this area. Commonwealth v. Francis, 390 Mass. 89, 99 (1983). With this in mind, we turn to the defendant’s allegations.\nThe defendant claims that the judge abused his discretion and committed error of law when he refused to allow Dr. Frank Sacco to testify that a child may falsely accuse a parent of sexual assault because of the stress involved in an interspousal dispute over custody or visitation of the child. The defendant insists that Dr. Sacco was eminently qualified as an expert and that the foundation had been laid for the introduction of his testimony. The defendant also argues that the jury would have been aided by Dr. Sacco’s testimony since the subject matter of the proffered testimony was beyond the common knowledge of the jury.\nOur examination of the transcript of the voir dire of Dr. Sacco leads us to the conclusion that the trial judge did not exclude Dr. Sacco’s testimony because the doctor lacked the necessary expertise to be qualified as an expert in the treatment of sexually abused children. It appears that Dr. Sacco did possess the necessary academic credentials and experience to qualify as an expert in this area.\nBy way of background, Dr. Sacco was interrogated in the voir dire hearing as to his familiarity with literature concerning allegations of sexual abuse made by five and six year olds. Dr. Sacco stated that he was familiar with the conclusions of the literature with respect to the likelihood of children lying about sexual abuse. When asked for the conclusions of the literature, Dr. Sacco stated that children “rarely make these things up except under two general exceptions.” The doctor went on to explain the two exceptions, one being the case of a custody or visitation battle. The other (which is not relevant here) occurs when either parent is severely, mentally disturbed. The doctor concluded by saying “[t]hose are the two areas where the child makes up — other than that, children don’t have the wherewithal! to make it up.” At this point the defense attorney addressed the court and stated that “that would be the test that we propose to offer.” The judge then stated, “I take it these are the expert opinions that you’re referring to?” (Emphasis supplied.) The judge immediately asked the Commonwealth, “Do you object to that?” The Commonwealth objected and the judge sustained the objection without further comment.\nIt appears clear from the defendant’s prior offer of proof and voir dire questioning that he intended to offer expert opinion on the likelihood of a child’s lying about sexual abuse if the child’s parents were locked in a custody or visitation dispute. The judge focused on, and the Commonwealth objected to, this proffered opinion. Neither the judge nor the Commonwealth questioned or commented upon Dr. Sacco’s educational background or experience during the voir dire. Accordingly, our inquiry will be limited to whether the judge abused his discretion by excluding the expert testimony on the basis of the nature of the opinion.\nThe defendant urges that mental health professionals have just recently begun to recognize the “phenomenon” of child custody disputes giving rise to false allegations of sexual abuse. Thus, he argues that the subject matter was beyond common knowledge and that the jury would have been aided by expert testimony on this topic. We are not swayed by the defendant’s characterization of the proffered opinion.\nRather, we believe the proffered opinion was no more than the expert’s over-all impression of the truthfulness of members of a class (children in custody disputes) of which the specific complainant was a member. While the proposed testimony fell short of rendering an opinion on the credibility of the specific child before the court, we see little difference in the final result. It would be unrealistic to allow this type of expert testimony and then expect the jurors to ignore it when evaluating the credibility of the complaining child. Since we believe that Dr. Sacco’s opinion ultimately would have been applied to the child alleging'sexual abuse, we rule that the judge was correct in excluding the expert testimony. If the testimony had erroneously been allowed, Dr. Sacco would have impermissibly intruded upon the vital function of the jury.\nThe issue of credibility of a witness focuses on both the individual’s ability and willingness to tell the truth. Commonwealth v. Widrick, 392 Mass. 884, 888 (1984). This court has made clear that an expert may not offer an opinion on a witness’ credibility. “Evaluations of credibility are, of course, within the exclusive province of the trier of fact.” Commonwealth v. Bohannon, 376 Mass. 90, 94 (1978). Accord United States v. Azure, 801 F.2d 336, 341 (8th Cir. 1986) (trial court abused discretion in allowing pediatrician to give opinion as to the believability of child alleging sexual abuse). “We look to the jury after an adversary trial to make the decision as to what testimony to believe.” Commonwealth v. Francis, 390 Mass. 89, 100-101 (1983). An expert may not render an opinion on the credibility of a witness because the jury is capable of making that assessment without the aid of an expert. Simon v. Solomon, 385 Mass. 91, 105 (1982).\nWe have explored whether other jurisdictions have admitted expert testimony on the credibility of children alleging sexual assault. Some courts appear to draw distinctions and allow expert testimony indirectly touching on the alleged victim’s veracity when the expert partially bases his opinion on a corroborating physical or psychiatric evaluation. See Brown v. State, 736 P.2d 1125 (Wyo. 1987). However, with these exceptions, courts appear to be in substantial agreement that experts may not render an opinion on a witness’ credibility. E.g., State v. Bellotti, 383 N.W.2d 308 (Minn. App. 1986); State v. Brodniak, 221 Mont. 212 (1986); State v. Heath, 316 N.C. 337 (1986); Commonwealth v. Seese, 512 Pa. 439 (1986). Only Hawaii appears to allow expert testimony directly on the victim’s veracity. State v. Kim, 64 Hawaii 598 (1982).\nWe also note that at least one jurisdiction has ruled that jurors may be aided by expert testimony on recognized principles of behavioral science which can be applied to issues in the case. See State v. Lindsey, 149 Ariz. 472 (1982) (allowing testimony on the behavioral patterns of victims of incest or molestation). Arizona has allowed testimony on the general behavioral characteristics of members of the class (rape, incest victims) at issue, even if the testimony touches on the issue of credibility. However, even Arizona does not allow the expert to give an opinion on the particular witness’ credibility nor on the general truthfulness of witnesses of that class. State v. Lindsey, supra at 475. Thus, there is recognition that while behavioral patterns may be beyond the average juror’s understanding, issues of credibility are solely within their province. Id. at 476.\nThe courts guard against encroachments on the province of the jury. For example, in Commonwealth v. Widrick, supra at 891, this court upheld a judge’s refusal to order a psychiatric examination to determine the credibility of children alleging sexual abuse. The defendant insisted that the children fabricated the accusations. Id. at 886. We noted that such an order would have intruded upon the jury’s “vital function.” Id. at 889. Similarly, in Commonwealth v. Brusgulis, 398 Mass. 325 (1986), a defendant repeatedly asserted that a young witness who alleged sexual abuse had been “rehearsed” by her mother and other parties. There, we noted that “[wjhether a witness testifies truthfully or according to some fictional script is for the jury to decide.” Id. at 331 n.12.\n3. Conclusion. There was no error in the denial of the motion to dismiss and in the exclusion of the proffered testimony of the expert.\nJudgment affirmed.\nSince the exclusion was not based on the lack of qualifications but rather on the basis of the impermissible opinion Dr. Sacco offered, we need not address whether the defense established various foundation requirements for the introduction of the opinion."", ""type"": ""majority"", ""author"": ""Nolan, J.""}], ""attorneys"": [""Brownlow M. Speer, Committee for Public Counsel Services, for the defendant."", ""Edward B. Fogarty, Assistant District Attorney, for the Commonwealth.""], ""corrections"": """", ""head_matter"": ""Commonwealth vs. Anthony Ianello.\nHampden.\nSeptember 8, 1987.\nDecember 9, 1987.\nPresent: Hennessey, C.J., Wilkins, Liacos, Nolan, & Lynch, JJ.\nRape. Indecent Assault and Battery. Practice, Criminal, Conduct of prosecutor, Grand jury proceedings. Evidence, Expert opinion. Witness, Expert, Child.\nA judge considering a criminal defendant’s motion to dismiss indictments, based on the prosecutor’s comments to the grand jury about the defendant’s temperament just prior to the defendant’s testimony before them, correctly denied the motion on the basis of his conclusion that the comments, although improper, did not impair the integrity of the grand jury. [199]\nAt the trial of indictments charging sexual offenses, the judge properly excluded as evidence the proffered testimony of the defendant’s expert, a psychologist, where the witness, in effect, would have been giving his opinion on the veracity of the child victim. [199-203]\nIndictments found and returned in the Superior Court Department on March 6, 1985.\nA motion to dismiss was heard by George C. Ready, Jr., J., and the cases were tried before John F. Murphy, Jr., J.\nThe Supreme Judicial Court granted a request for direct appellate review.\nBrownlow M. Speer, Committee for Public Counsel Services, for the defendant.\nEdward B. Fogarty, Assistant District Attorney, for the Commonwealth.""}, ""cites_to"": [{""cite"": ""398 Mass. 325"", ""year"": 1986, ""weight"": 2, ""case_ids"": [877680], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/398/0325-01""], ""opinion_index"": 0}, {""cite"": ""149 Ariz. 472"", ""year"": 1982, ""weight"": 3, ""case_ids"": [1480096], ""category"": ""reporters:state"", ""reporter"": ""Ariz."", ""pin_cites"": [{""parenthetical"": ""allowing testimony on the behavioral patterns of victims of incest or molestation""}, {""page"": ""475""}, {""page"": ""476""}], ""case_paths"": [""/ariz/149/0472-01""], ""opinion_index"": 0}, {""cite"": ""64 Hawaii 598"", ""year"": 1982, ""case_ids"": [1432311], ""category"": ""reporters:state"", ""reporter"": ""Haw."", ""case_paths"": [""/haw/64/0598-01""], ""opinion_index"": 0}, {""cite"": ""512 Pa. 439"", ""year"": 1986, ""case_ids"": [1800481], ""category"": ""reporters:state"", ""reporter"": ""Pa."", ""case_paths"": [""/pa/512/0439-01""], ""opinion_index"": 0}, {""cite"": ""316 N.C. 337"", ""year"": 1986, ""case_ids"": [4700970], ""category"": ""reporters:state"", ""reporter"": ""N.C."", ""case_paths"": [""/nc/316/0337-01""], ""opinion_index"": 0}, {""cite"": ""221 Mont. 212"", ""year"": 1986, ""case_ids"": [2618332], ""category"": ""reporters:state"", ""reporter"": ""Mont."", ""case_paths"": [""/mont/221/0212-01""], ""opinion_index"": 0}, {""cite"": ""383 N.W.2d 308"", ""year"": 1986, ""case_ids"": [10656795], ""category"": ""reporters:state_regional"", ""reporter"": ""N.W.2d"", ""case_paths"": [""/nw2d/383/0308-01""], ""opinion_index"": 0}, {""cite"": ""736 P.2d 1125"", ""year"": 1987, ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""opinion_index"": 0}, {""cite"": ""385 Mass. 91"", ""year"": 1982, ""case_ids"": [900794], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""105""}], ""case_paths"": [""/mass/385/0091-01""], ""opinion_index"": 0}, {""cite"": ""801 F.2d 336"", ""year"": 1986, ""case_ids"": [10545592], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""341"", ""parenthetical"": ""trial court abused discretion in allowing pediatrician to give opinion as to the believability of child alleging sexual abuse""}], ""case_paths"": [""/f2d/801/0336-01""], ""opinion_index"": 0}, {""cite"": ""376 Mass. 90"", ""year"": 1978, ""case_ids"": [332048], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""94""}], ""case_paths"": [""/mass/376/0090-01""], ""opinion_index"": 0}, {""cite"": ""392 Mass. 884"", ""year"": 1984, ""weight"": 4, ""case_ids"": [3875237], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""888""}, {""page"": ""891""}, {""page"": ""886""}, {""page"": ""889""}], ""case_paths"": [""/mass/392/0884-01""], ""opinion_index"": 0}, {""cite"": ""390 Mass. 89"", ""year"": 1983, ""weight"": 2, ""case_ids"": [916733], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""99""}, {""page"": ""100-101""}], ""case_paths"": [""/mass/390/0089-01""], ""opinion_index"": 0}, {""cite"": ""378 Mass. 680"", ""year"": 1979, ""case_ids"": [337372], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""704""}], ""case_paths"": [""/mass/378/0680-01""], ""opinion_index"": 0}, {""cite"": ""373 Mass. 83"", ""year"": 1977, ""case_ids"": [323862], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""92""}], ""case_paths"": [""/mass/373/0083-01""], ""opinion_index"": 0}, {""cite"": ""383 Mass. 543"", ""year"": 1981, ""case_ids"": [813442], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""549""}], ""case_paths"": [""/mass/383/0543-01""], ""opinion_index"": 0}, {""cite"": ""392 Mass. 445"", ""year"": 1984, ""case_ids"": [3875838], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""447""}], ""case_paths"": [""/mass/392/0445-01""], ""opinion_index"": 0}, {""cite"": ""387 Mass. 69"", ""year"": 1982, ""case_ids"": [908834], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""72-73""}], ""case_paths"": [""/mass/387/0069-01""], ""opinion_index"": 0}, {""cite"": ""368 Mass. 281"", ""year"": 1975, ""case_ids"": [307082], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""285""}], ""case_paths"": [""/mass/368/0281-01""], ""opinion_index"": 0}, {""cite"": ""377 Mass. 650"", ""year"": 1979, ""case_ids"": [334092], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""655""}], ""case_paths"": [""/mass/377/0650-01""], ""opinion_index"": 0}, {""cite"": ""11 Mass. 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+3878683,"{""id"": 3878683, ""name"": ""Nancy P. & others vs. Angelina D'Amato, administratrix"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""7d519de47182f28f0a55332ee897e86bff3936bf3ef8fdebb1bc9d7ef2fac595"", ""simhash"": ""1:9087732eb6dddbfc"", ""pagerank"": {""raw"": 0.000000789045193216763, ""percentile"": 0.9728453280480831}, ""char_count"": 22535, ""word_count"": 3703, ""cardinality"": 947, ""ocr_confidence"": 0.949}, ""casebody"": {""judges"": [], ""parties"": [""Nancy P. & others vs. Angelina D’Amato, administratrix.""], ""opinions"": [{""text"": ""Wilkins, J.\nIn March, 1981, a nine year old girl, whom we shall call Nancy, told her mother that, on several occasions in 1979 and 1980 Vincenzo D’Amato, a neighbor in his sixties who died after this action was commenced, forced sexual contact on her. This action was brought to recover for harm done to Nancy and for harm sustained by her mother and her brother, whom we shall call Owen. The plaintiffs were awarded judgment on liability pursuant to Mass. R. Civ. P. 33 (a), as amended, 368 Mass. 905 (1976). A judge then decided the issues of damages.\nThe judge found that on at least two occasions D’Amato touched Nancy’s breasts and vagina. At a family birthday party in 1980, D’Amato arranged to be alone with Nancy, exposed himself, “touched her vaginal area,” and made Nancy promise not to tell anyone what had happened.\nIn 1980, Nancy told her twelve-year-old brother Owen that D’Amato had done something wrong. Owen thought she was talking about hugging and kissing. He promised not to tell their mother, a divorced parent. Both children, fearing reprisal or feeling guilt, did not disclose D’Amato’s conduct for some time.\nAfter Nancy finally did tell of D’Amato’s conduct and D’Amato was confronted with her accusations, a series of events followed that had emotionally traumatic effects- on Nancy. Because the defendant does not challenge the amount of damages ($100,000) awarded to Nancy on her claims for assault and battery and for intentional and negligent infliction of emotional distress, we need not recite the effect of D’Amato’s conduct on Nancy. It is enough to note that she became alienated from her mother and went to live with a relative.\nIt is, however, important to the issues before us to recite the judge’s findings as to the effect of D’Amato’s misconduct on Nancy’s mother and on Owen. He found that the mother was understandably angry and felt guilty because she did not protect her daughter. Owen felt guilty because he was unable to disclose the sexual abuse to any adult. Although the judge found each was obviously traumatized emotionally, he also found that neither suffered physically from the events.\nThe judge denied recovery to the mother and to Owen on counts alleging extreme and outrageous conduct causing physical harm and emotional distress. He found no physical injuries and denied recovery for emotional distress because the mother and Owen were not present at the time of D’Amato’s extreme and outrageous conduct.\nThe mother and Owen appeal from a judgment denying them recovery for the effects of D’Amato’s misconduct on them. The mother also challenges the judge’s denial of her postjudgment attempt to assert claims for loss of consortium and for medical expenses. The defendant in turn appeals from the judgment for Nancy, challenging various evidentiary rulings.\nWe affirm the judgment.\nAppeals by Mother and Owen\nWe consider first the claims of the mother and Owen for the infliction of emotional distress. The mother claims both intentional and negligent infliction of emotional distress. On appeal, Owen claims solely an intentional infliction of emotional distress. When, as here, a defendant is defaulted, well-pleaded facts are deemed to be admitted, but a plaintiff may recover only to the extent the complaint states a claim for relief. See Productora e Importadora de Papel, S.A. de C.V. v. Fleming, 376 Mass. 826, 834-835 (1978). Thus the plaintiffs had the burden at trial of proving damages incurred as a result of wrongs within the scope of the claims alleged for which the law provides a remedy.\nWe first dispose of the mother’s claim asserting negligent infliction of emotional distress. We have indicated that a plaintiff may not recover for negligent infliction of emotional distress unless she has suffered physical harm. Payton v. Abbott Labs, 386 Mass. 540, 555 (1982). The judge found that the mother suffered no physical consequences from the events, and he was not clearly erroneous in so finding. Certain members of this court have been willing to acknowledge that objective corroboration of a plaintiff’s emotional distress may sometimes be shown in the absence of physical injury. See DiGiovanni v. Latimer, 390 Mass. 265, 273-274 (1983) (Liacos, J., concurring); Payton v. Abbott Labs, supra at 579 (Wilkins, J., dissenting in part, with whom Liacos and Abrams, JJ. joined). We have all agreed, however, that a parent claiming emotional distress caused by negligently inflicted injuries to her child must witness the injury or come upon the injured child promptly after the injury. See Stockdale v. Bird & Son, 399 Mass. 249, 251-252 (1987); Cohen v. McDonnell Douglas Corp., 389 Mass. 327, 341-343 (1983); Dziokonski v. Babineau, 375 Mass. 555, 568 (1978). Cf. Ferriter v. Daniel O’ Connell’s Sons, 381 Mass. 507, 518 (1980) (wife and children who see injured employee at hospital immediately after the accident state a claim). Here the mother did not learn of the harm inflicted on her daughter until many months after the last incident of sexual abuse. The judge, therefore, properly denied the mother recovery on the theory of negligent infliction of emotional distress.\nThe question of the intentional infliction of emotional distress raises somewhat different considerations. We have placed reckless and intentional infliction of emotional distress in the same category. See Payton v. Abbott Labs, supra at 547; Simon v. Solomon, 385 Mass. 91, 95 (1982). We have not made physical harm an essential element of such a claim. See Simon v. Solomon, supra; Agis v. Howard Johnson Co., 371 Mass. 140, 144 (1976). If a defendant intended to inflict emotional distress or knew or should have known that emotional distress was a likely consequence of his conduct, if his conduct was extreme and outrageous (as our cases have defined it, Foley v. Polaroid Corp., 400 Mass. 82,99-100 [1987]), and if his conduct caused the plaintiff severe emotional distress, we would impose liability. See Simon v. Solomon, supra; Agis v. Howard Johnson Co., supra at 144-145. The focus of our cases, and of cases elsewhere, dealing with intentional infliction of emotional distress has been on the emotional distress of a person against whom the extreme and outrageous conduct was directed. Here D’Amato did not intend to cause emotional distress to the mother and Owen. It was his hope that they would never learn of his misconduct. Yet it would be a question for the trier of fact whether D’Amato acted recklessly, indifferent to the likely effect of his conduct on family members who would be apt in time to learn of his outrageous conduct. Surely a trier of fact would have been warranted in concluding that D’Amato’s conduct was extreme and outrageous and that he acted with reckless indifference to the likely effect of his conduct on the mother and on Owen.\nThe judge did not reach these questions because he concluded that the mother and Owen could not recover because they were not present at the time of D’Amato’s misconduct. The prevailing view among courts which have considered the question is that an absent family member may not recover for severe emotional distress caused by extreme and outrageous conduct directed at another fariiily member. See, e.g., H.L.O. v. Hassle, 381 N.W.2d 641,644-645 (Iowa 1986) (parents not present at the time of the defendant’s tortious acts may not recover for emotional distress caused by neighbor’s sexual abuse of their children); Miller v. Cook, 87 Mich. App. 6, 11 (1978) (plaintiff not present when child was beaten may not recover); Calliariy. Sugar, 180N.J. Super. 423,429 (1980) (purchasers of real property may not recover for emotional distress resulting from discovery of body of seller’s wife buried in back yard); Lund v. Caple, 100 Wash. 2d 739, 741 (1984) (husband not present when defendant had sexual relations with wife may not recover); W.L. Prosser & W.P. Keeton, Torts § 12, at 65 (5th ed. 1984).\nThe Restatement (Second) of Torts § 46(2) (1965), set forth in the margin, recognizes liability for intentionally or recklessly caused severe emotional distress of a family member who is present when extreme and outrageous conduct is directed at another family member. By a caveat, the Restatement leaves entirely open the possibility in other instances of liability for the intentional or reckless infliction of emotional distress.\nAs noted above, this court has recognized the possibility of liability for harm caused to a parent who was not present at the time of negligent conduct causing injury to a child. Where the wrongful conduct is intentional or reckless, we might be even less inclined to make a parent’s physical presence an essential element of liability. A custodial parent of a young child sexually abused by a trusted adult neighbor might present a particularly appealing case for not imposing a presence requirement. We do not, however, decide the point.\nEven if the family member’s presence were not a condition of liability, we would normally require both (a) substantially contemporaneous knowledge of the outrageous conduct and (b) a severe emotional response. Neither is present here. Because D’Amato told Nancy not to tell anyone about the incidents and it may be inferred that she was, therefore, afraid to tell her mother about these events for many months, we lay little stress on the absence of substantially contemporaneous knowledge in deciding this issue. It is true, however, that Owen’s knowledge was not shown to be substantially contemporaneous. In any event, his emotional response was not severe. The mother did not learn of D’Amato’s misconduct for approximately one year and, more importantly, although the mother was affected emotionally, there is no finding of severe emotional distress attributable to D’Amato’s conduct, and the evidence would not warrant such a finding. The evidence did not support recovery for intentionally or recklessly inflicted emotional distress.\nApproximately two months after entry of judgment the plaintiffs filed a motion to amend the judgment. In that motion, among other things, the mother sought to recover for loss of consortium and for medical expenses incurred in the treatment of her daughter. The motion to amend the judgment was untimely. See Mass. R. Civ. P. 59 (e), 365 Mass. 827 (1974) (“shall be served not later than ten days after entry of the judgment”). A motion for relief from judgment, filed about one month after judgment, made no mention of loss of consortium or medical expenses. In any event, Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), does not list an omission to plead a claim as a reason for relief from judgment. We doubt that a matter that should have been raised by a timely motion to amend the complaint is a “reason justifying relief from the operation of the judgment” under rule 60 (b) (6). In any event, even if we were to treat the matter of the two new claims as being properly before the judge on the rule 60 (b) motion, he did not abuse his discretion in declining to grant relief to the mother on these claims. See Schulz v. Black, 369 Mass. 958 (1975). The default entered against the defendant on liability did not relate to such claims, and very likely the defendant would have been entitled to a trial as to liability on these claims.\nDefendant’s Appeal\nThe defendant challenges the judgment in favor of the victim, arguing that the judge committed reversible error in various evidentiary rulings. There was no such error.\na. The judge did not improperly restrict the defendant’s cross-examination of a psychiatrist who testified in part concerning the effect of D’Amato’s conduct on Nancy. The excluded questions sought general information and were not directed to the victim or to the specific facts on this case.\nThe judge’s rulings were well within his discretion to limit general or indefinite cross-examination, particularly in a non-jury trial. See Commonwealth v. Mitchell, 367 Mass. 419, 420 (1975); Commonwealth v. Greenberg, 339 Mass. 557, 580 (1959); McGuerty v. Hale, 161 Mass. 51, 52(1894) (direct examination). No prejudice resulted, even if exclusion of these questions was error. The witness answered specific questions concerning (a) factors affecting the results of sexual molestation on a child; (b) the impact on children of divorce and of changing schools; and (c) whether the mother’s admitted lesbianism had an effect on her relationship with her daughter.\nb. The opinions of the plaintiffs’ psychiatrist were admitted without objection and were never subject to a motion to strike. Therefore, the defendant’s challenge to the admission of those opinions and to the judge’s reliance on them, on the ground that they were in part based on facts not proven on the record, may not properly be presented here. See Freyermuth v. Lutfy, 376 Mass. 612, 616-617 (1978). The witness was permitted to state the information he had received on which he relied in giving his opinions. Those facts were not admitted to prove their truth, and the judge could not properly rely on them in making findings. He could, however, as he did, make findings based on the expert’s opinons, which were admitted for their full probative value. See Commonwealth v. Stewart, 398 Mass. 535, 543 (1986). We note that the defendant’s appellate counsel was not trial counsel.\nc. Presumably for tactical reasons, and perhaps because of the default which established the defendant’s liability on any properly pleaded claim, the mother and Nancy did not testify during the plaintiffs’ case-in-chief. The judge declined to permit the defendant to call them (and two other persons) to testify. At first impression the propriety of that ruling appears to be doubtful, because surely a defendant should be entitled to call the plaintiffs in a case such as this. Here, however, the defendant sought to call these witnesses only to impeach the plaintiffs’ psychiatrist and then only in one respect. In fact the psychiatrist had not made the statement as to which the defendant sought to impeach him. There was nothing, therefore, to impeach through the witnesses the defendant wished to call.\nd. The judge was entitled on his own motion to ask a psychiatric counselor for her opinions concerning the effect of D’Amato’s misconduct on Nancy. The defendant had called her as a witness but had not attempted to qualify her as an expert. The witness’s background warranted the judge’s implied finding of her qualification to give the opinions sought. See Commonwealth v. Boyd, 367 Mass. 169, 183 (1975). Her association with Nancy made her a reasonable source for the evidence the judge elicited from her.\nJudgment affirmed.\nThere is a distinction between the negligent infliction of emotional distress, which we discuss here, and the intentional infliction of emotional distress, which we discuss later in the opinion. Many principles applicable to negligent infliction claims are not applicable to intentional infliction claims. See Delia S. v. Torres, 134 Cal. App. 3d 471, 483 (1982). Also, there are differences between (a) motor vehicle cases and other typical personal injury cases and (b) sexual abuse cases. See Schurk v. Christensen, 80 Wash. 2d 652, 665 (1972).\nSee Beecy v. Pucciarelli, 387 Mass. 589 (1982); Richey v. American Auto. Ass’n, 380 Mass. 835 (1980); Harrison v. Loyal Protective Life Ins. Co., 379 Mass. 212 (1979); Boyle v. Wenk, 378 Mass. 592 (1979); Agis v. Howard Johnson Co., supra.\nThere is little or no contrary authority. In Delia S. v. Torres, 134 Cal. App. 3d 471 (1982), involving the rape of the plaintiff’s wife by the defendant, a former friend, the plaintiff was allowed to recover for intentional infliction of emotional distress although he was not present at the time of the rape. Language in the court’s opinion treats the husband as a direct victim of the defendant’s conduct. Id. at 482-484. Cf. Molien v. Kaiser Found. Hosps., 27 Cal. 3d 916, 930-931 (1980) (husband may recover for emotional distress as direct victim of defendant’s negligent misdiagnosis of wife as having syphilis).\n“Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress\n(a) to a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm, or\n(b) to any other person who is present at the time, if such distress results in bodily harm.”\n“Caveat: The Institute expresses no opinion as to whether there may not be other circumstances under which the actor may be subject to liability for the intentional or reckless infliction of emotional distress.”\nWe recognize that in some sexual abuse cases the defendant’s conduct may recklessly cause severe emotional distress even though the defendant did not intend to do so and in fact hoped his conduct would come to no one else’s attention.\nThe amendment to add a consortium claim could not properly have been rejected on the ground that it asserted a claim already made in the case. A loss of consortium claim is not the same as a claim based on the infliction of emotional distress. Cf. Cimino v. Milford Keg, Inc., 385 Mass. 323 Mass. 323, 334 (1982) (“A claim for damages based on emotional distress does not include an administrator’s claim for loss of consortium . . .”). The two claims are theoretically different and deal with different responses to the same wrong, even though a plaintiff might have difficulty sorting out whether a particular emotional response is attributable to the loss of consortium or to the direct effect of the wrong (or to both).\nThe questions were:\n1. “What factors affect the results of sexual molestation on each child?”\n2. “And there are several events — many events that could possibly traumatize a girl, is that correct?”\n3. “Doctor, is divorce a traumatic event for some children?”\n4. “It’s important for children to maintain [some stability in their school and academic life], is that correct?”\n5. “Doctor, do you know of any scientific study which shows that a mother’s lesbianism has no effect on the adolescent daughter?”\nThe defendant wanted to prove that Nancy knew of her mother’s homosexual relationship with a woman who was part of the household. The psychiatrist had not testified, however, that Nancy did not know of that relationship. He testified that the mother told him that she believed the children did not know that she was a homosexual."", ""type"": ""majority"", ""author"": ""Wilkins, J.""}], ""attorneys"": [""D. Alice Olsen for the plaintiffs."", ""Kenneth H. Tatarian (Patricia C. Ma with him) for the defendant.""], ""corrections"": """", ""head_matter"": ""Nancy P. & others vs. Angelina D’Amato, administratrix.\nWorcester.\nSeptember 10, 1987.\nJanuary 13, 1988.\nPresent: Hennessey, C.J., Wilkins, Liacos, Abrams, & Lynch, JJ.\nJudgment, Default, Amendment, Relief from judgment. Negligence, Emotional distress. Emotional Distress. Actionable Tort. Damages, Loss of consortium. Practice, Civil, Relief from judgment. Evidence, Cross-examination, Judicial discretion, Expert opinion, Relevancy and materiality.\nA mother’s allegations that, although she was not present at the time a neighbor forced sexual contact on her nine year old daughter, she had suffered emotional distress on learning of the neighbor’s misconduct approximately one year later stated no claim entitling her to recovery for negligent infliction of emotional distress. [519-520]\nOn claims by a nine year old girl’s mother and brother that, although they were not present at the time a neighbor forced sexual contact on the girl, they had suffered emotional distress on learning of the neighbor’s misconduct, the evidence, absent a finding of severe emotional distress attributable to the neighbor’s conduct, did not support recovery for intentionally or recklessly inflicted emotional distress. [520-523]\nA judge did not abuse his discretion in declining to grant postjudgment relief to a plaintiff who, approximately two months after entry of judgment, had filed an untimely motion to amend the judgment to recover on two claims she had omitted from her complaint and who had, about one month after judgment, filed a motion for relief from judgment, making no mention of those two claims. [523]\nAt the trial of an action brought to recover for harm done to a nine year old girl by the forced sexual contact of a neighbor, the judge did not improperly restrict the defendant’s cross-examination of a psychiatrist, who testified in part concerning the effect of the neighbor’s conduct on the girl, by excluding questions which merely sought general information and which were not directed to the victim or to the specific facts of the case. [524]\nOn appeal from a judgment for a nine year old girl in an action to recover for harm done to her by the forced sexual contact of a neighbor, the defendant could not properly challenge the trial judge’s admission of opinions of the girl’s psychiatrist and his reliance on them, on the ground that they were in part based on facts not proved on the record, where the opinions were admitted without objection and were never the subject of a motion to strike. [524-525]\nAt the trial of an action brought to recover for harm done to a nine year old girl by the forced sexual contact of a neighbor and for harm sustained by her mother and brother as result of the neighbor’s conduct, the judge did not err in declining to permit the defendant to call as witnesses the mother and daughter, who had not testified during their case-in-chief, solely to impeach their psychiatrist with respect to a single statement the defendant alleged the psychiatrist had made but which, in fact, he had not made. [525]\nAt the trial of an action brought to recover for harm done to a nine year old girl by the forced sexual contact of a neighbor and for harm sustained by her mother and brother as result of the neighbor’s conduct, the judge was entitled on his own motion to ask a psychiatric counselor, who had been called by the defendant but not qualified as an expert, for her opinions concerning the effect of the neighbor’s conduct on the girl, where the witness’s background warranted the judge’s implied finding of her qualification to give the opinions sought, and where her association with the girl made her a source for the evidence elicited from her. [525]\nCivil action commenced in the Superior Court Department on September 3, 1981.\nThe case was heard by Mel L. Greenberg, J.\nThe Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.\nD. Alice Olsen for the plaintiffs.\nKenneth H. Tatarian (Patricia C. Ma with him) for the defendant.\nNancy P.’s mother and her brother.\nOf the estate of Vincenzo D’Amato.""}, ""cites_to"": [{""cite"": ""385 Mass. 323"", ""year"": 1982, ""case_ids"": [900744], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""parenthetical"": ""\""A claim for damages based on emotional distress does not include an administrator's claim for loss of consortium . . .\""""}], ""case_paths"": [""/mass/385/0323-01""], ""opinion_index"": 0}, {""cite"": ""27 Cal. 3d 916"", ""year"": 1980, ""case_ids"": [2261811], ""category"": ""reporters:state"", ""reporter"": ""Cal. 3d"", ""pin_cites"": [{""page"": ""930-931"", ""parenthetical"": ""husband may recover for emotional distress as direct victim of defendant's negligent misdiagnosis of wife as having syphilis""}], ""case_paths"": [""/cal-3d/27/0916-01""], ""opinion_index"": 0}, {""cite"": ""378 Mass. 592"", ""year"": 1979, ""case_ids"": [337434], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/378/0592-01""], ""opinion_index"": 0}, {""cite"": ""379 Mass. 212"", ""year"": 1979, ""case_ids"": [3873466], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/379/0212-01""], ""opinion_index"": 0}, {""cite"": ""380 Mass. 835"", ""year"": 1980, ""case_ids"": [478932], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/380/0835-01""], ""opinion_index"": 0}, {""cite"": ""387 Mass. 589"", ""year"": 1982, ""case_ids"": [908898], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/387/0589-01""], ""opinion_index"": 0}, {""cite"": ""80 Wash. 2d 652"", ""year"": 1972, ""case_ids"": [1067104], ""category"": ""reporters:state"", ""reporter"": ""Wash. 2d"", ""pin_cites"": [{""page"": ""665""}], ""case_paths"": [""/wash-2d/80/0652-01""], ""opinion_index"": 0}, {""cite"": ""134 Cal. App. 3d 471"", ""year"": 1982, ""weight"": 3, ""case_ids"": [2090577], ""category"": ""reporters:state"", ""reporter"": ""Cal. 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+3879130,"{""id"": 3879130, ""name"": ""John Manzaro & another vs. Kathleen McCann"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""7b644121118814fb64adff428c58e9328801244103bf254ec376e2737be706e7"", ""simhash"": ""1:013e07df3d282c5d"", ""pagerank"": {""raw"": 0.0000002246039430928323, ""percentile"": 0.7806765954308533}, ""char_count"": 13378, ""word_count"": 2347, ""cardinality"": 615, ""ocr_confidence"": 0.944}, ""casebody"": {""judges"": [], ""parties"": [""John Manzaro & another vs. Kathleen McCann.""], ""opinions"": [{""text"": ""Wilkins, J.\nThe plaintiff landlord commenced a summary process action against the defendant tenant, who in response filed a counterclaim. A judge of the Housing Court ordered judgment for the tenant on the landlord’s summary process claim and then awarded the tenant damages against the landlord on her counterclaim under G. L. c. 186, §§ 14 and 18 (1986 ed.), and under G. L. c. 93A (1986 ed.). The landlord has appealed, challenging only those aspects of the judgment which awarded the tenant relief on her counterclaim. We transferred the appeal here on our own motion. We reject the tenant’s argument that the landlord did not file a timely appeal. We agree with one aspect of the landlord’s challenge to the judgment for the tenant on her counterclaim.\nThe landlord purchased the premises in March, 1986, and presented the tenant with a lease which contained a provision that the “ [tjenant assumes any medical, legal and labor costs for problems with lead paint and or removal of lead paint.” The tenant was the only tenant who refused to sign the lease. The landlord sought a $100 rent increase only from her, but she did not pay it. In July, 1986, the landlord sent her a notice to quit which the court held was deficient.\nBefore we may consider the landlord’s substantive objections to judgment for the tenant on her counterclaim, we must dispose of the tenant’s argument that the landlord did not file a timely appeal.\n1. The tenant argues that because the landlord’s appeal was not timely, it must be dismissed. Under G. L. c. 239, § 5, an appeal from a housing court’s judgment in an action under G. L. c. 239 (summary process for possession of land), “including a judgment on a counterclaim,” must be filed with that court “within ten days after the entry of . . . judgment.” The landlord did not file an appeal from the judgment in favor of the tenant within ten days of the September 3, 1986, judgment. Instead he filed a motion pursuant to Mass. R. Civ. P. 59 (e), 365 Mass. 827 (1974), to alter or amend the judgment. That rule 59 (e) motion was filed on September 12, 1986, within ten days from judgment as directed by that rule. Appellate rule 4 (a) provides that, when a timely motion pursuant to rule 59 to alter or amend a judgment is filed, the time for appeal for all parties shall run from the entry of the order granting or denying the motion. Mass. R. A. P. 4 (a), as amended, 393 Mass. 1239 (1985). Appellate rule 4 (a) also states that a notice of appeal must be filed within the time limits prescribed by any applicable statute. Here, the judge denied the landlord’s rule 59 motion on September 30, 1986, and the notice of appeal was filed on October 6, 1986, within the ten-day statutory limit prescribed by G. L. c. 239, § 5. The notice of appeal was, therefore, seasonably filed.\n2. The judge ruled that the landlord had violated G. L. c. 186, § 18, by increasing the tenant’s rent in reprisal for her refusal to sign the lease with “an offensive clause” concerning lead paint. The judge awarded her three months’ rent under §18. Section 18, which in relevant part is set forth in the margin, in general terms imposes liability on one who threatens or takes reprisals on a residential tenant who has done certain things, such as seeking relief in any judicial or administrative action because of a violation of the tenant’s legal rights or complaining in writing to the landlord concerning such a violation.\nAlthough we hardly commend the landlord’s actions, his reprisal because of the tenant’s oral refusal to sign the lease does not justify an award of damages under § 18. The tenant did not commence any proceeding to enforce her rights as a tenant as to which the landlord’s response was a reprisal. Nor did she complain in writing to the landlord concerning the violation of her rights as a tenant. Citing Scofield v. Berman & Sons, 393 Mass. 95, 110-114 (1984), the tenant urges us to fall in line with the general spirit of § 18 and not to read its provisions to be restrictive. The Legislature has expressly required a complaint to a landlord to be in writing as a condition to the landlord’s reprisal being actionable. We must accept that judgment. The landlord’s reprisal was not one for which § 18 allows damages.\n3. The judge found that on a Sunday early in June, 1986, the landlord was notified that the smoke alarms in the apartment building were sounding. The landlord responded that he would get to it on Monday (which he did). The judge found that the landlord’s failure to silence the smoke alarms in a timely manner was an interference with the tenant’s quiet enjoyment of the leased premises (in violation of G. L. c. 186, § 14). He awarded her three months’ rent. The landlord argues that the interference was a minor inconvenience and did not amount to interference with the tenant’s right of quiet enjoyment.\nA landlord will be liable for interference with quiet enjoyment if he causes or authorizes acts which result in “substantial injury to the tenant in the peaceful enjoyment of the demised premises.” Winchester v. O’Brien, 266 Mass. 33, 37 (1929). The covenant of quiet enjoyment protects the “tenant’s right to freedom from serious interferences with his tenancy.” Simon v. Solomon, 385 Mass. 91, 102 (1982). See Leardi v. Brown, 394 Mass. 151, 167 (1985). Landlord-caused noise may be sufficient to support a claim for interference with a tenant’s right to quiet enjoyment. See Blackett v. Olanoff, 371 Mass. 714, 715 (1977). Cf. Winchester v. O’Brien, supra at 37-38 (noise from remodeling of building in which tenant’s offices were located, combined with confusion and dirt created thereby, was substantial interference with tenant’s enjoyment of premises).\nWe cannot say the judge’s conclusion to award damages under § 14 was wrong. We do not have a transcript of the evidence, and the only question before us on this issue is whether, as a matter of law, the noise of an alarm ringing for more than one day could not support a finding of a breach of the tenant’s right to quiet enjoyment. The ringing for a day of an alarm which, we infer, was adequate to alert a sleeping tenant in the event of fire cannot be said as a matter of law never to be sufficient interference to justify relief under § 14.\n4. The landlord does not object to the award of $25 in damages under G.L. c. 93A, based on his inclusion of the lead paint clause in the lease. The tenant, who represented herself at the trial, is entitled to reasonable attorney’s fees on appeal under G. L. c. 93A, § 9 (see Leardi v. Brown, 394 Mass. 151, 168 [1985]), and under G. L. c. 186, § 14 (Darmetko v. Boston Hous. Auth., 378 Mass. 758, 763 [1979]).\n5. The judgment is vacated and the case is remanded to the Housing Court where judgment shall be entered for the tenant McCann on her G. L. c. 186, § 14, claim and on her G. L. c. 93A claim based on the inclusion of the lead paint clause in the lease. On remand, consideration should also be given to granting reasonable attorney’s fees for the aspects of the landlord’s appeal on which the tenant prevailed.\nSo ordered.\nThe 1985 amendment to appellate rule 4 (a) expressly provides that any notice of appeal filed before disposition of a rule 59 (e) motion “shall have no effect.” If the landlord had filed a notice of appeal within ten days of the judgment, it would have been of “no effect,” and a new notice of appeal would have been required after action disposing of the rule 59 (e) motion.\nIt is reasonably clear that the drafters of the Uniform Summary Process Rules (1980) recognized that a notice of appeal in a summary process action need not be filed until after action is taken on a timely rule 59 (e) motion. The commentary to summary process rule 11 notes that “the running of time for appeal in summary process actions is not affected by the filing of a motion under Rule 60 [a motion for relief from judgment].” Commentary to Uniform Summary Process Rule 11, Mass. Ann. Laws at 249 (1980). Rule 60 motions are not mentioned in appellate rule 4 (a) (nor were they mentioned in rule 4[a] before its 1985 amendment), but rule 59 (e) motions (and others) are. If the drafters of the summary process rules had thought rule 59 (e) motions, like rule 60 motions, did not stay the time for appeal, presumably they would have said so. Thus, it appears they contemplated that tenants as well as landlords may delay the running of the time within which to claim an appeal by filing a rule 59 (e) motion. If this process is abused, an appropriate rule change can be made.\n“Any person or agent thereof who threatens to or takes reprisals against any tenant of residential premises for the tenant’s act of, commencing, proceeding with, or obtaining relief in any judicial or administrative action the purpose of which action is to obtain damages under, or otherwise enforce, any federal, state or local law, regulation, by-law or ordinance, which has as its objective the regulation of residential premises; or exercising the tenant’s rights pursuant to section one hundred and twenty-four D of chapter one hundred and sixty-four; or reporting to the board of health or, in the city of Boston to the commissioner of housing inspection or to any other board having as its objective the regulation of residential premises a violation or a suspected violation of any health or building code or of any other municipal by-law or ordinance, or state or federal law or regulation which has as its objective the regulation of residential premises; or reporting or complaining of such violation or suspected violation in writing to the landlord or to the agent of the landlord; or for organizing or joining a tenants’ union or similar organization shall be liable for damages which shall not be less than one month’s rent or more than three month’s rent, or the actual damages sustained by the tenant, whichever is greater, and the costs of the suit, including a reasonable attorney’s fee.”\nThe Scofield case held that a landlord’s refusal to permit a tenant to remain as a tenant at will after expiration of her lease was a reprisal for her reporting the landlord’s unlawful rent increase to a rent board. Id. at 114. Section 18 does not define “reprisal,” and the court gave the word a construction consistent with the legislative purpose. For the case now before us the statute is explicit and leaves no room for judicial construction in favor of the.tenant.\nThe Legislature has expanded the scope of § 18 from time to time since its enactment by St. 1969, c. 701. See St. 1972, c. 99; St. 1973, c. 858; St. 1978, c. 149.\nWe need not consider whether the judge was correct in trebling the § 18 damages pursuant to G. L. c. 93A, § 9 (1986 ed.), in effect awarding the tenant nine months’ rent.\nThe tenant has asked for attorney’s fees in her brief. The fact that she does not refer explicitly to her right to attorney’s fees under § 14 should not bar her from recovering them under § 14, as well as under G. L. c. 93A, § 9, to which her brief does refer."", ""type"": ""majority"", ""author"": ""Wilkins, J.""}], ""attorneys"": [""Herbert F. Travers, III, (Mark W. Bloom with him) for the plaintiffs."", ""Eric Avildsen for the defendant.""], ""corrections"": """", ""head_matter"": ""John Manzaro & another vs. Kathleen McCann.\nWorcester.\nJanuary 5, 1988.\nMarch 16, 1988.\nPresent: Hennessey, C.J., Wilkins, Abrams, Lynch, & O’Connor, JJ.\nSummary Process, Appeal. Landlord and Tenant, Reprisal by landlord, Eviction, Quiet enjoyment. Damages, Breach of covenant of quiet enjoyment, Consumer protection case, Attorney’s fees. Consumer Protection Act, Landlord and tenant, Damages, Attorney’s fees.\nIn a summary process action under G. L. c. 239 in which the landlord did not file a notice of appeal from a judgment awarding the tenant relief on her counterclaim within ten days of the judgment as prescribed by G. L. c. 239, § 5, but, instead, filed a timely motion to alter or amend the judgment pursuant to Mass. R. Civ. P. 59 (e), which was denied on September 30, 1986, the landlord’s notice of appeal filed on October 6, 1986, was timely where, as provided by Mass. R. A. P. 4 (a), the time for appeal ran from the entry of the order denying the motion under rule 59. [881-882]\nA landlord’s increasing a tenant’s rent for her oral refusal to sign a lease with “an offensive clause” concerning lead paint, although hardly commendable, did not constitute a “reprisal” under G. L. c. 186, § 18, where the landlord’s retaliatory act was neither a response to the tenant’s having commenced any legal proceeding to enforce her rights, nor a response to any written complaint by her to the landlord. [882-884]\nOn appeal by the landlord in a summary process action from that portion of the judgment which awarded the tenant three months’ rent on her counterclaim alleging that the landlord’s failure, for more than a day, to silence the smoke alarms in her building, when the alarms sounded on a Sunday, was an interference with her quiet enjoyment of the leased premises in violation of G. L. c. 186, § 14, this court declined to disturb the judge’s award of damages. [884-885]\nSummary process. Writ in the Worcester County Division of the Housing Court Department dated July 29, 1986.\nThe case was tried before John G. Martin, J.\nThe Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.\nHerbert F. Travers, III, (Mark W. Bloom with him) for the plaintiffs.\nEric Avildsen for the defendant.\nLoreen Manzaro. The judge below referred to the landlord in the masculine singular. We shall do likewise.""}, ""cites_to"": [{""cite"": ""378 Mass. 758"", ""case_ids"": [337383], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""763""}], ""case_paths"": [""/mass/378/0758-01""], ""opinion_index"": 0}, {""cite"": ""371 Mass. 714"", ""year"": 1977, ""case_ids"": [320423], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""715""}], ""case_paths"": [""/mass/371/0714-01""], ""opinion_index"": 0}, {""cite"": ""394 Mass. 151"", ""year"": 1985, ""weight"": 2, ""case_ids"": [385175], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""167""}, {""page"": ""168""}], ""case_paths"": [""/mass/394/0151-01""], ""opinion_index"": 0}, {""cite"": ""385 Mass. 91"", ""year"": 1982, ""case_ids"": [900794], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""102""}], ""case_paths"": [""/mass/385/0091-01""], ""opinion_index"": 0}, {""cite"": ""266 Mass. 33"", ""year"": 1929, ""weight"": 2, ""case_ids"": [846891], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""37""}, {""page"": ""37-38"", ""parenthetical"": ""noise from remodeling of building in which tenant's offices were located, combined with confusion and dirt created thereby, was substantial interference with tenant's enjoyment of premises""}], ""case_paths"": [""/mass/266/0033-01""], ""opinion_index"": 0}, {""cite"": ""393 Mass. 95"", ""year"": 1984, ""case_ids"": [894401], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""110-114""}], ""case_paths"": [""/mass/393/0095-01""], ""opinion_index"": 0}, {""cite"": ""393 Mass. 1239"", ""year"": 1985, ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""opinion_index"": 0}, {""cite"": ""365 Mass. 827"", ""year"": 1974, ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""opinion_index"": 0}], ""citations"": [{""cite"": ""401 Mass. 880"", ""type"": ""official""}], ""file_name"": ""0880-01"", ""last_page"": ""885"", ""first_page"": ""880"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T17:18:32.358160+00:00"", ""decision_date"": ""1988-03-16"", ""docket_number"": """", ""last_page_order"": 901, ""first_page_order"": 896, ""name_abbreviation"": ""Manzaro v. 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+3879199,"{""id"": 3879199, ""name"": ""Mary Martel vs. Massachusetts Bay Transportation Authority"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""37a0be92143d85eddfcb8f1a35af56e6fbcf54f7233d17581f5d54046842a64c"", ""simhash"": ""1:c2076289da7b81c3"", ""pagerank"": {""raw"": 0.0000002575540267627463, ""percentile"": 0.8166545617138297}, ""char_count"": 13112, ""word_count"": 2097, ""cardinality"": 698, ""ocr_confidence"": 0.939}, ""casebody"": {""judges"": [], ""parties"": [""Mary Martel vs. Massachusetts Bay Transportation Authority.""], ""opinions"": [{""text"": ""Hennessey, C.J.\nThe plaintiff appeals from a judgment on a jury verdict for the defendant in her action to recover for injuries sustained when she was run over by a bus owned and operated by the defendant. On the day of the accident, the plaintiff left her apartment to take one of the defendant’s buses to her place of employment. She arrived at the bus stop five minutes before the bus’s scheduled departure time. However, as she approached the bus, which was parked by a curb, it began slowly to pull away from the curb and to take a right turn onto an adjacent street. The plaintiff caught up with the bus and banged on its front door as it slowly made its turn. The driver did not stop the bus. As the bus straightened out, it knocked the plaintiff to the ground, and its rear wheels ran over her feet, causing her serious injury.\nThe defendant has a policy of investigating all accidents involving its buses to determine the cause of the accident and whether the bus driver could have prevented it. It is undisputed that the purpose of the investigation is to prevent future accidents by identifying drivers who require additional safety training. This accident was investigated by one of the defendant’s employees, Charles Ramsay, whose investigation consisted of interviews with the bus driver and an inspection of the bus. After investigation, Ramsay concluded that the accident could have been prevented had the bus driver looked into his right front mirror as he was making the turn. He recorded this conclusion on an internal form which the defendant uses for this purpose (form OPS-105).\nThe plaintiff subpoenaed Ramsay to testify at the trial. The defendant filed a motion in limine, seeking, among other things, a ruling excluding any evidence as to Ramsay’s opinion that the bus driver could have prevented the accident. After hearing, the judge granted this request. The plaintiff saved her rights as to this ruling.\nIn his direct examination of the witness, the plaintiff’s counsel abided by the judge’s ruling excluding evidence as to Ramsay’s opinion that the bus driver could have prevented the accident. On cross-examination, defense counsel elicited Ramsay’s opinion on two issues. First, he asked whether the bus driver exercised good judgment in commencing his route before the scheduled departure time. Second, he asked if the bus driver’s previous testimony as to how he made the right turn was in accordance with good safety precaution. Ramsay answered both questions in the affirmative. The plantiff’s counsel then sought the judge’s permission to conduct redirect examination of Ramsay as to his opinion that the bus driver could have prevented the accident, and to introduce Ramsay’s report on the defendant’s form OPS-105, contending that defense counsel had “opened the door” to such evidence by his questioning of Ramsay. The requests were denied, and the plaintiff saved her rights as to this ruling.\nUltimately, the jury returned a verdict on special questions finding that the defendant was not negligent. The plaintiff appealed. We transferred the case to this court on our own motion, and now affirm.\nThe plaintiff challenges the judge’s exclusion of evidence as to Ramsay ’ s opinion that the bus driver could have prevented the accident. She argues, first, that the judge erred in his ruling to this effect on the defendant’s motion in limine, and second, that, even if this ruling was not erroneous, the judge erred in continuing to exclude this evidence after defense counsel had “opened the door” thereto by his cross-examination of Ramsay.\nIn ruling on the defendant’s motion in limine, the judge excluded the plaintiff’s proffered evidence as improper expert opinion evidence on the ultimate issue in the case, i.e., negligence, which, if admitted, would invade the province of the jury. This reasoning was erroneous. “[Ejxpert testimony on matters within the witness’s field of expertise is admissible whenever it will aid the jury in reaching a decision, even if the expert’s opinion touches on the ultimate issues that the jury must decide.” Simon v. Solomon, 385 Mass. 91, 105 (1982), and cases cited. Commonwealth v. Chapin, 333 Mass. 610, 625 (1956), and cases cited. Cf. Proposed Mass. R. Evid. 704 and Fed. R. Evid. 704 (1987). Nevertheless, although the judge relied on an erroneous ground in excluding this evidence, we decline to reverse the judgment for the defendant, as we conclude that the evidence was properly excludable as evidence of a subsequent remedial measure, as discussed below. “Where the evidence is inadmissible on one ground, the fact that the judge relied upon some other, incorrect, ground for excluding the evidence should not require reversal, since a retrial would probably only result in the exclusion of the evidence on the proper ground.” Commonwealth v. Mandeville, 386 Mass. 393, 397 (1982).\nEvidence of postaccident safety improvements is not admissible to prove negligence. doCanto v. Ametek, Inc., 367 Mass. 776, 779 (1975). See, e.g., Manchester v. Attleboro, 288 Mass. 492 (1934); Albright v. Sherer, 223 Mass. 39,42 (1915); Shinners v. Proprietors of Locks & Canals on Merrimack River, 154 Mass. 168 (1881). The predominant reason for this exclusionary rule derives from public policy unrelated to the fact-finding process, that “a contrary rule would discourage owners from making repairs to dangerous property.” doCanto, supra. Cf. Advisory Committee Notes to Fed. R. Evid. 407 (1987). Our cases to date have involved evidence of actions more on the order of traditional “repairs,” see, e.g., doCanto, supra (design improvements to commercial laundry ironer); Nelson v. Economy Grocery Stores Corp., 305 Mass. 383, 389 (1940) (sweeping sidewalk); National Laundry Co. v. Newton, 300 Mass. 126, 127 (1938) (sanding street); Manchester, supra (barricading and illuminating trench); Goodell v. Sviokcla, 262 Mass. 317, 319 (1928) (nailing down board); Beckles’s Case, 230 Mass. 272, 274 (1918) (repairs to elevatorf, Albright, supra (repairs to wagon); Menard v. Boston & Me. R.R., 150 Mass. 386, 388 (1890) (stationing flagman at railroad crossing). However, we think that good public policy also requires the exclusion of the results of the defendant’s investigation into the causes of an accident involving its bus. Although not itself a “repair” of a dangerous condition, the investigation is the prerequisite to any remedial safety measure. Without discovering the cause of the accident, the defendant can scarcely hope to prevent its recurrence. The investigation is inextricably bound up with the subsequent remedial measures to which it may lead, and questions of admissibility of evidence as to each should be analyzed in conjunction and answered consistently. If, as a result of the investigation, the defendant had discharged the bus driver, or required him to undergo additional safety training, evidence of these steps would fall squarely within the rule excluding evidence of subsequent remedial measures. The investigation cannot sensibly be treated differently. To do so would discourage potential defendants from conducting such investigations, and so preclude safety improvements, and frustrate the salutary public policy underlying the rule. Accord, construing Fed. R. Evid. 407, Maddox v. Los Angeles, 792 F.2d 1408, 1417 (9th Cir. 1986); Segura v. Reno, 116 F.R.D. 42, 44 (D. Nev. 1987); Alimenta (U.S.A.), Inc. v. Stauffer, 598 F. Supp. 934, 940 (N.D. Ga. 1984). But see Rocky Mountain Helicopters, Inc. v. Bell Helicopters Textron, A Div. of Textron, Inc., 805 F.2d 907, 918-919 (10th Cir. 1986); Wilson v. Beebe, 770 F.2d 578, 590 (6th Cir. 1985); Westmoreland v. CBS, Inc., 601 F. Supp. 66, 67-68 (S.D.N.Y. 1984).\nBecause the plaintiff’s proffered evidence as to Ramsay’s opinion that the bus driver could have prevented the accident was excludable as evidence of a subsequent remedial measure, the plaintiff was not prejudiced by the judge’s erroneous ruling on the motion in limine. We now address the plaintiff’s alternative contention that, even if the evidence of Ramsay’s opinion was properly excluded on direct examination, the plaintiff should have been permitted to introduce it on redirect examination because defense counsel “opened the door” to such evidence during this cross-examination of Ramsay.\nThe plaintiff contends that by eliciting Ramsay’s opinion that the bus driver exercised good judgment in starting his route before the scheduled departure time, and that the bus driver’s description of how he had made the right turn was in accordance with good safety precaution, defense counsel opened the door for introduction on redirect examination of the previously excluded evidence. She argues that by eliciting this testimony, defense counsel created the erroneous impression that Ramsay was of the opinion that the driver had not acted negligently, and that the plaintiff should have been permitted to counter this erroneous impression by introducing the previously excluded evidence, which tended to show that Ramsay actually had concluded that the bus driver could have prevented the accident by looking into his mirror while making the turn. We disagree. In the first place, the evidence was not relevant to the issue of the bus driver’s leaving the bus stop before the scheduled departure time. Secondly, Ramsay did not base his opinion on what the bus driver had in fact done in making the turn, but on what the bus driver had testified that he had done. The purport of Ramsay’s testimony was that the bus driver’s description in his testimony of what he had done in making the turn was in accordance with good safety precaution. Ramsay did not comment on the bus driver’s credibility, but answered what was tantamount to a hypothetical question, in that he was asked to assume certain facts and to base his opinion on the assumed facts. The plaintiff’s recourse was to attack the credibility of the bus driver’s version of the facts, and that is exactly what her counsel did. For example, in his closing argument, the plaintiff’s counsel brought to the jury’s attention the inconsistency between the bus driver’s testimony and the fact of the accident’s occurrence. He argued pointedly that, if the bus driver had looked in his mirror while making the turn, as he testified he had, he would have seen the plaintiff, and the accident would not have occurred. The jury apparently did not accept this argument. But no erroneous impression was created that Ramsay was opining on the propriety of the bus driver’s actions, nor was Ramsay’s testimony inconsistent with his conclusion that the bus driver could have prevented the accident by looking in his mirror as he made the turn. Hence, the judge did not err in ruling that the plaintiff could not introduce the proffered evidence on redirect examination.\nJudgment affirmed.\nOn objection by defense counsel, the judge restricted the plaintiff’s counsel’s comments during closing argument as to the defendant’s failure to call any witnesses. The plaintiff did not object to this ruling, and so this issue is not properly before us. Mass. R. Civ. P. 46, 365 Mass. 811 (1974). See, e.g., Coupounas v. Madden, 401 Mass. 125, 127 (1987).\nThe plaintiff further contends that the evidence should have been admitted as a prior inconsistent statement for the purpose of impeachment. However, as discussed, infra, the evidence was not inconsistent with Ramsay’s testimony at trial. Moreover, the plaintiff did not argue this ground for limited admissibility to the judge, and so is precluded from arguing this issue for the first time on appeal. Cf. Milley v. Prudential Ins. Co., 5 Mass. App. Ct. 38, 42-43 (1977).\nDefense counsel: “Did you hear the [bus driver] this afternoon tell how he made the turn that day?”\nThe witness: “Yes, sir.”\nDefense counsel: “Is that in accordance with good safety precaution?”\nThe witness: “Yes, sir.”"", ""type"": ""majority"", ""author"": ""Hennessey, C.J.""}], ""attorneys"": [""Saul A. Schapiro (Michael D. Hayes with him) for the plaintiff."", ""Jonathan P. Feltner (Lynne Spiegelmire Viti with him) for the defendant.""], ""corrections"": """", ""head_matter"": ""Mary Martel vs. Massachusetts Bay Transportation Authority.\nMiddlesex.\nApril 4, 1988\nJuly 14, 1988.\nPresent: Hennessey, C.J., Liacos, Abrams, Nolan, & Lynch, JJ.\nEvidence, Expert opinion, Safety improvements, Redirect examination.\nAt the trial of a negligence action wherein the plaintiff sought recovery for injuries received when she was knocked down and run over by the defendant’s bus, testimony of the defendant’s employee with respect to the results of his investigation into the cause of the accident was properly excludable insofar as the investigation was a prerequisite to subsequent remedial safety measures adopted by the defendant. [3-5]\nCertain evidence, properly excluded on direct examination of a plaintiff’s witness, was not admissible, on any other ground advanced at trial, on redirect examination of that witness. [5-7]\nCivil action commenced in the Superior Court Department on August 10, 1984.\nThe case was tried before Robert V. Mulkern, J.\nThe Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.\nSaul A. Schapiro (Michael D. Hayes with him) for the plaintiff.\nJonathan P. Feltner (Lynne Spiegelmire Viti with him) for the defendant.""}, ""cites_to"": [{""cite"": ""5 Mass. App. Ct. 38"", ""year"": 1977, ""case_ids"": [5731324], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""42-43""}], ""case_paths"": [""/mass-app-ct/5/0038-01""], ""opinion_index"": 0}, {""cite"": ""401 Mass. 125"", ""year"": 1987, ""case_ids"": [3878578], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""127""}], ""case_paths"": [""/mass/401/0125-01""], ""opinion_index"": 0}, {""cite"": ""365 Mass. 811"", ""year"": 1974, ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""opinion_index"": 0}, {""cite"": ""601 F. Supp. 66"", ""year"": 1984, ""case_ids"": [3731987], ""category"": ""reporters:federal"", ""reporter"": ""F. Supp."", ""pin_cites"": [{""page"": ""67-68""}], ""case_paths"": [""/f-supp/601/0066-01""], ""opinion_index"": 0}, {""cite"": ""770 F.2d 578"", ""year"": 1985, ""case_ids"": [332941], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""590""}], ""case_paths"": [""/f2d/770/0578-01""], ""opinion_index"": 0}, {""cite"": ""805 F.2d 907"", ""year"": 1986, ""case_ids"": [1111547], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""918-919""}], ""case_paths"": [""/f2d/805/0907-01""], ""opinion_index"": 0}, {""cite"": ""598 F. Supp. 934"", ""year"": 1984, ""case_ids"": [3717624], ""category"": ""reporters:federal"", ""reporter"": ""F. Supp."", ""pin_cites"": [{""page"": ""940""}], ""case_paths"": [""/f-supp/598/0934-01""], ""opinion_index"": 0}, {""cite"": ""116 F.R.D. 42"", ""year"": 1987, ""case_ids"": [7857139], ""category"": ""reporters:specialty"", ""reporter"": ""F.R.D."", ""pin_cites"": [{""page"": ""44""}], ""case_paths"": [""/frd/116/0042-01""], ""opinion_index"": 0}, {""cite"": ""792 F.2d 1408"", ""year"": 1986, ""case_ids"": [1583443], ""category"": ""reporters:federal"", ""reporter"": ""F.2d"", ""pin_cites"": [{""page"": ""1417""}], ""case_paths"": [""/f2d/792/1408-01""], ""opinion_index"": 0}, {""cite"": ""150 Mass. 386"", ""year"": 1890, ""case_ids"": [780543], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""388"", ""parenthetical"": ""stationing flagman at railroad crossing""}], ""case_paths"": [""/mass/150/0386-01""], ""opinion_index"": 0}, {""cite"": ""230 Mass. 272"", ""year"": 1918, ""case_ids"": [71209], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""274"", ""parenthetical"": ""repairs to elevatorf, Albright, supra (repairs to wagon); Menard v. Boston & Me. 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Massachusetts Bay Transportation 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+3882189,"{""id"": 3882189, ""name"": ""William Harlow vs. Danny Chin & another"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""5171086c221859eadce6bee6b5f8b759a6cc8bc1964552244c66c0671f14c0ee"", ""simhash"": ""1:b92754a5aacd244b"", ""pagerank"": {""raw"": 0.000000855593303075104, ""percentile"": 0.9766851272023968}, ""char_count"": 62777, ""word_count"": 10224, ""cardinality"": 1912, ""ocr_confidence"": 0.946}, ""casebody"": {""judges"": [], ""parties"": [""William Harlow vs. Danny Chin & another.""], ""opinions"": [{""text"": ""Abrams, J.\nThe defendants in this medical malpractice action appeal from a judgment in favor of the plaintiff, William Harlow. The plaintiff alleges that the negligence of Dr. Danny Chin and Massachusetts General Hospital caused him to become a quadriplegic. The jury, in answer to special questions, found the defendants negligent, and found the plaintiff thirteen per cent comparatively negligent. A judgment for $6,660,720, not including prejudgment interest, was entered against both defendants. The defendants argue that the evidence was insufficient to support a finding of either negligence or causation, that improper arguments of plaintiff’s counsel necessitated a new trial, that the judge erred in his application of the medical malpractice statute, G. L. c. 231, § 60G (1988 ed.), and that the judge made other erroneous rulings. The plaintiff cross appeals, claiming that the evidence is insufficient to support a finding of thirteen per cent comparative negligence. We granted the defendants ’ application for direct appellate review.\nWe conclude that the record contains sufficient evidence to support the jury award, and that the plaintiff’s closing arguments, although improper, do not necessitate a new trial. We remand to the Superior Court, however, to enter a judgment against Massachusetts General Hospital limited by the statutory cap of $20,000, pursuant to G. L. c. 231, § 85K (1988 ed.), and to determine whether certain prejudgment benefits received by the plaintiff should be deducted from the award against Dr. Chin.\nIn the light most favorable to the plaintiff, the jury could have found the following facts. On February 11, 1982, the plaintiff slipped and fell while working on an oil truck. He hit the back of his neck and his head on the seat. The plaintiff felt a sharp pain in his left leg, the back of his neck, and his trapezius area, and a sharp pain from his left shoulder down to his left hand. He felt tingling in the fingertips of his right hand. The pain did not go away by itself. On February 15, 1982, the plaintiff sought medical care at Chelsea Memorial Health Care Center, a unit of Massachusetts General Hospital.\nAfter speaking to a receptionist and a triage nurse, the plaintiff was examined by Dr. Chin. The plaintiff told Dr. Chin that he had hit the back of his neck, and that he was experiencing pain down his neck and upper back, and down his arm and into his hand, and that he felt tingling in the fingertips of his right hand. Dr. Chin spent from two to five minutes examining the plaintiff. Dr. Chin felt the back of the plaintiff’s neck and tapped his elbows and kneecaps. The medical history Dr. Chin recorded during the examination consisted of “[cjomplaints of pain, left trapezius, increased by turning head or lifting, exam.” His examination was recorded as “[ljeft trapezius tender and in spasm, left shoulder full range of motion, no tenderness, deep tendon reflexes, bi[c]eps equal to two plus bilaterally.” Dr. Chin diagnosed the plaintiff as having a muscle spasm. Dr. Chin recommended no heavy lifting. He told the plaintiff to apply heat and take aspirin and Flexeril, a muscle relaxant that he prescribed. Dr. Chin failed to tell the plaintiff to return if the pain stayed the same or got worse.\nThe plaintiff took the Flexeril for the next ten days. He stayed home from work for eighteen days because of the pain. On March 5, 1982, the pain became worse and entered the plaintiff’s right leg for the first time. The plaintiff returned to the hospital and collapsed while getting onto an examination table. He was rushed to Massachusetts General Hospital, where it was determined that he had a herniated cervical disc at the C-4, C-5 level. The plaintiff underwent surgery, which was unsuccessful. The plaintiff is now quadriplegic and will be so for life.\n1. Negligence. “To entitle the plaintiff to go to the jury there must be sufficient evidence to warrant a finding (1) of negligence on the defendant’s part, and (2) of a causal relationship between the negligence and the plaintiff’s injuries.” Civitarese v. Gorney, 358 Mass. 652, 655 (1971). The defendants claim that the evidence presented at trial was insufficient to support a verdict either that the defendants were negligent, or that the actions of the defendants proximately caused the plaintiff’s injuries. We disagree.\nThe test for determining whether the jury could have found that the defendants were negligent is whether the evidence, construed most favorably to the plaintiff, could not support a verdict for the plaintiff. Poirier v. Plymouth, 374 Mass. 206, 212 (1978). We must determine whether anywhere in the evidence, from whatever source derived, can be found any combination of circumstances in favor of the plaintiff. Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972).\nThe jury could have believed from the expert testimony that Dr. Chin, during his meeting with the plaintiff, deviated from good medical practice in the following ways. When faced with a patient complaining of the plaintiff’s symptoms, Dr. Chin should have taken a more detailed medical history, inquiring about visual problems, sensory motor deficits, numbness, tingling, and whether the pain radiated. Dr. Chin should have conducted a more extensive neurological examination, beyond the rudimentary examination that he performed. Most importantly, Dr. Chin should have told the plaintiff to return in two to three days if the pain continued. Thus, the record supports the finding that Dr. Chin was negligent in his examination of the plaintiff, in his failure to explore other possible diagnoses, and in his failure to give the plaintiff warnings and explanations adequate for follow-up care.\n2. Causation. A plaintiff in a medical malpractice action has the burden of proving that the physician’s negligence, was the proximate cause of the plaintiff’s injuries. Murphy v. Conway, 360 Mass. 746, 749 (1972). Semerjian v. Stetson, 284 Mass. 510, 512 (1933). This causal link generally múst be established by expert testimony that the injury was more probably than not a result of the physician’s negligence. See Berardi v. Menicks, 340 Mass. 396, 402 (1960). The question of causation is generally a question of fact for the jury. Mullins v. Pine Manor College, 389 Mass. 47, 58 (1983). Zezuski v. Jenny Mfg. Co., 363 Mass. 324, 327 (1973). “To withstand a motion for a directed verdict on the issue of proximate causation, the plaintiff need only demonstrate that there was a greater likelihood that the harm of which the plaintiff complains was due to causes for which the defendant was responsible.” Colter v. Barber-Greene Co., 403 Mass. 50, 54-55 (1988).\nThe plaintiff argues that if Dr. Chin had not acted negligently, but instead had told the plaintiff about other possible diagnoses and had told the plaintiff to return if the pain continued, the plaintiff would have had an excellent chance of avoiding his quadriplegia. The defendants assert that the evidence on causation was insufficient and the plaintiff’s case therefore should not have gone to the jury. We conclude that there was sufficient evidence on the issue of causation.\nThe plaintiff has met the burden of proving that the defendants’ negligence caused the harm he actually suffered. As we concluded above, the plaintiff met his burden of proving negligence by showing that the defendants failed to exercise due care in rendering medical care, a service which was necessary for the plaintiff’s protection. See Mullins v. Pine Manor College, supra at 53. The plaintiff’s expert stated at trial that Dr. Chin should have told the plaintiff to return within three days if the pain continued. The law permits an inference that a warning, once given, would have been followed. Wolfe v. Ford Motor Co., 6 Mass. App. Ct. 346, 352 (1978). Thus, the jury could conclude that the plaintiff would have returned to the emergency room within three days.\nOne of the plaintiff’s experts further stated that once the plaintiff returned to the emergency room, proper medical procedure would have required that medical practitioners treat the plaintiff with the following care. The medical practitioners would have the plaintiff undergo X-rays, which they would then read immediately. No fracture, dislocation or tumor having been found, they would have the plaintiff undergo a CAT scan. In light of the plaintiff’s symptoms at the time, the CAT scan would have been positive, showing a bulge or herniated disc. They would have immobilized and observed the plaintiff, and barring any change, would have operated on him earlier. Early surgical intervention would probably have been successful in preventing quadriplegia.\n3. Closing arguments. Both the plaintiff and defendants raise numerous objections to the closing arguments of the opposing side. The defendants argue that the improprieties in plaintiff’s counsel’s argument make a new trial necessary. We agree that the argument by plaintiff’s counsel was egregious and “improper under long established, and well understood, principles.” Leone v. Doran, 363 Mass. 1, 18 (1973). We conclude, however, that the strong, corrective action taken by the judge in response to counsel’s improper argument eliminates the need for a new trial.\nIn his argument, plaintiff’s counsel referred by way of analogy to the verdict in the Texaco case (Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768 [Tex. Civ. App.] [1987], cert. dismissed, 485 U.S. 994 [1988]), the “two or three hundred thousand dollars” for one minute of advertising time during the Superbowl, the “a million four” for baseball players’ salaries, the “ten million dollars, or twenty-five million dollars” for a crashed airplane, and the “five million dollars” for paintings by Renoir and Monet. An argument concerning money damages indulging in significant references to numerical amounts that have no basis in the record is improper. See Gardner v. State Taxi, Inc., 336 Mass. 28, 30 (1957). Repeated, substantive discussions of hypothetical damages in other circumstances, and especially references to verdicts in other cases, are not proper. See Dotson v. Sears, Roebuck & Co., 157 Ill. App. 3d 1036 (1987); Reetz v. Kinsman Marine Transit Co., 416 Mich. 97, 105-106 (1982). See also S.J.C. Rule 3:07, DR7-106 (1), 382 Mass. 784 (1981). Such arguments are especially overreaching in a case in which the plaintiff is a quadriplegic for life.\nIn response to the objections, the judge extensively discussed with counsel for both sides the substance of a proper curative instruction. The judge informed counsel that he thought an instruction on the nature and status of closing arguments, in addition to his previous instructions that the words of counsel were not evidence, would be sufficient to take care of any impropriety. Soon afterward, the judge said, “Okay. I’m going to tell the jury that the closing arguments are not evidence. I’ve told them over and over again. I’ll try to cure it as best I can.” At that point, counsel for the defendants answered, “Thank you, Your Honor.” Defense counsel went on to tell the judge that “the only other thing” that he requested was specific instructions on the impropriety of first person statements by counsel and instructions on the impropriety of reading from a transcript. Thus, the judge adopted the suggestions of defense counsel relating to those two issues. The defendants also asked the judge to admonish plaintiff’s counsel before the jury and instruct the jurors as to the impropriety of the argument. Defense counsel recognized that the remedy was a matter within the judge’s discretion because he left it to the judge “whether [he] wantfed] to do that or not.” The judge cautioned the jury that the argument was not evidence. The judge instructed the jurors on damages comprehensively and correctly. The defendants did not object to the instructions on damages. The trial judge did not abuse his discretion in the manner in which he handled the alleged improper statements and arguments. See Fialkow v. DeVoe Motors, Inc., 359 Mass. 569, 572 (1971).\nWe again comment that if a judge fails to cure an alleged error, the judge is “entitled at the end of the charge to have errors and omissions claimed to exist therein brought to, his attention, and if an exception was desired because of such omission or error to have the exception taken for such reason or reasons.” Commonwealth v. Cabot, 241 Mass. 131, 151 (1922). See Commonwealth v. Gouveia, 371 Mass. 566, 572 (1976); Mass. R. Civ. P. 51 (b), 365 Mass. 816 (1974).\n4. Comparative negligence. The plaintiff asserts that defense counsel’s improper remarks are the basis for the jury’s determination of thirteen per cent negligence by the plaintiff. He therefore asks that we reinstate the thirteen per cent to the verdict. For the reasons stated below, we decline to do so.\nIn the light most favorable to the defendants, the jury could have found that Dr. Chin informed the plaintiff to return to the emergency room if the pain got worse. The plaintiff claims that the record contains no evidence that the plaintiff’s pain got worse from February 11, 1982, the day of his examination by Dr. Chin, until March 5, 1982, the day he returned to the hospital. Thus, the plaintiff argues that the record contains no evidence that he disobeyed the doctor’s orders, and he therefore cannot be found negligent. The plaintiff argues that it was defense counsel’s improper arguments which misled the jury. The issue is close. We turn to the record.\nOn cross-examination, the following colloquy took place between the plaintiff and defense counsel:\nQ.: “It’s your testimony today that [the pain] never went away, and got worse and worse until you finally went back on March 5th? Is that correct?”\nA.: “That’s right. The pain never left.”\nThe plaintiff argues that the question was a compound question, and that his answer referred only to the question about whether the pain ever left. But a reasonable jury could interpret the statement another way and conclude that the plaintiff agreed the pain got worse.\nBecause the jury could have found that Dr. Chin warned the plaintiff to return to the emergency room if his pain got worse, and the plaintiff did not return even though his pain intensified, the verdict of thirteen per cent comparative negligence is based on sufficient evidence.\n5. Reductions pursuant to the medical malpractice statute. The defendants call upon us to interpret a new provision of the medical malpractice statute, G. L. c. 231, § 60G, for the first time. This section allows the trial judge to deduct from the damage award the amount received by the plaintiff from collateral sources. The provision in question became effective while the jury in this case was deliberating. The plaintiff does not argue that the statute does not apply to cases on trial at the time the statute became effective.\nIn response to postjudgment interrogatories propounded by the defendants, the plaintiff listed the following collateral sources as those which compensated him for damages which he had alleged in his complaint: Medicare ($7,304.35); United States Department of Housing and Urban Development (no amount specified); Medicaid ($159,225.35); Boston Center for Independent Living, a Medicaid-funded program ($50,547); and Social Security Disability and Supplemental Social Security ($473 per month, no period specified).\nOn January 16,1987, the judge ruled that the new provisions of the statute do “not require the reduction of the verdict by the amount Mr. Harlow has received from the state and federal governments.” The judge erred and failed to apply the statute properly. Because the defendants may be entitled under G. L. c. 231, § 60G, to some deduction from the jury award, we remand to the trial court for proceedings adhering to the guidelines we now discuss.\nTo ensure proper application of the statute, we must examine separately each benefit enumerated by the plaintiff in his answer to the defendant’s interrogatories. We must determine whether the benefits are governed by G. L. c. 231, § 60G, or whether they are exempted from its provisions because they entail a right of subrogation with a “basis in any Federal law.” G. L. c. 231, § 60G (c).\nThe statute applies to the amount of prejudgment damages which were “replaced, compensated, or indemnified pursuant to the United States Social Security Act, any state or federal income disability or worker’s compensation act... or any other collateral source of benefits whatsoever, except for gratuitous payments or gifts.” G. L. c. 231, § 60G (a). In those cases where these benefits duplicate the damages awarded, the judge shall reduce the award by the amount of the benefits, less the amount the plaintiff paid to secure such benefits, through premiums and the like. G. L. c. 231, § 60G (b).\nThe provision is designed to prevent double recovery by a plaintiff through litigation. It also protects the plaintiff from double loss of benefits by cancelling the rights of subrogation and perfections of lien previously held by the entities which provided these collateral benefits. G. L. c. 231, § 60G (c). Thus, when the judge deducts the benefits from the damage. award, the entity which provided the benefit cannot collect that amount from the plaintiff.\nThere is an exception, however, for benefits provided by an entity “whose right of subrogation is based in any federal law.” In those cases, the right of subrogation survives, and the court may not deduct those amounts from the damage award. Id.\nThe defendants admit that the plaintiff’s Medicare benefits are not subject to G. L. c. 231, § 60G, because the Federal statute establishing the Medicare benefits also establishes a Federal right of subrogation. 42U.S.C. § 1395y(b)(l) (1982).\nA more difficult issue is presented with regard to Medicaid benefits. The Federal government reimburses the'pommonwealth a percentage of the cost of the Medicaid program. A Federal statute requires that States receiving Federal (unds must pursue recovery of the funds from legally liable, (bird parties. 42 U.S.C. § 1396a(25) (1982). A Federal regulation requires the State to reimburse the Federal government a proportion of such recovery. A State statute duly provides for recovery from third parties and subrogation of the plaintiff’s claim. G. L. c. 18, § 5G.\nThe defendants argue with regard to Medicaid benefits that there is no right of subrogation “based in any federal law” within the meaning of G. L. c. 231, § 60G (c). We disagree. The Federal statute implementing partial reimbursement of State Medicaid programs mandates that any State receiving these funds must pursue reimbursement from legally liable third parties. The fact that technically a State statute provides for the subrogation is irrelevant. Because the Commonwealth’s pursuit of reimbursement is required by Federal law, the right of subrogation is “based in” Federal law.\nThe choice of language contained in G. L. c. 231, § 60G (c), and the objective of this exception, support our reading. The Legislature chose to use the expansive term “based in any federal law” rather than the more stringent “required by federal law” or “provided for by federal law.” A provision that a State receiving Federal money must pursue reimbursement suffices to make the consequent right of subrogation “based in” Federal law. The objective of the exception is to prevent conflicts between G. L. c. 231, § 60G, and any Federal law, which of course must be supreme. U.S. Const, art. VI, § 2. The Legislature clearly attempted to avoid conflicts with Federal- law, and we also read the statute to avoid any conflict with Federal law.\nThe defendants further argue that if Medicaid payments are excepted from the rule of G. L. c. 231, § 60G, only the percentage which is ultimately reimbursed to the Federal government should be excepted. Again, we disagree. The statute mandating that the States pursue reimbursement of Medicaid funds makes no distinction between pursuit of funds which will ultimately be reimbursed and those which the State will retain. See 42 U.S.C. § 1396a(25). If the Commonwealth was allowed to recover from a third party only the percentage of Medicaid funds reimbursable to the Federal government, and have its rights to the other percentage cancelled by G. L. c. 231, § 60G, the incentives to recover, as provided by Federal law, also would lessen significantly. The right of subrogation as to all Medicaid benefits survives G. L. c. 231, § 60G, and thus Medicaid benefits are not deductible from the jury award.\nThe benefits received from Social Security, however, may be subject to the provisions of G. L. c. 231, § 60G. Neither party has pointed to a Federal right of subrogation in relation to the grant of Social Security benefits, and we have not been able to discern one. If the judge determines that there is no Federal right of subrogation with respect to such benefits, and that the Social Security benefits received by the plaintiff duplicate part of the jury verdict, he shall reduce the jury verdict by that amount. To allow for this determination, and for the determination of the amount of prejudgment Social Security benefits received by the plaintiff, we remand the case to the Superior Court.\n6. Other issues. The defendants make a number of other arguments on appeal.\na. Jury instructions. The defendants complain that the trial judge committed reversible error when he gave his jury instruction on warnings and negligence. They complain that the instruction essentially mandated a jury finding that Dr. Chin breached a duty in not warning the plaintiff at the examination about possible dangers.\nThere was no error. The judge simply informed the jury that, in establishing the causal chain, the plaintiff is entitled to the presumption that, had he been given a warning, he would have returned. That is a correct statement of the law. Glicklich v. Spievack, 16 Mass. App. Ct. 488, 493 (1983). Wolfe v. Ford Motor Co., 6 Mass. App. Ct. 346, 352 (1978). The language of the judge’s instruction in no way mandates a finding that Dr. Chin needed to issue a warning to the plaintiff. In any event, prior to the instruction at issue, the judge instructed the jury that the question whether any warning should have been given was for them to decide.\nb. Life expectancy. The medical malpractice statute, G. L. c. 231, § 60F (1988 ed.), requires a jury to specify the amount of time over which an award for future medical expense and future pain and suffering is meant to compensate the plaintiff. The jury specified thirty-one and one-half years of compensation. At trial, the plaintiff’s expert opined that, according to mortality tables, a white male of Harlow’s age has a future life expectancy of thirty-one and one-half years. On cross-examination, the expert admitted that a quadriplegic’s life expectancy generally is shorter than that of an average man.\nThe defendants argue that there was insufficient evidence to support a finding of thirty-one and one-half years, because the plaintiff’s expert admitted that generally the life expectancy of a quadriplegic was shorter. We do not agree with the defendant’s contention.\nExpert testimony based on mortality tables is admissible to prove the probable duration of a person’s life. Turcotte v. DeWitt, 332 Mass. 160, 162-164 (1955). Mortality tables, though not conclusive proof of life expectancy, help furnish a basis for the jury’s estimation. The tables themselves are admissible regardless of the poor health or extra-hazardous occupation of the person whose life expectancy is being estimated. Levar v. Elkins, 604 P.2d 602, 604 (Alaska 1980). Bell Aerospace Corp. v. Anderson, 478 S.W.2d 191 (Tex. Civ. App. 1972). When the opposing side believes that the person in question, because of poor health, has a lower life expectancy than that reflected in the mortality tables, the usual remedy is to offer evidence to that effect and argue the point to the jury. Nolop v. Skemp, 7 Wis. 2d 462, 465 (1959).\nThe jury had the full benefit of the defendants’ cross-examination of the plaintiff’s expert concerning the shorter life expectancy of quadriplegics. The jury was able to consider not only the expert testimony based on the mortality tables, but all the evidence in this case, including testimony concerning the plaintiff’s excellent physical condition before the accident. The jurors themselves were able to observe the plaintiff when he testified. We cannot say that the jury’s award was based on insufficient evidence.\nc. Expert testimony. The defendants argue that the judge erred in allowing Dr. Harold Goldstein, the plaintiff’s expert on medical economics, to testify as to future medical expenses. “[Ejxpert testimony on matters within the witness’s field of expertise is admissible whenever it will aid the jury in reaching a decision.” Simon v. Solomon, 385 Mass. 91, 105 (1982). Dr. Goldstein was qualified at trial without objection as an expert in the field of medical economics, which concerns costs of medical care and efficient allocation of medical resources. Dr. Goldstein has prepared “perhaps a hundred” reports dealing with medical economics issues concerning patients with quadriplegia and paraplegia. He has prepared a computerized program to determine costs necessitated by those conditions. There is no merit to the defendants’ argument that Dr. Goldstein was outside his area of expertise in testifying about the plaintiff’s future medical costs.\nThere is similarly no merit to the contention that Dr. Gold-stein impermissibly commented about the testimony of another one of the plaintiff’s experts, Dr. Murray Freed, when he compared his figures with Dr. Freed’s. Dr. Goldstein was merely testifying in his area of expertise, and not invading the province of the jury with respect to Dr. Freed’s testimony. Cf. Simon v. Solomon, supra.\nd. Charitable immunity. The hospital argues that any judgment entered against it should be limited to twenty thousand dollars, pursuant to the charitable organization statute, G. L. c. 231, § 85K (1988 ed.). See note 2, supra. In order to enjoy the statutory cap, a hospital must prove both that it is a charitable organization, and that the tort complained of “was committed in the course of any activity carried on to accomplish directly the charitable purposes of such corporation.” G. L. c. 231, § 85K (1988 ed.). If a hospital’s objective in treating a patient, however, is merely to generate revenue, the hospital’s activity must be analyzed as “commercial” rather than “charitable.” See Grueninger v. President & Fellows of Harvard College, 343 Mass. 338, 340 (1961). In its answer to the plaintiff’s complaint, the hospital pleaded charitable immunity under G. L. c. 231, § 85K, as an affirmative defense. The hospital also admitted the allegation in the plaintiff’s amended complaint that the hospital “is a charitable institution and a health care provider.” The hospital was incorporated by St. 1810, c. 94, “to provide a general hospital for sick and insane persons.” McDonald v. Massachusetts General Hosp., 120 Mass. 432, 434 (1876).\nThus, the hospital is clearly a charitable organization. Further, there was ample evidence from which the judge should have concluded that, in treating the plaintiff, the hospital’s clinic was acting to accomplish directly the charitable purpose for which the hospital was created. The clinic ran an emergency room that was open to the public. The clinic provided medical services to the plaintiff, as evidenced by his medical record. The hospital charged the plaintiff only $26. The judge, however, did not make a specific ruling concerning the applicability of the statutory cap to the case before him.\nAlthough the hospital should have brought the matter to the judge’s attention, we conclude that the plaintiff’s counsel brought the issue before the judge. This, in addition to the pleadings, and the evidence concerning the clinic, should have put the judge on notice.\nThe hospital met its burden of showing that the tort was committed in the course of its charitable purpose. The plaintiff produced no other evidence tending to show that the hospital was acting outside of its charitable purpose, except the fact that he was charged a fee of $26. The fact that a fee was charged, however, is not sufficient to take the hospital out of the protection of G. L. c. 231, § 85K. In the absence of any further evidence tending to show that the hospital was acting outside its charitable purpose, and in light of the plaintiff’s acknowledgment at trial of the applicability of the statutory cap, see note 21, supra, we conclude that the judge should have entered judgment against the hospital limited by the statutory cap.\nWe affirm the Superior Court judge’s denial of the defendants’ motion for a directed verdict, judgment notwithstanding the verdict, and for a new trial. We also affirm the judge’s denial of the plaintiff’s motions to reinstate thirteen per cent to the jury’s award. We remand the case to the Superior Court for entry of a judgment against the hospital limited to the statutory cap of G. L. c. 231, § 85K, and to subtract from the award against Dr. Chin any prejudgment Social Security benefits which are required to be deducted pursuant to G. L. c. 231, § 60G.\nSo ordered.\nAfter judgment entered, it became clear that the jury mistakenly included $388,930.92 in the award. That amount by all accounts had not been proved by the plaintiff as past medical expenses. The judge ordered a remittitur in the amount of $388,930.92. A new judgment of $6,322,350.10, reflecting the remittitur, was entered on March 25, 1987. Apparently because of a clerical error, the judgment was entered only against Dr. Chin, and not against Massachusetts General Hospital. At that time, the defendant Massachusetts General Hospital contended that any judgment against it must be limited to $20,000. It secured an order from a single justice of the Appeals Court denying entry of a judgment against the hospital and ordering that the parties brief, as part of the appeal, issues going to the amount of the judgment against the hospital, and whether the amount should be limited to the amount of charity immunity pursuant to G. L. c. 231, § 85K (1988 ed.). See infra at 715-716.\nThe defendants argue that the plaintiff’s claim of malpractice in fact is a claim that Dr. Chin failed to comply with his obligations under the informed consent doctrine. The informed consent doctrine, however, is inapplicable to the case at hand. That doctrine concerns the failure of a physician “to divulge in a reasonable manner to a competent adult patient sufficient information to enable the patient to make an informed judgment whether to give or withhold consent to a medical or surgical procedure. . . .’’Harnish v. Children’s Hosp. Medical Center, 387 Mass. 152, 154-155 (1982). Although the plaintiff’s complaint alleged such lack of informed consent, the case was not tried on that theory but on the theory that Dr. Chin was negligent as discussed above.\nDr. Gary Korenman, the plaintiff’s expert in neurology, was asked by the plaintiff’s counsel about his opinion “as to what medical care would have been required for Mr. Harlow if he had returned within seventy-two hours of having been discharged [from the emergency room].” Dr. Korenman’s answer began: “The appropriate medical care at that point. ...” Later in his answer, the expert used the words, “I would have ordered a CAT scan.” Although the expert used the word, “I,” it is clear from the context that he was still discussing the “appropriate medical care” which would have been required had Harlow returned to the emergency room.\nThe defendants did not object to this instruction as inadequate. “[W]e ordinarily insist on exceptions with respect to any inadequacies in curative instructions.” Commonwealth v. Gouveia, 371 Mass. 566, 572 (1976). See also Commonwealth v. Cabot, 241 Mass. 131, 151 (1922). The defendants did not make any objections to the judge’s curative instructions in connection with damages. Nevertheless, we think the defendants preserved their objections. The defendants’ objections to the arguments on damages came at the end of their long list of objections. Almost immediately afterward, defense counsel said, “I’ve never heard an argument like that, and I hope I never hear one like it.” As we read the record, the juxtaposition of this statement with the objection on the arguments concerning damages, in addition to the seriousness of the improprieties inherent in these arguments, put the judge on notice that vigorous action was required. We conclude that the judge took such action.\nAlthough the defendants could have and should have requested specific curative action from the judge regarding the plaintiff’s counsel’s improper arguments because the judge deliberated with counsel at length about the proper curative instruction he ought to make, Commonwealth v. Cabot, 241 Mass. 131, 151 (1922); see also Collins v. Baron, 392 Mass. 565, 568 n.3 (1984), we conclude that counsel’s statement in these circumstances was sufficient.\nDefense counsel also is accused on appeal of improprieties in his closing arguments. The plaintiff complains that defense counsel argued improperly in the following ways: defense counsel referred to the plaintiff’s drinking a few beers as a possible cause of the injury, although defense counsel admitted that the drinking did not have anything to do with the case; defense counsel misrepresented the plaintiff’s testimony by stating that the plaintiff said his pain went away after the initial accident but before the onset of quadriplegia; defense counsel improperly referred to Dr. Chin’s repudiated testimony, arguing to the jury that Dr. Chin had warned the defendant to come back if he did not feel better. See note 11, infra. Finally, defense counsel referred to a second cervical collar other than the one put on Harlow on March 5, implying that Harlow might have seen another health care provider. There was no evidence of a second cervical collar and no evidence that Harlow had seen a second health care provider. These arguments are not grounded in the evidence and also were improper.\nThe judge instructed the jurors that any “first person comments of counsel are to be regarded as their own opinions and not as evidence.”\nThe judge told the jurors that reading from the transcript represented “information which purportedly comes from some of the oral evidence in the case. These readings and information are not evidence.”\nThe judge instructed the jury: “Sometimes in our zeal we get carried away. Sometimes lawyers say things which on quiet reflection later on they may decide they should have said differently. . . . I’ve said to you earlier, and I said to you again a little while ago that the statements of the attorneys, the lawyers, at the end of the case, are not to be regarded as evidence. . . . They’re not to be used as evidence. They’re not to be dealt with as evidence. And, if some of the remarks came across to you in a way that seemed like they should be considered by you, you mustn’t do that. You mustn’t consider them as evidence. I can’t stress that point enough. ... If an attorney has expressed his opinion on something, that’s his opinion and nothing more. The facts in this case are to be decided by you and nobody else — not by me; not by the lawyers.” The judge previously instructed the jury at least three other times that the statements of counsel were not evidence.\nIn the course of his instructions on damages, the judge told the jury that, if they reached damages, they were to base an award strictly on a compensatory basis. And that, as to pain and suffering, the jurors were to act “fairly, reasonably, without bias or prejudice, without sympathy,” or not to act “punitively” because it was not their function “to punish anybody. ’’\nDr. Chin also testified on direct examination that he told the plaintiff to come back if the pain did not get better. The plaintiff correctly notes, however, that Dr. Chin repudiated this testimony during cross-examination, electing to stand by his deposition testimony. When a witness not only makes conflicting statements at trial but specifically repudiates part of his testimony, the jury may not believe the repudiated testimony. Sullivan v. Boston Elev. Ry., 224 Mass. 405, 406 (1916). P.J. Liacos, Massachusetts Evidence 143 (5th ed. 1981). The defendants do not argue with the proposition that Dr. Chin elected to stand by his deposition testimony that he told the plaintiff to come back if the pain got worse, not if it failed to get better.\nOn redirect examination, the plaintiff testified about whether the pain had worsened. The transcript of the plaintiff’s testimony is unclear. Plaintiff’s counsel in his examination of the plaintiff elicited the following testimony:\nQ.: “Was [your condition] getting worse day by day up until [March 5, 1982,] or had you had some improvement?”\nA.: “No. It was worse.”\nQ.: “Worse on that day?”\nA.: “It wasn’t improving at all.”\nQ.: “It was staying the same. It improved to the degree that when you came off the Flexeril you had worsened?”\nA.: “That’s right. I still had the pain.”\nQ.: “You didn’t get worse?”\nA.: “Yes.”\nQ.: “The day it got worse was the day you had the problem with your leg, pain in your leg?”\nA.: “Yes.”\nQ.: “That’s the day you went back to Chelsea?”\nA.: “Yes.”\nIn any event, the exchange during cross-examination which we discuss infra provides sufficient evidence to support the finding.\nIn relevant part, G. L. c. 231, § 60G, provides: “(a) In every action for malpractice, negligence, error, omission, mistake ... in which the plaintiff seeks to recover for the costs of medical care, custodial care or rehabilitation services, loss of earnings or other economic loss ... on motion by a defendant or upon its own motion, the court shall hear evidence of any amount of such damages incurred prior to the judgment which the defendant or defendants claim was replaced, compensated or indemnified pursuant to the United States Social Security Act, any state or federal income disability or worker’s compensation act... or any other collateral source of benefits whatsoever, except for gratuitous payments or gifts. If the defendant elects to introduce such evidence, the plaintiff may introduce evidence of any amount the plaintiff himself paid or contributed to secure his right to the benefits concerning which the defendant has introduced evidence.\n“(b) If the court finds that any such cost or expense was replaced, compensated, or indemnified from any collateral source, it shall reduce the amount of the award by such finding, minus an amount equal to the premiums or other amounts paid by the plaintiff for such benefits for the one-year period immediately preceding the accrual of such action.\n“(c) Notwithstanding the provisions of section seventy A of chapter one hundred and eleven, no entity which is the source of the collateral benefits by which the court has reduced the award to the plaintiff hereunder shall recover any amount against the plaintiff, nor shall it be subrogated to the rights of the plaintiff against the defendant, nor shall it have a lien against the plaintiffs judgment, on account of its payment of the benefits by which the court has reduced the amount of the plaintiff’s judgment; provided that, if the plaintiff has received compensation or indemnification from any collateral source whose right of subrogation is based in any federal law, the court shall not reduce the award by the amounts received prior to judgment from such collateral source and such amounts may be recovered in accordance with such federal law. . . .”\nThe defendants also do not challenge the Housing and Urban Development benefits, apparently because of insufficient information. An “appellate court need not pass upon questions or issues not argued in the brief.” Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 919 (1975).\nThe Federal statute, 42 U.S.C. § 1396a(25) (1982), requires a State plan to provide that “in any case where . . . legal liability is found to exist after medical assistance has been made available on behalf of the individual and where the amount of reimbursement the State can reasonably expect to recover exceeds the costs of such recovery, the State or local agency will seek the reimbursement for such assistance to the extent of such legal liability.”\nThe Federal regulation, 42 C.F.R. § 433.140(c) (1989), provides that, if the State receives the third-party reimbursement, “the State must pay the Federal Government a portion of the reimbursement determined in accordance with the [Federal medical assistance percentage] for the State.”\nThe State statute, G. L. c. 18, § 5G (1988 ed.), provides: “When any claimant receives payment from a . . . third party, the claimant shall repay to the department an amount equal to the benefits provided . . . but only to the extent that such benefits were provided as a result of the property damage, accident, illness, injury, or other loss suffered by the claimant....\n“The Commonwealth shall be subrogated to a claimant’s entire cause of action or right to proceed against any third party. . . .’’\nThe judge informed the jury that “[t]he law presumes that a warning if given will be heeded.” The judge continued to describe the warning he meant in the context of this case; this section seems to be the basis of the defendants’ complaint: “An adequate warning is by definition one that would in the ordinary course have brought to the plaintiff’s attention the dangers and consequences which he might suffer. The warning in this case could be a warning given to Mr. Harlow as to the dangers if he didn’t return to the Chelsea Unit of the Massachusetts General Hospital if his symptoms continued. The failure to give such a warning therefore permits the inference . . . that if the warning were given it would have alerted the plaintiff to the danger of his present medical condition and he would have returned for medical care if his symptoms continued.” In response to a question from the jury, the judge gave this instruction a second time, changing the word “could” in the second sentence to “would.” In the context of the charge read as a whole, we do not regard this change as significant.\n“Next, with respect to the matter of warnings, the question of whether a warning to Mr. Harlow by Dr. Chin should have been given is for the juiy to decide on, to decide on the basis of the evidence before you. It’s for you to decide that question, whether any warning should have been given.”\nWe note, however, that the plaintiff’s expert did not testify on direct or cross-examination that the plaintiff himself had a shorter life expectancy.\nThe plaintiff does not argue that the $20,000 statutory limit on damages is invalid.\nBefore the case was submitted to the jury, the plaintiff made a motion to remove the hospital from the case if the judge would not accept the plaintiff’s jury question on respondeat superior. The plaintiff stated, “[A]s the Court is well aware there’s a twenty thousand dollar cap on a verdict against a charitable institution, namely, the Massachusetts General Hospital.” He later stated that any verdict against the hospital “is only collectible to the amount of twenty thousand dollars.” Finally, he stated that a verdict against the hospital alone would open up the possibility of a “draconian result” occurring: that the plaintiff would “only be[ ] able to collect twenty thousand dollars” from the hospital."", ""type"": ""majority"", ""author"": ""Abrams, J.""}, {""text"": ""Lynch, J.\n(dissenting, with whom Nolan, J., joins). Apart from the dissenting opinion of Justice O’Connor, with which I agree, I would remand the case to the Superior Court for a new trial because of the improper argument of the plaintiff’s counsel. At the outset, I point out that the plaintiff’s improper remarks were not limited to the issue of damages. In addition to alluding to numerous significant monetary amounts without any basis in the record, the plaintiff’s counsel made the following remarks: “[M]uch of the evidence that [defendants’ counsel] said was in this case is not, and I think he knows it.” He then accused defendants ’ counsel of intentionally making arguments to “stink the case up” because the defendants “don’t have a defense.” He went on to characterize the defendants’ arguments as “ridiculous,” “incredible,” and “a bunch of baloney.” He accused the defendants of “filling in memories that didn’t exist” and “winging it” with respect to their defense. He announced that Chin’s predictable prevarication required a trial strategy of laying “a few traps” for him and “swinging them.”\nThe plaintiff’s counsel then portrayed himself as the plaintiff’s hardworking advocate who had been “working on this case for four years” and “put a lot of work into this case.” He also asserted that he had refrained from introducing evidence that might embarrass the plaintiff; he made representations to the contents of a trial transcript, not in evidence, and asserted that defense counsel had misrepresented the testimony contained therein; he described a trust fund not in evidence as the repository of any damages to be awarded to his client; he made assertions as to the plaintiff’s potential marriageability; and he suggested that a finding of liability would vindicate the rights of the residents of Chelsea to receive the same medical care as the residents of Boston.\nDuring the course of the argument the defendants made two objections and received rather innocuous responses from the judge. That is, the judge gave the jury an instruction but did not warn or admonish counsel or otherwise direct that the improper remarks should cease. At the close of the argument defense counsel registered an additional twenty-six specific objections. During the course of these objections, the judge’s comments were more or less favorable or, again, innocuous. The defendants’ counsel requested curative action. The judge responded: “I think that the instructions the Court has already given and will also give to the jury about the nature and status of closing arguments and summations will be sufficient to take care of the problem, I hope. I’ll say no more than that.” This falls far short of “strong corrective action” that the court concedes was required in the face of egregious and improper argument of the plaintiff’s counsel. Ante at 703. Defense counsel then asked that the jury be told that any first-person comments by opposing counsel not only should be disregarded, but also were improper. The judge responded by saying that he would tell the jury that closing arguments are not evidence. Defense counsel then pressed the judge further for an instruction that the argument was improper. That request was again refused. Finally defense counsel requested that opposing counsel be admonished for making personal, first-person opinions and observations and for reading from a transcript, not in evidence, and saying that there was nothing in it. The ensuing discussion and the abrupt adjournment for lunch fairly demonstrate the judge’s refusal to grant the request to admonish the plaintiff’s counsel and to inform the jury that the argument was improper. While the judge informed defense counsel that — “even if you do object” — he would instruct the jury that first-person comments in argument are not “proper comment on the evidence,” he expressly and repeatedly refused either to instruct that it was improper for counsel so to argue, or to admonish the plaintiff’s counsel on the record and before the jury.\nAfter the judge’s charge to the jury there was an extended bench conference concerning specific requests for instruction filed by both parties. None of this discussion concerns the defendants’ objections to the plaintiff’s argument, and I submit that, in the face of the precharge conference during which the judge clearly indicated he was unwilling to admonish the plaintiff for improper argument, no additional request or objection was required. See Heina v. Broadway Fruit Mkt, Inc., 304 Mass. 608, 611 (1939).\nI do not accept the court’s view that the judge adopted the suggestions of defense counsel regarding curative instructions. In the context of the colloquy discussed above, defense counsel’s comments cannot be regarded as assent or agreement. This is so for two reasons: First because the only “strong corrective action” open to the judge, admonishment of the plaintiff’s counsel in the presence of the jury, which was clearly requested by the defendants’ attorney, was just as clearly refused by the judge. Second, I suggest that sufficient precedent exists in cases where this court was dealing with the problem of improper argument to send the case back even where the judge’s instructions were accepted without objection. See Goldstein v. Gontarz, 364 Mass. 800, 811-812 (1974) (“[n]or do we think the defendants were required to apply for a corrective instruction after the judge had twice ruled flatly against them”), and cases cited. Here we have a situation where it is opposing counsel’s conduct which is the subject of the objection, conduct that occurs in front of the jury, in a context where it is difficult to object, and where limited opportunities for corrective action exist. I would submit in such situations, where the only feasible corrective action has been plainly and persistently requested and denied by the trial judge, there has been no acquiescence by defense counsel and no further objection is required.\nFailure to object at the close of the charge is not fatal in these circumstances. London v. Bay State St. Ry., 231 Mass. 480, 486 (1919). In Leone v. Doran, 363 Mass. 1 (1973), the court commented on trial tactics intended to impress on the jury facts that were not warranted by the evidence. A new trial was ordered where the argument was improper and where the judge declined to take rigorous and emphatic corrective action. Although the conduct of counsel in this case was not as egregious as counsel’s conduct in Leone, I think it is nevertheless true that counsel’s “tactics do a disservice to the court, the public, and the litigants.” Id. at 19. In a similar situation, but under the much more restrictive rules of practice in use at the time, the court ruled that, once the trial judge had made a final ruling on an objection to an opponent’s final argument, that ended the incident as far as objecting counsel was concerned. “The circumstance that at the close of the charge no further exception was taken did not deprive the defendants of whatever value there was in the exception previously taken to a definitive ruling.” Doherty v. Levine, 278 Mass. 418, 420 (1932).\nI therefore believe that, to require counsel in this case to do more is contrary to precedent and unfair, rewards egregious behavior, and does a disservice to the court, the public, and litigants.\nOne of the jurors was from Chelsea."", ""type"": ""dissent"", ""author"": ""Lynch, J.""}, {""text"": ""O’Connor, J.\n(dissenting, with whom Nolan and Lynch, JJ., join). I agree that the jury would have been warranted in finding that Dr. Chin failed to advise Harlow to return to Chelsea Memorial Health Care Center in seventy-two hours if his pain persisted and that that failure constituted negligence. I do not agree, however, despite the sympathetic appeal of the plaintiff’s situation, that the jury were warranted in finding that that negligence caused Harlow’s quadriplegia.\nHarlow had the burden of proving causation. The jury reasonably could have found that, had Harlow been properly advised, he would have returned to the health care center in seventy-two hours. The critical question on appeal bearing on causation is whether there was evidence to support a finding within the realm of probability that, had Harlow returned in seventy-two hours, his condition would have been diagnosed and treated and quadriplegia prevented.\nThe court says, ante at 703, that “[o]ne of the plaintiff’s experts . . . stated that once the plaintiff returned to the emergency room, proper medical procedure would have required that medical practitioners treat the plaintiff” by, among other things, subjecting him to a CAT scan, which would have shown “a bulge or herniated disc,” which, in turn, would have led to early and successful surgery. In his argument on appeal, Harlow relies exclusively on the testimony of Dr. Gary Korenman, a New York City neurologist, as to the causation issue. That Harlow would have been subjected to a CAT scan is critical to his case because there is no evidence that, in the absence of a CAT scan, the seriousness of Harlow’s condition would have been recognized or that surgery would have been performed. Only Dr. Korenman testified about a CAT scan. Therefore, if the court is to be true to its responsibility to decide whether the plaintiff produced sufficient evidence, and to explain its decision, mere characterization of the critical testimony or paraphrasing of it is not enough. Close scrutiny of the relevant questions and answers as they appear in the record is necessary.\nThe relevant questions put to Dr. Korenman and his answers are as follows:\nQ.: “Doctor, do you have an opinion based on reasonable medical certainty as to what medical care would have been required for Mr. Harlow if he had returned within seventy-two hours of having been discharged from Chelsea Memorial Health Care Clinic consistent with the Door Sheet, Plaintiff’s Exhibit No. 1, on 2-15-82?”\nA.: “Yes, I do.”\nQ.: “What is that opinion, Doctor?”\nA.: “The appropriate medical care at that point, seventy-two hours subsequent to 2-15 -82, with the persistence of symptoms, would have been a re-taking of the history, a thorough neurologic and general physical examination, and ordering cervical spine X-rays, with a wet reading — that is, wet reading means that the X-rays are read immediately, or as an emergent procedure. Depending upon what the results of those X-rays were at that point, assuming that there was no fracture, no dislocation, no tumor, that the X-rays were within normal limits with his symptoms persisting, I would have ordered a CAT scan at that point.”\nThere was no evidence that, in the circumstances of this case, it was routine procedure at Chelsea Memorial Health Care Center to order or perform a CAT scan. I would agree, though, that had evidence been introduced that physicians of average competence would have ordered a CAT scan in the circumstances of this case, such evidence would have been adequate to support a finding that a CAT scan would have been ordered upon Harlow’s prompt return to the center. See Brune v. Belinkoff, 354 Mass. 102, 109 (1968). But, no such evidence was introduced.\nHarlow’s counsel asked Dr. Korenman his opinion “as to what medical care would have been required for Mr. Harlow if he had returned within seventy-two hours of having been discharged from Chelsea Memorial Health Care Clinic?” The witness answered that “appropriate medical care” would have involved certain specified procedures following which he, Dr. Korenman, would have ordered a CAT scan. The court asserts, ante at 703 n.4, that, when the witness said, “I would have ordered a CAT scan,” he was really saying that appropriate medical care required a CAT scan. I do not agree that the court can now know, or that the jury could have known, that that is what the witness meant. Nevertheless, for purposes of discussion, let us assume that the jury properly could have understood Dr. Korenman’s testimony about what he would have done as meaning that “appropriate medical care” would have required a CAT scan. Even so, that testimony was not enough to permit a finding of causation unless the jury also would have been warranted in concluding that the term, “appropriate medical care,” as used by the witness, referred to the care to be expected of physicians of average competence.\nNowhere in the evidence is there any indication that Dr. Korenman understood and used the expression “appropriate medical care,” to mean the care or treatment that averagely competent physicians would render in the circumstances. For all that appears, Dr. Korenman’s concept of “appropriate medical care,” undefined throughout his testimony, and his concept of the level of care to be expected of physicians of average competence are two very different matters. Indeed, the doctor’s statement, “I would have ordered a CAT scan,” in response to a question about the requirement of appropriate medical care strongly suggests that the doctor understood appropriate medical care to be the treatment that he, as distinguished from an averagely competent physician, would have rendered. There is certainly nothing in the evidence to suggest that Dr. Korenman considered himself averagely competent. Surely, also, it cannot fairly be said that, by common usage of lay people, the term “appropriate medical care\"" has come to mean the care that would be given by physicians of average competence. For all that appears in the evidence, the expression, “appropriate medical care,” as the witness understood and used it, referred not to a standard set by physicians of average competence but to a much higher standard. There is no basis in the evidence for the jury reasonably to have understood the evidence differently. Therefore, there was absolutely no justification in the evidence for the jury to conclude that, had Harlow returned to Chelsea Memorial Health Care Center in timely fashion, a CAT scan leading to successful surgery would have been performed. Viewed as favorably to the plaintiff as can be justified, the evidence does not support a finding of causation. Therefore, I would reverse the judgment for the plaintiff. I would order judgment for the defendants.\nBecause I conclude that the defendants are entitled to a judgment in their favor, I need not reach the “egregious argument” issue discussed by Justice Lynch in his dissenting opinion. Were I to do so, I would agree with Justice Lynch, for the reasons he gives, that a new trial should be required."", ""type"": ""dissent"", ""author"": ""O’Connor, J.""}], ""attorneys"": [""Edward B. Hanify (Thomas H. Hannigan, Jr., & Lee C. Rubin with him) for the defendants."", ""Frederic N. Halstrom {Maureen A. Griffin & Peter A. Donovan with him) for the plaintiff."", ""James M. Shannon, Attorney General, & Lawrence P. Fletcher-Hill, Assistant Attorney General, for Department of Public Welfare, amicus curiae, submitted a brief.""], ""corrections"": """", ""head_matter"": ""William Harlow vs. Danny Chin & another.\nSuffolk.\nSeptember 14, 1988. —\nOctober 19, 1989.\nPresent: Liacos, C.J., Wilkins, Abrams, Nolan, Lynch, O’Connor, & Greaney, JJ.\nNegligence, Medical malpractice, Doctor, Proximate cause, Duty to warn, Comparative. Medical Malpractice, Expert opinion, Recovery from collateral source. Proximate Cause. Practice, Civil, Argument by counsel, Instructions to jury. Subrogation. Evidence, Expert opinion. Charity. Corporation, Charitable corporation.\nAt the trial of a medical malpractice action wherein it was alleged that the negligence of a licensed physician and a hospital caused a patient to become a quadriplegic, there was sufficient evidence to warrant a finding that the physician was negligent in his examination of the patient, in his failure to explore other possible diagnoses, and in his failure to give the patient warnings and explanations adequate for follow-up care. [701-702]\nAt the trial of a medical malpractice action brought by a patient who had become a quadriplegic, the plaintiffs evidence was sufficient to present a jury question as to causation. [702-703] O’Connor, J., with whom Nolan and Lynch, JJ., joined, dissenting.\nAlthough, at the trial of a medical malpractice action, the argument by plaintiff’s counsel concerning money damages improperly indulged in significant references to numerical amounts which had no basis in the record, the judge’s curative instructions to the jury eliminated the need for a new trial. [703-706] Lynch, J., with whom Nolan, J., joined, dissenting.\nAt the trial of a medical malpractice action there was sufficient evidence to warrant the jury’s determination that the patient was thirteen per cent at fault under the comparative negligence statute. [706-708]\nGeneral Laws c. 231, § 60G, which provides for medical. malpractice damages to be reduced by the amount of payments a plaintiff receives from collateral sources, other than those collateral sources “whose right of subrogation is based in any federal law,” did not require that a malpractice plaintiff’s award be reduced by the amount of Medicare or Medicaid benefits he had received, because these benefits entailed federally based subrogation rights [708-712]; however, the judge was to consider on remand whether any Federal right of subrogation existed with respect to the Social Security benefits the plaintiff had received, and whether these benefits duplicated any part of the jury ’ s award [712].\nAt the trial of a medical malpractice action, the judge did not err in his instructions to the jury with regard to a physician’s negligence and warnings to his patient. [712-713]\nAt the trial of a medical malpractice action wherein it was alleged that the defendants’ negligence had caused the plaintiff to become a quadriplegic, there was sufficient evidence, including the plaintiff’s expert’s testimony based on mortality tables and the expert’s admission on cross-examination that generally the life expectancy of a quadriplegic was shorter, to support the jury’s finding of thirty-one and one-half years as the amount of time over which an award for future medical expense and future pain and suffering was meant to compensate the plaintiff. [713-714]\nThere was no merit to the contentions by the defendants in a medical malpractice action that the plaintiffs expert was outside his area of expertise in testifying about the plaintiff’s future medical costs, and that the expert impermissibly commented about the testimony of another of the plaintiff’s experts when he compared his figures with those of the other expert. [714-715]\nWhere, at the trial of a medical malpractice action, a hospital proved both that it was a charitable organization, and that the tort complained of “was committed in the course of any activity carried on to accomplish directly the charitable purposes of such corporation,” the judgment entered against the hospital should have been limited to twenty thousand dollars, pursuant to G. L. c. 231, § 85K (1988 ed.) [715-716]\nCivil action commenced in the Superior Court Department on December 28, 1982.\nThe case was tried before Ernest S. Hayeck, J., sitting under statutory authority.\nThe Supreme Judicial Court granted a request for direct appellate review.\nEdward B. Hanify (Thomas H. Hannigan, Jr., & Lee C. Rubin with him) for the defendants.\nFrederic N. Halstrom {Maureen A. Griffin & Peter A. Donovan with him) for the plaintiff.\nJames M. Shannon, Attorney General, & Lawrence P. Fletcher-Hill, Assistant Attorney General, for Department of Public Welfare, amicus curiae, submitted a brief.\nMassachusetts General Hospital.""}, ""cites_to"": [{""cite"": ""42 C.F.R. § 433.140"", ""year"": 1989, ""category"": ""laws:admin_compilation"", ""reporter"": ""C.F.R."", ""pin_cites"": [{""page"": ""(c)""}], ""opinion_index"": 0}, {""cite"": ""367 Mass. 919"", ""year"": 1975, ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""opinion_index"": 0}, {""cite"": ""224 Mass. 405"", ""year"": 1916, ""case_ids"": [44338], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""406""}], ""case_paths"": [""/mass/224/0405-01""], ""opinion_index"": 0}, {""cite"": ""392 Mass. 565"", ""year"": 1984, ""case_ids"": [3875203], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/392/0565-01""], ""opinion_index"": 0}, {""cite"": ""387 Mass. 152"", ""year"": 1982, ""case_ids"": [908889], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""154-155""}], ""case_paths"": [""/mass/387/0152-01""], ""opinion_index"": 0}, {""cite"": ""120 Mass. 432"", ""year"": 1876, ""case_ids"": [738974], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""434""}], ""case_paths"": [""/mass/120/0432-01""], ""opinion_index"": 0}, {""cite"": ""343 Mass. 338"", ""year"": 1961, ""case_ids"": [4024808], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""340""}], ""case_paths"": [""/mass/343/0338-01""], ""opinion_index"": 0}, {""cite"": ""385 Mass. 91"", ""year"": 1982, ""weight"": 2, ""case_ids"": [900794], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""105""}], ""case_paths"": [""/mass/385/0091-01""], ""opinion_index"": 0}, {""cite"": ""7 Wis. 2d 462"", ""year"": 1959, ""case_ids"": [8678242], ""category"": ""reporters:state"", ""reporter"": ""Wis. 2d"", ""pin_cites"": [{""page"": ""465""}], ""case_paths"": [""/wis-2d/7/0462-01""], ""opinion_index"": 0}, {""cite"": ""478 S.W.2d 191"", ""year"": 1972, ""case_ids"": [9931648], ""category"": ""reporters:state_regional"", ""reporter"": ""S.W.2d"", ""case_paths"": [""/sw2d/478/0191-01""], ""opinion_index"": 0}, {""cite"": ""604 P.2d 602"", ""year"": 1980, ""case_ids"": [10449516], ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""pin_cites"": [{""page"": ""604""}], ""case_paths"": [""/p2d/604/0602-01""], ""opinion_index"": 0}, {""cite"": ""332 Mass. 160"", ""year"": 1955, ""case_ids"": [938237], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""162-164""}], ""case_paths"": [""/mass/332/0160-01""], ""opinion_index"": 0}, {""cite"": ""16 Mass. App. Ct. 488"", ""year"": 1983, ""case_ids"": [5741684], ""category"": ""reporters:state"", ""reporter"": ""Mass. 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+3882436,"{""id"": 3882436, ""name"": ""Commonwealth vs. Joseph Dockham"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""0b792fc8683e6475b8a2dc7d71ff3283ced9939eefd1505f216a1238e5a1de85"", ""simhash"": ""1:bca7e42e14158afc"", ""pagerank"": {""raw"": 0.000000859834058399971, ""percentile"": 0.9769084992986078}, ""char_count"": 33998, ""word_count"": 5542, ""cardinality"": 1347, ""ocr_confidence"": 0.956}, ""casebody"": {""judges"": [], ""parties"": [""Commonwealth vs. Joseph Dockham.""], ""opinions"": [{""text"": ""Liacos, C.J.\nThe defendant, Joseph Dockham, was convicted of several indictments charging rape, assault with intent to rape, child pornography, and indecent assault and battery of two minor children. The defendant appeals from his convictions, as well as the denial of his motion for a new trial. We transferred the case to this court on our own motion.\nThe defendant was tried together with the codefendant, Laura Tufts, for the sexual abuse of a four year old boy and an eighteen month old girl. The defendant is the father of the eighteen month old girl; the codefendant is the mother of both children. We have already addressed the codefendant’s appeal from the denial of her motion for a new trial. Commonwealth v. Tufts, ante 610 (1989).\nWe summarize the evidence before the jury. The four year old boy gave videotaped testimony about the alleged sexual abuse. He testified that the defendant tried to put his penis into the boy’s rectum and that there was some penetration. According to the child witness, the defendant touched the boy ’ s buttocks and penis with his hand. He also sodomized the boy. The boy testified that “stuff came out.” The boy testified to further acts of sexual abuse by the defendant. Additionally, the boy testified that the defendant also touched the girl’s vagina with his mouth, and that the codefendant touched his penis with her mouth and fingers and touched the girl’s vagina with her mouth and fingers. Both defendants told the boy that he had to touch the codefendant’s vagina with his mouth and made the boy touch his sister’s vagina. The boy testified that the defendant bit him on the buttocks, that he was hit by the defendant with belts, and that the defendants took pictures while the sexual abuse occurred.\nA social worker from the Department of Social Services (department) testified at trial that she had removed the two children from the defendants’ home on June 16, 1986, after the four year old boy made allegations of physical and sexual abuse by the defendant and the codefendant. On June 27,1986, the department placed the two children with a foster family with which the children remained until the time of trial.\nThe boy’s foster mother testified at trial that, on the day the children arrived at her home, the boy told her that his dad had put his finger in the boy’s “bum.” The foster mother further testified that when it was time for the children to take a bath, the boy started screaming, crying, grabbing at his genital area, and appeared fearful. The child slept in his clothes that night because he would not take off his clothes.\nThe next day, the boy told his foster mother that “daddy Joe” had touched his penis, and that he was afraid to tell because he would have to go home and would be hit. That night at bath time, the boy began trembling; his eyes popped open, his body and face were rigid, and he was grabbing his genital area. Later, when he calmed down a bit and undressed himself, his foster mother noticed that he was wearing several layers of underpants. The foster mother testified that the boy made further extensive and detailed disclosures to her over the next few days. Her recount of his disclosures was admitted at trial as fresh complaint testimony.\nOn the fourth day the children were with their foster mother, she took them to the emergency room at Children’s Hospital. The boy met with child psychiatrist Dr. Luis Rodriguez. Dr. Rodriguez testified, under the fresh complaint doctrine, that the boy reported that “Joe” had played with his genital area, and put his penis in the boy’s rectal area, and that “mommy” (Tufts) played with him and took pictures.\nDr. Kimberly Davies testified that she examined the children at the hospital and made no unusual findings at that time. The girl had a normal gynecological examination showing no tears, bruises, or trauma. The boy would not take off his pants. When the nurse and the physician tried to take his pants off, he started screaming, kicking, fighting, and trying to get off the table. The child’s foster mother described him as having veins bulging out of his face, as being “beet red,” screaming, “Stop, stop, stop. Leave me alone.” Dr. Davies did not complete the examination.\nA social worker with the department subsequently interviewed the boy as part of an investigation. Her conversation with him was admitted at trial as fresh complaint testimony. The boy told her that his “daddy” had hurt him and that he had put his penis in the child’s mouth. Later that day, the boy told the social worker that he wanted to tell her about his “mommy,” saying that his mother had touched his penis with her hands and mouth, that she made the child touch his sister, and that the codefendants took pictures with a camera.\nDr. Reneé Brant, a child psychiatrist, testified as an expert witness. She described the language and communication skills of a child as he or she progresses from infancy to age six, as well as the commonly recognized clinical phenomena related to child sexual abuse — secrecy, delayed or gradual disclosure, retraction — and behavioral signs and symptoms sexually abused children frequently exhibit. Dr. Jan Paradise, a pediatric gynecologist, also testified as an expert witness. She testified, in response to a hypothetical question, that it was not inconsistent for a sixteen month old girl who had been touched in the genital area by an adult’s mouth or fingers two weeks prior to a physical examination not to have physical signs of trauma to her genital area. She also testified that it was not inconsistent for a four year old boy to show no injury or physical trauma after having had an adult penis placed in his rectal opening, or an adult penis inserted into his mouth, or having had his penis touched by an adult’s hands.\nBoth defendants testified in their own defense. The defendant Dockham testified that he once hit the boy on the buttocks with a belt because he thought the boy had broken a window, that he bit the boy’s buttocks as a form of play, and that he once touched the boy’s penis when he was drying him off after a bath. He denied inserting his penis into the boy’s mouth or engaging in any sexual activity with the boy or girl.\nThe codefendant, Laura Tufts, testified that she hit the boy “on the butt” if he disobeyed her, but not with a belt. She denied putting her mouth on the boy’s penis, or doing anything of that nature. She testified that she occasionally did “raspberries” on the boy’s and girl’s bellies, which made the children giggle. She also said she would bite the boy on the buttocks when playing with him. She admitted that she at one time owned a Polaroid camera but said that it had been lost in a fire. She testified that she had to touch the boy’s penis to keep it clean and to apply ointment he needed because of a problem with the foreskin of his penis. Dr. John J. McHugh, the boy’s pediatrician, also testified for the defense, that the boy had a problem with the foreskin of his penis which required the application of lubricants.\nThe defendant raises eight issues on appeal: (1) the violation of his confrontation right because of impaired eye contact between the defendant and child witness during videotaping; (2) the quality of the videotape; (3) the lack of expert testimony on the issue of emotional trauma to the child if he testified in open court; (4) the introduction of fresh complaint testimony; (5) the admission of expert testimony on the general characteristics of sexually abused children; (6) the exclusion of an opinion that the child witness in this case “lies a lot”; (7) the constitutionality of the child pornography statute, G. L. c. 272, § 29A (1988 ed.); and (8) the constitutionality of the videotaping statute, G. L. c. 278, § 16D (1988 ed.), as a denial of the right to a public trial.\nWe have addressed previously the issue of the codefendant’s confrontation rights, as well as the quality of these videotapes. See Commonwealth v. Tufts, supra. The defendants’ challenges are identical, and our decision in Tufts is equally applicable to the defendant in this case. We now address the defendant’s remaining challenges.\n1. Expert testimony regarding the psychological or emotional trauma to the child if he testified in open court. General Laws c. 278, § 16D, provides that a child can give videotaped testimony if “the court finds by a preponderance of the evidence at the time of the order that the child witness is likely to suffer psychological or emotional trauma as a result of testifying in open court, as a result of testifying in front of the defendant, or as a result of both.” We held in Commonwealth v. Bergstrom, 402 Mass. 534, 550-551 (1988), that “the Commonwealth must show, by more than a mere preponderance of evidence, a compelling need for use of such a procedure. Such a compelling need could be shown where, by proof beyond a reasonable doubt, the recording of the testimony of a child witness outside the courtroom (but in the presence of the defendant) is shown to be necessary so as to avoid severe and long lasting emotional trauma to the child.”\nThe judge in this case made a finding that the behavior exhibited by the boy in the courtroom, contrasted with his appearance and behavior in the lobby, satisfied him “beyond a reasonable doubt that it was necessary to record [the boy’s] testimony outside the courtroom in order to prevent [the boy] from suffering psychological or emotional trauma.” The defendant argued below and argues now on appeal that the judge could not make this finding without relying on expert testimony. We disagree. See, e.g., Blaisdell v. Commonwealth, 372 Mass. 753, 765 (1977) (nonexpert evidence including defendant’s history of mental illness, medical records, facts of crime, and aberrant conduct or statements defeats presumption of sanity); Commonwealth v. Tatisos, 238 Mass. 322, 325-326 (1921) (within judge’s wise discretion to determine child’s competency after evaluating child’s appearance and manner, her capacity to observe, remember, and express herself).\nThis case, perhaps uniquely so, presented the judge with ample evidence on which to base his finding. No medical evidence was required to sustain the judge’s conclusion that the child witness in this case would suffer emotional or psychological trauma if he testified in open court. See Commonwealth v. Monico, 396 Mass. 793, 798 (1986) (experttestimony is not necessary to raise issue of insanity defense); Common wealth v. Laliberty, 373 Mass. 238, 245 (1977). Rather than repeat all the facts relevant to the videotaping procedure presented in lengthy detail in Commonwealth v. Tufts, supra, we will summarize the factors upon which the judge could rely properly in making his decision.\nThe judge had questioned the child witness and had for three days observed him during voir dire conferences in the judge’s lobby as well as in the courtroom in the jury’s presence. The judge made an unchallenged finding that the four year old boy was competent to testify, after the boy explained the difference between the truth and a lie and showed an understanding of the importance of taking an oath. See Commonwealth v. Reid, 400 Mass. 534, 542-543 (1987); Commonwealth v. Brusgulis, 398 Mass. 325, 329-330 (1986). When the child was asked general background questions in open court, in the presence of the jury and the defendants, he had no difficulty answering. When the child was asked in open court about what had happened at his old house, he kicked, turned around in his chair, bit his shirt, could not speak, put his head on the railing, had difficulty sitting up in his chair, and was unresponsive to questions. He reacted to questions about the sexual abuse by saying that he “didn’t know it anymore,” that he didn’t “remember any of it,” that “enough’s enough,” and that he had “already said it.” In contrast, while in the judge’s lobby, the child was able to give a detailed description, without much prompting, of the alleged physical and sexual abuse.\nWe conclude that the judge properly found, in his discretion, that, “at a minimum, [the boy] . . . had a story to tell, but would not tell it in the presence of the jury [and] defendants,” and that “it was necessary to record [the child’s] testimony outside the courtroom in order to prevent [the child] from . suffering psychological or emotional trauma.” See Commonwealth v. Goulet, 402 Mass. 299, 309 (1988) (trier of fact can reject insanity defense even in absence of expert opinion from Commonwealth); Commonwealth v. Cullen, 395 Mass. 225, 229-230 (1985) (judge entitled to infer sanity from facts underlying crime and evidence of defendant’s actions before and after crime and to reject expert testimony of two psychiatrists that defendant was insane); Commonwealth v. Tarver, 369 Mass. 302, 310 (1975) (determination of expert witness’s qualifications and competence within judge’s discretion); Commonwealth v. Tatisos, supra at 325-326 (determination of child’s competence to testify within judge’s discretion).\nGeneral Laws c. 278, § 16D, imposes no requirement that a judge’s finding of psychological or emotional trauma be based on expert testimony. See also People v. Johnson, 146 Ill. App. 3d 640, 651 (1986) (judge’s observation of five year old witness’s reticence to testify in defendant’s presence and the improvement in her testimony upon the defendant’s removal “better demonstrated the necessity of the procedure than could the opinion of any expert”); McGuire v. State, 288 Ark. 388, 391-394 (1986) (judge properly allowed videotaping of eleven year old girl who, according to grandparents’ testimony, was bashful and embarrassed about rape and easily upset).\n2. Fresh complaint witnesses. The defendant argues that the testimony of three fresh complaint witnesses should have been excluded at trial because the complaints were not fresh and were offered to rehabilitate the witness rather than to corroborate his testimony. The boy’s foster mother, a social worker from the Department of Social Services, and a psychiatrist who interviewed the child, all testified as fresh complaint witnesses. Each recounted the content of the boy’s disclosures to her or him.\nWe recently stated that there is no absolute rule as to the time frame within which a sexual assault victim must make a first complaint for that complaint to be admissible in evidence as a fresh complaint. Commonwealth v. Amirault, 404 Mass. 221, 228 (1989), citing Commonwealth v. Comtois, 399 Mass. 668, 673 (1987). The time frame is especially flexible in the context of fresh complaints by young, sexually abused children. Commonwealth v. Amirault, supra at 229 (upholding admission of fresh complaint, made by four year old child, eighteen months after the child last attended abusive day care center); Commonwealth v. Comtois, supra at 672-673 n.9 (ruling admissible fresh complaint made by fourteen year old victim approximately nine months after last incident of abuse); Commonwealth v. Densten, 23 Mass. App. Ct. 981, 981-982 (1987) (statements of nine year old special needs boy made seventeen days after incident held admissible as fresh complaint). Child sexual abuse cases “constitute a factually distinct branch of the fresh complaint doctrine that gives special consideration to the natural fear, ignorance, and susceptibility to intimidation that is unique to a young child’s make-up.” Commonwealth v. Amirault, supra at 229. “ ‘The determination whether statements are sufficiently prompt to constitute fresh complaints rests within the sound discretion of the trial judge. See Commonwealth v. Sherry, 386 Mass. 682, 691 (1982). The test is whether the victim’s actions were reasonable in the particular circumstances of the case’ ” (citations omitted). Commonwealth v. Amirault, supra at 228. We have considered relevant the child’s age, the length of time the child has been away from an abusive setting, whether the perpetrator used threats or coercion, and whether the perpetrator is a relative or close friend of the child. See Commonwealth v. Comtois, supra at 672 n.9 (when young victim has been under control of, and in reasonable fear of, defendant who is a close relative, promptness of complaint usually measured from date victim leaves defendant’s control).\nThe victim in this case is a four year old boy who made allegations of physical and sexual abuse against his mother and a man he thought of as his father. The victim made his first disclosure of abuse eleven days after he left the abusive setting. He told his foster mother that he was afraid to tell because he would have to go home and would be hit. See Commonwealth v. Comtois, supra at 672-673 (where defendant warned daughter that she would get in trouble if she told anyone, victim made initial disclosure two months later). The child’s first complaint eleven days after he was out of the defendants’ control and later gradual disclosures were reasonably delayed, given the exceptional circumstances of this case. See Commonwealth v. Amirault, supra at 229; Commonwealth v. King, 387 Mass. 464, 473 (1982).\nFurthermore, the judge instructed the jury to evaluate the promptness of the complaints to determine whether they were fresh complaints. He instructed the jury that a fresh complaint “must be made reasonably prompt after the event as may be expected in light of all the circumstances” and that a fresh complaint must be made voluntarily. He further instructed the jury to disregard any fresh complaint testimony they found was not in fact a fresh complaint. See Commonwealth v. Amirault, supra at 230 (judge gave proper limiting instructions that jury should question whether complaint was “fresh”); Commonwealth v. Densten, 23 Mass. App. Ct. 981, 982 (1987) (judge gave limiting instructions to the jury that it was for jury to decide whether fresh complaint evidence should be accepted).\nThe defendant also argues that the complaints were offered to rehabilitate the witness rather than to corroborate his testimony. The judge, however, gave limiting instructions to the jury regarding the limited purpose for which fresh complaint testimony could be used. He stated: “The fresh complaint testimony can only be considered for corroboration; that is, that the alleged victim complained to another person . . . .” We are unwilling to assume that the jury did not heed these instructions. See Commonwealth v. Errington, 390 Mass. 875, 882 (1984), citing Commonwealth v. Jackson, 384 Mass. 572, 579 (1981); Commonwealth v. Leno, 374 Mass. 716, 719 (1978). The judge, within his discretion, properly admitted the testimony of three witnesses as evidence of fresh complaint and gave appropriate accompanying limiting instructions. There was no error.\n3. Expert testimony on the general characteristics of sexually abused children. The defendant challenges the admission in evidence of Dr. Brant’s expert testimony on the general behavioral characteristics of sexually abused children. He argues that such testimony should have been in response to a hypothetical question related to the facts of the case, whether assumed or in evidence. We disagree.\nA trial judge has broad discretion with respect to the admission of expert testimony. Commonwealth v. Ianello, 401 Mass. 197, 200 (1987), citing Commonwealth v. Gaulden, 383 Mass. 543, 549 (1981). See Commonwealth v. Lewandowski, 22 Mass. App. Ct. 148, 150-151 (1986) (judge properly allowed expert witness to testify within his special expertise that victim’s level of sexual knowledge was very sophisticated for her age). We have stated that testimony “on matters within the witness’s field of expertise is admissible whenever it will aid the jury in reaching a decision, even if the expert’s opinion touches on the ultimate issues that the jury must decide.” Simon v. Solomon, 385 Mass. 91, 105 (1982). Commonwealth v. LaCorte, 373 Mass. 700, 705 (1977). See, e.g., Commonwealth v. Chapin, 333 Mass. 610, 625-626, cert. denied, 352 U.S. 857 (1956) (expert testimony on defendant’s sanity admissible although sanity to be determined by jury). See also Proposed Mass. R. Evid. 702 (“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise”).\nDr. Brant testified that sexually abused children often delay disclosure of sexual abuse or make gradual disclosures, retract their statements, and repress the abuse. The behavioral signs and symptoms she described include sexualized play, knowledge of adult sexual functions, fears and anxieties related to body parts, people, and places involved in the sexual abuse. She stated that sexually abused children exhibit impaired trust, withdrawal, depression, guilt, shame, anxiety, and hypervigilance (being on guard and ill at ease). Dr. Brant made no references or comparison to the child witness. See Terrio v. McDonough, 16 Mass. App. Ct. 163, 175-176 (1983) (expert testimony about rape trauma syndrome held admissible where expert witness did not testify that victim in case had been raped or that she displayed behavior consistent with syndrome).\nThe judge carefully explained to the jury the proper function of this expert testimony: “Ordinarily, a court does not permit people to give their opinions in a court of law. . . . However, under certain circumstances, courts permit people to give their opinions on certain matters if those opinions are helpful to a jury. ... In this case, I have permitted certain doctors to give their opinions for whatever help or for whatever consideration you as jurors wish to give to that opinion. . . . [Y]ou can give to their opinions whatever weight or whatever consideration you want to give it. You can ignore their opinion completely. You can give it great weight or you can give it little weight. Having in mind what the issues are in this case, you are permitted to give to these opinions whatever consideration you deem that it is advisable and helpful to you. . . . It’s merely to help you, if it does, in analyzing any of the issues in this case. If it doesn’t help you at all, you can easily ignore it.” Later, in his final instructions to the jury, he explained: “[Ejxpert witnesses do not decide cases; jurors do. So expert witnesses cannot usurp your role as finders of the facts. They can assist a jury, if they do, by providing information to help you better understand and better explain the testimony that you hear and then have to weigh and consider in your deliberations. These expert witnesses cannot determine those issues of fact for you that you alone have the responsibility to make. You are not bound by the testimony of an expert witness. You are entitled to accept the testimony of an expert witness, you can reject it, you can give to it whatever weight you think it’s entitled to.” Such limiting instructions safeguarded the jury’s proper use of Dr. Brant’s expert testimony. See Commonwealth v. Amirault, 404 Mass. 221, 231-232 (1989).\nOther courts have uniformly allowed expert testimony on the typical symptoms of sexually abused children because the information is beyond the common knowledge of jurors and of assistance in assessing a victim witness’s testimony and credibility. See State v. Lindsey, 149 Ariz. 472 (1986) (behavior patterns of young incest victims beyond common sense, experience, and education of average juror); State v. Myers, 359 N.W.2d 604, 610 (Minn. 1984) (child sexual abuse places jurors at disadvantage); Smith v. State, 100 Nev. 570, 572-573 (1984) (expert testimony would help jury understand seemingly unusual behavior of victim and mother). “While jurors may be capable of personalizing the emotions of victims of physical assault generally, and of assessing witness credibilty accordingly, tensions unique to the trauma experienced by a child sexually abused by a family member have remained largely unknown to the public. As the expert’s testimony demonstrates the routine indicia of witness reliability — consistency, willingness to aid the prosecution, straightforward rendition of the facts — may, for good reason, be lacking. As a result jurors may impose standards of normalcy on child victim/witnesses who consistently respond in distinctly abnormal fashion.” State v. Middleton, 294 Or. 427, 440 (1983) (Roberts, J., concurring). See also State v. Lindsey, supra at 474 (jurors benefit from expert testimony explaining behavior they might otherwise “attribute to inaccuracy or prevarication, but which may be merely the result of immaturity, psychological stress, [or] societal pressures”); People v. Benjamin R., 103 A.D.2d 663, 669 (N.Y. 1984) (average juror lacks general awareness of young victim’s reaction to sodomy or sexual abuse).\nWe conclude that Dr. Brant’s expert testimony in this case about the general behavioral characteristics of sexually abused children was admissible within the judge’s sound discretion and properly limited by the judge’s instructions to the jury.\n4. Exclusion of statement that child witness “lies a lot.” At trial, the defendant sought to introduce the statement of the child witness’s first foster mother that the boy “lies a lot,” as evidence of general reputation and character. According to defense counsel’s offer of proof, the boy’s foster mother at the time of trial had taken notes during a telephone conversation with the child’s first foster mother. The notes included reference to the first foster mother’s statement that the boy “lies a lot.” The defendant argues that, although a five year old boy cannot have a general reputation in a community, the statement that the boy “lies a lot” was admissible because it suggests a poor reputation for truth and veracity within his foster family. We disagree.\nA witness can testify as to another witness’s general reputation for truthfulness and veracity among those who know him. See G. L. c. 233, § 21A (1986 ed.). Competent evidence of reputation must reflect “a uniform and concurrent sentiment [in the public mind].” Commonwealth v. Baxter, 267 Mass. 591, 593 (1929). A witness’s character “could be shown only by evidence of [his] general reputation as disclosed by the common speech of [his] neighbors and members of the community.” Id. See Commonwealth v. Edmonds, 365 Mass. 496, 503-504 (1974) (character evidence is by evidence of reputation in community); Commonwealth v. Porter, 237 Mass. 1, 4 (1921). “General reputation” is the “uniform and concurrent sentiment” in the “public mind.” Commonwealth v. Baxter, 267 Mass. 591, 593 (1929).\nThe defendant concedes that the out-of-court statement that the boy “lies a lot” was made by one person who had known the child for only ten days. We conclude that the statement was inadmissible as evidence of reputation. See F.W. Stock & Sons v. Dellapenna, 217 Mass. 503, 506 (1914) (impeaching evidence must be of general reputation, not private opinions of a few); Commonwealth v. Baxter, supra at 593 (upholding exclusion of personal impressions of five individuals regarding person’s character); Commonwealth v. Gomes, 11 Mass. App. Ct. 933, 933-934 (1981) (opinion of reputation cannot be based on comments of five people); Commonwealth v. LaPierre, 10 Mass. App. Ct. 871, 871 (1980) (opinion of three fellow workers that witness “wouldn’t know the truth if it hit her in the face” properly excluded). “Personal opinions and isolated acts are not evidence of general reputation.” Commonwealth v. Roberts, 378 Mass. 116, 129 (1979), and cases cited therein. Evidence of specific or particular acts of lying or similar misconduct is not admissible; nor is the opinion of a witness as to the character of the witness being impeached. Commonwealth v. Binkiewicz, 342 Mass. 740, 755-756 (1961). Eastman v. Boston Elev. Ry., 200 Mass. 412, 413 (1909). Contrast Proposed Mass. R. Evid. 405 (a) (allowing, in some circumstances, opinion testimony or evidence of specific instances of conduct).\n5. The constitutionality of the child pornography statute, G. L. c. 272, § 29A. The defendant argues on appeal that, because we held the child pornography statute, G. L. c. 272, § 29A (1986 ed.), unconstitutionally overbroad in Commonwealth v. Oakes, 401 Mass. 602 (1988), his convictions on two indictments charging child pornography should be reversed. Our decision in Oakes was released in February, 1988, long after the June, 1987, trial in this case. At no time prior to, or during, trial did the defendant challenge either the constitutionality of G. L. c. 272, § 29A, or the application of that statute to him. We need not consider an issue not raised below. Commonwealth v. Haas, 398 Mass. 806, 816 n.10 (1986). Commonwealth v. Helfant, 398 Mass. 214, 232 (1986), citing Commonwealth v. Lam Hue To, 391 Mass. 301, 308 (1984).\n6. The constitutionality of G. L. c. 278, § 16D, as a denial of the defendant’s right to a public trial. The defendant argues, on appeal, for the first time, that his right to a public trial was abridged by G. L. c. 278, § 16D, which permits a child witness to give videotaped testimony. The defendant makes no reference to any objection at trial on the basis of a right to a public trial. Having reviewed the record, we conclude that the defendant did not preserve his right to raise this issue on appeal. “An issue not fairly raised before the trial judge will not be considered for the first time on appeal.” Commonwealth v. Marchionda, 385 Mass. 238, 242 (1982). Commonwealth v. Lewis, 346 Mass. 373, 383 (1963), cert. denied, 376 U.S. 933 (1964).\nJudgments affirmed.\nOther facts relevant to the boy’s videotaped testimony are presented in Commonwealth v. Tufts, supra.\nThe defendant does not argue the issue whether the judge’s finding is deficient in that it does not find the emotional trauma to be “severe and long lasting.”\nThe defendant did not move to strike any portion of the fresh complaint testimony as exceeding its proper function. See Commonwealth v. Salim, 399 Mass. 227, 237 (1987); Commonwealth v. Stewart, 398 Mass. 535, 543 (1986); Commonwealth v. Cifizzari, 397 Mass. 560, 575 n.19 (1986). Nor does the defendant identify any aspect of the fresh complaint testimony which was more than cumulative of the victim’s testimony. See Commonwealth v. Thomas, 401 Mass. 109, 114 (1987); Commonwealth v. Blow, 370 Mass. 401, 404 (1976); Commonwealth v. Izzo, 359 Mass. 39, 43 (1971).\nThe United States Supreme Court reversed our decision in Oakes, and remanded the case to our court. Massachusetts v. Oakes, U.S. (1989) (109 S.Ct. 2633 [1989]). Even if the issue were properly before us, the defendant here does not contend that the statute is vague as applied to the facts of this case.\nWe suggested in Commonwealth v. Bergstrom, 402 Mass. 534 (1988), that the videotaping of a child witness’s testimony should be “structured so as to be in compliance with the constitutional requirements of a public trial.” Bergstrom, supra at 551. The United States Supreme Court has struck down a statute excluding the press from the courtroom during the testimony of a child rape victim. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982). The Supreme Court emphasized that its holding in Globe Newspaper Co. was narrow, stating that “a rule of mandatory closure respecting the testimony of minor sex victims is constitutionally infirm.” Id. at 611 n.2. General Laws c. 278, § 16D, has no similar provision which would require exclusion of the press during a child victim’s testimony."", ""type"": ""majority"", ""author"": ""Liacos, C.J.""}], ""attorneys"": [""Stephen T. Cunningham for the defendant."", ""Stephanie Martin Glennon, Assistant District Attorney, for the Commonwealth.""], ""corrections"": """", ""head_matter"": ""Commonwealth vs. Joseph Dockham.\nNorfolk.\nMay 3, 1989. —\nAugust 21, 1989.\nPresent: Liacos, C.J., Abrams, Nolan, Lynch, & O’Connor, JJ.\nConstitutional Law, Confrontation of witnesses. Child Abuse. Rape. Indecent Assault and Battery. Witness, Child, Competency, Credibility, Impeachment, Expert. Evidence, Videotape, Expert opinion, Sexual conduct, Fresh complaint, Reputation, Credibility of witness. Practice, Criminal, Appeal.\nAt the trial of several indictments arising from the sexual abuse of a four year old boy and an eighteen month old girl, there was sufficient evidence to warrant the judge’s finding that the behavior exhibited by the boy in the courtroom, contrasted with his appearance and behavior in the judge’s lobby, established beyond a reasonable doubt that it was necessary to record the boy’s testimony outside the courtroom in order to prevent the boy from suffering psychological or emotional trauma, despite the lack of expert testimony on the issue of emotional trauma to the boy if he testified in open court. [622-625]\nAt the trial of several indictments arising from the sexual abuse of a four year old boy and an eighteen month old girl, the judge, within his discretion, properly admitted the testimony of three witnesses as evidence of fresh complaint and gave appropriate limiting instructions. [625-627]\nAt the trial of several indictments arising from the sexual abuse of a four year old boy and an eighteen month old girl, a child psychiatrist’s expert testimony about the general behavioral characteristics of sexually abused children was admissible within the judge’s sound discretion and was properly limited by the judge’s instructions to the jury. [627-630]\nAt the trial of several indictments arising from the sexual abuse of a four year old boy and an eighteen month old girl, the judge properly excluded from evidence the statement of the boy witness’s first foster mother that the boy “lies a lot,” which was offered as evidence of general reputation and character. [630-631]\nIndictments found and returned in the Superior Court Department on December 10, 1986.\nThe cases were tried before William H. Carey, J.\nThe Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.\nStephen T. Cunningham for the defendant.\nStephanie Martin Glennon, Assistant District Attorney, for the Commonwealth.""}, ""cites_to"": [{""cite"": ""457 U.S. 596"", ""year"": 1982, ""weight"": 2, ""case_ids"": [6192549], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/457/0596-01""], ""opinion_index"": 0}, {""cite"": ""109 S.Ct. 2633"", ""case_ids"": [6217207], ""category"": ""reporters:federal"", ""reporter"": ""S. Ct."", ""case_paths"": [""/us/491/0576-01""], ""opinion_index"": 0}, {""cite"": ""359 Mass. 39"", ""year"": 1971, ""case_ids"": [294550], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""43""}], ""case_paths"": [""/mass/359/0039-01""], ""opinion_index"": 0}, {""cite"": ""370 Mass. 401"", ""year"": 1976, ""case_ids"": [312589], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""404""}], ""case_paths"": [""/mass/370/0401-01""], ""opinion_index"": 0}, {""cite"": ""401 Mass. 109"", ""year"": 1987, ""case_ids"": [3879093], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""114""}], ""case_paths"": [""/mass/401/0109-01""], ""opinion_index"": 0}, {""cite"": ""397 Mass. 560"", ""year"": 1986, ""case_ids"": [874739], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/397/0560-01""], ""opinion_index"": 0}, {""cite"": ""398 Mass. 535"", ""year"": 1986, ""case_ids"": [877713], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""543""}], ""case_paths"": [""/mass/398/0535-01""], ""opinion_index"": 0}, {""cite"": ""399 Mass. 227"", ""year"": 1987, ""case_ids"": [3796170], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""237""}], ""case_paths"": [""/mass/399/0227-01""], ""opinion_index"": 0}, {""cite"": ""376 U.S. 933"", ""year"": 1964, ""case_ids"": [379425, 379470, 379187, 379775, 379032, 379422, 379039], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/376/0933-03"", ""/us/376/0933-06"", ""/us/376/0933-04"", ""/us/376/0933-01"", ""/us/376/0933-07"", ""/us/376/0933-05"", ""/us/376/0933-02""], ""opinion_index"": 0}, {""cite"": ""346 Mass. 373"", ""year"": 1963, ""case_ids"": [518377], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""383""}], ""case_paths"": [""/mass/346/0373-01""], ""opinion_index"": 0}, {""cite"": ""385 Mass. 238"", ""year"": 1982, ""case_ids"": [900756], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""242""}], ""case_paths"": [""/mass/385/0238-01""], ""opinion_index"": 0}, {""cite"": ""391 Mass. 301"", ""year"": 1984, ""case_ids"": [918589], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""308""}], ""case_paths"": [""/mass/391/0301-01""], ""opinion_index"": 0}, {""cite"": ""398 Mass. 214"", ""year"": 1986, ""case_ids"": [877723], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""232""}], ""case_paths"": [""/mass/398/0214-01""], ""opinion_index"": 0}, {""cite"": ""398 Mass. 806"", ""year"": 1986, ""case_ids"": [877640], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/398/0806-01""], ""opinion_index"": 0}, {""cite"": ""401 Mass. 602"", ""year"": 1988, ""case_ids"": [3877500], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""case_paths"": [""/mass/401/0602-01""], ""opinion_index"": 0}, {""cite"": ""200 Mass. 412"", ""year"": 1909, ""case_ids"": [3495059], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""413""}], ""case_paths"": [""/mass/200/0412-01""], ""opinion_index"": 0}, {""cite"": ""342 Mass. 740"", ""year"": 1961, ""case_ids"": [3855823], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""755-756""}], ""case_paths"": [""/mass/342/0740-01""], ""opinion_index"": 0}, {""cite"": ""378 Mass. 116"", ""year"": 1979, ""case_ids"": [337376], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""129""}], ""case_paths"": [""/mass/378/0116-01""], ""opinion_index"": 0}, {""cite"": ""10 Mass. App. Ct. 871"", ""year"": 1980, ""case_ids"": [3965122], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""871"", ""parenthetical"": ""opinion of three fellow workers that witness \""wouldn't know the truth if it hit her in the face\"" properly excluded""}], ""case_paths"": [""/mass-app-ct/10/0871-01""], ""opinion_index"": 0}, {""cite"": ""11 Mass. App. Ct. 933"", ""year"": 1981, ""case_ids"": [3964130], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""933-934"", ""parenthetical"": ""opinion of reputation cannot be based on comments of five people""}], ""case_paths"": [""/mass-app-ct/11/0933-01""], ""opinion_index"": 0}, {""cite"": ""217 Mass. 503"", ""year"": 1914, ""case_ids"": [89630], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""506"", ""parenthetical"": ""impeaching evidence must be of general reputation, not private opinions of a few""}], ""case_paths"": [""/mass/217/0503-01""], ""opinion_index"": 0}, {""cite"": ""237 Mass. 1"", ""year"": 1921, ""case_ids"": [60260], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""4""}], ""case_paths"": [""/mass/237/0001-01""], ""opinion_index"": 0}, {""cite"": ""365 Mass. 496"", ""year"": 1974, ""case_ids"": [292126], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""503-504"", ""parenthetical"": ""character evidence is by evidence of reputation in community""}], ""case_paths"": [""/mass/365/0496-01""], ""opinion_index"": 0}, {""cite"": ""267 Mass. 591"", ""year"": 1929, ""weight"": 4, ""case_ids"": [844099], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""593""}, {""page"": ""593""}, {""page"": ""593"", ""parenthetical"": ""upholding exclusion of personal impressions of five individuals regarding person's character""}], ""case_paths"": [""/mass/267/0591-01""], ""opinion_index"": 0}, {""cite"": ""103 A.D.2d 663"", ""year"": 1984, ""case_ids"": [5637988], ""category"": ""reporters:state"", ""reporter"": ""A.D.2d"", ""pin_cites"": [{""page"": ""669"", ""parenthetical"": ""average juror lacks general awareness of young victim's reaction to sodomy or sexual abuse""}], ""case_paths"": [""/ad2d/103/0663-01""], ""opinion_index"": 0}, {""cite"": ""294 Or. 427"", ""year"": 1983, ""case_ids"": [2189309], ""category"": ""reporters:state"", ""reporter"": ""Or."", ""pin_cites"": [{""page"": ""440"", ""parenthetical"": ""Roberts, J., concurring""}], ""case_paths"": [""/or/294/0427-01""], ""opinion_index"": 0}, {""cite"": ""100 Nev. 570"", ""year"": 1984, ""case_ids"": [2404860], ""category"": ""reporters:state"", ""reporter"": ""Nev."", ""pin_cites"": [{""page"": ""572-573"", ""parenthetical"": ""expert testimony would help jury understand seemingly unusual behavior of victim and mother""}], ""case_paths"": [""/nev/100/0570-01""], ""opinion_index"": 0}, {""cite"": ""359 N.W.2d 604"", ""year"": 1984, ""case_ids"": [10669732], ""category"": ""reporters:state_regional"", ""reporter"": ""N.W.2d"", ""pin_cites"": [{""page"": ""610"", ""parenthetical"": ""child sexual abuse places jurors at disadvantage""}], ""case_paths"": [""/nw2d/359/0604-01""], ""opinion_index"": 0}, {""cite"": ""149 Ariz. 472"", ""year"": 1986, ""weight"": 2, ""case_ids"": [1480096], ""category"": ""reporters:state"", ""reporter"": ""Ariz."", ""pin_cites"": [{""parenthetical"": ""behavior patterns of young incest victims beyond common sense, experience, and education of average juror""}, {""page"": ""474"", ""parenthetical"": ""jurors benefit from expert testimony explaining behavior they might otherwise \""attribute to inaccuracy or prevarication, but which may be merely the result of immaturity, psychological stress, [or] societal pressures\""""}], ""case_paths"": [""/ariz/149/0472-01""], ""opinion_index"": 0}, {""cite"": ""16 Mass. App. Ct. 163"", ""year"": 1983, ""case_ids"": [5740468], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""175-176"", ""parenthetical"": ""expert testimony about rape trauma syndrome held admissible where expert witness did not testify that victim in case had been raped or that she displayed behavior consistent with syndrome""}], ""case_paths"": [""/mass-app-ct/16/0163-01""], ""opinion_index"": 0}, {""cite"": ""352 U.S. 857"", ""year"": 1956, ""case_ids"": [6202336, 6202757, 6203174, 6202504, 6203816, 6203597, 6203379, 6202966], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""pin_cites"": [{""parenthetical"": ""expert testimony on defendant's sanity admissible although sanity to be determined by jury""}], ""case_paths"": [""/us/352/0857-01"", ""/us/352/0857-03"", ""/us/352/0857-05"", ""/us/352/0857-02"", ""/us/352/0857-08"", ""/us/352/0857-07"", ""/us/352/0857-06"", ""/us/352/0857-04""], ""opinion_index"": 0}, {""cite"": ""333 Mass. 610"", ""year"": 1956, ""case_ids"": [488924], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""625-626"", ""parenthetical"": ""expert testimony on defendant's sanity admissible although sanity to be determined by jury""}], ""case_paths"": [""/mass/333/0610-01""], ""opinion_index"": 0}, {""cite"": ""373 Mass. 700"", ""year"": 1977, ""case_ids"": [324105], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""705""}], ""case_paths"": [""/mass/373/0700-01""], ""opinion_index"": 0}, {""cite"": ""385 Mass. 91"", ""year"": 1982, ""case_ids"": [900794], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""105""}], ""case_paths"": [""/mass/385/0091-01""], ""opinion_index"": 0}, {""cite"": ""22 Mass. App. Ct. 148"", ""year"": 1986, ""case_ids"": [3988903], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""150-151"", ""parenthetical"": ""judge properly allowed expert witness to testify within his special expertise that victim's level of sexual knowledge was very sophisticated for her age""}], ""case_paths"": [""/mass-app-ct/22/0148-01""], ""opinion_index"": 0}, {""cite"": ""383 Mass. 543"", ""year"": 1981, ""case_ids"": [813442], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""549""}], ""case_paths"": [""/mass/383/0543-01""], ""opinion_index"": 0}, {""cite"": ""401 Mass. 197"", ""year"": 1987, ""case_ids"": [3878311], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""200""}], ""case_paths"": [""/mass/401/0197-01""], ""opinion_index"": 0}, {""cite"": ""374 Mass. 716"", ""year"": 1978, ""case_ids"": [3872040], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""719""}], ""case_paths"": [""/mass/374/0716-01""], ""opinion_index"": 0}, {""cite"": ""384 Mass. 572"", ""year"": 1981, ""case_ids"": [934247], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""579""}], ""case_paths"": [""/mass/384/0572-01""], ""opinion_index"": 0}, {""cite"": ""390 Mass. 875"", ""year"": 1984, ""case_ids"": [916729], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""882""}], ""case_paths"": [""/mass/390/0875-01""], ""opinion_index"": 0}, {""cite"": ""387 Mass. 464"", ""year"": 1982, ""case_ids"": [908847], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""473""}], ""case_paths"": [""/mass/387/0464-01""], ""opinion_index"": 0}, {""cite"": ""386 Mass. 682"", ""year"": 1982, ""case_ids"": [906614], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""691""}], ""case_paths"": [""/mass/386/0682-01""], ""opinion_index"": 0}, {""cite"": ""23 Mass. App. Ct. 981"", ""year"": 1987, ""weight"": 2, ""case_ids"": [3992514, 3992499], ""category"": ""reporters:state"", ""reporter"": ""Mass. App. Ct."", ""pin_cites"": [{""page"": ""981-982"", ""parenthetical"": ""statements of nine year old special needs boy made seventeen days after incident held admissible as fresh complaint""}, {""page"": ""982"", ""parenthetical"": ""judge gave limiting instructions to the jury that it was for jury to decide whether fresh complaint evidence should be accepted""}], ""case_paths"": [""/mass-app-ct/23/0981-02"", ""/mass-app-ct/23/0981-01""], ""opinion_index"": 0}, {""cite"": ""399 Mass. 668"", ""year"": 1987, ""weight"": 4, ""case_ids"": [3794323], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""673""}, {""page"": ""672-673"", ""parenthetical"": ""where defendant warned daughter that she would get in trouble if she told anyone, victim made initial disclosure two months later""}], ""case_paths"": [""/mass/399/0668-01""], ""opinion_index"": 0}, {""cite"": ""404 Mass. 221"", ""year"": 1989, ""weight"": 7, ""case_ids"": [484668], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""228""}, {""page"": ""229"", ""parenthetical"": ""upholding admission of fresh complaint, made by four year old child, eighteen months after the child last attended abusive day care center""}, {""page"": ""229""}, {""page"": ""228""}, {""page"": ""229""}, {""page"": ""230"", ""parenthetical"": ""judge gave proper limiting instructions that jury should question whether complaint was \""fresh\""""}, {""page"": ""231-232""}], ""case_paths"": [""/mass/404/0221-01""], ""opinion_index"": 0}, {""cite"": ""288 Ark. 388"", ""year"": 1986, ""case_ids"": [8721112], ""category"": ""reporters:state"", ""reporter"": ""Ark."", ""pin_cites"": [{""page"": ""391-394"", ""parenthetical"": ""judge properly allowed videotaping of eleven year old girl who, according to grandparents' testimony, was bashful and embarrassed about rape and easily upset""}], ""case_paths"": [""/ark/288/0388-01""], ""opinion_index"": 0}, {""cite"": ""146 Ill. App. 3d 640"", ""year"": 1986, ""case_ids"": [3572011], ""category"": ""reporters:state"", ""reporter"": ""Ill. App. 3d"", ""pin_cites"": [{""page"": ""651"", ""parenthetical"": ""judge's observation of five year old witness's reticence to testify in defendant's presence and the improvement in her testimony upon the defendant's removal \""better demonstrated the necessity of the procedure than could the opinion of any expert\""""}], ""case_paths"": [""/ill-app-3d/146/0640-01""], ""opinion_index"": 0}, {""cite"": ""369 Mass. 302"", ""year"": 1975, ""case_ids"": [309686], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""310"", ""parenthetical"": ""determination of expert witness's qualifications and competence within judge's discretion""}], ""case_paths"": [""/mass/369/0302-01""], ""opinion_index"": 0}, {""cite"": ""395 Mass. 225"", ""year"": 1985, ""case_ids"": [896034], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""229-230"", ""parenthetical"": ""judge entitled to infer sanity from facts underlying crime and evidence of defendant's actions before and after crime and to reject expert testimony of two psychiatrists that defendant was insane""}], ""case_paths"": [""/mass/395/0225-01""], ""opinion_index"": 0}, {""cite"": ""402 Mass. 299"", ""year"": 1988, ""case_ids"": [820829], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""309"", ""parenthetical"": ""trier of fact can reject insanity defense even in absence of expert opinion from Commonwealth""}], ""case_paths"": [""/mass/402/0299-01""], ""opinion_index"": 0}, {""cite"": ""398 Mass. 325"", ""year"": 1986, ""case_ids"": [877680], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""329-330""}], ""case_paths"": [""/mass/398/0325-01""], ""opinion_index"": 0}, {""cite"": ""400 Mass. 534"", ""year"": 1987, ""case_ids"": [880002], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""542-543""}], ""case_paths"": [""/mass/400/0534-01""], ""opinion_index"": 0}, {""cite"": ""373 Mass. 238"", ""year"": 1977, ""case_ids"": [324070], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""245""}], ""case_paths"": [""/mass/373/0238-01""], ""opinion_index"": 0}, {""cite"": ""396 Mass. 793"", ""year"": 1986, ""case_ids"": [898111], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""798"", ""parenthetical"": ""experttestimony is not necessary to raise issue of insanity defense""}], ""case_paths"": [""/mass/396/0793-01""], ""opinion_index"": 0}, {""cite"": ""238 Mass. 322"", ""year"": 1921, ""weight"": 2, ""case_ids"": [3508558], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""325-326"", ""parenthetical"": ""within judge's wise discretion to determine child's competency after evaluating child's appearance and manner, her capacity to observe, remember, and express herself""}, {""page"": ""325-326"", ""parenthetical"": ""determination of child's competence to testify within judge's discretion""}], ""case_paths"": [""/mass/238/0322-01""], ""opinion_index"": 0}, {""cite"": ""372 Mass. 753"", ""year"": 1977, ""case_ids"": [4030241], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""765"", ""parenthetical"": ""nonexpert evidence including defendant's history of mental illness, medical records, facts of crime, and aberrant conduct or statements defeats presumption of sanity""}], ""case_paths"": [""/mass/372/0753-01""], ""opinion_index"": 0}, {""cite"": ""402 Mass. 534"", ""year"": 1988, ""weight"": 3, ""case_ids"": [820852], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""550-551""}, {""page"": ""551""}], ""case_paths"": [""/mass/402/0534-01""], ""opinion_index"": 0}], ""citations"": [{""cite"": ""405 Mass. 618"", ""type"": ""official""}], ""file_name"": ""0618-01"", ""last_page"": ""633"", ""first_page"": ""618"", ""provenance"": {""batch"": ""2018"", ""source"": ""Harvard"", ""date_added"": ""2019-08-29""}, ""jurisdiction"": {""id"": 4, ""name"": ""Mass."", ""name_long"": ""Massachusetts""}, ""last_updated"": ""2024-02-27T17:21:24.118820+00:00"", ""decision_date"": ""1989-08-21"", ""docket_number"": """", ""last_page_order"": 647, ""first_page_order"": 632, ""name_abbreviation"": ""Commonwealth v. 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+3885261,"{""id"": 3885261, ""name"": ""Construction Industries of Massachusetts & others vs. Commissioner of Labor and Industries"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""5b8d65d938f83c43132bd19072d9eed9821e8421a24a1a1cbd9772232ac9079d"", ""simhash"": ""1:08121ef7840842c0"", ""pagerank"": {""raw"": 0.00000029579477812798366, ""percentile"": 0.8493576266415532}, ""char_count"": 26790, ""word_count"": 4289, ""cardinality"": 1105, ""ocr_confidence"": 0.952}, ""casebody"": {""judges"": [], ""parties"": [""Construction Industries of Massachusetts & others vs. Commissioner of Labor and Industries.""], ""opinions"": [{""text"": ""Nolan, J.\nPlaintiffs, two trade associations and four truck owners, commenced this action in the Superior Court against the Commissioner of Labor and Industries (commissioner). The plaintiffs sought a judgment declaring that the commissioner does not have authority under G. L. c. 149, §§ 26-27F (1988 ed.), to set wages for truck drivers who deliver bituminous concrete to public works construction sites. A Superior Court judge entered summary judgment declaring that the statute was constitutional, but the judge declined to determine the extent of the commissioner’s authority under the statute. The plaintiffs appealed and we granted their application for direct appellate review. We modify the judgment of the Superior Court and, as modified, affirm.\nThe essential facts are not in dispute. Bituminous concrete is a mixture of sand and stone held together by a very heavy crude oil which acts as a glue. Bituminous concrete is often referred to as asphalt. It ranges from coarse to fine depending on the size of the stone used in its manufacture. Several layers of bituminous concrete are used in the construction of roads and highways. These range from a very coarse consistency in the lower levels to a fine layer on top. Sometimes an old road surface is ripped up, transported to the manufacturing plant, reprocessed, and then reapplied at the site.\nThe manufacture of bituminous concrete takes place at either a stationary plant, from which it is then transported to the construction site or, in some cases, at portable on-site plants. In either case, the bituminous concrete is hauled by truck from the site of manufacture to the location where it is laid down. The role of the truck driver is the same whether the bituminous concrete is manufactured on the site or at a stationary plant. After loading the truck, the driver proceeds to the application site. The driver then backs the truck up to a device called a spreader and dumps the concrete into the spreader’s hopper. The spreader is used to lay the concrete down evenly. A “roller” follows the spreader and compacts the layer of bituminous concrete.\nIt usually takes several “lifts” to empty a truck. After dumping the first load into the spreader, the driver pulls the truck forward and waits for the spreader to empty out. Sometimes the spreader simply pushes the truck forward as it lays down the bituminous concrete. The truck driver continues to dump concrete into the spreader until his truck is empty. He then leaves the site, fills the truck again, returns to the site, and repeats the entire process. During the dumping and spreading procedure, the truck driver takes directions from the spreader operator and the foreman. It takes from five to fifteen minutes to complete the process and empty the truck.\nUnder G. L. c. 149, §§ 26 and 27, the commissioner is required to set the hourly wage which must be paid to “mechanics and apprentices, teamsters, chauffeurs and laborers” employed on public works. Since at least 1976, the commissioner has considered those truckers who haul bituminous concrete to the site of public works projects and aid in the application of that concrete, to be teamsters employed on those sites. Nevertheless, between 1976 and 1986, the commissioner rarely resorted to criminal enforcement of the wage rates for bituminous concrete truck drivers.\nIn 1986, the commissioner caused a criminal complaint to issue against the plaintiff Lecca Trucking, Inc., alleging a failure to pay the posted wage rate to truckers hauling bituminous concrete to a public works project. The commissioner filed applications for show cause orders against the plaintiffs J.R. Philie and J.E. Boucher for failure to produce the payroll records of truck drivers transporting bituminous concrete to a public works project. The plaintiffs Construction Industries of Massachusetts and the Massachusetts Asphalt Paving Contractors Association are nonprofit corporations which represent contractors involved in the manufacture, transportation, and installation of bituminous concrete. Collectively, the plaintiffs filed suit in Superior Court seeking to enjoin the pending and threatened criminal prosecutions. The plaintiffs also sought a judgment declaring that the commissioner had no authority to set wages for truck drivers transporting bituminous concrete and, if the commissioner did have such authority, that the statute giving him the authority was unconstitutional as an unlawful delegation of legislative power. The plaintiffs also argued that by setting the posted wage rates, the commissioner adopted a “regulation\"" within the meaning of G. L. c. 30A, § 2 (1988 ed.), and that, due to the absence of a public hearing, the posted wage rates were invalid.\nThe Superior Court entered a temporary restraining order, and later a preliminary injunction, enjoining the criminal proceedings against the plaintiffs. The parties then entered into a statement of agreed facts and made cross-motions for summary judgment. The judge entered a judgment declaring that G. L. c. 149, §§ 27 and 27F, did not constitute an unlawful delegation of legislative power and that the commissioner’s adoption of the wage rates was not the promulgation of a regulation requiring observance of the procedures described in G. L. c. 30A. The judge declined, however, to determine whether the commissioner had authority to set the wages for truckers hauling bituminous concrete because plaintiffs had not availed themselves of the administrative review procedure created by G. L. c. 149, § 27A. Finally, the judge vacated his preliminary order granting injunctive relief to the plaintiffs.\n1. Procedural adequacy of this appeal. General Laws c. 149, § 27A, provides an administrative mechanism for review of wage determination and classification of employment by the commissioner. None of the plaintiffs in this case availed itself of that process. Instead, the plaintiffs awaited the filing of criminal charges and then brought an action for declaratory and injunctive relief. The judge concluded that an administrative appeal pursuant to § 27A was the appropriate vehicle for review of the commissioner’s decision that bituminous concrete truck drivers were “teamsters” within the meaning of G. L. c. 149, §§ 26 and 27. Thus, the judge declined to enter a declaratory judgment.\nGenerally, this court will decline to reach the merits of a case when an aggrieved party does not utilize the administrative procedures available to him. See Assuncao’s Case, 372 Mass. 6, 8-10 (1977). While the declaratory judgment statute was meant to create a procedure for the resolution of controversies, “[a] proceeding for declaratory relief in itself does not operate to suspend the ordinary requirement that a plaintiff exhaust his administrative remedies before seeking judicial relief.” East Chop Tennis Club v. Massachusetts Comm’n Against Discrimination, 364 Mass. 444, 450 (1973). In this case, the parties urge us to reach the merits. The issues have been fully briefed and argued. The commissioner concedes that a § 27A appeal would be futile. Since the parties have entered into an extensive stipulation of facts, we are presented with a question of statutory interpretation. Moreover, the plaintiffs are essentially challenging the authority of the commissioner under the enabling statute and the resolution of this issue is in the public interest. We con-elude that declaratory relief is appropriate. See Ciszewski v. Industrial Accident Bd., 367 Mass. 135, 141 (1975) (exhaustian of administrative remedies not required when controversy centers around authority and power of agency); Belfer v. Building Comm’r of Boston, 363 Mass. 439, 442 (1973) (declaratory relief appropriate where resort to administrative remedy is futile).\n2. Authority of the commissioner. General Laws c. 149, §§ 26-27F, comprise a comprehensive legislative enactment which, inter alla, regulates the minimum wages of certain employees who are engaged in the construction of public works. The commissioner, under § 27, is required to prepare a list of the jobs usually performed on public works projects and, when requested, to assign to each job the minimum wage which must be paid to persons performing that job. The commissioner contends that truck drivers who transport bituminous concrete to public works projects are “teamsters” employed on those projects. We agree.\nIt is beyond dispute that the truck drivers at issue are “teamsters.” Section 26 of the statute requires, however, that those teamsters be employed “m the construction of public works” and “on said works” (emphasis supplied). Section 27 makes reference to “jobs ... on various types of public works upon which . . . teamsters . . . are employed” (emphasis supplied). Section 27B provides that employers “engaged in . . . public works” must maintain records of teamsters “employed thereon” (emphasis supplied). When a statute is clear and unambiguous, the plain meaning of the language must be given effect. Telesetsky v. Wight, 395 Mass. 868, 872 (1985). Quite clearly, the commissioner has not been given authority to set wages for all teamsters who have any connection with a public works project. The language of the statute limits his authority. The focus of that limitation is twofold. First, the statutory language makes repeated reference to the work site itself. This is the plain meaning of the language “on” and “upon” which appears in the statute. Second, the nature of the work performed on the site is an important aspect of the statute. This is evident from the use of phrases such as “in the construction” and “engaged in.” Thus, the limits of the commissioner’s authority to set wages under G. L. c. 149, §§ 26 and 27, are governed by the physical locus of the work site itself and the work which is performed there. The commissioner is empowered to set wages for teamsters when there is a significant nexus between the work those teamsters perform and the site of the construction project. In simple terms, the commissioner must ask, “What do they do at the site?” When the performance of a statutorily specified job has a significant connection with the construction project, then that job falls within the domain of the posted wage statute. This is the plain meaning of the statute. We have no need to resort to extrinsic aids. Bronstein v. Prudential Ins. Co., 390 Mass. 701, 704 (1984).\nIn this case we have no problem concluding that the commissioner acted within the confines of the statute. The bituminous concrete truck drivers are an integral part of the road construction process. Not only do they spend a great deal of time at the site, but they work with the road crew to spread the bituminous concrete. The truck drivers cooperate with the workers at the site in applying the concrete to the road surface. Their activities are an essential part of the work done at the site. In our view, the truck drivers are more than just “materialmen.”\nPlaintiffs’ entire argument is premised upon the assumption that the posted wage laws do not apply to “material-men,” and that plaintiffs are materialmen. Plaintiffs point to the 1973 amendment to § 27. There, they contend, the Legislature acknowledged that material suppliers are not covered by the statute and, furthermore, that the Legislature specifically included suppliers of gravel or fill, to the exclusion of suppliers of bituminous concrete. It is true generally that “a statutory expression of one thing is an implied exclusion of other things omitted from the statute.” Harborview Residents’ Comm., Inc. v. Quincy Hous. Auth., 368 Mass. 425, 432 (1975). Expressio unius est exclusio alterius. See 2A C.Sands, Sutherland Statutory Construction § 47.23, at 194 (4th ed. 1984). We need not address whether this general rule applies in this case since we think the plaintiffs’ fundamental assumption that they are mere materialmen is mistaken. The teamsters employed by the plaintiffs do more than deliver bituminous concrete to the work site. They perform an essential part of work which the public works contract demands. Cf. Holt & Bugbee Co. v. Melrose, 311 Mass. 424, 426 (1942) (comparing materialman and subcontractor under a performance bond statute). The commissioner’s authority to set wage rates under G. L. c. 149, §§ 26 and 27, clearly encompasses the power to set wages for the teamsters employed by the plaintiffs who haul bituminous concrete to public works projects and then aid in its installation.\n3. \""Regulation” under G. L. c. 30A, § 1 (5). General Laws c. 30A, § 1 (5), defines a “[regulation,” in part, as a “requirement of general application.” Section 2 of the same chapter requires that an agency hold a public hearing before adopting a regulation if a violation of the regulation will be punishable by fine or imprisonment. The plaintiffs argue that the wage rate established for teamsters by the commissioner is a regulation and, since a failure to pay that rate is punishable by fine or imprisonment, the lack of such an antecedent hearing makes the wage rate unenforceable.\nThe scheme of G. L. c. 149, § 27, quite clearly requires that the commissioner set wage rates for each public works job. Any time that any public official or public agency plans to award a public works contract, the commissioner will set the wage rates applicable to that project. Rather than being a requirement of general application, we think the rate'determinations required of the commissioner are very specific in application. Even though the commissioner refers to the same Statewide collective bargaining agreement each time he sets rates for teamsters on a public works project, he sets rates for each job on each project separately. The rates he sets are not “regulations” under G. L. c. 30A, § 1 (5). See Associated Indus, of Mass. v. Commissioner of Ins., 356 Mass. 279, 284 (1969) (even though there was essential uniformity in the rate filings by companies, the statute permitted dealing with each filing separately and so the rates were not of general application). The case of Allied Theatres of New England v. Commissioner of Labor & Indus., 338 Mass. 609 (1959), relied upon by the plaintiffs, is distinguishable because the wage determination in that case applied to an entire industry, not to a single project as in this case.\n4. Delegation of legislative power. The plaintiffs’ last contention is that the scheme created by G. L. c. 149, §§ 26 and 27, constitutes an unlawful delegation of legislative power. Article 30 of the Massachusetts Declaration of Rights provides for the strict separation of powers in the government of the Commonwealth. The doctrine of separation of powers encompasses the general principle that the Legislature cannot delegate the power to make laws. Brodbine v. Revere, 182 Mass. 598, 600 (1903). Nevertheless, it is well established that the “Legislature may delegate to a board or officer the working out of the details of a policy adopted by the Legislature.” Massachusetts Bay Transp. Auth. v. Boston Safe Deposit & Trust Co., 348 Mass. 538, 544 (1965). Ultimately, the determination whether a particular delegation of authority is proper is a question of degree. In making that determination, we engage in a tripartite analysis: “(1) Did the Legislature delegate the making of fundamental policy decisions, rather than just the implementation of legislatively determined policy; (2) does the act provide adequate direction for implementation, either in the form of statutory standards or, if the [commissioner] is to develop the standards, sufficient guidance to enable [him] to do so; and (3) does the act provide safeguards such that abuses of discretion can be controlled?” Chelmsford Trailer Park, Inc. v. Chelmsford, 393 Mass. 186, 190 (1984).\nGeneral Laws c. 149, § 26, pronounces a legislative policy requiring the payment of certain minimum wages to persons employed in the construction of public works. The commissioner is given the task of determining what those wages should be. The third proviso of § 26 mandates that the wages to be paid to employees shall not be less than the rates established in “collective agreements or understandings in the private construction industry between organized labor' and employers.” The wage rates for the teamsters in this case were based on rates established in a State-wide collective bargaining agreement. The plaintiffs contend that this constitutes a delegation of legislative power to private employers and labor groups, since the commissioner is bound to set the wage rates for teamsters on public works projects at the rate agreed to by those private entities. The plaintiffs misconstrue the statute.\nIn Corning Glass Works v. Ann & Hope, Inc. of Danvers, 363 Mass. 409, 424 (1973), we held that a statute which allowed manufacturers to fix retail prices improperly delegated legislative power to private parties. The instant case is distinguishable because private parties are not given the authority to set wage rates. General Laws c. 149, § 26, directs the commissioner to determine wage rates. By the third proviso of § 26, the Legislature has announced a policy in this State that, in certain circumstances, the wages of employees on certain public jobs, as determined by the commissioner, shall not be less than the wages earned by unionized employees. This is not the delegation of legislative power, but the exercise of it. The statute does not contemplate, nor do we think it likely to occur, that a collective bargaining agreement will be entered into for the purpose of setting wages on public works construction projects. The Legislature, recognizing that collective bargaining agreements are the result of extensive negotiations between competing interests, was justified in making collective bargaining agreements a source of reference for determining the prevailing wage. By requiring that the wages of employees on public works projects must not be less than the wages paid in another segment of the economy, the statute does not improperly delegate legislative authority. Accord West Ottawa Schools v. Labor Director, 107 Mich. App. 237 (1981); Male v. Ernest Renda Contracting Co., 122 N.J. Super. 526 (1973), affd, 64 N.J. 199, cert, denied, 419 U.S. 839 (1974).\nWe are unable to see how G. L. c. 149, § 26, delegates legislative authority to private parties. But even if we were to accept the plaintiffs’ characterization that there is a delegatian, we think this case is on a different footing from Corning Glass Works, supra. Certainly, a delegation to a private ' party is permissible if there are proper safeguards to prevent the arbitrary exercise of authority. DiLoreto v. Fireman’s Fund Ins. Co., 383 Mass. 243, 246 (1981). Under G. L. c. 149, §§26 and 27, the commissioner, an executive branch official, is intricately involved in the process of making wage determinations. The statute clearly spells out the legislative policy of providing certain minimum wages. Moreover, the statute provides detailed standards as to how those wages should be determined. In the instance where collective bargaining agreements are used, the competing interests involved in the formation of those agreements will likely ensure that a fair and reasonable wage rate results. There is also a process for administrative review of wage determinations and job classifications. When viewed as a whole, we think that the statutory scheme provides sufficient safeguards to make proper any delegation which does occur. DiLoreto, supra at 245-248.\n5. Conclusion. The judgment of the Superior Court is modified to declare that the commissioner has the authority, under G. L. c. 149, §§ 26-27F, to set wage rates for the drivers of trucks hauling bituminous concrete to public works projects and thereafter aiding in the installation of that conCrete. That portion of the judgment which declared that the question of the application of G. L. c. 149, §§ 26-27F, to plaintiffs is to be determined in accordance with the procedures in G. L. c. 149, § 27A, and cannot be determined on a global or abstract basis is vacated. In all other respects, the judgment of the Superior Court is affirmed.\nSo ordered.\nUnder an older system, which is not frequently used anymore, the spreader was chained to the truck and the truck would then pull the spreader forward as the spreader laid down the bituminous concrete.\nG. L. c. 149, § 27A provides: “Within five days from the date of the first advertisement or call for bids, two or more employers of labor, or two or more members of a labor organization, or the awarding officer or official, or five or more residents of the town or towns where the public works' are to be constructed, may appeal to the commissioner or his designee from a wage determination, or a classification of employment as made by the commissioner, by serving on the commissioner a written notice to that effect. Thereupon the commissioner or his designee shall immediately hold a public hearing on the action appealed from. The commissioner or his designee shall render his decision not later than three days after the closing of the hearing. The decision of the commissioner or his designee shall be final and notice thereof shall be given forthwith to the awarding official or public body.”\nStatute 1973, c. 625, § 2, added the following provision to G. L. c. 149, § 27: “Said rates shall apply to all persons engaged in transporting gravel or fill to the site of said public works or removing gravel or fill from such site, regardless of whether such persons are employed by a contractor or subcontractor or are independent contractors or owner-operators.”\nThe plaintiffs argue that we should construe the language of §§ 26 and 27 very narrowly, since they are penal statutes. Thus, plaintiffs contend that we should interpret these provisions so that they do not apply to drivers who haul bituminous concrete to the site. “The maxim that penal statutes should be strictly construed ‘is a guide for resolving ambiguity, rather than a rigid requirement that we interpret each statute in the manner most favorable to defendants.’ ” Edgartown v. State Ethics Comm’n, 391 Mass. 83, 89-90 (1984), quoting Simon v. Solomon, 385 Mass. 91, 102-103 (1982). General Laws c. 149, §§ 26 and 27, are not ambiguous. The plain requirement of these provisions is that the commissioner set wage rates for teamsters (among others) whose work has a significant connection with the work site. That is what the commissioner has done. The maxim cited by the plaintiffs is not applicable to this case.\nThe complete text of G. L. c. 30A, § 1 (5), is as follows: “ ‘Regulation’ includes the whole or any part of every rule, regulation, standard or other requirement of general application and future effect, including the amendment or repeal thereof, adopted by an agency to implement or interpret the law enforced or administered by it, but does not include (a) advisory rulings issued under section eight; or (b) regulations concerning only the internal management or discipline of the adopting agency or any other agency, and not substantially affecting the rights of or the procedures available to the public or that portion of the public affected by the agency’s activities; or (d) regulations relating to the use of the public works, including streets and highways, when the substance of such regulations is indicated to the public by means of signs or signals; or (e) decisions issued in adjudicatory proceedings.” Clause (c) was deleted by St. 1974, c. 361.\nThis result is a consequence of the fact that such a Statewide agreement is in existence presently. In different circumstances, the commissioner would make reference to other factors in setting such wages. See G. L. c. 149, § 26."", ""type"": ""majority"", ""author"": ""Nolan, J.""}], ""attorneys"": [""John D. O’Reilly, III, for the plaintiffs."", ""Suzanne E. Durrell, Assistant Attorney General, for the Commissioner of Labor and Industries."", ""Paul F. Kelly, for Excavating & Building Material Teamsters, Chauffeurs & Helpers, Local Union 379, amicus curiae, submitted a brief."", ""Donald J. Siegel & Mary T. Sullivan, for Massachusetts Building Trades Council, amicus curiae, submitted a brief.""], ""corrections"": """", ""head_matter"": ""Construction Industries of Massachusetts & others vs. Commissioner of Labor and Industries.\nWorcester.\nOctober 4, 1989.\nNovember 22, 1989.\nPresent: Liacos, C.J., Wilkins, Nolan, Lynch, & Greaney, JJ.\nPublic Works, Wage determination. Practice, Civil, Declaratory proceeding. Jurisdiction, Declaratory relief. Statute, Construction. Administrative Law, Exhaustion of remedies, Regulations, Wage determination. Regulation. Constitutional Law, Separation of powers.\nIn an action challenging the authority of the Commissioner of Labor and Industries under G. L. c. 149, §§ 26 & 27, to set hourly wages of truck drivers who deliver bituminous concrete to public works construction sites, this court determined that declaratory relief was appropriate notwithstanding the plaintiffs’ failure to avail themselves of the administrative review procedure afforded by G. L. c. 149, § 27A, where the question presented was one of a statutory interpretation and had been fully argued; where the commissioner conceded that resort to administrative remedies would be futile; and where resolution of the issue was in the public interest. [166-167]\nThe authority of the Commissioner of Labor and Industries to set wage rates under G. L. c. 149, §§ 26 & 27, for “mechanics and apprentices, teamsters, chauffeurs and laborers” employed on public works encompasses the power to set wages for teamsters who haul bituminous concrete to public works projects and then aid in its installation. [167-169]\nDeterminations by the Commissioner of Labor and Industries pursuant to G. L. c. 149, § 27, setting wage rates for each public works project are not “regulations” under § 1 (5) of G. L. c. 30A, the State Administrative Procedure Act. [170-171]\nIn the statutory scheme under which the Commissioner of Labor and Industries fixes wage rates for workers employed on public works projects, the Legislature did not unconstitutionally delegate legislative power to private parties by language providing, in G. L. c. 149, § 26, that the rates so fixed shall not be less than the rates established in “collective agreements or understandings in the private construction industry between organized labor and employers.” [171-173]\nCivil action commenced in the Superior Court Department on August 14, 1986.\nThe case was heard by James F. McHugh, III, J., on a motion for summary judgment.\nThe Supreme Judicial Court granted a request for direct appellate review.\nJohn D. O’Reilly, III, for the plaintiffs.\nSuzanne E. Durrell, Assistant Attorney General, for the Commissioner of Labor and Industries.\nPaul F. Kelly, for Excavating & Building Material Teamsters, Chauffeurs & Helpers, Local Union 379, amicus curiae, submitted a brief.\nDonald J. Siegel & Mary T. Sullivan, for Massachusetts Building Trades Council, amicus curiae, submitted a brief.\nMassachusetts Asphalt Paving Contractors Association, J. R. Philie, J. E. Boucher, and Lecca Trucking, Inc. Centre Trucking Services, Inc., was a party below but does not join in the appeal.""}, ""cites_to"": [{""cite"": ""385 Mass. 91"", ""year"": 1982, ""case_ids"": [900794], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""102-103""}], ""case_paths"": [""/mass/385/0091-01""], ""opinion_index"": 0}, {""cite"": ""391 Mass. 83"", ""year"": 1984, ""case_ids"": [918582], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""89-90""}], ""case_paths"": [""/mass/391/0083-01""], ""opinion_index"": 0}, {""cite"": ""383 Mass. 243"", ""year"": 1981, ""weight"": 2, ""case_ids"": [813538], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""246""}, {""page"": ""245-248""}], ""case_paths"": [""/mass/383/0243-01""], ""opinion_index"": 0}, {""cite"": ""419 U.S. 839"", ""year"": 1974, ""case_ids"": [6249631, 6247647, 6246920, 6248427, 6249004, 6249997, 6249266, 6248730, 6247258, 6248127], ""category"": ""reporters:federal"", ""reporter"": ""U.S."", ""case_paths"": [""/us/419/0839-09"", ""/us/419/0839-03"", ""/us/419/0839-01"", ""/us/419/0839-05"", ""/us/419/0839-07"", ""/us/419/0839-10"", ""/us/419/0839-08"", ""/us/419/0839-06"", ""/us/419/0839-02"", ""/us/419/0839-04""], ""opinion_index"": 0}, {""cite"": ""64 N.J. 199"", ""year"": 1974, ""case_ids"": [1909980], ""category"": ""reporters:state"", ""reporter"": ""N.J."", ""case_paths"": [""/nj/64/0199-01""], ""opinion_index"": 0}, {""cite"": ""122 N.J. Super. 526"", ""year"": 1973, ""case_ids"": [313966], ""category"": ""reporters:state"", ""reporter"": ""N.J. Super."", ""case_paths"": [""/nj-super/122/0526-01""], ""opinion_index"": 0}, {""cite"": ""107 Mich. App. 237"", ""year"": 1981, ""case_ids"": [2219341], ""category"": ""reporters:state"", ""reporter"": ""Mich. 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+3885466,"{""id"": 3885466, ""name"": ""Canal Electric Company & others vs. Westinghouse Electric Corporation"", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""fb23d59467ef8a830b78dc90d269d43cb07e167f2efe161799e3b2fef6824a27"", ""simhash"": ""1:83815d9e8a4c7ee3"", ""pagerank"": {""raw"": 0.000000957971629497036, ""percentile"": 0.9812552778173553}, ""char_count"": 24481, ""word_count"": 3886, ""cardinality"": 1120, ""ocr_confidence"": 0.946}, ""casebody"": {""judges"": [], ""parties"": [""Canal Electric Company & others vs. Westinghouse Electric Corporation.""], ""opinions"": [{""text"": ""Abrams, J.\nPursuant to S.J.C. Rule 1:03, as appearing in 382 Mass. 700 (1981), a judge of the United States District Court for the District of Massachusetts has certified to us two questions of Massachusetts law concerning consequential damages under Article 2 of the Uniform Commercial Code in circumstances in which a limited contractual remedy has failed of its essential purpose. See G. L. c. 106, § 2-719 (1988 ed.). The questions certified are: “1. Assuming that the Westinghouse exclusive remedy failed of its essential purpose, is the provision entitled Limitation of Liability enforceable under the circumstances alleged in this case? 2. Assuming that the provision entitled Limitation of Liability is enforceable even if the Westinghouse exclusive remedy failed of its essential purpose, is such provision enforceable so as to bar remedies against Westinghouse under Mass. G. L. c. 93A?” We answer both questions in the affirmative.\nThe plaintiffs are electric utility companies that allege that they incurred substantial losses as a result of the failure of certain components of an electric generator manufactured by the defendant, Westinghouse Electric Corporation (Westinghouse). The record before us includes a statement of undisputed facts, an amended complaint and answer, and several other documents. For the reasons stated below, we answer the questions exclusively on the basis of the undisputed facts, which are substantially as follows.\nIn March, 1983, one of the plaintiffs, Canal Electric Company (Canal), purchased from Westinghouse a set of rotating blades for use in a steam turbine generator, and related services. Westinghouse shipped the blades to Canal on March 19, 1983, and installed them in the turbine generator.\nThe contract governing the sale was one of two Westinghouse selling policies, either Selling Policy 1701 or Selling Policy 1270. The parties are in disagreement concerning which selling policy governs the sale; however, the two selling policies are virtually indistinguishable for purposes of our answer to the certified questions. Both selling policies contained exclusive warranty provisions, exclusive (i.e., limited) repair or replacement remedies, and clauses limiting total liability to the contract or order price of the goods and related services. These “Limitation of Liability” clauses specifically excluded indirect, special, incidental, and consequential damages. Canal does not assert that the contract terms were unconscionable.\nWestinghouse sent Canal an invoice for the price of the blades on April 19, 1983. During an inspection on July 20, 1983, cracks were discovered in one or more of the blades. On August 8, 1983, Westinghouse issued to Canal a full credit for the price of the blades that had failed. The turbine generator returned to service on November 21, 1983, with replacement blades designed, manufactured, and installed by Westinghouse.\nThe case comes to us after a hearing in Federal court on Westinghouse’s motion for summary judgment. In addition to the statement of undisputed facts, the Federal judge has transmitted to us several other documents, including affidavits, exhibits, and an amended complaint, which in substance alleges wilful dilatoriness and repudiation of warranty obligations.\nBecause the certified questions come to us on the defendant’s motion for summary judgment, Canal asserts that in our answers we should resolve all factual disputes in its favor. The questions were certified to us pursuant to S.J.C. rule 1:03, supra, which provides that a certification order shall set forth “a statement of all facts relevant to the questions certified and showing fully the nature of the controversy in which the questions arose.” Id. at § 3 (2). The record before us is not fully developed on issues raised by Canal, as required by our rule, and those issues raise factual disputes that are not resolved. Nevertheless, we conclude that we can answer the certified questions if we confine our answers to the undisputed facts. We add that if, in the future, the “questions certified to us . . . are not accompanied by sufficient nonhypothetical, evidentiary facts to allow us to adequately determine” the answers, we may decline to answer such questions. See Schlieter v. Carlos, 775 P.2d 709, 711 (N.M. 1989). In this case, we confine our answers to the undisputed facts.\n1. Question One. “Assuming that the Westinghouse exclusive remedy failed of its essential purpose, is the provision entitled Limitation of Liability enforceable under the circumstances alleged in this case?” We answer that the exclusion of consequential damages is enforceable on the undisputed facts.\nCanal contends that, because the limited repair or replacement remedy failed of its essential purpose (an assumption all parties make for purposes of the certified question), it is entitled to all the remedies for breach provided in the Uniform Commercial Code that would otherwise be excluded by the “Limitation of Liability” clauses of the selling policies, including consequential damages. Canal relies on G. L. c. 106, § 2-719 (2), which provides: “Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this chapter [i.e., the Code].”\nWestinghouse, on the other hand, argues that Canal is barred from recovering consequential damages despite the failure of the limited remedy, relying on G. L. c. 106, § 2-719 (3), which provides: “Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable.” Westinghouse asserts that the consequential damages disclaimer survives the failure of the limited remedy, because it is not unconscionable. Westinghouse argues that, even if Canal is entitled to direct and incidental damages, the disclaimer of consequential damages must stand because it is an entirely separate contractual provision from the limited remedy clause.\nNothing in § 2-719 or other provisions of the Code explains whether consequential damages may be recovered following the failure of a limited remedy if they are expressly excluded by a contract, as they are in this case. The tension between the two subsections of § 2-719 may be resolved by examining the purposes of the section as set forth in the Official Comment to § 2-719 of the Uniform Commercial Code, IB U.L.A. (Master ed. 1989). Comment 1 notes that “[u]nder this section parties are left free to shape their remedies to their particular requirements and reasonable agreements limiting or modifying remedies are to be given effect.” The comment continues: “However, it is of the very essence of a sales contract that at least minimum adequate remedies be available. If the parties intend to conclude a contract for sale within this Article, they must accept the legal consequence that there be at least a fair quantum of remedy for breach of the obligations or duties outlined in the contract.” Thus, § 2-719 was “intended to encourage and facilitate consensual allocations of risks associated with the sale of goods,” as long as minimum adequate remedies are available to a party injured by a breach. V-M Corp. v. Barnard Distrib. Co., 447 F.2d 864, 869 (7th Cir. 1971). Cf. Board of Directors of Harriman School Dist. v. Southwestern Petroleum Corp., 757 S.W.2d 669 (Tenn. App. 1988) (consequential damages disclaimer unenforceable when no minimum adequate remedy available).\nPreviously we noted that the consensual allocation of risk is not contrary to public policy. Minassian v. Ogden Suffolk Downs, Inc., 400 Mass. 490, 493 (1987). Recently, we enforced a contract clause excluding the recovery of consequential damages even when those damages exceeded the total contract price, as Canal alleges they do in this case. See Deerskin Trading Post, Inc. v. Spencer Press, Inc., 398 Mass. 118 (1986). “Limiting damages to a refund of the purchase price in the circumstances of this case, where the two parties are sophisticated business entities, and where consequential damages in the event of a problem could be extensive, is a reasonable business practice . . . .” Id. at 124. Like the contractual provisions in Deerskin Trading Post, the consequential damages disclaimer in the Canal-Westinghouse contract was a reasonable accommodation between two commercially sophisticated parties. See American Elec. Power Co. v. Westinghouse Elec. Corp., 418 F. Supp. 435, 458 (S.D.N.Y. 1976) (“the contract here in issue is not of the type entered into by the average consumer, but a commercial agreement painstakingly negotiated between industrial giants”). See also Employers Ins. of Wausau v. Suwannee River Spa Lines, Inc., 866 F.2d 752, 780 (5th Cir.), cert, denied sub nom. Employers Ins. of Wausau v. Avondale Shipyards, Inc., 110 S. Ct. 77 (1989).\nHere, Canal’s assent to the Westinghouse selling policies demonstrates a clear intent to accept the risk of consequential damages. The particular allocation of risk in the Westinghouse selling policies is one that has been recognized as common in the electric power generation industry. See, e.g., Public Serv. Co. of New Hampshire v. Westinghouse Elec. Corp., 685 F. Supp. 1281, 1289 (D. N.H. 1988). “Most utilities agree that manufacturers should not be expected to take [the risk of consequential damages] since they do not have any direct control over the magnitude of expense.” Ebasco Servs., Inc. v. Pennsylvania Power & Light Co., 460 F. Supp. 163, 181 (E.D. Pa. 1978). There is no reason to disturb an agreed-on allocation of risk that is standard in an industry simply because the agreement has proved expensive to one of the parties. See Employers Ins. of Wausau, supra at 780.\nMoreover, under § 2-719 (2), Canal may recover any non-consequential Code damages, despite the “Limitation of Liability” provision. It is undisputed that Westinghouse already has issued to Canal a credit for the full purchase price of the faulty blades. This, and any other non-consequential damages under the Code, is a “minimum adequate remedy.” See § 2-719, comment 1.\nAccordingly, on the limited facts before us, we conclude that the disclaimer of consequential damages is enforceable even though the limited repair or replacement remedy has failed of its essential purpose. The disclaimer of consequential damages is an entirely separate contractual provision from the limited repair or replacement remedy and thus survives the failure of the limited remedy. “The limited remedy of repair and a consequential damages exclusion are two discrete ways of attempting to limit recovery for breach of warranty. . . . The former survives unless it fails of its essential purpose, while the latter is valid unless it is unconscionable.” (Citations omitted.) Chatlos Syss. v. National Cash Register Corp., 635 F.2d 1081, 1086 (3d Cir. 1980). On the undisputed facts before us, then, we answer the first question affirmatively.\nIn so ruling, we follow the principle that “the agreed-upon allocation of commercial risk should not be disturbed . . . where . . . the warranted item is a highly complex, sophisticated, and in some ways experimental piece of equipment.” American Elec. Power, supra at 458. Recent cases, particularly ones involving contracts among sophisticated commercial entities like the parties in this case, generally follow this rule, although there is some disagreement among the courts. Cases awarding consequential damages generally arise from consumer transactions and involve “relatively uncomplicated products” like cars and tractors. Those facts are not present in this case.\nWe add that consequential damages are awarded in cases in which the facts show wilful dilatoriness or repudiation of warranty obligations by the seller. Although in its brief Canal argues wilful dilatoriness and repudiation, those facts are in dispute and thus are not properly before us. See Schlieter v. Carlos, 775 P.2d 709 (N.M. 1989). Our answer might well be different if such facts were established.\n2. Question Two. “Assuming that the provision entitled Limitation of Liability is enforceable even if the Westinghouse exclusive remedy failed of its essential purpose, is such provision enforceable so as to bar remedies against Westinghouse under Mass. G.L. C.93A?” We answer that it is, in the circumstances of this case.\nOnce the limited remedy failed of its essential purpose, Canal was entitled to all Code remedies for breach of warranty other than consequential damages. The question is whether Canal could validly waive its c. 93A, § 11, claim by assenting to the Limitation of Liability clause. We conclude that it could.\nA statutory right or remedy may be waived when the waiver would not frustrate the public policies of the statute. For example, in Continental Corp. v. Gowdy, 283 Mass. 204 (1933), we stated that a contractual waiver of statutory rights is permissible when the statute’s purpose is the “protection of the property rights of individual parties . . . rather than ... the protection of the general public.” Id. at 218. Cf. Minassian, supra at 493; Lee v. Allied Sports Assocs., 349 Mass. 544, 550 (1965).\nA statutory right may not be disclaimed if the waiver could “do violence to the public policy underlying the legislative enactment.” Spence v. Reeder, 382 Mass. 398, 413 (1981) . See Henry v. Mansfield Beauty Academy, Inc., 353 Mass. 507 (1968). Thus, we ordinarily would not effectuate a consumer’s waiver of rights under c. 93A. Compare Hannon v. Original Gunite Aquatech Pools, Inc., 385 Mass. 813 (1982) (consumer not required to submit to arbitration before proceeding on c. 93A claim), with Greenleaf Eng’g & Constr. Co. v. Teradyne, Inc., 15 Mass. App. Ct. 571 (1983) (stay of proceedings under c. 9 3A, § 11, pending arbitration proper when business plaintiff’s c. 93A claim was essentially a private dispute arising from commercial transaction). Although there might be certain c. 93A, § 11, claims that a business plaintiff could not waive, such as a claim sounding in antitrust, facts to establish such a claim have not been alleged or established.\nThis dispute is essentially a private one in which Canal’s c. 93A, § 11, claim is duplicative of its breach of warranty claim. General Laws c. 93A “is not subject to the traditional limitations of preexisting causes of action,” Slaney v. Westwood Auto, Inc., 366 Mass. 688, 704 (1975), but in some circumstances a c. 93A claim may be merely duplicative of a traditional contract claim. In Linthicum v. Archambault, 379 Mass. 381, 387 (1979), we noted that a business plaintiff could recover for “a material and substantial breach of warranty” under c. 93A, § 11. At the same time, we made clear that the c. 93A, § 11, claim was duplicative of the breach of warranty claim, because we permitted recovery only of actuai damages, combined with attorneys’ fees. Id. at 388. See McGrath v. Mishara, 386 Mass. 74, 85 (1982) (“We see no reason to believe that the Legislature intended in c. 93A to authorize cumulative damages ... for the same wrong”). Cf. Simon v. Solomon, 385 Mass. 91 (1982).\nIn this case, as in Linthicum, the c. 9 3A, § 11, claim arises from the breach of warranty and merely is an alternate theory of recovery under the contract. Moreover, the dispute is a purely commercial one that does not affect the public interest. See Chestnut Hill Dev. Corp. v. Otis Elevator Co., 653 F. Supp. 927 (D. Mass. 1987) (consequential damages disclaimer in contract barred recovery under c. 93A, § 11). See also Greenleaf Eng’g & Constr. Co., supra at 576; Flower World of Am., Inc. v. Wenzel, 122 Ariz. 319 (Ct. App. 1978). Nothing suggests that, in these circumstances, the waiver of the c. 93A, § 11, claim would frustrate the public policies of the statute. Thus, we conclude on the limited facts before us that the Limitation of Liability provisions require an affirmative answer to the second question.\nBased on the undisputed facts, we answer both certified questions, “yes.”\nCanal Electric, one of the plaintiffs, is in contractual privity with Westinghouse. The other plaintiffs áre Commonwealth Electric Company, Cambridge Electric Light Company, Montaup Electric Company, Boston Edison Company, Massachusetts Municipal Wholesale Electric Company, New England Power Company, and the Templeton Municipal Lighting Plant. They regularly purchase power from Canal. They seek damages for the cost of replacement power purchased during the time that Canal’s turbine generator was out of service. Because the question was not certified to us, we do not decide whether plaintiffs not in privity may recover consequential damages or damages under G. L. c. 93A. See G. L. c. 106, § 2-318. We limit ourselves to answering only the questions certified. See Cabot Corp. v. Baddour, 394 Mass. 720 (1985). We refer only to Canal throughout our opinion.\nIn its brief, Westinghouse “contends that it fully performed its warranty obligations by repairing the blades and returning the turbine to service. . . . [Sjolely for the purposes of this appeal, Westinghouse assumes the repair/replacement remedy failed of its essential purpose.”\nBecause Westinghouse confines its argument to the issue of consequential damages, we assume that Westinghouse does not argue that nonconsequential Code damages are not recoverable.\nSee, e.g., Employers Ins. of Wausau v. Suwannee River Spa Lines, Inc., 866 F.2d 752 (5th Cir. 1989); Lewis Refrigeration Co. v. Sawyer Fruit, Vegetable & Cold Storage Co., 709 F.2d 427 (6th Cir. 1983); Chatlos Syss. v. National Cash Register Corp., 635 F.2d 1081 (3d Cir. 1980); S.M. Wilson & Co. v. Smith Int’l, Inc., 587 F.2d 1363 (9th Cir. 1978); McKernan v. United Technologies Corp., 171 F. Supp. 60 (D. Conn. 1989); Smith v. Navistar Int’l Transp. Corp., 714 F. Supp. 303 (N.D. Ill. 1989); Harper Tax Servs., Inc. v. Quick Tax Ltd., 686 F. Supp. 109 (D. Md. 1988); Flow Indus., Inc. v. Fields Constr. Co., 683 F. Supp. 527 (D. Md. 1988); Cole Energy Dev. Co. v. Ingersoll-Rand Co., 678 F. Supp. 208 (C.D. Ill. 1988); Computerized Radiological Servs. v. Syntex Corp., 595 F. Supp. 1495 (E.D.N.Y. 1984), affd in part, rev’d in part on other grounds, 786 F.2d 72 (2d Cir. 1986); American Elec. Power Co., supra; County Asphalt, Inc. v. Lewis Welding & Eng’g Corp., 323 F. Supp. 1300 (S.D.N.Y. 1970), cert, denied, 404 U.S. 939 (1971); Carboline v. Oxmoor Center, 40 U.C.C. Reptr. 1728 (Ky. App. 1985); Xerox Corp. v. Hawkes, 124 N.H. 610 (1.984); Kearney & Trecker Corp. v. Master Engraving Co., 107 N.J. 584 (1987); Cayuga Harvester, Inc. v. Allis-Chalmers Corp., 95 A.D.2d 5 (N.Y. 1983); Stutts v. Green Ford, Inc., 267 S.E.2d 919 (N.C. App. 1980); Envirotech Corp. v. Halco Eng’g, Inc., 234 Va. 503 (1988).\nSee Fidelity & Deposit Co. of Md. v. Krebs Eng’rs, 859 F.2d 501 (7th Cir. 1988); R.W. Murray, Co. v. Shatterproof Glass Corp., 758 F.2d 266 (8th Cir. 1985); Fargo Mach. & Tool Co. v. Kearney & Trecker Corp., 428 F. Supp. 364 (E.D. Mich. 1977); Directors of Harriman School Dist. v. Southwestern Petroleum Corp., 757 S.W.2d 669 (Tenn. App. 1988).\nSee Massey-Ferguson, Inc. v. Laird, 432 So.2d 1259 (Ala. 1983); Caterpillar Tractor Co. v. Waterson, 13 Ark. App. 77 (1984); Clark v. International Harvester Co., 99 Idaho 326 (1978); Adams v. J.I. Case Co., 125 Ill. App. 2d 388 (1970); Goddard v. General Motors Corp., 60 Ohio St. 2d 41 (1979); Murray v. Holiday Rambler, Inc., 83 Wis.2d 406 (1978).\nSee, e.g., Fiorito Bros. v. Fruehauf Corp., 747 F.2d 1309 (9th Cir. 1984); Soo Line R.R. v. Fruehauf Corp., 547 F.2d 1365 (8th Cir. 1977); Jones & McKnight Corp. v. Birdsboro Corp., 320 F. Supp. 39 (N.D. Ill. 1970); Leprino v. Intermountain Brick Co., 759 P.2d 835 (Colo. App. 1988); Adams v. J.I. Case Co., 125 Ill. App. 2d 388 (1970).\nMany of the courts following the rule that consequential damages may be excluded even when a limited remedy has failed of its essential purpose have indicated that they might hold otherwise if bad faith or wilful dilatoriness could be shown. See, e.g., Chatlos Syss. v. National Cash Register Corp., 635 F.2d 1081, 1087 (3d Cir. 1980) (“This is not a case where the seller acted unreasonably or in bad faith”); S.M. Wilson & Co. v. Smith Int'l, Inc., 587 F.2d 1363, 1375 (9th Cir. 1978) (“The seller ... did not ignore his obligation to repair; he simply was unable to perform it”); Cole Energy Dev. Co. v. Ingersoll-Rand Co., 678 F. Supp. 208, 212 (C.D. Ill. 1988) (buyer failed to allege that seller was “wilful or dilatory in failing to meet its warranty obligations”); Kearney & Trecker Corp. v. Master Engraving Co., supra; Cayuga Harvester, Inc. v. Allis-Chalmers Corp., supra.\nThe parties also have used the term “bad faith” in their briefs. The cases on this issue generally refer to wilful dilatoriness or repudiation, not to bad faith.\nSelling Policy 1270 provides, in part: “Purchaser expressly agrees that the remedies provided therein are exclusive and that neither Westinghouse nor its suppliers will under any circumstances be liable under any theory of recovery, whether based on contract; on negligence of any kind, strict liability or tort . . . or otherwise . . . .” (Emphasis added.) Selling Policy 1701 provides, in part: “Westinghouse . . . shall not be liable in contract, in tort (including negligence), strict liability or otherwise .. . .” (Emphasis added.)\nWe note that the Federal District Court for the District of Massachusetts has issued conflicting holdings on this issue. Compare Chestnut Hill Dev. Corp. v. Otis Elevator Co., 653 F. Supp. 927 (D. Mass. 1987) (claim under c. 93A, § 11, waived by contract) with North Am. Consol., Inc. v. Kopka, 644 F. Supp. 191, 195 (D. Mass. 1986) (“it may be that the rule most protective of the public . . . would be the rule that claims of unfair and deceptive practices may never be prospectively waived by contract”).\nChapter 93A authorizes the award of attorneys’ fees as well as actual damages. Thus, a plaintiff suing both for breach of warranty and under c. 93A would be entitled, if successful, to actual damages plus attorneys’ fees, but not to double recovery plus fees. See Linthicum, supra at 388. In circumstances of knowing and wilful violation of c. 93A or of bad-faith refusal to settle, a plaintiff also may be entitled to double or treble damages under c. 93A itself. See International Fidelity Ins. Co. v. Wilson, 387 Mass. 841, 853 (1983) (distinguishing between “relatively innocent” violators of c. 93A, who are not liable for multiple damages and wilful or knowing violators who are liable for multiple damages)."", ""type"": ""majority"", ""author"": ""Abrams, J.""}], ""attorneys"": [""Mindy J. Spector of New York, & Edward P. Leibensperger {Jacqueline Prescott of New York, & James H. Cohen with them) for the defendant."", ""Sander A. Rikleen {Wendy B. Millman of New York with him) for Canal Electric Company & others."", ""Jeffrey N. Stevens, for Boston Edison Company, was present but did not argue."", ""John J. Kuzinevich & Ralph E. Loomis, for New England Power Company, were present but did not argue.""], ""corrections"": """", ""head_matter"": ""Canal Electric Company & others vs. Westinghouse Electric Corporation.\nSuffolk.\nNovember 8, 1989.\nJanuary 9, 1990.\nPresent: Liacos, C.J., Wilkins, Abrams, O’Connor, & Greaney, JJ.\nSupreme Judicial Court, Certification of questions of law. Uniform Commercial Code, Sale of goods, Damages, Unconscionability, Warranty. Contract, Sale, Unconscionability, Performance and breach, Damages. Sale, Contract of sale. Damages, Breach of contract. Consumer Protection Act, Businessman’s claim, Waiver. Waiver. Public Policy.\nA limitation of liability provision in a sales contract between an electric utility company and a manufacturer of generator components, excluding indirect, special, incidental, and consequential damages for breach of warranty, was enforceable, where the disclaimer was a reasonable allocation of risk by commercially sophisticated parties and where the contract provided a “minimum adequate remedy” for breach of warranty, even though that remedy, in the circumstances, had failed of its essential purpose. [372-377]\nA limitation of liability provision in a sales contract between an electric utility company and a manufacturer of generator components, excluding indirect, special, incidental, and consequential damages for breach of warranty, was enforceable to bar a claim for breach of warranty under the contract brought pursuant to G. L. c. 93A, § 11. [377-379]\nCertification of questions of law to the Supreme Judicial Court by the United States District Court for the District of Massachusetts.\nMindy J. Spector of New York, & Edward P. Leibensperger {Jacqueline Prescott of New York, & James H. Cohen with them) for the defendant.\nSander A. Rikleen {Wendy B. Millman of New York with him) for Canal Electric Company & others.\nJeffrey N. Stevens, for Boston Edison Company, was present but did not argue.\nJohn J. Kuzinevich & Ralph E. Loomis, for New England Power Company, were present but did not argue.""}, ""cites_to"": [{""cite"": ""387 Mass. 841"", ""year"": 1983, ""case_ids"": [908732], ""category"": ""reporters:state"", ""reporter"": ""Mass."", ""pin_cites"": [{""page"": ""853"", ""parenthetical"": ""distinguishing between \""relatively innocent\"" violators of c. 93A, who are not liable for multiple damages and wilful or knowing violators who are liable for multiple damages""}], ""case_paths"": [""/mass/387/0841-01""], ""opinion_index"": 0}, {""cite"": ""644 F. Supp. 191"", ""year"": 1986, ""case_ids"": [6052527], ""category"": ""reporters:federal"", ""reporter"": ""F. Supp."", ""pin_cites"": [{""page"": ""195"", ""parenthetical"": ""\""it may be that the rule most protective of the public . . . would be the rule that claims of unfair and deceptive practices may never be prospectively waived by contract\""""}], ""case_paths"": [""/f-supp/644/0191-01""], ""opinion_index"": 0}, {""cite"": ""759 P.2d 835"", ""year"": 1988, ""case_ids"": [10398378], ""category"": ""reporters:state_regional"", ""reporter"": ""P.2d"", ""case_paths"": [""/p2d/759/0835-01""], ""opinion_index"": 0}, {""cite"": ""320 F. Supp. 39"", ""year"": 1970, ""case_ids"": [5548455], ""category"": ""reporters:federal"", ""reporter"": ""F. 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+3886185,"{""id"": 3886185, ""name"": ""Lucille P. Briggs vs. Carol Cars, Inc."", ""court"": {""id"": 8825, ""name"": ""Massachusetts Supreme Judicial Court"", ""name_abbreviation"": ""Mass.""}, ""analysis"": {""sha256"": ""14788f8ed74808773ad0fa1bd279e060a201827794e1cde8b9d4b1c81559b482"", ""simhash"": ""1:b1a64757c2dd22e8"", ""pagerank"": {""raw"": 0.00000035648732264308585, ""percentile"": 0.8859995312468024}, ""char_count"": 13997, ""word_count"": 2375, ""cardinality"": 677, ""ocr_confidence"": 0.947}, ""casebody"": {""judges"": [], ""parties"": [""Lucille P. Briggs vs. Carol Cars, Inc.""], ""opinions"": [{""text"": ""O’Connor, J.\nThis is the defendant’s appeal from a judgment for the plaintiff entered in the Superior Court following a jury-waived trial. We transferred the case here on our own initiative. The dispute arises out of a sale by the defendant to the plaintiff of a used automobile which, the plaintiff contends, was defective. By her amended complaint, the plaintiff asserts numerous claims, only two of which we need to discuss in order to decide the case. Those two claims allege violations of G. L. c. 231, § 85J (1988 ed.), and c. 93A, § 9 (1988 ed.). The judge awarded damages on the claim under c. 231, § 85J, in the sum of $5,078.25 plus interest and costs, and on the claim under c. 93A, § 9, the sum of $1,700 for attorney’s fees.\nThe judge made detailed written subsidiary findings, which we set forth in relevant part in this and the next four paragraphs. On July 19, 1982, the plaintiff purchased a 1976 Plymouth Arrow automobile from the defendant for $2,895. She received a $1,300 trade-in allowance for her Volkswagen Rabbit automobile and financed the balance. The Plymouth carried a limited warranty for parts and labor on repairs to the engine, transmission, and rear end for thirty days or 500 miles, whichever came first. All repair work under the warranty had to be done at the defendant’s place of business.\nAt the time of the sale the defendant represented to the plaintiff that the automobile was in good condition, that it had had only one previous owner, and that it had low mileage. The defendant also told the plaintiff that it had repaired the radio and the gas gauge, and that it. had given the automobile a “mini tune-up,” i.e., it had changed the oil and oil filter and had installed new spark plugs. Before she bought the automobile, the plaintiff took it for a test drive but did not have a mechanic inspect it. The defendant knew that the vehicle was to be used to provide transportation for the plaintiff, who had no knowledge of automobile mechanics.\nOn July 21, the plaintiff noticed smoke coming from the exhaust, checked the oil, and found that it was down two quarts. From July 21 until July 30 she put nine quarts of oil into the automobile. From approximately July 23 on, the automobile stalled periodically, particularly when climbing hills. The plaintiff replaced the spark plugs, but the vehicle continued to stall, so on July 30 she had it towed to an automobile repair shop other than the defendant’s to have it checked out. The judge found that the plaintiff had driven the vehicle 583 miles at this point. The repairman found rust and rot on the “rear bumper support” and the “strut towers” and stated that they should be replaced. According to the judge’s findings, the repairman was “of the opinion that the car could be driven but considerable work on the engine and body needed to be done in order for the car to operate properly and safely.” He estimated that it would cost $1,530.97 to repair the vehicle. The plaintiff then contacted an attorney, who called the defendant on August 10.\nThe defendant inspected the vehicle while it was at the repair shop and agreed that the engine needed repair, but did not think that the rear bumper support and strut towers needed replacement. The defendant therefore offered to repair the engine, but refused to replace the strut towers or install a new engine and new rear bumper support. The plaintiff declined the defendant’s offer, asking for a full refund and the return of her Volkswagen Rabbit. The defendant refused the plaintiff’s request. On August 17, the plaintiff had her automobile towed to the defendant’s place of business and bought another automobile from someone else for $300 to replace the Plymouth. After the Plymouth was brought to the defendant’s premises, the defendant inspected it again and determined that the timing chain and gears needed replacement.\nOn September 7, the plaintiff, through her attorney, sent the defendant a thirty-day demand letter in which she requested damages in the amount of $3,473.25 for a c. 93A violation. The defendant responded on September 23, rejecting the plaintiff’s demand. Again the defendant offered to repair the engine, but refused to replace the rear bumper or strut towers. The defendant also offered to extend the plaintiff’s warranty an additional thirty days or 500 miles, whichever came first. The plaintiff refused the offer.\nAfter reciting her subsidiary findings, the judge set forth ultimate findings which we quote in material part as follows:\n“1. At the time of sale, the defendant expressly warranted the vehicle purchased by the plaintiff from it was in good condition.\n“2. The defendant’s representation that the vehicle in question was in good condition was a material misrepresentation of fact; . . . said misrepresentation was made with the intent that the plaintiff rely upon it; . . . it was made by the defendant with recklessness as to its truth where it could readily have ascertained the truth of the matter; ... the plaintiff did in fact rely upon said representation, and ... as a result the plaintiff sustained actual damages in the sum of $1,692.75. Said actual damages represent the trade in allowance of $1,300 on the plaintiff’s old car, the sales tax and registration fee paid in the sum of $92.75, and the cost of substitute transportation for a replacement vehicle in the sum of $300.00.w The plaintiff has failed to prove by a fair preponderance of the evidence, any other actual damage sustained.\n“3. The plaintiff is entitled to recover under the provisions of G. L. c. 231 Section 85J treble damages for the deceit in the sale of personal property as set forth in the preceding paragraph. The total damage awarded under said chapter would be $5,078.25 or three times the sum of $1,692.75, the actual out of pocket damages incurred by the plaintiff. (The Court in awarding damages, has measured the damage by actual out of pocket expenses based upon the circumstances of this case where the plaintiff has revoked acceptance and the Court has found said revocation acceptable.)\n66\n“8. The defendant, Carol Cars, Inc. is engaged in a trade or business for purposes of G. L. c. 93A Section 9 and the plaintiff is a consumer under said section.\n“9. The defendant’s misrepresentation as to the condition of the vehicle . . . above constitute [s an] unfair or deceptive act[ ] and practice[ ] under G. L. c. 93A Section 9.\n“10. As a direct result of [the] said unfair and deceptive act[ ] and practice [ ], the plaintiff incurred damage in the sum of $1,692.75 ....\n“11. Prior to instituting suit, the plaintiff mailed to the defendant a 30 day demand letter which complied with the provision of G. L. c. 93A Section 9.\n1 According to the evidence, the bank that financed the purchase repossessed the vehicle at the direction of the plaintiff’s counsel.\n“12. Within 30 days, the defendant tendered an offer of settlement which was not reasonable in light of the problems experienced by the plaintiff with the car and the lack of confidence plaintiff had in the continued operability of the car.\n66\n“14. The defendant’s representation of the condition of the car with reckless disregard of the truth or falsity of said statement constitutes a willful violation of G. L. c. 93A Section 9 which warrants an award of double damages, reasonable attorney fees and costs to the plaintiff. However, because the plaintiff will recover treble damages under G. L. c. 231 Section 85J for the same wrong on which the plaintiff’s violation of G. L. c. 93A is based, the plaintiff shall be awarded only reasonable attorney’s fees and costs under the count for violation of G. L. c. 93A and shall not be entitled to a duplicative recovery for damages.”\nGeneral Laws c. 231, § 85J, provides: “Whoever, by deceit or fraud, sells personal property shall be liable in tort to a purchaser in treble the amount of damages sustained by him.” The defendant argues that the judge was wrong as a matter of law when she concluded that the defendant’s representation that the Plymouth was in good condition constituted deceit or fraud within the meaning of § 85J. The defendant’s argument is twofold: first, the representation was not a statement of fact, but only of opinion, and, second, the judge erred in finding that the statement was recklessly made. Surely, the general rule is that, to establish fraud or deceit, a plaintiff must show that the defendant misrepresented a fact. Mere statements of opinion are not actionable at common law, Yerid v. Mason, 341 Mass. 527, 530 (1960), and cases cited, and it is reasonable to conclude that the Legislature did not intend them to be actionable under c. 231, § 85J. The question, then, is whether the judge was warranted in finding that the defendant’s representation as to the good condition of the vehicle was a statement of fact. We think that she was warranted in so finding. See John A. Frye Shoe Co. v. Williams, 312 Mass. 656, 664-665 (1942).\nFraud or deceit “may be perpetrated by an implied as well as by an express representation.” Robichaud v. Owens-Illinois Glass Co., 313 Mass. 583, 585 (1943). A statement that, in form, is one of opinion, in some circumstances may reasonably be interpreted by the recipient to imply that the maker of the statement knows facts that justify the opinion. Restatement (Second) of Torts § 539 (1977). Such circumstances were present in this case in which an uninformed person purchased a used vehicle from a dealer in such items. The defendant’s representation that the vehicle was in good condition reasonably implied that it was safe and operable and that the vehicle’s oil requirements would be far less than they turned out to be. Therefore, we reject the defendant’s argument that its representation concerning the good condition of the Plymouth was not a statement of fact.\nWe also reject the argument that the judge erred in concluding that the defendant’s representation was recklessly made. It is enough that the judge found on adequate evidence that the defects in the vehicle were readily ascertainable by the defendant. If a statement of fact which is susceptible of knowledge is made as of one’s knowledge and is false, it may be the basis of an action for deceit. Pietrazak v. McDermott, 341 Mass. 107, 109-110 (1960). See Kozdras v. Land/Vest Properties, Inc., 382 Mass. 34, 43 (1980); Glickman v. Brown, 21 Mass. App. Ct. 229, 235 (1985) (“a negligent misrepresentation of fact the truth of which is reasonably capable of ascertainment is an unfair and deceptive act or practice within the meaning of c. 93A, § 2 [